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EVIDENCE--REBUTTAL-LEADING QUESTIONS Dis. but reasonable that they should rely upon the solemn CRETIONARY WITH COURT, AND NOT GROUND FOR pledge thus given, and incur liabilities upon the faith REVERSAL.-Farmers Mutual Ins. Co. v. Bair. Su of it. And that such liabilities were in fact incurred, preme Court of Pennsylvania, 6 W. N. 40. Opinion by the petition distinctly avers." The question here Paxson, J. 1. The admission of evidence not strictly raised is not a new question in courts of bankruptcy. in rebuttal is in the discretion of the court, and not It was before the United States Court in and for the error. The exercise of such discretion is not re District of Deleware, and was decided about the year viewable, unless for gross abuse. 2. When a witness 1875, in the case of Capelle v. Trinity M. E. Church, 11 is called to contradict a previous witness, the correct B. R., 536. The following is the syllabus of the practice is to put the question to him in the same lan case: “A claim was proved by a church corporation, guage in which it has been put to the witness sought founded upon a verbal promise by a bankrupt to M, to be contradicted. 3. Whilst it is error not to allow a that he (the bankrupt) would pay $800 if M would leading question where a party has a right to put it, subscribe a portion of the indebtedness due from the the improper allowance of a leading question is no church to M, the promise being subsequently publicly ground for reversal. "While there are instances in the announced in the church in the presence of the congrebooks where judgments have been reversed for the re gation. It appeared by the proof that the expenses fusal to allow leading questions where the party was had been incurred by the trustees of the church upon entitled to put them, I know of no reversal in Pennsyl- the faith of the subscriptions generally, though not vania for allowing a leading question. Susquehanna that any definite expenditure was made on the faith Coal Co. v. Quick, 11 P. F. Smith, 328 is not an excep- l of this particular subscription. Held, that the promtion, as in that case there were a number of other as- ise was founded on a good legal consideration upon two signments of error which were sustained. The reason alternative grounds. It was one of the two mutual for this is manifest. The form of a question, whether I promises for the benefit of the church, each being the it shall be put as leading or otherwise, depends not consideration of the other, and the claim provable by upon an inflexible rule, but upon a variety of circum the beneficiary; and, secondly, as a promise to the stances which must of necessity be left to the discre church, partly upon which expenses were incurred, tion of the court below. Thus a party may be sur it would sustain an action of assumpsit, and might be prised by his own witness, and after he has placed him proved in bankruptcy. See also Amherst Academy v. on the stand discover that he is hostile, in which case it | Cowles, 6 Pick. 427, particularly as to consideration is settled law that he may be asked leading questions as and burden of proof, notes being given. The case of it upon cross-examination. The rule is thus laid down

Farmers' College v. Executors of McMicken, 2 Disney, in Starkie on Evidence, at page 147: “Thus, a party's 495, is another Ohio authority supporting the claim of own witness who, having given one account of the the University. In this case it is distinctly held: 1. matter, when called on the trial gives a different ac- A gratuitous subscription, to pay certain moneys tocount, may be asked by the party calling him whether wards a particular stated fund to be raised for the enhe bad given such account, stating it, to the attorney. dowment of certain professorships in a college, beAnd if a witness called stands in a situation which, of comes a fixed legal obligation as soon as the college necessity, makes him adverse to the party calling him, has performed its undertaking and raised the required counsel may cross-examine him.' The mere manner amount of reliable subscriptions. 2. Such subscripof the witness, when on the stand, may be such as to tions to the college to do an act, if the college will perjustify the court in permitting leading questions. It is form a prescribed duty on its part, if accepted, the Deedless to multiply instances. It is said in Shars- ! contract is complete. wood's Notes to Starkie, at page 150, that the allowance of a leading question is within the discretion of the court, and not the subject of a writ of error,

SOME RECENT FOREIGN DECISIONS. although the refusal to allow a party to put a leading question, who is entitled to do so upon cross-examination is,' and a number of authorities are cited in sup.

