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Vol. I.

Digest or CASES.

[No. 10.

ESTOPPEL. DECREE AT SUIT OF STOCKHOLDER WHERE THE CORPORATION WAS NOT A PARTY. — In an action in a state court by a city against a railroad corporation to collect certain taxes, the answer set up by way of estoppel a decree rendered in a United States court, at the suit of a stockholder, which enjoined the collection of the taxes in question. It did not appear that the suit was prosecuted for the benefit of the corporation or in its behalf, nor that the corporation knew of the pendency of the proceedings or claimed the benefit thereof. Held, that there was no estoppel ; that the corporation was neither party nor privy to the suit; that the decree would not have bound the defendant if it had been adverse to the plaintiff therein, which was necessary to constitute it a bar to the present action, it being well settled that a former adjudication must have the effect to equally estop both parties to be conclusive. Davenport v. Chicago R. R. R. Co., West. Jur., August, 1874.

See TAXATION, 2, 3.

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EVIDENCE. 1. PROOF OF FRAUD. — An offer to prove the circumstances alleged to establish fraud should not be refused on the ground that the fraud complained of is merely inferential. Fisher v. Doty, Leg. Int., August 14, 1874.

2. THE COMPETENCY OF A WITNESS, not subject to objection before the passage of an act permitting parties to testify, is not affected by such an act. McFerran v. Mont Alto Iron Co., Leg. Int., August 21, 1874 ; Leg. Chron., August 29, 1874.

3. THE CREDIBILITY OF AN ADVERSE WITNESS may be assailed by proof that he cherishes a feeling of hostility towards the party against whom he is called ; and it may be established, by proof of the acts or declarations of the witness, provided his attention is first called to the particular acts or declarations proposed to be proved, with sufficient minuteness as to time and circumstance, to afford him an opportunity to explain. Silvey v. Hodgden, Pac. Law Rep., July 14, 1874.

4. WIFE AS WITNESS IN ACTION BY HUSBAND AND WIFE FOR INJURY TO LATTER. — In an action by husband and wife for injuries to the latter, the wife is a competent witness. Harriman v. Stowe, Cent. L. J., August 13, 1874.

5. DECLARATIONS TO PHYSICIAN AT TIME OF ACCIDENT. – A party who had sustained an injury stated to a physician shortly after the injury took place that it was caused by falling through a trap-door. Held, that such statement was admissible as part of the res gesta. Ib.

6. EVIDENCE TO SHOW IMPROPER SPEED OF TRAIN NEAR RAILROAD CROSSING. — A witness testified that he saw a train, which ran against plaintiff's wagon, before it reached the crossing where the accident occurred, and at the distance therefrom of nine hundred feet, and that it was running at the rate of fifteen miles an hour, and no bell was rung or whistle sounded. The evidence was objected to as the train was not seen by the witness at the place of the accident. The object in introducing it was to show want of care on the part of the persons in charge of the train.

rred, and wagon, before testified that SPEED OF® gestæ.

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DIGEST OF Cases.

No. 10.

Held, that the evidence was competent, it being necessary to slacken speed at a distance from the point where thedesired rate is to be attained. It was for the jury to determine whether, in the exercise of proper care, the whistle ought to have been sounded or the brakes applied at the place where the train was when seen by the witness. Black v. Burlington fc. R. R. Co., West. Jur., August, 1874.

See CORPORATION ; PLEADING AND PRACTICE, 5.

FIXTURES. HOUSE SET UPON BLOCKS. - PORTABLE FENCE. – A house set upon blocks which rest upon the surface of the ground, and which may be removed without disturbing the land, is not a part of the realty. Nor is a portable fence. Tennybecker v. McDougal, Pac. Law Rep., July 14, 1874.

FRAUDULENT CONVEYANCE. A CONVEYANCE BY HUSBAND TO WIFE of his interest in real estate, subject to a lien of unpaid purchase money, at a time when he owed no other debts, is not fraudulent. Nippe's App., Leg. Int., Aug. 28, 1874.

INDIAN LANDS. THE GRANT OF THE OSAGE LANDS to the Leavenworth, Lawrence & Galveston Railroad Company expounded by Mr. Justice Miller. U. S. v. L., L. f G. R. R. Co., Cent. L. J., Aug. 27, 1874.

INSURANCE. 1. DENIAL OF LIABILITY. - PROOF OF LOSS. — A denial of liability of the company to pay the loss is to be regarded as a waiver of proof of loss. Parker v. Amazon Ins. Co., Ins. L. J., August, 1874.

