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DIGEST OF CASES.

[No. 11.

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 to do so; but the corporation must be made a party. v. Dows, Leg. Gazette, Sept. 4, 1874.

-

corporation refuses City of Davenport

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.

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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.

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, citing Dair v. United States, 16 Wall. 1, and other cases.

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DIGEST OF CASES.

[No. 11.

San Jose being subject to overflow in periods of floods, as was alleged, by reason of the existence of an embankment upon the defendants' land, a bill was filed by the city to have the embankment abated as a nuisance. The defendants replied that their embankment was not the real cause of the inundations of the city but that the same were to be attributed to the effects of extraordinary freshets, &c. The court announces the principles governing the case, giving judgment for the defendants. San Jose v. Parr, Pac. Law Rep., August 25, 1874.

SHIPPING.

BILL OF LADING. - EXCEPTION AGAINST LOSS BY THIEVES, BARRATRY, ETC. DAMAGE CAPABLE OF BEING COVERED BY INSURANCE. Plaintiffs shipped on board defendant's ship at Liverpool for New York certain boxes of diamonds, under bills of lading, excepting amongst other things, "robbers, thieves, barratry of the master and mariners,” and containing a clause that "the ship-owner is not liable for any damage to any goods which are capable of being covered by insurance." One of the boxes of diamonds was stolen when on board the ship, either on the voyage or after her arrival in port, before the time for delivery arrived, but there was no evidence to show whether they were stolen by one of the crew or by a passenger, or, after her arrival, by some person from the shore.

Held: 1. That "damage to any goods" in the insurance clause did not apply to the case of a total abstraction of the goods. 2. That the word "thieves" applied, as in policies of insurance, only to thieves external to the ship, and not to a passenger or one of the crew. 3. That the onus of showing that the loss came within one of the exceptions lay upon the shipowners, and not the shipper; and that as the defendants had failed in showing that, the plaintiffs were entitled to recover. Taylor v. Liverpool, &c. Steam Co., Albany L. J., October 3, 1874.

See ADMIRALTY, 5, 6, 7.

SLANDER.

AMBIGUOUS WORDS are to be construed in the sense in which they were understood by those who heard them. And it is for a jury to decide how they were understood. M'Laughlin v. Bascom, West. Jur., Sept. 1874.

STREET.

POWER OF LEGISLATURE TO VACATE. MUNICIPAL CORPORATION. It is settled law in California that the legislature possesses competent power to vacate a street in a city; that the legislature may delegate or commit such power to the municipal authorities of the city; that its exercise by the municipal authorities is dependent on the will and subject to the control of the legislature; and that after such power has thus been committed to the municipal authorities, the legislature may revoke it in part as well as in whole, or, without an express revocation, may itself exercise it in any particular instance. Polack v. Trustees, &c., Pac. Law Rep., Sept. 1, 1874.

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DIGEST OF CASES.

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SUBSCRIPTION.

SUBSCRIPTION MADE ON BLANK SHEET OF PAPER. A subscription to stock of a proposed railroad, made upon a blank piece of paper, which it was stipulated should not be regarded as binding, and should not be attached to the "heading " in which the terms and conditions of the association were set forth, until the subscriber had examined and approved of the same, is not a valid subscription, in the absence of the stipulated examination of the "heading," prior to the blank paper being attached. Bucher v. Dillsbury & Mechanicsburg R. R. Co., Leg. Int., Sept. 11, 1874; Pittsb. L. J., Sept. 30, 1874; Leg. Chron., Sept. 19, 1874.

SUNDAY.

HIRING A HORSE on Sunday is not to be regarded as "secular business within the prohibition of the statute. S. C. of Conn., Frost v. Plumb, Am. Law Reg., Sept. 1874.

TAXATION.

1. A TAX LEVIED AFTER THE DATE FIXED for the proper officers to certify the amounts required, upon a certificate filed after the date set down in the law, is void. Mix v. The People, Chicago L. N., Sept. 26,

1874.