SPECIFIC PERFORMANCE-CONDITIONAL CONTRACT port of the text. The same doctrine is laid down in

-“ SUBJECT TO THE TITLE BEING APPROVED BY Greenleaf, sec. 435."

OUR SOLICITORS.”-Hussey v. Horne Payne. EnCONTRACTS/SUBSCRIPTIONS IN AID OF COLLEGE.

glish Court of Appeal, 26 W. R. 703. When an offer -Sturges v. Denison University. United States Dis

for the sale of an estate is accepted “subject to the trict Court, Northern District of Ohio, 10 Ch. L. N.

title being approved by our solicitors,” a new term is 395. Opinion by WELKER, J.-1. Subscriptions made

introduced, and there being no unconditional acceptin aid of endowments to a college become fixed and

ance of the offer there is no contract. Decision of legal obligations as soon as the college performs the

MALINS, V. C., reversed. undertaking on its part, and are provable in bank. EMPLOYER AND EMPLOYED-CONTRACT BETWEEN ruptcy, as other claims. 2. Where such subscriptions EMPLOYED AND THIRD PARTY HAVING CONTRACT are settled by giving promissory notes therefor, every WITH EMPLOYER --CORRUPT BARGAIN – BIAS-ABpresumption of law is in favor of the validity of the SENCE OF DAMAGE TO EMPLOYER.-Harrington v. transaction, and the burden of proof is on the party Victoria Graving Dock Co. English High Court, Q. opposing, if he would impeach it. In Ohio it is the B. Div. 26 W. R. 740. Where a bargain is made betpolicy of the law to promote and favor the interests of ween one who is in the employ of another and a third education. In Obio Female College v. Love, 16 Obio party who has contracted with the employer, which St. 27, Scott, J., says: “It has at all times been the

bargain is calculated to bias the wind of the employed declared policy of this state to favor and promote the and cause him to act to the prejudice of the employer, interests of education and the general diffusion of

such bargain is corrupt, even though it does not actuknowledge among the people. To this fact the pro

ally bias the mind of the employed, and though no visions of the constitution itself, our system of school

damage results to the employer. laws and acts providing for the incorporation of institutions of learning bear ample testimony." * * * SURETY-UBERRIMA FIDES-PRESSURE-DISCLOThis subscription was then authorized by law. It was SURE-AGREEMENT TO STIFLE PROSECUTION-ILLEevidently intended by the maker that the managing GALITY OF CONTRACT --- RIGHT TO RELIEF.-Da. officers of the corporation should rely on it as a part of vies v. L. & P. M. Ins. Co.-English High Court, the means and resources of the institution. It was | Chy. Div., 26 W. R. 794. 1. A contract between a surety for a debtor and a creditor is not one in which I in money. A. denied knowledge that the shares were there is an universal obligation of disclosure on the not the absolute property of S. Held, on the evidence, part of the creditor-is not uberrima fides; but it is that A. had notice that S. was only an agent. On an one which must be based on the free and voluntary action by the trustees against A. for the amount allowed agency of the individual who enters into it, especially in account, Held, that there was no payment by A. to where there is no consideration. In such a contract S. which could be a defense for A. Bridges v. Garrett, very little will affect its validity. 2. Illegality of a con 18 W. R. 815, L. R. 5 C. P. 451, distinguished. Held, tract, when resulting from pressure, and from an at also, that the Stock Exchange Customs were not a detempt to stifle a prosecution, does not induce the court fense to the action. A custom whereby a London to refuse relief at the suit of the party who has paid stock broker, who has notice that the person instruct. money when subject to the pressure. 3. There is a ing him is an agent, is bound only to recognize the pergreat difficulty in applying the principle melior est po son actually employing and instructing him, and to sitio defendentis to the case of an action to set aside an obey the directions of that person only as to the mode illegal contract whereby money has been placed in of payment, and as to the application and disposal of medio.

