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Vol. I.]

DIGEST OF CASES.

[No. 9.

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of simplifying pleadings, has not lost its virtue, that whenever one justifies in a special plea an act which in itself constitutes at common law a wrong, upon the process, order, or authority of another, he must set forth substantially and in a traversable form the process, order, or authority relied upon, and that no mere averment of its legal effect, without other statement, will answer. In other words, if a defendant has cause of justification for an alleged trespass, and undertakes to plead it, he must set it forth in its essential particulars, so that the plaintiff may be apprised of its nature and take issue upon it if he desires, and so that the court may be able to judge of its sufficiency. Bean v. Beckwith, Leg. Gazette, July 3, 1874.

2. ASSUMPSIT AGAINST A BAILEE cannot be maintained for a mere loss or detention by negligence.

It should appear that there has been an actual conversion of the goods into money, at least that the circumstances are such as to raise a presumption to that effect, or that there has been fraud or unfair dealing or some other fact from which an implication of a promise may arise. Satterlee v. Melick, Leg. Gazette, July 10, 1874.

3. IN SUPREME COURT U. S. IN RESPECT OF EXCEPTIONS WHERE CASE IS TRIED BY COURT BELOW WITHOUT A JURY. — The supreme court of the United States will regard the findings of fact of a judge, where a jury has been waived, just as it would the findings of a jury.

Under the act of Congress which permits such a trial, the findings are in the nature of a special verdict, and requests or prayers for instructions made to control the final conclusion of the court as to the plaintiff's right to recover are not the proper subjects of exceptions. Mercantile Mut. Ins. Co. v. Folsom, Ins. L. J., July, 1874.

4. NONSUIT. — A U. S. CIRCUIT COURT has not the power to order a peremptory nonsuit against the will of the plaintiff. The defendant, however, may move the court to instruct the jury that the evidence is insufficient, and if the court refuse to so instruct, the refusal is a proper subject of exception. Ib.

5. CONTRACT. — CUSTOM. — EQUITY JURISDICTION. – A contract was made by the defendant to ship by the plaintiff certain boxes of bacon, some at of a cent per pound, and some at current rates of the day. Nothing was said between the parties when the contract was made, or before or after as to whether the rate was to be computed in gold or paper currency, or whether any sum for primage or average was to be added to the rate expressed. It was admitted that a custom existed, well known to defendant, where the contract was made and at the time it was made and long prior thereto, that the rate of freight was to be computed in gold, and that five per cent. was to be added to the freight for primage and average. Plaintiff proceeded in equity for a reformation of the contract. Held, that a court of equity was without jurisdiction, the custom being provable in an action on the contract. Mackenzie v. Schmidt, Am. Law Reg., July 18, 1874.

See REMOVAL OF CAUSES.

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PROMISSORY NOTE. ASSIGNMENT OF. – EFFECT OF STRIKING OUT. — When a party holds a promissory note by assignment, he and the assignor may by agreement strike out the assignment, and by so doing the legal title to the note, without reference to the equitable interest, will thus be restored or returned to the assignor. By erasing the indorsement the legal title reinvests in the assignor as effectually as if it had been reindorsed to him.

Whilst the mere delivery of a note on its sale to the purchaser passes the equitable title to the instrument, still the legal title remains in the payee if not indorsed, and, if so, then in the last indorsee. The equitable title passes by delivery, but the legal title only by assignment, or its equivalent.

And the striking out of an assignment is the equivalent of an indorsement to the next previous indorsee. Dempster v. West, Chicago L. N., July 11, 1874.

PUBLIC SCHOOL. COLORED CHILDREN. — The directors of a school district in Illinois, in order to prevent four colored children from attending the school in the district provided in pursuance of law, erected a small school-house, on the same lot where the other school-house stood, and, at the expense of the tax payers of the district, proposed to employ a teacher for the sole purpose of instructing the four colored children apart from the others in the separate building provided for that purpose. A bill was filed by certain of the tax payers to prevent the directors from misappropriating the public funds by carrying out their purpose as above recited. Held, that the relief prayed for should be granted. That the free schools of the State of Illinois are public institutions, and in their management and control the law contemplates that they should be so managed that all children within the district, between the ages of six and twenty-one years, regardless of race or color, shall have equal and the same right to participate in the benefits to be derived therefrom.

