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DIGEST OF CASES.
California waters for ten years from the year 1864. Three years afterwards the Oregon company sold the same steamer to the defendants, who were engaged in the business of transportation upon Puget Sound in Washington Territory, provided that the latter would agree that the steamer should neither be employed upon the rivers, bays, and waters of California nor on the Columbia River or its tributaries for ten years from the year 1867. Held, that under the accepted rule, that contracts in restraint of trade are divisible, the agreement last named could be divided without confusion or uncertainty, and the extra period of three years in reference to the California waters separated from that which was necessary to the protection of the Oregon company. That the contract first mentioned was unobjectionable. Supreme Court U. S. Opinion by BRADLEY J., CLIFFORD, SWAYNE, and DAVIS, JJ., dissenting. Oregon Steam Nav. Co. v. Winsor, Cent. L. J., July 16, 1874; Albany L. J., July 18, 1874.
See PLEADING AND PRACTICE, 5.
CRIMINAL LAW. CONFESSJON. — It is not error to submit an alleged confession to the jury on the evidence to say whether any improper influence was used, nor in charging that, if there was improper influence, the confession should be disregarded.
Disclosures drawn from a prisoner may be deductions of specific facts rather than confessions; and while such admissions are to be strictly guarded against improper influence, they are a lower order of evidence than actual confessions of guilt. A prisoner may admit a damaging fact without any intention of confessing his guilt. Brown v. Commonwealth, Leg. Chron., July 18, 1874.
See EVIDENCE, 3.
DAMAGES. FOR INJURY BY NEGLIGENCE OF RAILROAD. — The court below charged the jury as follows: " If the plaintiff, at the time of the injury, was engaged in a legitimate business, from which pecuniary profits had arisen and future profits might be reasonably expected, which business was interrupted or suspended in consequence of disabilities, physical or mental, inflicted by the negligence of the defendant, the loss of such anticipated profits is properly the subject of compensation in damages.” Held, that there was no error. The damages in cases like the present are to be arrived at by considering the reduction which has been wrought upon plaintiff's earning powers whether mental or physical, or both combined, and in order to do this properly reference must be had to the business in which he was engaged at the time of the accident. The [No. 9.
DIGEST OF CASES.
amount is a matter for the jury to determine from all the facts presented for their consideration. Penna. R. R. Co. v. Dale, Leg. Gazette, July 3, 1874 ; Leg. Chron. July 11, 1874.
EMINENT DOMAIN. POWER OF MUNICIPAL CORPORATION IN RESPECT OF. — The legislature is the sole judge of the necessity or expediency of exercising the right of eminent domain, and where it delegates the right to exercise the power, it delegates, also, the discretion as to when and under what circumstances such right shall be made use of. Hence, where the right to take private property for public purposes has been delegated to a municipal corporation, the corporation may determine as to the expediency of the taking, and if there be no other question, the courts are without any authority in the premises. There is, under such circumstances, no judicial question involved. Chicago, R. I. & P. R. R. Co. v. Town of Lake, Chicago L. N., July 4, 1874.
ENFORCEMENT ACT. AS TO REMOVAL OF CAUSES. — The provisions of the act of April 20, 1871, known as the “ Enforcement Act," do not warrant the removal of cases from a state to a United States court. Said act relates only to cases originally commenced in a federal court. People v. C. & A. Ř. R. Co., Cent. L. J., July, 9, 1874.
EQUITY JURISDICTION. See JURISDICTION; PLEADING AND PRACTICE, 5; TRADE NAME.
EVIDENCE. 1. PHOTOGRAPH AS EVIDENCE TO IDENTIFY PARTY, - A photograph may be introduced in evidence to identify a person. The process of producing photographs has come to be so generally understood and recognized as a means of taking correct likenesses that a court will not refuse to take judicial cognizance thereof. Udderzook v. The Commonwealth, Leg. Int., July 10, 1874.