the proceeds of sale, is unreasonable in the absence of LANDLORD AND TENANT-COVENANT-QUIET EN

knowledge in the principal. JOYMENT-PREMISES LET FOR A PURPOSE SUBSEQUENTLY MADE ILLEGAL.-Newby v. Sharpe. English Court of Appeal, 26 W. R. 685. The defendant let ABSTRACT OF DECISIONS OF SUPREME the basement of a store to the plaintiff, and covenanted

COURT OF WISCONSIN. to keep the premises in proper repair and condition, so that the same might be available for storing cart

January Term, 1878. ridges and for quite enjoyment by the plaintiff. Other parts of the store were let to other persons for the storage of gunpowder. Soon afterwards the Explo HON. E. G. Ryan, Chief Justice. sives Act, 1875, was passed, making it illegal to store

ORSAMUS COLE, ) cartridges and gunpowder in the same store, without

WM. P. IYON,

Associate Justices. a license, under pain of forfeiture. On the act coming

DAVID TAYLOR,

66 HARLOW S. ORTON, J. into operation the defendant removed the cartridges which the plaintiff had deposited in the store, and gave notice that he would inform the authorities is the plain

DIVORCE-JURISDICTION OF COURT IN ACTION ON tiff stored any more. Held, that there had been a tres

BOND TO SECURE ALIMONY.-1. No other court, pass but no eviction by the defendant, and that there

without leave of the court in which a divorce has been had been no breach of covenant by the defendant, the

granted, can take jurisdietion of an action on the bond covenant to keep the demised premises in proper

given by order of the divorce court to secure payment condition for storing cartridges only referring to phys

of alimony; and, upon application for such leave, the ical condition, and there being no obligation on the de

divorce court may order or withhold payment of the fendant to procure a license to make the storage legal

arrears in whole or in part, and inay grant or refuse notwithstanding the act.

leave to enforce such payment by action at law upon COMPANY LIABILITY OF DIRECTORS FOR FRAUD the bond; and the action, when brought with its leave, OF AGENT-BROKER'S PROSPECTUS-PRINCIPAL AND is as subject to its discretionary control as the judgment AGENT-PERCEPTION OF BENEFIT FROM FRAUD. for alimony itself. 2. A judgment in the circuit court Weir v. Barneit. English Court of Appeal. 26 W. R. for arrears of alimony, in an action upon such bond, 746. At a general meeting of a company formed to is reversed on the ground that the action was brought work a mine the directors, one of whom was defend

without leave of the court by which the divorce was ant Bell, were authorized to raise money by deben granted. [TAYLOR, J., dissents, holding: 1. That the tures. The directors accordingly, by the secretary, order of the divorce court requiring a bond implies employed brokers to place the debentures; and the leave to the plaintiff to sue it upon a breach, and no brokers prepared and issued a prospectus bearing the further leave is required, though the liability upon the name of Bell, amongst others, containing statements as bond is limited by any subsequent modification of the to the company which were false to the knowledge of judgment for alimony. 2. That, if otherwise, the failthe brokers, and which induced the plaintiff to sub ure to obtain leave was merely an irregularity, which scribe and pay for debentures. None of the state was waived by defendant's going to trial on the merits ments were made by Bell personally or by his personal without objection on that ground.] Opinion by RYAN, aui hority, but they were within the anthority of the C.J.-Guenther v.Jacobs. brokers as agents to make. Bell derived no benefit from the fraud. Held (by COCKBURN, C. J., and

COMMON CARRIER-CARRIAGE OF HORSES-Cos. BRAMWELL and BRETT, L. JJ.; COTTON. L. J., diss.),

TOM-DEFECT IN CAR.-1. The complaint herein is that Bell was not liable to the plaintiff. Judgment of

held to go upon defendant's negligence in causing injury Exchequer Division (L. R.3 Ex, D. 32) affirmed so

to plaintiff's horses carried on defendant's railroad, far as relates to the defendant Bell, but on different

and not upon any absolute liability of the defendant grounds, Remarks by BRAMWELL, L. J., on Barwick

carrier as an insurer of the property. 2. A railroad v. English Joint Stock Bank, 15 W. R. 877, L. R. 2 Ex.

company may, by express contract, limit its liability in 259.

the carriage of horses. Betts v. F. & L. T. Co., 21 Wis.

