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purpose. This service is not common to him and the until the gravel train, coming on the same road from hands placed under him. They have nothing to do an opposite direction, had passed; and the court with it. His duties and their duties are entirely sep charged the jury that if they so found, and if the arate and distinct, although both necessary to produce plaintiff did not contribute to his injury by his own the result. It is his to command, and theirs to obey vegligence, the company was liable, holding that the and execute. No service is common that does not ad relation of superior and inferior was created by the mit a common participation, and no servants are fel company as between the two in the operation of its low servants when one is placed in control over the train; and that they were not within the reason of other."

the law fellow servants engaged in the same coinmon In Louisville & Nashville R. Co. v. Collins, 2 Duvall, employment. 114, the subject was elaborately considered by the Court As this charge was in our judgment correct, the of Appeals of Kentucky. And it held that in all those plaintiff was entitled to recover upon the conceded operations which require care, vigilance and skill, and negligence of the conductor. The charge on other which are performed through the instrumentality of points is immaterial; whether correct or erroneous, it superintending agents, the invisible corporation, could not have changed the result; the verdict of the though never actually, is yet always constructively jury could not have been otherwise than for the plaintpresent through its agents who represent it, and whose | iff. Without declaring therefore whether any error was acts within their representative spheres are its acts; committed in the charge on other points, it is sufficient that the rule of the Englisb courts, that the company to say that we will not rererse the judgment below if is not responsible to one of its servants for an injury an error was committed on the trial which could not inflicted from the veglect of a fellow servant, was not have affected the verdict. Brobst V. Brochi, 10 Wall. adopted to its full extent in that State, and was re 519. And with respect to the negligence of the congarded there as anomalous, inconsistent with princi- ductor of the gravel train, no instruction was given or ple and public policy, and unsupported by any good requested. and consistent reason. In commenting upon this de

Jugment (firmed. cision in his treatise on the Law of Railways, Red Contra: Nashville, ctc., R. Co. v. Ihnesis, 10 Lea, field speaks with emphatic approval of the declaration | 741; S. ('., 43 Am. Rep. 317; Robertson v. Torre Ilunte, that the corporation is to be regarded as constructively etc., R. Co., 58 Ind. 77; S. ('., 41 Am. Rep. 532; Slater present in all acts performed by its general agents with v. Jeuett, 85 N. Y. 61; S. (., 39 Am. Rep. 627; Rodin the scope of their authority. “The consequences man v. Michigan Central R. Co., 20 N. W. Rep. 788, of mistake or misapprehension upon this point,” Sup. Ct. Mich.-ED. says the author, “have led many courts into conclusions greatly at variance with the common instincts of reasou aud humanity, and have tended to interpose | NEW YORK COURT OF APPEALS ABSTRACT. au unwarrantable shield between the conduct of railway employees and the just responsibility of the com

CONTRACT-GUARANTY- CONSIDERATION — STATUTE pavy. We trust that the reasonableness and justice of this construction will at no distant day induce its uni

OF FRAUDS-COLLATERAL.-Defendants guaranteed, in

writing, the return in six months of certain bonds versal adoption." Vol. 1, 554. There are decisions in the courts of other States, having been returned, and defendants having been in

loaned by plaintiffs to the R. I. M. Co. The bonds not more or less in conformity with those cited from Ohio and Kentucky, rejecting or limiting to a greater or

formed that plaintiff's intended to sell them upon the less extent the master's exemption from liability to a

guaranty, verbally agreed that if plaintili's would reservant for the negligent conduct of his fellows. We

cover a judgment against the company, they would agree with them in holding-and the present case re

take an assignment thereof, return to them the bonds quires no further decision—that the conductor of a

and pay the costs. Plaintiff's in pursuance of the agree.

ment, immediately brought suit against the company, railway train, who commands its movements, directs

recovered and perfected judgment, and tendered a when it shall start, at what stations it shall stop, at

written assignment thereof to plaintiffs, and demanded what speed it shall run, and has the general management of it, and control orer the persons employed upon

a performance of the agreement, which was refused.

