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SELECTED DIGEST OF STATE REPORTS.
[For the present number of the Digest, selections have been made from the following volumes of State Reports : 45 California ; 9 C. E. Green (New Jersey Equity); 59 and 60 Illinois; 42 Indiana ; 10 Kansas ; 25 Louisiana Annual ; 61 Maine ; 38 Maryland; 109 Massachusetts; 54 New York; 72 Pennsylvania State; 37 Texas; and 32 Wisconsin.]
ABUTTOR. - See COVENANT, 2; ILLEGAL CONTRACT, 1.
ACCESSION. Plants and shrubs, the growth of cuttings from plants and shrubs mortgaged, pass to the mortgagee by accession. — Bryant v. Pennell, 61 Me. 108.
ACKNOWLEDGMENT. 1. The acknowledgment of a deed was in this form : “E. County, 88. Before the subscriber, a justice of the peace of said county," &c. The justice was in fact of C. county, and the deed was there recorded. Held, (1) that the acknowledgment was sufficient to entitle the deed to record; (2) that the deed when recorded was notice to subsequent purchasers; (3) that evidence was admissible to prove the acknowledgment to have been taken in C. county. - Angier v. Schieffelin, 72 Penn. St. 106.
2. By the law of Wisconsin, a deed purporting to be acknowledged before some officer in another state shall be deemed, prima facie, to have been acknowledged before a proper officer. A deed purported to have been acknowledged in New York before a justice of the pea e in 1835; but it was proved that justices had no authority to take acknowledgments in 1828, and that such authority was conferred on them by statute in 1810. Held, that the presumption was that the deed was not duly acknowledged. (Dixon, C. J., dissenting.) - Eaton v. Woydt, 32 Wis. 277.
ACTioN. The owner of part of a building can maintain no action against the owner of a distinct part for mere neglect and refusal to repair his tenement, whereby the plaintiff's part is injured. — Pierce v. Dyer, 109 Mass. 374.
See AGENT, 2; ASSIGNMENT; AssuMPSIT; CHATTEL MORTGAGE; ILLEGAL CONTRACT, 2; INCUMBRANCE, 1; MASTER AND SERVANT ; NEGLIGENCE, 1; PARTIES; WAY.
ACTION ON THE CASE. - See CONTRACT, 2.
ADMINISTRATION. See EXECUTOR.
ADVERTISEMENT. A notice required by law to be published in a daily newspaper was published, in the English language, in a German daily newspaper. Held, sufficient. - Richardson v. Tobin, 45 Cal. 30.
AGENT. 1. By the rules of an insurance company, its agents were entitled to a commission “ on each renewal collected and transmitted by them." Plaintiff, while agent, obtained renewals of certain policies, the premiums for which were collected and remitted by his successor in the agency. Held, that he was entitled to no commissions on such renewals. (DICKERSON, J., dissenting.) – Spaulding v. New York Life Insurance Co., 61 Me. 329.
2. A draft drawn upon plaintiffs was paid by them to defendants, an express company, to whom it had been intrusted for collection, but who did nut inform plaintiffs that they were acting as agents. The payee's indorsement on the draft was forged, but of this defendants were ignorant. Held, that plaintiffs could recover of defendants the money paid. (REYNOLDS, C., dissenting.) – Holt v. Ross, 54 N. Y. 472.
3. Defendants, who carried on a "mercantile agency,” received of plaintiffs certain drafts, and gave a receipt purporting to be a receipt of the drafts “for collection.” They sent the drafts to one of their correspondents, in another state, who collected the proceeds, but failed to pay them over. Held, that defendants were liable. - Bradstreet v. Everson, 72 Penn. St. 124. See PARTNERSHIP, 2.
AIDER BY VERDICT.-See JURY.
ALIEN. -See JURY.
ANIMAL. See TRESPASS, 1.
APPEAL. An agreement by the Attorney-General not to appeal from a judgment against the State, held, not binding on his successor in office. - State v. Graham, 25 La. Ann. 433.
