Vol. I.]

DIGEST OF CASES.

[No. 3.

firm, in favor of an innocent third party, however grossly, in point of fact, he may violate his duty towards his copartners. Phalman v. Taylor, Chicago, L. N., March 7, 1874.

2. W. borrowed money of T., which was obtained on checks of T., payable to H. J. P. & Co., and gave to T. his note therefor, with blank indorsement of P. and R. thereon. W. was a partner and also bookkeeper of the firm of H. J. P. & Co., had charge of their bank account, and in certain cases was expressly authorized by his copartners to fill up notes already indorsed in blank by them. It was admitted that the indorsements of P. and R. were genuine, but it was claimed on their behalf, under plea non est factum, that they were not intended to guarantee a note of W. to T.; held, as it was apparently a transaction on account of the business of the firm, P. and R. were, in absence of evidence of bad faith on part of T., bound by acts of W. Ib.

3. ALTERATION OF NOTE.-It was found, by special verdict, that the words "payable at 53 Lake Street" were written in the note by T. after P. and R. had indorsed it in blank, without the knowledge of P. and R., but with the knowledge and authority of W. before delivery of the note; held, the alteration was material, but as W. had power to bind the firm by borrowing money, executing notes, or filling up notes under blank indorsements, he necessarily had the power to fix the amount, time, and place of payment of such notes, and his assent to change of note, by adding place of payment, was presumedly the assent of the firm, and did not invalidate the note. lb.

4. SPECIAL VERDICT. The special verdict finds the place of payment was added to the note by T., after P. and R. had indorsed it in blank, without their knowledge or authority, but with the knowledge and authority of W. the maker. While express knowledge and express authority are questions of fact, there are also implied knowledge and implied authority, and in this case the special finding of the jury must be understood to refer only to express knowledge and authority, and is not, therefore, inconsistent with the general finding. 1b.

PAUPERS.

1. AN ACTION OF ASSUMPSIT can be maintained by a county against a poor district for the maintenance of an insane pauper.

2. Under the act of 1845, a poor district is not liable for such maintenance until the settlement of the pauper is decided by the court to be in such district, and notice of such decision given to the district authorities. Directors of Poor v. Montour Co. Pittsb. L. J., March 11, 1874.

PENALTY.
See ATTORNEYS, 2.

PRACTICE.

1. ESTOPPEL. WAIVER. Where a case heard in the court below has been reviewed in the supreme court, and remanded with directions as to the decree to be entered, a party cannot on subsequent appeal assign for

error any cause that occurred prior to the former decision. Larrabee, Chicago L. N., March 7, 1874.

[No. 3.

Ogden v.

2. The fact that the point was not made by the counsel, nor considered by the court on the former appeal, does not suffice to allow it to be considered on a second appeal. There must be an end to litigation, and as the party had an opportunity to assign it for error, but failed so to do, he must be estopped from alleging at any future period error in the same record. lb.

3. A party cannot assign successive errors, and errors not assigned must be deemed to have been waived.

lb.

4. On a second appeal a party can only review proceedings subsequent to the mandate in the first appeal. Ib.

PUBLICATION.

See ATTACHMENT, 1.

RAILROADS.

1. SERVICE. That the process was served on Stewart, a director of the road, and this service was in conformity to law; that the return does not show that he was a director, only that he was reported to be so; but the record shows that he was a director when the road was leased, and in the absence of proof to the contrary it will be presumed this relation existed when the summons was served. Washington, &c. R. R. v. Brown, Am. Law Rec., March, 1874.

2. OPENING UP DEFAULT. The court considers the effect of opening up the default and allowing the defendant to plead upon the service of the summons, providing it were defective.

Ib.

3. ROAD RUN BY LESSEES. That a railroad corporation cannot escape the performance of any duty or obligation imposed by its charter or the general laws of the State, by a voluntary surrender of its road into the hands of lessees. Ib.

