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Vol. I.]

DIGEST OF CASES.

[No. 10.

also upon the dividends declared during the year 1871, and was thereafter Nat'l Park Bank v. Blake, Int. Rev. Rec., Aug. 24, 1874.

to cease.

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 R. R. Co., Cent. L. J., Aug. 13, 1874.

MARRIED WOMAN.

MISTAKES in the deed of a married woman cannot be
Board of Trustees, &c. v. Davidson, Mo. West. Jur.,

DEED OF. corrected in equity. August, 1874.

See EVIDENCE, 4.

MISNOMER.

See INSURANCE, 7; NEW TRIAL.

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.

NATIONAL BANK.

See REMOVAL OF CAUSES, 2; TAXATION, 1.

NEGLIGENCE.

- A party

1. INJURY TO PASSENGER TRAVELLING ON FREE PASS. travelling upon a pass conditioned as follows: "The person who accepts

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DIGEST OF CASES.

[No. 10.

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. St. 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. & 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 interposition of a court of equity to restrain it as a nuisance. Warwick v. Wah Lee & Co., Leg. Int., August 21, 1874.

VICE IN RECORD.

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PLEADING AND PRACTICE.

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1. RETURN BY SHERIFF. FOREIGN JUDGMENT. RECITALS OF SERA 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, &c. Co., Pac. Law Rep., July 21, 1874; Chicago L. N., August 1, 1874.

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DIGEST OF CASES.

[No. 10.

2. IN SUPREME COURT U. S. AS TO APPEAL OR WRIT OF ERROR. Where all the defendants will be affected they must all join in the writ or appeal. Simpson v. Greely, Chicago L. N., August 15, 1874.

3. MAINTENANCE OF LUNATIC CRIMINAL.The proper action by a county for money paid for the maintenance of a lunatic criminal is assumpsit. Directors v. County of Mountour, Leg. Int., August 28, 1874.

4. SERVICE AGAINST FOREIGN INSURANCE COMPANY.-Service of summons in a suit against a foreign insurance company upon a sub-agent appointed by a general agent is not good. Diffenderfer v. North America Life Ins. Co., Ins. L. J., August, 1874.

5. EVIDENCE. - SURPRISE.. CONTINUANCE. - In a case of surprise by the introduction of testimony which may be contradicted a continuance should be allowed. Beaumont v. Gray's Executors, Mo. West. Jur., Aug.

1874.

See BANKRUPTCY, 1, 2; NEW TRIAL; REMOVAL OF CAUSES; RE

PLEVIN.

PORTABLE FENCE.

See FIXTURES.

PROMISSORY NOTE.

ACCOMMODATION INDORSER. An accommodation indorser of a promissory note is to be regarded as an indorser in the usual legal sense. If there be more than one accommodation indorser, they sustain the same relations to each other as if the paper was an ordinary business note. The fact that each knew that the other was an accommodation indorser is immaterial in the absence of an agreement to share the liability. Kirschner v. Conklin, Am. Law Reg., August, 1874.

REMOVAL OF CAUSES.

1. A CORPORATION MAY REMOVE a case from a state to a federal court under the act of 1867. The necessary affidavit to procure the removal can be made by the proper officer of the corporation. Mr. Justice MILLER, DILLON, C. J. concurring. Farmers' Loan, &c. Co. v. Marquillan, West. Jur., August, 1874.

2. NATIONAL BANK. A national bank may remove a cause from a state to a United States court. The act of July 27, 1868, does not take away such right. Chatham Nat'l Bank v. Merchants' Nat'l Bank, Daily Reg., August 24, 1874.

REPLEVIN.

DAMAGES cannot be recovered in an action of replevin. Pennybecker v. McDougal, Pac. Law Rep., July 14, 1874.

RES ADJUDICATA.

See TAXATION, 3.

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DIGEST OF CASES.

[No. 10.

RESPONDEAT SUPERIOR.

AN AGENT is responsible for his own misfeasance, negligence, or wrong.
The doctrine of respondeat superior does not change his liability. Harri-
man v. Stowe, Cent. L. J., Aug. 13, 1874.

SET-OFF.

See BANKRUPTCY, 3.

SLANDER.