APPLICATION OF PAYMENTS. - See PAYMENT, 2.
ARBITRATION. Two arbitrators, after hearing the evidence and arguments, being unable to agree, chose an umpire, as they were authorized to do by the terms of the submission, but gave to the parties no notice that they had chosen him, and no opportunity to be heard before him. Held, such misconduct as invalidate the award. — Thomas v. West Jersey R.R. Co., 9 C. E. Green, 567.
ARREST. See FALSE IMPRISONMENT; MALICIOUS PROSECUTION.
ASSESSMENT. A testator devised property upon trust to divide among the beneficiaries the income remaining “after defraying the expenses incident to said estates, the taxes, repairs, assessments, and insurance thereof." Held, that assessments for
municipal improveinents were payable out of the income, either as “ assess
expenses incident to the estates.” — Stephens v. Milnor, 9 C. E. Green, 358.
ASSIGNMENT. A debtor, as security for the debt, authorized his creditor by power of attorney to file a bill in equity to set aside a conveyance alleged to have been made by a third person in fraud of the debtor's rights; and the bill was filed accordingly, in the debtor's name. Held, that such a right of suit was not assignable, and that the debtor might dismiss his bill against the creditor's objection. Norton v. Tuttle, 60 III. 130.
ASSUMPSIT. A person in insolvent circumstances made a voluntary gift of money. Held, that his administrator might recover it in an action for money had and received, for the benefit of creditors. (TAPLEY, J., dissenting.) – McLean v. Weeks, 61 Me. 277.
See CONTRACT, 2; DURESS; JUDGMENT.
ATTACHMENT. An attachment bond was given for a sum less than that required by law, by less than one dollar. Held, that the error was immaterial. — Bodet v. Nibourel, 25 La. Ann. 499.
See JUDICIAL SALE.
ATTORNEY-GENERAL. See APPEAL.
AUTREFOIS ACQUIT. Indictment for the murder of A. Plea, autrefois acquit of the murder of B.; which crime " was and is identical in all its parts, incidents, and circumstances with the crime charged” in the indictment on trial; "and that the evidence whereby alone the State will attempt to prove the indictment in this case is the same, and nowise different from that employed on the trial ” of the former indictment. Held, good without an averment of the identity of A. and B.- Clem v. The State, 42 Ind. 420.
AWARD. - See ARBITRATION.
BANKRUPTCY. 1. Action for goods sold and delivered. Plea, that since suit brought defendant had been adjudged bankrupt, and plaintiffs had proved the debt sued for against his estate. Held, good. – Bennett v. Goldthwait, 109 Mass. 494.
2. To a plea of discharge in bankruptcy pleaded in an action in a state court, the plaintiff replied that the discharge was obtained by fraud. Held, that the replication was bad, the state court having no jurisdiction to impeach a discharge. — Alston v. Robinett, 37 Tex. 56.
BETTERMENT. - See ASSESSMENT; MUNICIPAL CORPORATION, 2.
BILLS AND NOTES. 1. By note expressed to be made in consideration of the sale of a patent-right, defendant promised to pay plaintiff a certain sum“ in six months, or as soon as I can with due diligence make the money out of said patent-right.” Held, that the note was payable in six months. - Palmer v. Hummer, 10 Kans. 464.
2. The holder of a promissory note demanded payment on the street of the maker, who had no place of business, and made no objection to the place of demand. Held, a sufficient demand to charge an indorser. King v. Crowell, 61 Me. 244.
See AGENT, 2; DAMAGES, 1, 2; EVIDENCE, 2; LIEN; PLEADING; War.
BONA FIDE PURCHASER. 1. A debtor made a voluntary conveyance of property to his wife, who conveyed it (without joining her husband) for valuable consideration to A., who conveyed to B. also for valuable consideration, with warranty. On bill filed by a creditor of the husband, whose debt existed at the time of the voluntary conveyance, held, that his claim was to be satisfied out of the property, but subject to a prior charge in favor of A. for the amount of the purchase-money paid by him, with interest, deducting rents and profits. — Phelps v. Morrison, 9 C. E. Green, 195.