While the directors very properly have large and discretionary powers in regard to the management and control of schools, in order to increase their usefulness, they have no power to make class distinctions, neither can they discriminate between scholars on account of their color, race, or social position. Chase v. Stephenson, Mo. West. Jur., July, 1874.

RATIFICATION.
See BANKRUPTCY, 1.

REMOVAL OF CAUSES. 1. NOMINAL PARTY. — CITIZENSHIP. — ACT OF '67. — An action was brought for covenant broken, predicated on the covenants in a lease executed on the 16th of January, 1857, by A and B, citizens of New York, and trustees of the first mortgage on the Western Vermont railroad, to the defendants, also citizens of New York. The defendants asked the state court, in which the action was brought, in a petition addressed to it, to remove the cause on the alleged ground that A and B were mere nom

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inal parties to it, having no interest in the subject matter of the controversy, which was wholly between the Bennington & Rutland Railroad Company, a Vermont corporation, and themselves. This petition, with the proper affidavit of local prejudice annexed to it, together with the original writ, declaration, and pleas were transmitted to the circuit court of the United States for the district of Vermont. The plaintiffs, upon these papers, the certified copy of the lease, and the affidavits of certain persons that there were outstanding bonds of the Western Vermont Railroad which had not been converted into or exchanged for the stock of the Bennington & Rutland Railroad Company, nor in any other way paid or discharged, moved the court to remand the cause to the state court for want of jurisdiction.

The motion was denied, the court resting its decision on the ground that A, the surviving plaintiff, B having died, was only a nominal party to the suit. The case having been taken to the supreme court of the United States on writ of error, it was held that the circuit court was without jurisdiction, both the parties to the action being citizens of the same state. The act of 1867, on the subject of the removal of causes from the state to the federal courts, which extends the provisions of the act of 1789, so as to allow either the plaintiff or defendant to remove the cause for the reason stated, at any time before final judgment, does not change the settled rule that determines who are to be regarded as the plaintiff and the defendant. Knapp v. Troy f Boston R. R. Co., Chicago L. N., July 11, 1874; Int. Rev. Rec., July 20, 1874.

2. CONSTRUCTION OF ACT OF 1867 AS TO TIME WHEN REMOVAL MAY BE MADE. — A cause may be removed under the act of 1867 at any time before final trial. A trial before a jury in which the jury fail to agree is not to be regarded as a final trial. Clarke v. Del. $ Hudson River R. W. Co., Am. Law Reg., July, 1874.

See ENFORCEMENT ACT.

RESTRAINT OF TRADE.

See CONTRACT.

RETROACTIVE STATUTE.

See UsURY.

SALE.

WHEN ASSIGNEE OF MORTGAGEE MAY SELL MORTGAGED PREMISES. - A executed a note and mortgage to B, who afterward sold the note to C. Default having been made in the payment of the note, the mortgaged premises were sold by B, whose name had been erased from the back of the note by agreement with C in order that B might make the sale and C become the purchaser. At the sale C became the purchaser and B made him a deed. Held, that B could sell and C purchase. Dempster v. West, Chicago L. N., July 11, 1874.

SPECIAL DEPOSIT.
See BANKRUPTCY.

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SPECIAL LAW.
See CONSTITUTIONAL LAW.

SURVEY. PLAT AND MONUMENT. Held, that if there be a discrepancy between the location of a line as shown by a plat and monument, the latter should prevail. Lull v. City of Chicago, Chicago L. N., July 4, 1874.

TRADE-MARK. GEOGRAPHICAL NAME. — The name of a town or borough cannot be used as a trade-mark by one of its residents to the exclusion of other residents of such town or borough, even if the name was adopted prior to the act of incorporation. The adoption of the name as a geographical designation gives to it a public character which makes it the common property of the public for all legitimate purposes. The authorities do not conflict with this doctrine, but on the contrary support it. Glendon Iron Co. v. Uhler, Leg. Gazette, July 3, 1874; Leg. Chron., July 11, 1874.

