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Vol. I.)

DIGEST OF CASES.

[No. 11.

viction and imprisonment.” Held, that the order did not amount to a pardon. Blane v. Rodgers, Pac. Law Rep., September 1, 1874.

6. DEPOSITION TO IMPEACH WITNESS, TAKEN UNDER COMMISSION AT THE EXECUTION OF WHICH WITNESS WAS NOT EXAMINED. — Where a witness denies a conversation with A, A's deposition may be received to impeach the witness although taken under a commission at the execution of which the witness was not examined. Pittsburg, fc. R. R. Co. v. Andrews, Am. Law Reg., Sept. 1874.

HOMESTEAD EXEMPTION.
See HUSBAND AND WIFE.

HUSBAND AND WIFE. 1. HOMESTEAD EXEMPTION. — ALIENATION BY HUSBAND WITHOUT CONSENT OF WIFE. — In the State of Tennessee it is now a rule of property, made permanent by the fundamental law, that every head of a family is deprived of the right to alienate the homestead, unless his wife joins in the conveyance. It follows that such conveyance is absolutely void, and communicates no title to the purchaser, so far as it abridges or interferes with the wife's homestead right, and the wife, by her next friend, has such an interest in the preservation of the homestead, as entitles her to invoke the protection of a court of chancery, by bill quia timet, to have the cloud upon her right removed, and her homestead rights declared. Williams v. Williams, Cent. L. J., Sept. 24, 1874.

2. CONSTRUCTION OF “LIVING APART FROM HUSBAND.”—“ Living apart from husband ” means, in contemplation of law, a permanent abandonment or separation. Tobin v. Galvin, Pac. Law Rep., Sept. 1, 1874.

3. COERCIVE PRESENCE OF HUSBAND. — A married woman cannot be convicted for selling liquor without license where the husband is coercively present — that is, in and about the house where the selling was done. Commonwealth v. Lindsey, Leg. Chron., Sept. 12, 1874.

4. TORTS OF WIFE. — The statute of Illinois known as the “Married Woman's Act,” which gives the wife sole control of her separate estate and her own earnings for labor performed for any person other than her husband or minor children, with the right to use and possess the property and earnings, free from the control or interference of her husband, has the effect of discharging the husband from liability for the torts of the wife committed out of his presence and without his participation. Martin v. Robson, Am. Law Rep., Sept. 1874.

5. PARTNERSHIP OF WIFE. — EFFECT OF ASSISTANCE OF HUSBAND IN BUSINESS, ETC. — ATTACHMENT. — A married woman has not capacity to enter into a general mercantile partnership not connected with or relating to her separate property, and where she assumes to do so with the consent of her husband, and is by him assisted in managing and carrying on the business, the husband, and not the wife, is to be regarded in law as the partner.

A feme covert having obtained a “ permit” to trade within the lines of the army, with the knowledge and consent of her husband entered into a partnership with other persons, for the purpose of buying and selling

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Digest Of Cases.

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goods and merchandise under said 6 permit," and herself, with the assistance of her husband, managed and conducted the business. The firm was subsequently dissolved, and its property transferred by the other partners to her, she agreeing to pay all the partnership debts. She then sold the property to S., who had notice of all the facts, and who in like manner agreed to pay the partnership debts. This was all done with the knowledge and concurrence of the husband, who joined her in executing the bill of sale to S. In an action by a creditor of the firm against the husband and the other members of the firm, not including the wife : Held, that the goods in the hands of S., or the price agreed by him to be paid therefor, and not yet paid, are liable to attachment in the action. S. C. of Ohio, Swasey v. Antrain, Am. Law Reg., Sept. 1874.

insured a letterricht. If not, the comps. Held, that the

INSURANCE 1. CANCELLATION OF POLICY. — SECRETARY OF COMPANY. — Upon the non-payment of certain assessments the secretary of an insurance company wrote the insured a letter which contained the following: “ If you have paid the agent you are all right. If not, the company will renew the policy when it is paid," and other similar statements. Held, that the letter was to be regarded as a cancellation of the policy. And that the secretary of the company was the proper organ of communication between the company and its policy holders. Columbia Ins. Co. v. Masonheimer, Leg. Int., Sept. 11, *1874 ; Pittsb. L. J., Sept. 22, 1874; Leg. Chron., Sept. 26, 1874.

2. RETROACTIVE CONTRACTS OF INSURANCE are as valid as those having relation to the future only, if the intent of the parties is clear, and the insured and insurer were both ignorant of the loss at the time of making the contract. Mercantile Ins. Co. v. Folsom, Leg. Gazette, Sept. 4, 1874.