2. Defendants bought for value, in the ordinary course of business, United States bonds payable to bearer, which had been stolen from plaintiff. Notice of the theft, with a description of the bonds, had been left at defendants' office on the day of the purchase. Held, that such notice did not necessarily and of itself deprive the defendants of the character of bona fide purchaser. (GRAY and REYNOLDS, CC., dissenting.) - Seybel v. Natl. Currency Bank, 54 N. Y. 288. BOND. — See ATTACHMENT; Bona FIDE PURCHASER, 2; MISJOINDER;
CHAMPERTY. An attorney was employed to bring an action, the client agreeing to give or allow and pay him the first fifty dollars collected by bim therein. Held, not champertous. — Scott v. Harmon, 109 Mass. 237.
CHATTEL MORTGAGE. A. insured his life for the benefit of his wife, and they jointly assigned the policy to B., who gave them a receipt stating that he held the policy as security for their note, on payment of which the assignment to be null and void, otherwise to continue for the benefit of B. The note was unpaid, B. surrendered the policy to the insurers and received its value; and A. and his wife sued the insurers in trover for the conversion of the policy. Held, that the transaction between A. and his wife and B. was a mortgage, and not a pledge; and therefore that the plaintiffs had no such right of possession as would support the action.
(STEWART, J., dissenting.) - Dungan v. Mut. Ben. Life Ins. Co. of New Jersey, 38 Md. 242. See FIXTURE, 1, 2.
CHECK. — See PAYMENT, 1.
CONDITIONAL SALE. The plaintiff, who had sold a chattel to a third person on condition that it should remain the plaintiff's till paid for, and had given him a receipted bill of parcels therefur, omitting at his request any statement of the condition, told the defendant, in reply to inquiry, that he had sold it to the third person; and the defendant thereupon, having seen the bill from the plaintiff, bought the chattel from the third person, who had not paid the plaintiff for it. Ileld, that in the absence of fraud the plaintiff was not estopped to claim the chattel from the defendant. — Zuchtmann v. Roberts, 109 Mass. 53. See SALE.
CONFEDERATE MONEY. – See ILLEGAL Contract, 2.
CONFLICT OF FEDERAL AND STATE AUTHORITY. Suit in the court of chancery of New Jersey, to cancel certain policies of insurance alleged to have been fraudulently obtained by defendant (the insured) of plaintiffs (the insurers). Pending suit, defendant brought an action at law on the policies against plaintiffs, in the circuit court of the United States, in Illinois, where defendant lived, and the loss happened. The court of chancery granted an injunction to restrain him from proceeding therein. Home Ins. Co. v. Howell, 9 C. E. Green, 238.
CONSIDERATION. — See ILLEGAL CONTRACT, 1, 2.
CONSTITUTIONAL LAW. 1. Proceedings were commenced to enforce a mechanic's lien given by statute. Held, that the repeal of the statute could not take away the right to prosecute such proceedings. — Weaver v. Sells, 10 Kans. 609.
2. A statute empowered courts, on granting divorces for adultery, to decree that the guilty party should not marry again during the life of the other party. Held, that such decree did not impose a penalty, that the statute authorizing it was not ex post facto, and that the court might make such decree on granting a divorce, after the passage of the statute, for cause arising before. — Elliott v. Elliott, 38 Md. 357.
See HOMESTEAD; OFFICER, 2; STATUTE, 1.
ConstiTUTIONAL LAW, STATE. 1. A statute provided for the appointment of commissioners, on the petition of any land-owner, to determine whether any and what drains should be opened by adjacent owners for the benefit of the petitioner's land, and for the compulsory opening of such drains as the commissioners should adjudge. No notice to such adjacent owners, as to the appointment or report of the commissioners, was required by the statute. Held, unconstitutional. — Rutherford's Case, 72 Penn. St. 82.