« PreviousContinue »
DIGEST OF CASES.
recourse to prior parties. There the drawee is estopped from setting up a state of facts which would practically operate as a fraud on the holder.
The decision in the Bank of the United States v. Bank of Georgia (10 Wheat. 334), holding a bank concluded by receiving its own bank bills which had been fraudulently altered, and crediting them as cash, seems to have depended upon the special circumstances of that case.
Neither that nor other cases establish that an agent, having authority to retire genuine notes of his principal, not yet due, can conclude his principal by purchasing forged notes ; still less that the government can be concluded by such an unauthorized act of a subordinate officer.
There is no material difference, in this respect, between this case and any other purchase, by an agent, where a mutual mistake of fact is discovered after payment of the consideration. Jay Cooke et al. v. U.S., Int. Rev. Rec., June 1 and 8, 1874.
VOLUNTARY CONVEYANCE. TRUST DEED MAY BE SET ASIDE IN EQUITY. — It appearing that a voluntary deed of trust, which did not reserve a power of revocation, the consideration of which was nominal, which was given without legal advice, and misunderstood by the grantor, was set aside and cancelled, notwithstanding that the grantor's infant children were beneficiaries under the deed.
Runyon, Chancellor, writes: "In Villers v. Beaumont, decided in 1982, the lord chancellor said: “If a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, this court will not loose the fetters he hath put on himself, but he must lie down under his own folly.' Recent cases, however, have narrowed the doctrine, and have held not only that the absence of a power of revocation throws on the person seeking to uphold the settlement the burden of proving that such a power was intentionally excluded by the settlor, and that in the absence of such proof the settlement may be set aside, but that equity will set aside the settlement on the application of the settlor where it appears that he did not intend to make it irrevocable, or where the settlement would be unreasonable or improvident for the lack of a provision for revocation.
• It is not necessary, however, to rest a decision of this case adverse to the deed on so narrow a foundation as the mere absence of a power of revocation. The circumstances under which a voluntary deed was executed may be shown, with a view to impeaching its validity, and if it appears that it was fraudulent or improperly obtained, equity will decree that it be given up and cancelled. Garnsey v. Mundy, Am. Law Reg., June, 1874.
BY WIDOW FOR MEDICAL SERVICES. - A widow who voluntarily pays for medical attendance upon her deceased husband cannot recover the amount paid against his estate. France's App., Leg. Gazette, May 29, 1874; Leg. Int., May 29, 1874.
KOELGES v. GUARDIAN MUTUAL LIFE INS. CO.
Upon the trial of a case the plaintiff proved that a certain pamphlet had been issued but did not introduce it in evidence. In his address to the jury he was permitted to read from it, to which defendant objected. Held, that there was error and ground for reversal in the appellate court.
OPINION by GRAY, Commissioner. The issue on trial was whether the policy upon which the plaintiff sought to recover had been forfeited by reason of the failure of the assured to comply with its terms. The plaintiff proved the issuing of a pamphlet by the defendant, but did not offer it in evidence. The plaintiff's counsel in summing up, notwithstanding the objection by the defendant's counsel, that the pamphlet had not been offered in evidence, was permitted to read from it and state its contents to the jury, the judge holding that he might do so by way of summing up, to which the defendant excepted, and as a part of what the judge permitted to be done by way of argument, the counsel stated the contents of portions of the pamphlet, saying among other things, that it contained the words “ non-forfeitable policies " upward of forty times. This was a manifest error on the part of the judge, and one of the character of errors which on the trial of causes often results in unjust verdicts. Permitting the pamphlet to be thus read and its contents stated was more in the nature of admitting its statements in evidence than a summing up upon the evidence legitimately before the court and jury. It is possible that the error did not result in harm to the defendants. When an error of this kind, persisted in by counsel, has the sanction of the presiding judge, it can hardsy be supposed (considering the respect shown by jurors to the court) that what occurred did not prejudice the defendant, and may not, like any other error committed that way, have prejudiced the objecting party with the jury. It is for the party in whose favor the error is committed to show affirmatively that the verdict must have been as it was, notwithstanding the error.
We cannot say that the error was harmless, and must, therefore, reverse the judgments of the general term and circuit, and order a new trial.
NOTES OF New Books.
NOTES OF NEW BOOKS. Messrs. ROBERT CLARKE & Co. of Cincinnati have ready volumes 1 and 2 of their republication of the Ohio State Reports. It is proposed to issue two volumes every month until the series is complete. The Ohio State and Ohio Reports, embracing all the published decisions of the Supreme Court of the State to the present time, are to be furnished at the unprecedentedly low price of $107.50, or $2.50 a volume.
The same House announce a new and comprehensive Ohio Digest, by Hon. J. Bryant Walker and Clement Bates, which will be furnished to subscribers before publication at $12. The work is to be in two volumes and the price $15.
Memories OF WESTMINSTER HALL, by Edward Foss. Messrs. Cockroft & Co. of Chicago offer a fine illustrated edition of this interesting work in two volumes. Price $7.
Messrs. SUMNER, WHITNEY & Co., of San Francisco, have recently issued a rolume entitled California Citations, the name of which indicates its nature. It has been prepared by Robert Desty, Esq., and is printed in a most satisfactory manner, the type being well adapted to the character of the book. Like all works of its class it has a standard value, and merits the favorable consideration of the profession. Price $7.50.
Adams's and Durham's Real Estate Statutes and Decisions will be published by Messrs. Callaghan & Co., of Chicago, during the present month.
THE FOURTH VOLUME OF Bissell's Reports is announced as in press by the same publishers. Mr. Bissell's series is one of exceptional value to the practitioner in the Federal courts. A large number of the opinions it contains are by Judge Drummond, whose views are of great weight in every section of the country.