In an action upon the agreement, hell, that it was supit, represents the company, and therefore that for in

ported by a suflicient consideration; that the performjuries resulting from his negligent acts the company is

anco by plaintiffs of the acts upon which defendant's responsible. If such a conductor does not represent promise was conditioned supplied the place of a prethe company, then the train is operated without any representative of its owner.

vious promise to perform. The contract was not

within the statute of frauds and was valid and bindIf now we apply these views of the relation of the conductor of a railway train to the company, and to

ing. The agreement was not collateral to any obligathe subordinates under him on the train, the objec- entered into by the defendants for their own benelit,

tion of the company, but was an original undertaking tions urged to the charge of tho court will be readily and for the purpose of settling the claim the plaintiff's disposed of. Its language in some sentences may be

had against them on their original guaranty, and obopen to verbal criticism; but its purport touching the

taining such indemnity as they could by a judgment liability of the company is, that the conductor and engineer, though both employees, were not fellow ser

against the company. Beckwith v. Brackett. Opinion vants in the sense in which that term is used in the de

by Rapallo, J. cisions; that the former was the representative of the [Decided (ct. 7, 1881.] company, standing in its place and stead in the running SPECIFIC PERFORMANCE-PURCHASER OBJECTING TO of the train, and that the latter was iu that particular

(URL) BY PAROLA his subordinate, and that for the former's negligence, purchaser cannot justify his refusal to perform his by which the latter was injured, the company was re contract by a mere ciuptious objection to the title tensponsible.

dered him; nor is it sufficient for him when the jurisIt was not disputed on the trial that the collision diction of an equity court is invoked to compel him to which caused the injury complained vf was the result perform his contract, merely to raise a doubt as to the of the negligence of the conductor of the freight train, I rendor's title. Before ho can successfully resist perin failing to show to the engineer the order which he formance of his contract on the ground of defect of had received, to stop the train at South Minneapolis title, thero must be at least a reasonable doubt as to


the vendor's title-such as affects its value, and would common-law certiorari improperly issued in a case not interfere with its sale to a reasonable purchaser, and reviewable by certiorari is appealable to this court. It thus render the land unmarketable. A defect in the is claimed that order is not appealable and the case of record title may, under certain circumstances, furnish Jones v. People, 79 N. Y. 45, is referred to as an aua defense to the purchaser. But there is no inflexible thority to that effect. That case simply decides that rule that a vendor must furnish a perfect record or where a certioruri has been lawfully issued, it is dispaper title. It has frequently been held that defects in cretionary with the court whether or not to quash it. the record or paper title may be cured or removed by The question presented in that case was whether the parol evidence. Seymour v.Delancey,; Mil-Supreme Court might lawfully issue a certiorari to reler v. McC'omb, 26 Wenj. 2:29; Fagen v. Davison,2 Duer, move an indictment into that court from the Court of 153; Brooklyn Park ('om. v. Armstrong, 45 N. Y. 234; | Oyer and Terminer, at the instance of the prosecution. Murray v. Harway, 56 id. 337; Shriver v. Shriver, 86 id. This court held that the Supreme Court had power to 575. In this action the records in the county clerk's issue the writ, and therefore it was within its discreoffice showed a deed of the lands to“ Electa Wilds,” tion whether to quash it, or remand the case to the and a subsequent deed, executed in 1867, from “Electa Oyer and Terminer, or proceed to its disposition in the Wilder” to one S., which deeds were in plaintiff's Supremo Court, and that no appeal would lie from an claim of title; the defect alleged was that the records order denying a motion to quash. The case is not an showed no conveyance from Electa Wilds. It appeared authority for the proposition that an order denying a that under the last deed, the title was held and the motion to quash a certioruri irregularly or improperly land occupied up to the trial of the action in 1881; that issued, in a case not reviewable on certiorari, is vot the deed to S. had been destroyed, but a mortgage appealable. In such a case this court might of its own giren by him for purchase-money was produced, in motion direct the writ to be quashed. Such a writ which Electa Wilds was named as mortgageo. The lies only to inferior tribunals or officers exercising jucommissioner who took the acknowledgment to said dicial powers to correct errors of law affecting matedeed and s both testified that the grantor was Electa rially the rights of parties. The fact that a public agent Wilds, and that said grantor and the grantee in the exercises judgment and discretion in the performance former deed was the same person. Helil, that there

of his duties does not make his action or powers juwas no defect in the title, and defendant was not justi-dicial in their character. People v. Walter, 68 N. Y. fied in refusing to perform. Hellrciye v. Munning. 403. The board of commissioners of the department Opinion by Earl, J.