RULE AS TO WORDS WHICH IF TRUE SUBJECT PLAINTIFF TO INDICT-
MENT. — The slander complained of consisted in the words, "I saw her
(plaintiff) in bed with A." Fornication was not an indictable offence
where the suit was brought, and there was no averment or proof of special
damage. Held, that the words were not actionable. Pollard v. Lyon,
Pac. Law Rep., August 11, 1874.

SUNDAY.

NOTICE OF PROTEST RECEIVED UPON SUNDAY. - A notice of protest
delivered to an indorser, personally, on Sunday, is void; and the receipt
of such notice is not to be regarded as good upon the following day. To
be valid, the notice must be given upon a lawful day. Rheem v. Čarlisle
Deposit Bank, Am. Law Reg., August, 1874.

TAXATION.

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1. SHARES OF NATIONAL BANK. WHERE TO BE TAXED. The
shares of a national bank are to be taxed where the bank is located.
Strong v. O'Donnell, Leg. Int., Aug. 21, 1874; Leg. Gazette, August 28,
1874.

The pay-

2. TAX ON GROSS EARNINGS OF RAILROAD BY STATE.
ment by a railroad company of a state tax upon its gross receipts is not
to be regarded as a bar to the collection of a tax by a city upon the prop-
erty of the road within the limits of the city. Davenport v. Chicago, &c.
R. R. Co., West. Jur. August, 1874.

3. RES ADJUDICATA. INJUNCTION RESTRAINING THE COLLECTION

OF A TAX FOR ONE YEAR NO BAR FOR SUBSEQUENT YEARS.

A judg-

ment was rendered in a competent court restraining the collection of cer-
tain taxes levied upon the property of the defendant for the years 1863,
1864, and 1865. It was contended that such judgment worked an estop-
pel to collect the taxes for subsequent years. Held, that each year's taxes
constituted a separate cause of action, and that the determination of the
matters involved in the injunction suit, and the judgment therein, reached
no further than the taxes of the years in question. 16.

See CONSTITUTIONAL LAW, 1, 2; INTERNAL REVENUE.

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It was provided in a trust deed that in the event of the death of the trus-

Vol. I.]

IN RE TIVOLI BREWING CO.

[No. 10.

tee the sale of the property should be made by his "legal representative." The trustee having died, and a default which authorized a sale arisen, the property was sold by the trustee's administratrix. Held, that the sale was irregular and not in compliance with the deed. That as there was no grantee or assignee, and hence no "legal representative," in the sense in which the term must be held to have been used in the deed, a new trustee should have been appointed, or the trust deed foreclosed by bill in chan-. cery as an ordinary mortgage. Warnecke v. Lembca, Mo. West. Jur., August, 1874.

TRUSTEE.

CONFEDERATE MONEY.

LIABILITY OF. Where a guardian loaned money pertaining to his ward's estate and accepted payment in Confederate currency, he was held to be liable for the amount so loaned. But if any portion could not have been saved by the exercise of proper diligence during the war and afterwards, as to such portion there was no liability. Ferguson v. Lowry, Cent. L. J., August 20, 1874.

WARRANTY.

See CONTRACT.

WILL.

OMISSION OF NAME OF RESIDUARY LEGATEE. - A will was duly witnessed, a blank space being left for the name of the residuary legatee, which was subsequently inserted. Held, that the residuary bequest was no part of the will. Derr v. Greenawalt, Leg. Int., August 28, 1874.

DISTRICT COURT U. S.-SOUTHERN DISTRICT OF N. Y.

[JULY, 1874.]

BANKRUPTCY. PRACTICE UNDER ACT OF JUNE 22, 1874.
BASED UPON FAILURE TO PAY COMMERCIAL PAPER
THAN FORTY DAYS PRIOR TO PASSAGE OF SAID ACT.

IN RE THE TIVOLI BREWING CO.

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BLATCHFORD, J. The petition in this case, in involuntary bankruptcy, was filed June 19th, 1874. The only act of bankruptcy it alleges is the failure to pay commercial paper which fell due June 4th, 1874. As under the act of June 22d, 1874, no person can be adjudged a bankrupt for the failure to pay commercial paper, on a petition filed before the expiration of forty days from the maturity of the paper (instead of fourteen days, as under the former law), and as this provision applies to cases commenced since December 1st, 1873, this petition stands now as having been prematurely filed, and cannot be availed of after the expiration of the forty days, and cannot be amended, but must be dismissed, without costs.

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