4. ROAD RUN ON JOINT ACCOUNT. That it has never been held that the company is relieved from liability unless the possession of the receiver is exclusive, and the servants of the road wholly employed and controlled by him. In this case the possession was not exclusive, nor were the servants subject to the receiver's orders alone; but the road was run on the joint account of the lessees and receiver, and the servants employed and controlled by them jointly. Both were therefore alike responsible for the act complained of, and if so the original company is also responsible. Ib.

5. CONTRACT OF TICKET-HOLDER. The holder of a ticket issued in the name of a railroad company contracts for carriage with the company, not with the lessees and receiver. Ib.

6. RIGHTS OF COLORED PERSON ON THE CARS OF THIS COMPANY. A grant by Congress was accompanied with the provision, " that no person shall be excluded from the cars on account of color." The defendant in error, a colored woman, entered the car appropriated to white ladies, was requested to leave and take a seat in another car used for colored persons, and upon her refusal so to do was ejected by force from the car she first entered. Held, that she was improperly ejected; that there was no occa

Vol. I.]

DIGEST OF CASES.

[No. 3.

sion in legislating for a railroad corporation to annex a condition to a grant of power that the company should allow colored persons to ride in its cars; that this right had never been refused; that self-interest would induce the carrier-south as well as north to transport, if paid for it, all persons, whether white or black; that it was this discrimination in the use of the cars, on account of color, where slavery obtained, which was the subject of discussion at the time, and not the fact that the colored race could not ride in the cars at all. Congress, in the belief that this discrimination was unjust, acted. It told this company, in substance, that it could extend its road within the district as desired, but that this discrimination must cease, and the colored and white race in the use of the cars be placed on an equality. lb.

1. TROVER.

See NEGLIGENCE, 1.

RECEIVERS.

A receiver in equity can maintain trover for the wrongful conversion of goods which he has had actually in his possession. gerly v. Fox, Pittsb. L. J., March 11, 1874.

Sin

2. SET-OFF. A creditor cannot pay by a set-off for goods purchased at a receiver's sale.

Ib.

SALES.

1. LIQUORS. LICENSE. The seventh section of Act of March 6, 1873, prohibiting the issue of licenses for the sale of liquors by all officers authorized by existing laws to issue the same, applies and extends to the treasurer of a county. Commonwealth v. Miller, Leg. Int., March 6,

1874.

2. INSOLVENCY AND A KNOWLEDGE OF IT at the time of a sale are evidence to go to the jury, with other facts, to show an intended fraud by the purchaser; but standing alone will not operate to rescind after a possession fully and fairly acquired. Rodman v. Thalheimer, Leg. Gazette, March 6, 1874. See JUDGMENTS, 1.

3. DIRECTION BY THE PURCHASER AS TO SHIPMENT. Where a merchant residing in one city selects and purchases and pays for goods from merchants doing business in another city, and directs the sellers "to ship by boat" to his agents at an intermediate point, without designating a particular boat, and giving no instructions to insure against the unavoidable accidents of navigation and fire (boat-carriers exempting themselves in their bills of lading from such risks), and the vendors make a contract of carriage with the master of a boat, deliver the goods to the carrier, and take bills of lading, and before the boat leaves port upon her voyage, it is found that the contract of carriage was improvidently made, and that, under it, the goods will not go forward at all, or reach their destination in a reasonable time, the consignor has authority, by virtue of the purchaser's direction to him, "to ship the goods by boat," to rescind the contract of carriage, and to reship the same by another proper and suitable boat, such in all respects as a prudent business man could safely ship his own goods upon; and if such reshipped goods be lost in transit upon the second boat by the unavoidable accidents of navigation or fire, the owner of the boat,

Vol. I.]

DIGEST OF CASES.

[No. 3.

with whom the contract of shipment was made, will not be liable to the purchaser of the goods for their loss. Had no directions been given to the seller by the purchaser, in relation to the shipment, the case might be different; but such express directions required the goods in kind to be so shipped as that they would actually go to their destination within a reasonable time, under all the circumstances, and if that could not be done by virtue of the contracts made by the shipper, he had a right, before the goods left port, to rescind such contracts and enter into others whereby the carriage of the goods as intended by the parties could be effected. Toodle v. Rusk, Am. Law Rec., March, 1874.