of public parks of the city of New York, claiming au[Decided Oct. 7, 1881.]

thority by statute, Laws 1871, ss 1, 3, ch. 5.34; ch. 613,

Laws 1873 ; $ 14, ch. 3:29, Laws 1874, consented to the BANK-TRANSFORJED) FROM STATE INTO NATIONAL construction of an elerated bridge over the Harlem -RIGHT TO ESFORCE CONTRACTS. - Where under the river by the S. R. I. ('o., and entered into a contract provisions of the National Banking Act, and under with that company for the building of the bridge at authority of the Act of 1865, ch. 97, a State bank is its expense under certain regulations and conditions. transformed into a National bank, it is but a continu- llelil, that the proceedings of the board were not reance of the same body under a change of jurisdiction, viewable by certioruri, as if they had the power they and between it and those who have contracted with acted as public agents, and their action was not s::bit, it retains its .dentity and may, as a National bank, ject to review in that manner; if they had no power, enforce contracts made with it as a State bank. Where their consent was a nullity and affected the rights of therefore a State bank, at the time of its change to a

A writ of certioruri was directed to the board National bank, held a continuing guaranty of loans as such. lleld, that as the board was a mere departmade by it to defendant’s firm, upon the strength of ment of the city government (Laws 1873, ch. 335), and which it had made loans, and after the change further no action could be brought against it by its official advances were made, helid, that an action was main name, the writ was irregular; it should have been ditainable by the National bank upon the guaranty, and rected to the members of the board“ by their names." that guarantor was liable for the loans made both be. Section 21:29 of the Code of ('ivil Procedure provides fore and after the change. The general scheme of the that where the writ is brought “to review the deterNational Banking Act is that State banks may avail mination of a board or body other than a court, if an themselves of its privileges and subject themselves to action would lie against the board or body in its assoits liabilities, without abandoning their corporate ex ciate or official name, it must be directed to the board istence, without any change in the organization, ofli or body by that name; otherwise it must be directed cers, stockholders, or property, and without interrup to the members by their names." People X rel. Section of their pending business or contracts. All prop ond 1ve. R. ('0. v. Bourd of Com. of Dept. Pub. Il'orks. erty and rights which they hold before organizing as Opinion by Rapallo, J. National banks are continued to be vested in them [Decided (ct. , 1881.] under their new status. Great inconveniences might result if this saving of their existing assets did not in

TRIAL-ISSUES IN EQUITY CASES-VERDICT OF JURY clucle pending executory contracts, and pending guar

MERELY ADVISORY-('ODE, $$ 97:2, 1003—EVIDENCEantees, as well as vested rights of property. Although

ADMISSIONS -- FAILURE TO ANSWER LETTER in form their property and rights as State banks pur

BOUND BY STATEMENTS THEREIN.-The provisions of port to be transferred to them in their new status of

the ('ode (ivil P’ro., $$ 972,100:3, providing for the deterNational banks, yet in substance there is no artual

mination of the other issues of fact in an equity case, transfer from one body to another, but a continuation

where one or more specific questions have been subof the same body, under a changed jurisdiction. As

mitted to a jury, and also for the review of the rerbetween it and those who have contracted with it, it

dict of the jury upon the questions submitted, does retains its identity, notwithstanding its acceptance of

not change the old practice, and under the ('ode the the privileg- of organizing under the National Banking verdict of the jury, although a motion for a new trial Act. City Nat. Bank of Poughkeepsie v. Phelps. ()pin- has been denied, is not conclusive upon the court, and ion by Rapallo, J.

can only be read on the hearing with full power in the [Decided (ct. 7, 1881.]