2. THE HABITS OF A PERSON may be shown for purposes of identification. Thus the habit of intoxication may be proved and is entitled to such weight as the jury may give it. Ib.
. 3. WHERE TWO PERSONS ARE MURDERED at the same time and place, and under circumstances evidencing that both acts were committed by the same person or persons, and were part of one and the same transaction or res gestae, and tends to throw light on the motive and manner of the murder for which the prisoner is indicted, the death of the one and surrounding circumstances may be given in evidence upon the trial of a prisoner for the murder of the other, not as an independent crime, but as tending to show that the motive was one and the same that led to the two crimes at the same time. As part of the same res gestæ they explain each other. Brown v. Commonwealth, Leg. Chron., July 18, 1874.
4. TERMS OF ACCEPTANCE OF OFFER TO SELL — Evidence to show the terms of acceptance of an offer to sell real estate is competent. Clendenon v. Pancoast, Leg. Gazette, July 3, 1874; Leg. Chron., July 11, 1874.
5. ADMISSION OF COUNSEL AT FORMER TRIAL. — On the trial of a case it became necessary to prove the incorporation of the defendants, their existence, and that certain persons were officers of the corporation at a time specified in the declaration. To prove these facts the plaintiff offered evidence that, at a former trial, the defendants' counsel admitted them to be true. To the admission of this testimony the defendants objected, and offered proof that said facts were admitted for the purposes of the former trial, and that the plaintiff previously to the present trial had notice that the same would not again be admitted, but would be denied. Held, that the evidence was competent. Admissions by a party either in or out of court may be proved, but it does not follow that such party is estopped from denying them. Perry v. Waterproof Man. Co., Am. Law Reg., July, 1874.
See CRIMINAL LAW.
JURISDICTION. OF U. S. COURTS TO COMPEL PAYMENT OF MUNICIPAL BONDS. EQUITY JURISDICTION. — MANDAMUS. — A suit in equity was brought in a United States court by certain holders of bonds issued by what is called the Board of Levee Commissioners of the levee district for the parishes of C. and M. of the State of Louisiana. The board thus described was made a quasi corporation by the legislature of the State, with authority to issue the bonds and provide for the payment of interest and principal by taxes levied on the real and personal property within the district. The bill alleged a failure to levy these taxes and to pay the interest on any part of said bonds; that the persons duly appointed levy commissioners had resigned or pretended to do so for the purpose of evading this duty, and that they had applied to the judge of the district court, who was by. statute authorized to levy a tax on the alluvial lands to pay the bonds if the levee commissioners failed to do so.
The prayer for relief was that the levee commissioners be required to assess and collect the tax necessary to pay the bonds and interest, and, if after reasonable time they should fail to do so, that the district judge be compelled to do the same, and for such other relief as the case required.
No judgment at law had been recovered on the bonds or any of them, nor had any attempt been made to collect the money due by proceedings in a common law court.
Upon the above facts the bill was dismissed by the circuit court. Upon appeal to the supreme court, held, that it has been decided in numerous cases, founded on the failure to pay corporation or municipal bonds, that the appropriate proceeding is to sue at law, and by a judgment of the court establish the validity of the claim and the amount due, and by the return of an ordinary execution ascertain that no property of the corporation can be found liable to such execution and sufficient to satisfy the judgment. Then, if the corporation has authority to levy and collect taxes for the payment of the debt, a mandamus will issue to com
DIGEST OF CASES.
pel the levy of a tax to raise the amount necessary to pay the judgment. But unless there is some difficulty or obstruction in the way of this common law remedy, chancery can have no jurisdiction.
As to the point that by reason of the resignation of the levee commissioners no suit can be sustained against them so as to procure a judgment upon which to base a mandamus, it is sufficient that a court of chancery possesses no powers to compel persons to submit to its jurisdiction, not possessed by a common law court when the latter is competent to give relief.
The case of Rees v. Watertown, 1 Am. L. T. R. N. S., is decisive of the points at issue, and the bill was properly dismissed. Heine v. Board of Levee Commissioners, fc. Albany L. J., June 27, 1874.