TRADE NAME. EQUITY WILL NOT PROTECT PRIVATE PARTIES IN THE USE OF A FIRM NAME IMPLYING THAT THERE IS A CORPORATION. — A and B, the plaintiffs, were engaged in business, without an act of incorporation of any kind, under the name and style of the “Galaxy Publishing Company.” Defendants adopted the same name. Held, that plaintiffs having been guilty of a fraud upon the public in adopting a name that was calculated to mislead, could have no standing in a court of equity. McNair v. Cleave, Leg. Int., July 3, 1874.

TRESPASS.
See PLEADING AND PRACTICE, 1,

USURY. MUNICIPAL BONDS. — RETROACTIVE STATUTE. — CONSTITUTIONAL LAW. - In the year 1863 the town of Danville, Virginia, executed certain certificates of indebtedness, a part of which passed into plaintiffs' hands. In 1873 a law was enacted by the State of Virginia, one section of which was as follows: “No corporation shall hereafter interpose the defence of usury in any action, nor shall any bond, note, debt, or contract of such corporation be set aside, impaired, or adjudged invalid by reason of any. thing contained in the laws prohibiting usury.” Held, that said section was retroactive in its character, and embraced all contracts of corporations whether entered into before or after its adoption.

That although retroactive it was not an infraction of the Constitution of the United States, it being well settled, that although a statute may take away vested rights, it is not, for that reason merely, to be treated as repugnant to any provision of the federal organic law. Nor was it invalid as impairing the obligation of a contract; nor in contravention of the constitution of the State of Virginia.

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That usury laws are founded upon considerations of public policy, and are to be regarded as purely remedial and subject to the modification and control of the legislative department, even as applied to transactions which took place prior to their being in force.

Therefore in an action by the plaintiff against the town of Danville, the town could not plead usury. Danville v. Pace, Albany L. J., July 25, 1874.

WILL. 1. INTENTION. — MISTAKE AS TO VALUE BY TESTATOR. — Where it appeared that the testator was mistaken as to the value of his estate, and his intention was clearly to provide for a daughter, the allowance to such daughter was increased. Snyder's App., Leg. Gazette, May 15, 1874.

2. CONSTRUCTION. — LIFE ESTATE. — A will contained the following:

“ Item, I give and bequeath to my beloved wife Jane one third of all my personal property, and one third part of all the income, rents, and use of my real estate."

“ İtem, I do give and bequeath unto my son William all the residue and remainder of my estate, real or personal.” Held, that the wife took a life estate. France's App., Leg. Gazette, May 29, 1874; Leg. Int., May 29, 1874.

3. CONSTRUCTION LIFE ESTATE. - A will contained the following: “I give and bequeath to my beloved wife, Nancy Sinclair, all my estate both real and personal ; that is to say, all my lands, cattle, horses, farming utensils, household and kitchen furniture, with everything that I possess; to have and to hold during her life, and to do with as she sees proper before her death.Held, that the devisee had power to dispose of the real estate of testator. Brant v. Va. Coal & Iron Co., Chicago L. N., May 30, 1874.

4. UNHARVESTED CROPS go to the devisee of the land and not to the executor.

As against the heirs at law they go to the executor, but as against the devisee they do not. Dennett v. Hopkinson, Am. Law Reg., June, 1874.

HARVESTED CROPS in a barn pass by virtue of a bequest of “ all the household furniture and other articles of personal property in and about

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and other articles by virtue of Law Re

5. FUND FROM POLICY OF INSURANCE. — INFERENCES CONCERNING an intention on the part of a testator, by his will, to dispose of the fund arising from an insurance policy upon his life, will not be inferred from the fact that his bequests were ultimately found to exceed the whole amount of his estate exclusive of this fund; nor from the fact that he designated a person as the legatee of the residue of his property of every description whatsoever. The testator's intention to change the description which the law gives to this very peculiar species of property is not to be inferred from general provisions in his will, the fulfilment of which might require the use of such money, but must be explicitly declared. Hathaway v. Sherman, Ins. L. J., June, 1874.

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