3. CONCEALMENT. — The non-disclosure of a void tax title is immaterial. So is the failure to disclose that the title of the property insured is in litigation. Cheek v. Columbia Fire Ins. Co., Cent. L. J., Šept. 17, 1874.

4. WHERE THE COMPANY'S AGENT FILLS OUT THE POLICY any failure to state facts disclosed to him is a failure by the company which does not affect the policy. Ib.

JURISDICTION. FORCIBLE ENTRY AND DETAINER is a “suit of a civil nature," within the meaning of the act of 1789, of which a United States court has jurisdiction. Wheeler v. Bates, Chicago L. N., Sept. 19, 1874.

See ADMIRALTY, 6; PLEADING AND PRACTICE, 3.

LAND GRANT. CENTRAL PACIFIC RAILROAD GRANT. — MEXICAN GRANT. — RESERVED LANDS. — CONFIRMATION. — PATENTEE AS TRUSTEE. — The grant of alternate sections of land to the Central Pacific Railroad Company, under section 3 of the Act of Congress of July 1, 1862 (12 Stat. 492), is a present grant of the number of sections designated, which became specific and attached to every alternate section subject to grant, Vol. I.]

[No. 11.

Digest OF CASES.

oundan; said section therved.” lands withilid. Me

lying within the prescribed limits, as soon as the line of the road became «i definitely fixed.”

The grant having attached to the alternate sections the moment the line of the road became “ definitely fixed," could only be defeated by a failure of the grantee to perform the conditions subsequent of building the road within the time, and in the mode prescribed.

The fact that some of the alternate sections within the prescribed limits of the grant, at the time the line became - definitely fixed," were situate within the exterior limits of land claimed under an invalid Mexican grant, does not constitute such land “reserved ” lands within the meaning of that term, as used in said section three of said act. Lands lying within the exterior boundaries of land claimed under an invalid Mexican grant were a part of the domain of the United States on July 1, 1862, and were not, by reason of such claim only, within any of the exceptions mentioned in the act of Congress of that date, or of any of the acts supplementary thereto, granting lands to aid in the construction of the Pacific railroads, and the alternate sections of such lands, lying within the prescribed limits, to which no other right had attached at the time the line of the road became “ definitely fixed,” were within the terms of the grant to the railway company, and the title thereto became irrevocably vested in said company upon the performance of all the conditions prescribed by said several acts.

A decree rejecting a claim to lands under a Mexican grant, in proceedings had for a confirmation under the act of 1851, to settle land titles in California, is an adjudication between the claimant and the United States that the claimant bad no title, legal or equitable; and that, as to said claim, the land was always a part of the public domain of the United States, from the date of its cession by Mexico.

When the title to lands vested in the Central Pacific Railroad Company and its assignees, under the act of Congress of 1862, to provide for the construction of the Pacific railroads, and a patent to the same has been subsequently wrongfully issued to another party, a court of equity will convert the patentee in such patent into a trustee for the party in whom the title vested under the act, and compel him to convey such title as he acquired by the patent. Sanger v. Sargent, Pac. Law Rep., Sept. 22, 1874.

NEGLIGENCE. A PASSENGER ON A RAILROAD PERMITTING HIS ARM TO PROJECT OUT OF THE CAR WINDOW is guilty of such negligence that if injured by an obstacle too near the track he cannot recover. Pittsburg, fc. R. R. Co. v. Andrews, Am. Law Reg., Sept. 1874.

See ADMIRALTY, 8.

PACIFIC RAILROAD.
See LAND GRANT.

PARDON.
See EVIDENCE, 5.

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Digest OF CASES.

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PARTNERSHIP.

WHAT CONSTITUTES A PARTNERSHIP IN NEW YORK. — The test of partnership in the State of New York is a community of profits — a specific interest in the profits as profits — in contradistinction to a stipulated portion of the profits as a compensation for services. Leggett v. Hyde, Daily Reg., Oct. 3, 1874. See BANKRUPTCY, 4; HUSBAND AND WIFE, 5.

PERCENTAGES. PERCENTAGES OF UNITED STATES ATTORNEYS AND CLERKS. - The Act of June 22, 1874, to repeal moieties, &c., does not affect the right of district attorneys and clerks of United States courts to receive the percentages allowed them on moneys collected for the United States. U. S. v. One Horse, Int. Rev. Rec., Aug. 31, 1874.

PLEADING AND PRACTICE. 1. PRACTICE IN SUPREME COURT UNITED STATES. — Where there is a general finding in the court below, upon a submission of the facts, the rulings of the court during the progress of the trial are alone open to review in the supreme court of the United States. Mercantile Ins. Co. v. Folsom, Leg. Gazette, Sept. 4, 1874.