80. 3. Possession by a shipper of a carrier's receipt PRINCIPAL AND AGENT – PAYMENT-ALLOWANCE for the property, containing special terms, is at least IN ACCOUNT-STOCK EXCHANGE CUSTOMS.-Pearson prima facie evidence of his assent to them, and in v. Scott.- English High Court, Chy. Div. 26 W. R. most cases may be conclusive. 4. Defendant's custom 796. Trustees instructed S., their solicitor, to have was to carry horses at the owner's risk, and at reduced shares standing in their names sold out. S. instructed rates for that reason; and the letters “0. R." signifying A., a stock broker, to sell out the shares, and subse "Owner's Risk,” were upon the receipt given plaintiff quently, as to some of the proceeds, to make him an for his horses, and retained and put in evidence by allowance in account in respect of the same, S. being him: and he testifies that he "did not see” those let. then indebted to A. S. had no authority from the ters, but not that he did not understand their meaning trustees, going beyond an authority to receive payment | Held, that the restricted liability of the company clearly appears from plaintiff's evidence. 5. The in containing the action of the trustees. The legislature jury was caused by the breaking of a wheel under a has made no provision for an appeal from the decisfreight car in the train, which threw the car containing ions of trustees of schools for the purpose of reviewplaintiff's horses from the track. The track was in ing their action, where they have created new disgood order, the wheels had been used for only a short tricts or consolidated two or more districts into a new time, and, upon inspection after the accident, showed one. Hence arises the necessity for the exercise of the po flaw or defect; and there was no evidence, except common law writ of certiorari. This court bas held the mere fact of its breaking, which tended to show in a number of cases that the common law writ of negligence of the company. Held, that there was no certiorari may issue to all inferior tribunals and juriserror in directing a verdict for the defendant. Opin dictions in cases where they exceed their jurisdiction, ion by ORTON, J.-Morrison 0. Phillip Colby Con and in cases where they proceed illegally. See 14 Ill. struction Co.

381; 27 III. 140; 38 Ill. 103. The rule adopted in the cases cited is in harmony with the law as settled in

England and in this country. See Dillon on Munic. ABSTRACT OF DECISIONS OF SUPREME Corp, Sec. 739. We have, however, been referCOURT OF ILLINOIS.

red by the defendants in error, tọ Trumbo v. People,

75 Ill. 561, as an authority sustaining their position. [Filed at Springfield, June 24, 1878.)

Some expressions may have been used in deciding that case from which it might be inferred that the proper

mode to test the legality of the formation of a school Hon. JOHN SCHOLFIELD, Chief Justice. SIDNEY BREESE,

district was by information in the nature of a quo T. LYLE DICKEY,

warranto; but the question whether the legality of 16 BENJAMIN R. SHELDON,

the action of the trustees of schools could be tested by

Associate Justices.
PICKNEY H. WALKER.

the common law writ of certiorari was not before the JOHN M. SCOTT,

court and was not decided." Reversed and remanded. ALFRED M. CRAIG,

--Miller v. Trustees of Schools.

TaxatioN-BANK STOCK-TANGIBLE PROPERTYMORTGAGE BY HUSBAND AND WIFE-CERTIFICATE

DOUBLE TAXATION.-This was an injunction asked OF ACKNOWLEDGMENT.-This was a bill to set aside a

for by a banking corporation and its stockholders to mortgage made by complainant and wife, and upon

restrain the collection of certain taxes. In the lower property of the latter, which contained the usual recitals,

court the bill was dismissed, and complainants appeal, and, as appeared by a certificate of a justice of the

assigning various errors: 1st. That the tax levied peace attached thereto, was acknowledged in due form

upon the tangible property, not upon the shares of of law by the parties. The main objection urged by the

stock of the bank, is invalid; that the same is double complainants to the deed is that the certificate of