SET-OFF.

See BANKRUPTCY, 4, 5, 6; RECEIVERS, 2.

SHERIFF.

The holding of an inquisition, under the 44th section of the act of the 16th of June, 1836, is a judicial act, and must be performed by the sheriff himself. If held by a deputy it is invalid, though it may bind the sheriff. Klopp v. Breitenbach, L. Chron., March 7, 1874.

See EXECUTION SALES, 2.

SHERIFF'S DEED.

1. AMENDMENT OF. Where a sheriff's deed erroneously recites the date of a judgment the error may be corrected in open case no new acknowledgment of the deed is necessary. Cent. L. J., March 5, 1874.

court, and in such
Kane v.
Kane v. McCown,

2. DELIVERY PRESUMED. Where a sheriff's deed is duly executed and acknowledged, and the title of the purchaser in such deed is vested in a third party by decree of a court of equity, a delivery by the sheriff to the purchaser will be presumed, and no formal delivery is necessary. Ib.

SUPREME COURT.

OBITER DICTA. Although the decision by this court of a single point may be decisive of the whole case, still an opinion upon other questions presented by the record is not an obiter dictum; and this is the more satisfactory practice, as it tends to prevent repeated resort to the appellate court. Kane v. McCown, Cent. L. J., March 5, 1874.

SURETIES.

THE SURETIES ON THE BOND OF AN AUCTIONEER, under the acts of April 2, 1822, and April 9, 1859, are liable for any default during the period of three years, during which the renewal of the bond could not be called for under said acts, notwithstanding the fact that the term named in the commission of the auctioneer was but one year. Daly v. Commonwealth, Leg. Gazette, March 6, 1874.

TROVER.

See RECEIVERS, 1.

Vol. I.]

DIGEST OF CASES. LEGAL ANECDOTES.

[No. 3.

TRUSTS.

1. DELEGATION OF AUTHORITY. - One trustee cannot delegate his discretion either to another or to a co-trustee. And a corporation permitting a transfer of its stock held as a trust investment, by one of two trustees transferring the same as trustee and as attorney in fact of a non-resident trustee, under a general power of attorney by which the whole management of the trust is delegated, is responsible for the consequences of a breach of trust by such trustee. Penn. Co. v. McMurtrie, Leg. Int., March 6, 1874. Where a breach of trust is committed, a trustee, though in default, may maintain a suit in his own name for the benefit of the trust estate.

2. ACTION.

lb.

VERDICT.

See PARTNERS, 4.

WAIVER.

See PRACTICE.

WAR.

ACTIONS AGAINST BELLIGERENTS. The existence of war does not prevent the citizens of one belligerent power from taking proceedings for the protection of their own property in their own courts, against the citizens of the other, whenever the latter can be reached by process. Lee v. Rogers, Pac. Law Rep., March 3, 1874.

WILLS.

CONSTRUCTION. A devise to "my daughter E. and her childrenthe children taking their mother's share "gives to the daughter a life estate only and not a fee. Estate of Smith, Leg. Int., March 6, 1874.

See DOMICIL.

IN the year 1785, an Indian murdered a Mr. Evans of Pittsburg. When, after a confinement of several months, his trial was to be brought on, the chiefs of his nation (the Delaware) were invited to be present at the proceedings, and see how the trial would be conducted, as well as to speak in behalf of the accused, if they chose. The chiefs, however, instead of going as wished for, sent the following answer: "Brethren! you inform us that N. N., who murdered one of your men at Pittsburg, is shortly to be tried by the laws of your country, at which trial you request that some of us may be present. Brethren! knowing N. N. to have been always a very bad man, we do not wish to see him; we therefore advise you to try him by your laws, and to hang him, so that he may never return to us again."