2. A STOCKHOLDER MAY BRING A SUIT when a corporation refuses to do so; but the corporation must be made a party. City of Davenport v. Dows, Leg. Gazette, Sept. 4, 1874.

3. TERRITORY. — POWER OF LEGISLATURE, ETC. — The declaration, in the organic act by which a territory is created, that the courts of such territory shall have jurisdiction over both legal and equitable remedies, without prescribing how they shall be exercised, warrants the territorial legislature in uniting the two jurisdictions. The practice, pleadings, and forms and modes of proceeding of the territorial courts, as well as their respective jurisdictions, subject to a few express or implied conditions in the organic act itself, were intended to be left to the legislative action of the territorial assemblies, and to the regulation which might be adopted by the courts themselves. Hornbuckle v. Toombs, Leg. Gazette, Sept. 18, 1874,

4. ADMIRALTY. — ALLEGATIONS IN LIBEL. — It is not necessary to allege in a libel" that the vessel is of twenty tons burden," nor that she was " enrolled for the coasting trade," nor that she was employed in the business of commerce," &c. And it is sufficient to describe a ship as “the ship A.” McMarren v. Kean, Chicago L. N., Sept. 5, 1874 ; Cent. L. J., Sept. 10, 1874.

5. WHERE ONE DEFENCE HAS BEEN made in the lower court it must be adhered to on appeal. Cheek v. Columbia Fire Ins. Co., Cent. L. J., Sept. 17, 1874.

6. EQUITY PRACTICE IN UNITED STATES COURTS. — REPLICATION. — “ It was suggested that many cases are actually heard in this court without replications, the bar not being generally familiar with the equity rules. This is doubtless so, the members acting in some cases upon the assump

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DIGEST OF CASES.

tion that the practice in equity cases, as at law, is governed by the state practice. When no objection is made for want of replication, the court has not taken the trouble to see that the rule has been strictly complied · with. The rules of the court, however, are very simple and plain, and must be observed.” SAWYER, J. Robinson v. Saterlee, Pac. Law Rep., September 8, 1874.

7. DEATH OF ONE OF THE DEFENDANTS. — JUDGMENT. — ATTACHMENT. — GARNISHMENT. — Where one of the defendants, in an action on a joint contract, dies before judgment, and the judgment is taken against all the defendants, without any suggestion of his death, or making his representatives parties, such judgment is not void, but merely voidable, and is a determination of the action, within the meaning of sections 218 and 219 of the Code, authorizing an action by the plaintiff in attachment against the garnishee. Swasey v. Antram, Am. Law Reg., Sept. 1874. See BANKRUPTCY, 1, 2, 3; EVIDENCE, 5; JURISDICTION.

PRINCIPAL AND AGENT. RIGHT OF PRINCIPAL TO RECOVER PROFITS MADE WITHOUT HIS KNOWLEDGE OR CONSENT. — Defendant was employed as broker by plaintiff to negotiate for the purchase of a ship on the basis of an offer for £9,000, but eventually the ship was purchased through the defendant for £9,250. Some time prior to the sale an arrangement had been made between the vendor and a broker named S., through whom the ship was sold, that if S. could sell the ship for more than £8,500 he might retain for himself the excess over that sum. Defendant, who at the time he was negotiating for the purchase knew of this arrangement, which was unknown to the plaintiff, received after the completion of the purchase from S. the sum of £225, as his share of the excess. Plaintiff having brought an action for money had and received to his use to recover the sum of £225 so received by the defendant, the jury found (1) that defendant was plaintiff's agent for the purpose of purchasing the ship as cheaply as she could be got; and (2) that the plaintiff could have got the vessel cheaper but for the arrangement between the vendor and S. Held, that the plaintiff was entitled to recover from the defendants the £225, on a count for money had and received. Morrison v. Thompson, Albany, L. J., Sept. 19, 1874.

See BANKRUPTCY, 1.

I to recot between the tiff could have ship as che

from the defendor and S. got the vessel" as she

PRINCIPAL AND SURETY. WHERE SURETY SIGNS UPON CONDITION THAT OTHERS SHALL SIGN. - Where a party signs and delivers his bond as a surety upon the express condition that others shall sign it as co-sureties, unless this condition is complied with it cannot be enforced against him. S. C. of Penna., Warfel v. Frantz, Leg. Int., September 11, 1874; Pittsb. L. J., September 22, 1874. To the contrary is Tidball v. Halley, Pac. Law Rep., September 1, 1874, çiting Dair v. United States, 16 Wall. 1, and other cases.

RIPARIAN RIGHTS. ERECTION OF EMBANKMENT. — NUISANCE. – A part of the city of

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