taxation, and in contravention of the constitution of the acknowledgment is false, that she never, in fact,

state. 20. That the shares of stock are not, under the acknowledged the deed in the presence of or be

laws of this state, liable to be taxed in the district or fore the justice of the peace. The only evidence con

township where the bank is situated; and, 3d, that the tained in the record to impeach the certificate is the

bank and shares of stock are only liable to be taxed in testimony of complainant. CRAIG, J.: “The ques

accordance with the provisions ot the general law and tion presented assumes this form-can an acknowl

its amendments under which the bank was incorpoedgment of a deed be impeached by the uncorroborated

rated. BREESE, J.: “As to the first point, this court testimoney of the grantor? A like point has been be

has repeatedly held that the tangible property of a fore us in other cases. In 76 Ill. 611, where a like ques

corporation and the shares of stock are separate and tion arose, it was said: To impeach such a certifi

distinct kinds of property, # * * * both of which, cate the evidence should do more than produce a

under the revenue law, being subject to taxation. See mere preponderance against its integrity in the bal

76 Ill. 561; 18 Wall. 206; 2 Otto, 575. These cases ancing of probabilities.' See also 62 Ill. 524. In this

hold that such taxation is neither double nor unconrecord the testimony is clear that Sanborn, the mort

stitutional. As to the second point, that is settled by gagee, acted in perfect good faith; he neither con

this court in the case of First Nat. Bank v. Smith, 63 spired with the husband of the complainent or the officer who took the acknowledgment. * *

III. 44, wbere, in discussing the power of the legisla*

ture to fix the situs of shares of stock in a bank for Under such circumstances, to hold that the deed could

purposes of taxation, it was said, while at common be impeached by the uncorroborated testimony of

law, and, as a general rule, personal property has no complainant, would be establishing a precedent of the

situs of its own, but follows the person of the owner, most dangerous character, which we are not prepared

the rule is one of convenience only, and there is no to sanction. The safe rule is, and the one, too, in

constitutional prohibition on the legislature to change harmony with the authorities, to require very clear

the rule, and, therefore, the act of 1867, providing for and satisfactory proof to impeach an acknowledgment of a deed or mortgage.” Affirmed.-McPherson v.

taxing the shares of national banks, at the place where Sanborn.

such banks are located, without regard to the residence

of the owners of such shares, was constitutional and CERTIORARI-REVIEWING PROCEEDINGS OF TRUS

valid. As to the third point, the general law and TEES OF SCHOOLS.-This was a petition for a common

amendments under which appellants claim this proplaw writ of certiorari to bring before the circuit court erty should be taxed, have been repealed.” Affirmed. the record of the proceedings of the trustees of schools

-Danville Banking Co. v. Parks. in uniting certain school districts. The defendants appeared before the circuit court, and, upon motion,

PROMISSORY NOTE – WORDS “TRUSTEES OF the court quashed the writ. This decision is assigned

SCHOOLS” MERELY DESCRIPTIO PERSONARUM.-In for error. It is claimed by appellees that the proper 1872 A, B and C were the trustees of schools in Cahokia. remedy was not by the common law writ of certiorari,

In the fall of that year it was proposed to construct a but by information in the nature of a quo warranto.