2. DELEGATION OF POWER TO TAX. The grant of full power to tax carries with it authority to use all means necessary to accomplish the object, the imposition of penalties for non-payment of taxes, &c. Slack v. Ray, Cent. L. J., Sept. 10, 1874.

TRADE-MARK.

SALE OF ISOLATED PART OF ARTICLE HAVING TRADE-MARK THEREON, ETC. The plaintiff was a gunmaker, who manufactured rifles, purchasing some of the different parts from various makers, and putting them together to form a complete rifle, which, after having been viewed and approved by him, was stamped with his name and trade-mark on the lock-plate, as a guarantee that it had been examined and approved by him. He also fitted to the rifles levers manufactured by himself, for which he had taken out a patent, and these levers were also marked with his name. The plaintiff's rifles so marked with his name had a great reputation.

The plaintiff supplied rifles so marked and guaranteed by him to the government, and when they became unsuitable for government purposes, they were taken to pieces and some of the parts mutilated and sold as old stores. The defendants bought some of these old stores, including levers and lock-plates with the plaintiff's name and trade-mark upon them, and fitted them to old rifle barrels, which had been cut down to the size of carbine barrels, and were not suited to the action which formed part of the rifles as passed and guaranteed by the plaintiff. At this time the plaintiff's patent for the levers had expired. Held, that the defendants might be properly restrained from making or selling such fire-arms. Richards v. Williamson, Leg. Int., Sept. 4, 1874.

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DIGEST OF CASES.

[No. 11.

TRUST.'

1. COURT OF EQUITY WILL NOT LEND ITS AID TO ESTABLISH A - A bill in equity was filed by August Votrain, a grandson of Etienne Deshayes, deceased, who died intestate, leaving complainant and eight other grandchildren as heirs, all of whom, with the administrator of the intestate's estate, were made parties defendant. The bill was based upon the following instrument: —

TRUST AT THE INSTANCE OF A VOLUNTEER.

"Know all men by these presents, that I have assigned to August Votrain the sum of $12,000 of my property, which amount he is to draw before my property is divided; and he is to inherit one third of the rest of my property, which is to be divided into three parts, after my death. The $12,000 which I have assigned to him consists of $9,800 mortgages, and $2,200 notes, which I have assigned upon these conditions: First, that I retain said assigned mortgages and notes, and receive the interest thereof, during my life. Secondly, that I promise to pay said August Votrain, yearly, $200, the first payment to be made Jan. 1, 1872, and $200 every year thereafter. Thirdly, these foregoing conditions are expressly understood to be upon the condition that if the said August Votrain should die before my death, that the amount of property so assigned shall revert to me and remain my property, as if it had not been assigned to him, and this instrument of writing shall be null and void. Belleville, Ill., September 6, 1871.

C. T. ELLES, Witness.

ETIENNE DESHAYES.

his

[Seal.]

AUGUST VOTRAIN. [Seal.]”

mark.

The object of the bill was to have the complainant declared a cestui que

trust.

Held, that the instrument was to be regarded as a mere testamentary disposition of donor's estate, not executed in conformity with the statute of wills, from which the court would be no more justified in inferring an intention on donor's part to constitute himself trustee during his life of the property out of which the twelve thousand were to be paid to the defendant, than if, instead of this instrument, he had made a will containing the same provision. That the complainant was a volunteer and the transaction executory, wherefore the bill could not be sustained. Badgly v. Votrain, Chicago L. N., Sept. 19, 1874.

2. POWER OF COURT TO CHANGE THE TERMS OF A TRUST. In the year 1850 George Morton conveyed to A and B as trustees for his daughter, Christiana Morton, in consideration of natural love and affection and the sum of one dollar, certain real estate, "to have and to hold the said premises with the appurtenances unto the said parties of the second part, or the survivor of them, in trust for the benefit, use, and behoof solely of the said Christiana Morton, and the heirs of her body forever; and upon the decease of the said parties of the second part, then the legal title to the said premises is to be and remain in the said Christiana Morton during her natural life, with a remainder to the heirs of her body; and in case she should die without issue, then, in that case, the legal title to revert to the said party of the first part or his heirs."