LIMITATIONS. 1. JUDGMENT NOTE. — An action upon a judgment note is not barred by the statute of limitations applicable to an ordinary promissory note. The period prescribed in such a statute having intervened between the maturity of such a note and the entry of judgment upon it, it was held that the remedy was not barred. Morris v. Hannick, Leg. Int., July 17, 1874.
2. MEXICAN GRANT. — The statute of limitations of California does not begin to run against a confirmed Mexican grant, finally located under the act of Congress of 1860, until the patent issues. Leroy v. Carroll, Pac. Law Rep., June 23, 1874.
crediforsided that the seat articles of associatiAPPLICATIO
MEMBERSHIP. MEMBERSHIP OF BOARD OF BROKERS. — APPLICATION OF PROCEEDS OF SALE OF. — Under the articles of association of a board of brokers it was provided that the seat of a member who failed to settle with his creditors within a year from the time of his suspension, should be sold by the secretary, and the proceeds paid pro rata to his creditors in the board. Held, that the effect of the provision was to place the seat in the hands of the secretary as a pledge for the objects stated. Leech v. Leech, Leg. Int., July 3, 1874.
See EMINENT DOMAIN.
NEGLIGENCE. INJURY BY REASON OF DEFECTIVE HIGHWAY, WHERE PARTY HAD
DIGEST OF CASES.
BY PREVIOUS ACCIDENT LOST CONTROL OF HIS HORSE. - A, plaintiff's servant, was driving plaintiff's horse on a town road in plaintiff's buggy, and while so driving, by reason of an accident, which appeared to be unavoidable, the horse became detached from the buggy, and running away, furiously ran upon defendant's turnpike and upon a bridge, which had no railing, and over the side thereof, whereby he was injured. Prior to the horse becoming detached from the buggy A was thrown out, but for which, he testified, the horse would have been checked. It appeared, too, that the horse ran for some distance beyond the limits of any highway, and that the bridge was only thirty feet from the end of the town road upon which the breaking of the buggy took place. Held, that it having been found that A was not in fault, plaintiff was entitled to recover. Baldwin v. Turnpike Co., Am. Law Reg., July, 1874.
See DAMAGES; PLEADING AND PRACTICE, 2.
INVALIDITY OF STATE ENACTMENTS AFFECTING THE SALE OF PATENT RIGHTS. — An Illinois statute, passed to prevent fraud in the sale of patent rights, contained provisions as follows: The first section made it unlawful for any person to sell or offer to sell in any county in the State any patent right without first making the affidavit and proof required by the second section of the act.
The second section provided that any person desiring or intending to sell any patent right, before offering to sell the same, should submit to the clerk of the county court of the county in which he desired to pursue such business, for his examination, the letters patent and a certified copy thereof, and his authority to sell the right so patented, and at the same time make a prescribed affidavit; and if such clerk be satisfied that the right so intended to be sold had not been revoked or annulled, and that the applicant was at the time duly empowered to sell the same within such county, &c., the clerk should record the affidavit and letters patent, and give a certificate thereof.
The third section required any person to whom such certificate was issued, to exhibit the same on demand.
The fourth section provided that there should be written or printed in every promise, or obligation in writing, the consideration of which, in whole or in part, should be a patent right, the words, “ Given for a patent right, and all such obligation or promises, if transferred, shall be subject to all defences, as if owned by the original promisee.”
The fifth section imposed penalties for a failure to comply with the preceding sections.
The sixth section required the payment of three dollars to the county clerk for his services in taking proof. Held, that all of the sections recited were in conflict with the Constitution of the United States, and, therefore, void. Hallida v. Hunt, Chicago L. N., July 18, 1874.
PLEADING AND PRACTICE. 1. RULE AS TO PLEA JUSTIFYING TRESPASS UPON AUTHORITY OF ANOTHER. — It is an old rule of pleading, which, in the modern progress