school house. There was some opposition to this, but CRAIG, J., who delivered the opinion of the court, the majority of the trustees proceeded in the building says: “The illegal action of the trustees here appears of it. For that purpose two of the trustees borrowed upon the face of the proceedings of the board, which money of a bank to the amount of $200. In March, thecourt could determine by an inspection of the record | 1873, the terms of these three officers expired, and their successors were elected and qualified. In Octo tinuance was made on the ground of an absent witness. ber, 1873, A and B executed a note, payable to D, for and the only proof of diligence is the statement of the the $200, signed by them as “School Trustees,” This party that the witness promised to attend, and there is note was endorsed by D to the bank as security. After no showing of any attempt to use the legal means to the maturity D was compelled to pay it, and this is an obtain his testimony: Held, that the motion was propaction brought by D against the trustees of schools of erly overruled. 2. Where the petition in an action on Cahokia, to recover the money paid on the note. In a note and mortgage showed that the mortgage conthe lower court judgment was given for plaintiff, and tained a stipulation thai, on the failure to pay any inthe trustees appeal. DICKEY, J., who delivered the terest when due, the principal should immediately beopinion, says: “It is not perceived upon what ground | come due and payable, and alleged a failure to pay inthis judgment can be sustained. The money was not terest, by reason whereof “the whole amount of borrowed from the bank on the credit of the school money became due and payable and the said deed had district, but on the individual credit of these two trus become absolute," and the answer denied under oath tees. The note does not purport to be one given in be the execution of the note and mortgage, and this was half of the district, but is in such form that, by the the issue really tried: Held, that a judgment for the decision of this court (even if the maker had authority plaintiff will not be reversed, although the petition to make such note in behalf of the district) no ac failed to contain the specific allegation that no portion tion could have been maintained upon it against the of the money had been paid, or that the same was at corporation known as the “Trustees of Schools." A the time of filing still due and owing. 3. The acknowl. and B, by their note, charged themselves personally. edgment of a deed is prima facie evidence of its exeThe words “School Trusteesare simply descriptio cution, and a deed properly acknowledged may be personarum, and a false description at that, for they had given in evidence without further proof, although its ceased to be such trustees before the note was made. execution is denied under oath in the answer. 4. Com. D, when he indorsed the paper, charged himself as munications from a client to his attorney are privileged security for the makers of the note. He must look to and inadmissible in evidence, exeept so far as the client his principals, A and B, for indemnity. If they used

[graphic]

voluntarily offers himself as a witness concerning the money for the district, it is a matter between them them. Opinion by BREWER, J. Affirmed. All the and their successors." Reversed.-Trustees of Schools justices concurring.-Wilkins o, Moore. v. Raukenburg.

RAILROAD SUBSCRIPTION BY COUNTY BOARDDIVORCE-DESERTION.-This was a suit for divorce VOID ACTS OF COUNTY COMMISSIONERS- ILLEGAL on the ground of desertion. The defense set up and BONDS.–Where the record shows that in September, relied on was that plaintiff left her by removing to bis 1871, a vote was had, by which the county board was new home; that she was willing to live with him at authorized to subscribe to the capital stock of a certain their old home, but was unwilling to go to the new one, railway company, and to issue the bonds of the county etc.; that he was addicted to the use of liquor, and she in payment therefor, and in September, 1873, two of feared to live alone with him and away from her brother the members of such board met in a supposed special and sister, who had lived with them at their old home;

session, but without any previous request or call therethat she had urged him to remain and live with her and

for, and without any notice thereof to the third memher brother and sister, but he refused; that during the ber, although he was present in the county and could two years he at one time returned and remained two

easily have been served with notice, and this was not a days and one night with her at the old place. The jury regular session or an adjourned session of the board, found a verdict in favor of the complainant, and the and these two members, at such session, passed reso. court rendered a decree granting a divorce, from which lutions directing a subscription to the capital stock of defendant appeals. WALKER, J., who delivered the

said railway company, and also directing the issuance opinion, says: “In the case of Davis v. Davis, 30 Ill.

of certain county bonds, to be deposited with the state 180, the general and well-established rule of law was treasurer, to be held by him in escrow until .certain announced that the domicil of the husband is that of conditions should be fulfilled by the railroad company, the wife. This, then, made appellee's new home ap

and then to be delivered to such company, and such pellant's home, and she deserted it and him for the subscriptions were so made and the bonds were so isperiod of more than two years without any just cause. sued and deposited: Held, upon the foregoing facts, Under the marriage relation it was her duty to go with that said subscription and said bonds are not legal and him, but this she refused to do without justification. binding obligations upon the county, and that the And this entitled appellee, under the statute, to the

county may maintain an action to set them aside and decree of divorce, unless he has done some act to bar

cancel them. Opinion by BREWER, J. Reversed. All his right. Then does the fact that he, within the space the justices concurring.–Commrs. of Anderson Co. t. of two years, went to her brother's and remained with