2. A MISTAKE BY AN AGENT in filling out a policy does not vitiate it. Ib.

3. CONSTRUCTION OF POLICY. — MACHINERY. — The policy was issued on the “ engine and machinery” contained in a building “ used for the manufacture of tin-ware, sheet-iron, japanned and fancy painted ware."

The plaintiffs claimed damages for the destruction of “ 642 forming and cutting machines,” which appeared on trial to be “ dies” used in the cutting screw and drop presses, &c. Held, that insurance on the “machinery” included all the essential parts of the machinery, and as the articles could not be manufactured without the dies, they were covered by the policy. Seavey v. Central Mut. Fire Ins. Co. Ib.

4. CONSTRUCTION OF “SANE OR INSANE.” – A policy contained a condition that if the insured died by his own hand, sane or insane, the policy should be void. Held, that the plaintiff was bound by the condition, and the jury were instructed that if they believed that the insured took his own life, whether in the possession of his faculties or not, they should find for the defendant. Snyder v. Mut. Life Ins. Co. Ib.

5. MISREPRESENTATION IN APPLICATION. — In the application the question “ Have you ever had any serious illness, disease, or personal injury?” was propounded. The answer was “Small-pox thirty years

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DIGEST OF CASES.

(No. 10.

since.” It appeared that five years previously the assured had a severe fall upon his head, and was attended by a physician who treated the injury. Held, that there was such misrepresentation as to vitiate the policy. Ib.

6. CONSTRUCTION OF POLICY. — SPARK RISKS. — The policy covered certain wood and logs piled up along the line of a railroad, and was intended to insure only such property as actually belonged to the road, and not to cover “spark risks,” or property belonging to others, for which the railroad company would be responsible if ignited by sparks from the engines. A large amount of wood not belonging to the railroad company was destroyed by fire from the engines, for which the company settled, and then brought suit against the defendant. Held, that there was nothing on the face of the policy to indicate that it was intended to cover anything more than the plaintiff's own property. Monadnock R. R. Co. v. Man. Ins. Co. Ib.

7. THE MISSPELLING OF PLAINTIFF'S NAME in the proof of loss is of no consequence as long as there is no doubt as to identity. Hibernia Ins. Co. v. O'Connor, Ib.

8. CONSTRUCTION OF MARINE POLICY. — A policy contained the following clause: “ No vessel shall sail from the harbor of Gloucester after the 10th day of November next, on any voyage east of Cape Sable.” On the 13th of November she sailed from Gloucester and was damaged on the 20th. It was admitted in evidence that she was provided with everything suitable for a fishing voyage except bait, and the plaintiffs claimed that she was on her way to Eastport to procure it, and as the voyage was to Eastport, she was covered by the policy. Held, that if the vessel was really intended for the fishing grounds, the putting in at Eastport to procure bait was merely an incident to the voyage, and did not interfere with its destination and purpose. Friend v. Gloucester Mut. Fishing Ins. Co. Ib.

See BANKRUPTCY, 4; PLEADING AND PRACTICE, 4.

INTERNAL REVENUE. 1. INTEREST CERTIFICATES. — SCRIP DIVIDEND. — The N. Y. Central Railroad Company, in pursuance of resolutions of its directors, issued certain “interest certificates ” which ran as follows: “ Under a resolution of the Board of Directors of the company, passed Dec. 19th, 1868, of which the above is a copy, the New York Central Railroad Company hereby certifies that

being the holder of — shares of the capital stock of said company, is entitled to dollars, payable ratably with the other certificates issued under said resolution, at the pleasure of the company, out of its future earnings, with dividends thereon, at the same rates and times as dividends shall be paid upon the shares of the capital stock of the company.” Held, that such certificates were not to be regarded as stock or scrip dividends, and that a tax upon them as such was illegal. N. Y. C. R. R. Co. v. Bailey, Int. Rev. Rec., July 27, 1874.

2. TAXATION OF DIVIDENDS UNDER ACT OF JULY 14, 1870. — Section 15 of the Act of July 14th, 1870, made taxable those dividends which were declared for the earnings of the year 1871, and also those which were declared during that year, and limited the tax to those dividends only. The tax was to be imposed upon the dividends for that year, and

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[No. 10. also upon the dividends declared during the year 1871, and was thereafter to cease. Nat'l Park Bank v. Blake, Int. Rev. Rec., Aug. 24, 1874.

JUDGMENT.
See ESTOPPEL ; TAXATION, 3.

LEGAL REPRESENTATIVE.

See TRUST DEED.