Messrs. COCKROFT & Co., of New York, are prepared to supply the first volume of a new edition of Campbell's Lives of the Lord Chancellors. The volumes are illustrated by Speigle and others, handsomely printed, and will be issued monthly at $3.50 a volume.
Messrs. BAKER, VOORHis & Co. have issued a pamphlet embracing all the U. S. statutes concerning bankruptcy, including the act of June 22, 1874. Price 75 cts.
A SECOND EDITION OF Flanders on Insurance will be published in the course of a few weeks by Messrs. Claxton, Remsen & Haffelfinger of Philadelphia.
THE FIRST NUMBER of the new series of the Psychological and Medico-Legal Journal has made its appearance. Dr. Hammond resumes the editorship, and the work is published by F. W. Christern, 77 University Place, New York. It is greatly to be hoped that the new series will meet with the success it merits. The first number is in every respect attractive. Subscription price $5.
THE AMERICAN LAW TIMES.
NEW SERIES. - SEPTEMBER, 1874. – VOL. I., No. 9.
DIGEST OF CASES
PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI
Albany L. J......
Am. Law Rec...
Am. Law Reg..
Cent. L. J.....
Chicago L. N.
Ins. L. J......
Int. Rev. Rec.....
WEED, PARSONS & Co.
H. M. Moos. . American Law Register, Philadelphia, Pa.,
D. B. CANFIELD & Co. Central Law Journal, St. Louis, Mo.,
SOULE, THOMAS & WENTWORTK. Chicago Legal News, Chicago, III.,
CHICAGO LEGAL News Co. Daily Register, New York,
303 BROADWAY, N. Y. . Insurance Law Journal, New York,
C. C. HINE, 176 BROADWAY. .Internal Revenue Record, New York,
W. P. & F. C. CHURCH. ..Legal Chronicle, Pottsville, Pa.,
SOL. FOSTER, JR. Legal Gazette, Philadelphia, Pa.,
KING & BAIRD. . Legal Intelligencer, Philadelphia, Pa.,
J. M. POWER WALLACE. ..Monthly Western Jurist, Bloomington, Ill.,
THOMAS F. TIPTON. Pacific Law Reporter, San Francisco, Cal.,
J. P. BOGARDUS. .Pittsburg Legal Journal, Pittsburg, Pa.,
J. W. & J. S. MURRAY. ... Western Jurist, Des Moines, Iowa,
MILLS & Co. ADMISSIONS OF COUNSEL.
See EVIDENCE, 5.
Mo. West. Jur...
Pac. Law Rep.....
Pittsb. L. J.....
BANKRUPTCY. 1. SPECIAL DEPOSIT.
RATIFICATION. PREFERENCE. banker, having in his custody certain government bonds on special deposit as the property of B, used a portion of them, substituting in lieu of such as he used a note and mortgage equal in amount thereto. Shortly after the substitution B was informed of the same and signified his acquiescence by directing his attorneys to foreclose the mortgage and otherwise.
Digest Of Cases.
A having been adjudged a bankrupt, a bill was filed by the assignees to set aside the transfer" of the note and mortgage. Held, that B having ratified the substitution, the note and mortgage became his property as much as the bonds would have been had no substitution taken place; that there was no preference in the sense of the bankruptcy act, and that the assignees could not reach the note and mortgage. Cook v. lullis, Leg. Gazette, July 10, 1874.
2. THE ESTATE TAKEN BY AN ASSIGNEE OR TRUSTEE is the estate of the bankrupt -- no more and no less. And it is subject to all legal and equitable claims in their hands, and all the equities hold good against them which might have been urged against the bankrupt had there been no assignment. 16.
COMMON CARRIER. NOT LIABLE BEYOND ITS OWN ROUTE. A common carrier is not liable for the loss of goods, where such loss occurs beyond the terminus of its own route, even if the goods are received and marked for a point upon another route. Berg v. Narragansett Steamship Co., N. Y. Court of Common Pleas, Daily Reg., July 23, 1874.
CONSTITUTIONAL LAW. 1. GENERAL AND SPECIAL LAWS. – CORPORATION. — A state constitution provided that “corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes.
AU general laws and special acts passed pursuant to this section may be altered from time to time, or repealed."
The legislature passed an act conferring certain privileges upon a corporation, which concluded as follows: “ This act shall not take effect unless the parties named in section one shall, within sixty days after its passage, duly organize themselves in conformity with the existing laws regulating corporations now in force in this State." Held, that the act was an infraction of the provision quoted. San Francisco v. Spring Valley Water Co., Pac. Law Rep., July 7, 1874.
2. THE ILLINOIS “GRAB LAW.” - ACT OF APRIL 16, 1869, UNCONSTITUTIONAL. — Held, that the act of April 16, 1869, of Illinois, entitled “ An act to fund and provide for paying the railway debts of counties, townships, cities, and towns” is unconstitutional, because it provides for the imposition of a higher rate of tạxation for state purposes on taxable property, in counties which have no outstanding indebtedness incurred in aid of the construction of railways, than is imposed on taxable property in counties which have such indebtedness. Ramsey v. Hoeger, Cent. L. J., July 2, 1874; Mo. West. Jur., July, 1874.
See PATENT; USURY.
CONTRACTS. RESTRAINT OF TRADE. — A steamship company engaged in the business of transportation on the rivers, bays, and waters of California sold one of their steamers to another company which was engaged in a similar business on the Columbia and its tributaries in Oregon, provided the latter company would agree that the steamer should not be used in the