Paola & Fall River Railway Co. her during one night and a portion of two days, change the attitude of the case? After discussing this ques

NEGLIGENCE-STOCK LAW OF 1874 – ATTORNEYtion, the court say: “It can not be inferred from that

FEES. -The track of the railroad company being un. single act, nor is there any evidence to show that she

fenced two mares belonging to E got on to it and, agreed or intended to permanently resume their mar

walking along, attempted to cross a bridge. The riage relations, or that it was understood that her ab

bridge being built of ties, with open spaces between, sence might continue.” Affirmed.-Kennedy v. Ken

their legs slipped into these open spaces and the ani. nedy.

mals became fastened in the bridge, receiving certain

injuries therefrom. There was negligence, as the jury ABSTRACT OF DECISIONS OF SUPREME

found, on the part of the company in the construction

of the bridge, causing these injuries. Afterwards, a COURT OF KANSAS.

train approaching finds the animals still fastened in July Term, 1878.

the bridge. The train men proceed to remove them

therefrom, and in so doing the animals sustained still HON. ALBERT H. HORTON, Chief Justice.

further injuries. Held, that the injuries done in re" D. M. VALENTINE, Lconio "

moving the animals from the track were done in operaTINE, } Associate Justices. D. J. BREWER,

ting the road, within the meaning of the law of 1874,

concerning injuries to stock. Held, further, that the CONTINUANCE, FORECLOSURE OF MORTGAGE - injuries resulting from the animals falling into the PRACTICE-EVIDENCE.-1. Where a motion for con: bridge was not within the scope of that act, although the company might be liable therefor on account of its stances at the time of the slander, under cautions from negligence. And, further, that where there was noth the court against allowing the testimony weight being in the record by which this court could apportion yond what it deserves, and especially against allowing the damage resulting from these two different injuries, it to swell the damages on its own account. The misno apportionment could be made of attorneys fees al chief of slander depends much upon its author's influlowed on the total recovery, and they must be stricken ence and standing, and pecuniary standing is one of out altogether. Opinion by BREWER, J. Modified. the important elements considered in determining the Valentine, J., concurring. Horton, C. J., not sit position of others. Opinion by CAMPBELL, C. J.ting, having been of counsel in the court below.-A., Brown v. Barnes. T. & S, F. R. R. Co. v. Edwards.

TROVER BY CO-TENANT OR MORTGAGEE OF CHATBILLS OE LADING-ESTOPPEL.-Where the agent of TELS.--Held: 1. That a tenant in common of chattels a railroad corporation, which is engaged as a common may maintain an action of trover against his co-tenant carrier, has authority to receive grain for shipment after demand made that he be admitted to his rights over its road, and issue in the name of the corporation as a co-tenant, and a refusal to recognize such rights, a single bill of lading for each consignment received, coupled with a distinct claim of entire ownership. on September 4th, 1876, received 23,000 pounds of Bray v. Bray, 30 Mich. 479; Webb. V. Mann, 3 Mich. wheat for transportation to St. Louis, Mo., and at the 139. 2. That a mortgagee of chattels entitled to take instance of the shipper, issues in the name of the cor possession thereof under his mortgage, may maintain poration two original bills of lading, of the same terms, trover for their conversion. The mortgagee has a suftenor and effect, for the wheat, and each of which shows ficient property to enable him to take possession as the receipt of 23,000 pounds of wheat and its consign against the mortgagor and those claiming under him, ment to the order of the shipper at St. Louis, Mo., and as well as against strangers to the title, Harvey v. the shipper on September 5th, 1876, negotiates one of McAdams, 32 Mich. 472. Opinion by Marston, J.the bills to W, who, as holder of snch bill of lading re Grove v. Wise. ceives all the wheat forwarded to St. Louis, and on September 6th, 1876, negotiates and transfers by indorsement in writing the other bill of lading to the ABSTRACT OF DECISIONS OF SUPREME Wichita Bank, and the bank, knowing the custom of

COURT OF INDIANA. the railroad corporation to issue only one bill of lading for each shipment, and relying wholly on the bill for

May Term, 1878. its security, accepted the same, advanced money thereon of less amount than the value of the wheat called for in good faith and in the regular course of business

HON. WILLIAM E. NIBLACK, Chief Justice.