MANDAMUS. COMPTROLLER OF STATE. — A mandamus will not lie to the comptroller of a state to compel him to countersign bonds. S. C. of Texas. Bledsoe v. International Ř. R. Co., Cent. L. J., Aug. 13, 1874. ,

MARRIED WOMAN. DEED OF. - MISTAKES in the deed of a married woman cannot be corrected in equity. Board of Trustees, fc. v. Davidson, Mo. West. Jur., August, 1874.

See EVIDENCE, 4.

MISNOMER.
See INSURANCE, 7; NEW TRIAL.

tanding unseheir mortgagas unknowess of attach time prese have been

MORTGAGE. 1. FORECLOSURE WHERE MORTGAGOR WAS IN CONFEDERATE ARMY. - NOTICE.—A, a resident of Missouri, entered the Confederate army in the year 1861. At the time of his doing so there were two mortgages upon certain real estate owned by him which were due, and, also, an overdue outstanding unsecured note. In 1862 and 1863 the mortgagees procured a foreclosure of their mortgages by constructive notice to A, on the ground that his place of residence was unknown; and the unsecured creditor obtained judgment upon the note by process of attachment.

After the lapse of more than three years, the time prescribed by a statute of Missouri within which a petition for review might have been heard, A filed his bill in a United States court praying that all the proceedings be declared void for want of jurisdiction, in that the orders of publication were false, and for other reasons. Held, that the bill was without equity; that A had been guilty of laches, and, in any aspect of the case, was not entitled to a decree. McQuiddy v. Ware, Chicago L. N., July 25, 1874.

See BANKRUPTCY, 3; TRUST DEED.

one than" process; and notice

NATIONAL BANK.
See REMOVAL OF CAUSES, 2; TAXATION, 1.

NEGLIGENCE. 1. INJURY TO PASSENGER TRAVELLING ON FREE PASS. — A party travelling upon a pass conditioned as follows : “ The person who accepts

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Digest Of Cases.

(No. 10.

. R. W. the part of the

the

INJURYugust 28, 1874

and uses this free ticket thereby assumes all risk of accident, and agrees that the company shall not be liable under any circumstances, whether of negligence of its agents or otherwise, for any injury of the person, or for any loss or injury to his property, while using or having the benefit of it,” was injured and brought an action for damages. Held, that the conditions of the pass did not protect the company from liability, even if the injury was caused by gross negligence on the part of the plaintiff. S. C. of Minn. Jacobus v. št. P. & C. R. W. Co., Cent. L. J., July 30, 1874; Leg. Int., August 28, 1874; Albany L. J., August 8, 1874.

2. INJURY TO SERVANT BY DEFECTIVE MACHINERY. — Discussion of the liability of railroad companies where its servants are injured by defective machinery. T. W. of W. R. R. Co. v. Frederick, Chicago L. N., August 15, 1874.

NEW TRIAL. WHERE PERSON NOT EMPANELLED HAS SERVED UPON THE JURY. — It is in the discretion of the court to grant a new trial in a case where a person not empanelled has served upon the jury, and the court will not grant such new trial unless substantial injustice has been done by a wrong juror having served.

An action came on to be tried before a common jury, and the name of Thomas Fox, being on the common panel, was called amongst others by the associate, whereupon one Thomas Cox, who was on the special jury panel, went into the box by mistake, served upon the jury, and took part in the verdict, which was given for the plaintiff. The defendant alleged afterwards that Cox was a friend of the plaintiff, and had purposely, and in the interest of the plaintiff, tendered himself as a juror, but this was denied by Cox in a letter written in answer to inquiries by the attorney of the plaintiff. Held, that it was in the discretion of the court to grant a new trial; and a rule for a new trial discharged. Wells v. Cooper, Leg. Int., August 28, 1874.

NOTICE.
See MORTAGAGE; SUNDAY.

NUISANCE.
A CHINESE LAUNDRY may be so conducted as to warrant the inter-
position of a court of equity to restrain it as a nuisance. Warwick v.
Wah Lee fo Co., Leg. Int., August 21, 1874.

pas given hof the plaimself as a jus by the a

PLEADING AND PRACTICE. 1. RETURN BY SHERIFF. — FOREIGN JUDGMENT. — RECITALS OF SERVICE IN RECORD. — A return to a summons by a sheriff is not necessarily defective by reason of a failure to set forth that service was made in his county.

But in an action upon a judgment rendered in another state the defendant has a right to show by proof that he has never been served with process, notwithstanding recitals in the record to the contrary. Knowles v. Logansport, fc. Co., Pac. Law Rep., July 21, 1874; Chicago L. N., August 1, 1874.

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