“ HORACE P. BIDDLE, and having knowledge of the issuance of the two orig.

JAMES L. WORDEN, inal bills of lading; Held, that the railway corporation

GEORGE V. HOWK,

Associate Justices. is estopped by its statement and promise in the bill

" SAMUEL E. PERKINS, ) of lading to deny that it has received the grain mentioned therein, and is liable to theindorsee and assignee

CRIMINAL PRACTICE-SURPLUSAGE IN VERDICT.for its advances made in good faith on the bill of la The crime of manslaughter subjects the party guilty ding. Opinion by HORTON, C. J. Reversed. All the

thereof to imprisonment, but does not subject him to justices concurring.– Wtchita Bank v. A., T. & S.

any fine. But when a jury returns a verdict in such a F. R. R. Co.

case, of imprisonment, and also assesses a fine, such fine does not vitiate the verdict, but may be regarded

as surplusage, and the judgment may be rendered on ABSTRACT OF DECISIONS OF SUPREME

the verdict as if no fine had been assessed. Such a COURT OF MICHIGAN.

verdict is not an entirety, and the part in reference to

the fine can be omitted in the judgment, without modJune Term, 1878.

ifying or detracting from that in reference to the im

prisonment. Opinion by WORDEN, J.-Veatch v. Hon. J. V. CAMPBELL, Chief Justice. 6. T. M. COOLEY,

State. ISAAC MARSTON, Associate Justices.

REVIEW OF JUDGMENT -- Rights OF MARRIED
B. F. GRAVES, )

WOMEN. — Complaint for a review of judgment.
The judgment sought to be reviewed, was founded

on a promissory note and mortgage, executed by NEGOTIABLE PAPER-RIGHTS OF TRANSFEREE.

Edith A. Emmett and Robert Emmett, and was Where a promissory note was endorsed by the payee,

rendered in the usual form of foreclosure, for “I hereby transfer my right, title and interest of the

the sale of the premises, etc., and that execuwithin note to,” etc. Held, That the transferee took

tion issue, as on other judgments for the amount subject to all defenses that would have been available

remaining unpaid. As to Edith, the judgment was against the payee. Opinion by MARSTON, J.-Aniba v.

rendered on default. The ground for review was that Yeomans.

Edith, at the time she executed the note and mortgage, MORTGAGOR'S COVENANT WITH GRANTEE TO PAY was a married woman. BIDDLE,J. (abstract of opinMORTGAGE-MEASURE OF DAMAGES.-A mortgagor, ion): A married woman may interpose the defense of in conveying a small part of the mortgagedi premises, coverture to an action against her on her contracts, covenanted to pay the mortgage when due, but failed but if she fails to make defense and lets judgment go to do so, and the grantee, though never having paid or against her by default, she is bound by the judgment. been called to pay anything because of the mortgage, But in this case the fact that Edith was a married woman brought suit for the breach, neither averring nor offer when she executed the note and mortgage is shown upon ing to prove special damages. Held, that he was not

the face of the complaint. The mortgage runs“Edith A. entitled to more than nominal damages. Opinion by Emmett and Robert Emmett, her husband, mortgage GRAVES, J.- Wilcox v. Mussche.

and warrant," etc. The note and mortgage were necSLANDER- EVIDENCE — PECUNIARY CIRCUMSTAN- | essary exhibits filed with, and thus became a part of CES OF DEFENDANT.-The defendant in a slander the complaint. It appearing, therefore, on the face of case may be asked concerning his pecuniary circum- | the complaint that Edith was a married woman at the

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