court to follow or to reject as it may deem fit and

proper. It is only a part of the evidenco, and is for any CERTIORARI-MOTION TO QUASII

reason it is deemed unauthorized, it can be rejected, APPEALABLE.-An order denying a motion to quash : and is not obligatory upon the court. The object of

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in the case at bar, and if silence could be regarded as an admission of the correctness of the statement made, the same rulo is applicable to each case, and the decision last cited is controlling. Numerous other cases tend in the same direction. Waring v. U. 9. Tel. (0., 4 Daly, 233 ; Anthoine v. ('oit, 2 IIall, 10; Robinson v. Fitchburg R. Co., 7 Gray, 9:2; Ilill v. Pratt, :29. Vt. 119; People v. Lockwood, 3 Ilun, 304; Fairlie v. Denton, 3 Carr. & P. 103; Draper v. Crofts, 15 Mees. & Welsb. 166; MeGuiro v. Corwine, 3 Mac Arth. $1. It may well bo that under most circumstances what is said to a man to his face, which conveys the idea of an obligation upon his part to the person addressing him, or on whose behalf the statement is made, he is at least in some measure called upon to contradict or to explain ; but a failure to answer a letter is entirely different, and there is no rule of law which requires a person to enter into a correspondence with another in reference to a matter in dispute between them, or that silence should be regarded as an admission against the party to whom the letter is addressed. Such a rule would enable one party to obtain an advantage over another, and has no sauction in the law. Keen v. Priest, 1 Fos. & Fin. 314; Roe v. Day, 7 ('arr. & Payne, 705; Gaskill v. Skene, 14 Q. B. 661; Femo v. Weston, 31 V1.343; Allen v. Peters, 4 Phila. St, distinguished. Ridley r. Gyile, 9 Bing. 3319; Thorndike v. City of Boston, 1 Metc. 212; relate to the question of intent, and have no application to the caso at bar. Leurned v. Tillotson. Opinion by Miller, J. [Decided Oct. 7, 1881.]



such a proceeding is ancillary to the action of the court and simply advisory. If the verdict was not set aside the court was authorized to give it such weight as it determined it was entitled to. It could treat it as entirely conclusive, and dispense with other evidence upon the issues presented, or it could allow other evidence to be given, or entirely disregard the verdict, and find the fact according to its own judgment. Dan. Ch. Pr. 1146; Bootle v. Blundell, 19 Ves. Jr. 494, 499; Hampson v. Hampson, 3 Ves. & Bea. 41; Basey v. Gallagher, 20 Wall. 670, 680; Watt v, Starke, 101 U. S. 247; Colie v. Tifft, 47 N. Y. 119; Birdsall v. Patterson, 51 id. 43; Vermilyea v. Palmer, 52 id. 471, 471. (72) The evidence, in reference to the agreement, was conflicting, and the testimony of both the plaintiff and defendant, who were the principal witnesses in regard to the terms of the alleged agreement, was in conflict, and there was no such preponderance in the evidence as would authorize a holding, as a matter of law, that a valid agreement was established by which the defeudant was bound to reuder an account to the plaint iff for profits made, or for one-half of the stock purchased by himn by reason of such agreement. It is well settled, that under such circumstances, upon an appeal to this court, the facts are not reviewable. Code Civ. Pro., $ 1337; Matter of Ross, 87 N. Y. 514. See also Verm ilyea v. Palmer, 5:2 id. 471. Within this rule, under ordinary circumstances, the facts cannot be reviewed upon appeal to this court. (3) An omis. sion of one of the parties to a transaction to answer a letter written to him, after the transaction by the other party thereto, giving the latter's version thereof, may not be taken as an admission of the truth of the statements in the letter; they are mere declarations of the writer in his own behalf, which do not dewand an answer, and are not admissible as evidence against the person to whom the letter was sent. The letter in question contained a statement of the plaintiff's claim against the defendant, and it is insisted that it was admissible as a part of the res gesta. If the letter is admissible and competent it must be on the ground that it was a statement made by the plaintiff, which called for a response from the defendant, and none having been given, the silence of the defendant and his failure to make any reply to the same was an admission of the accuracy of tho statement made in the letter. The letter itself cannot be regarded as coming witbin the rule that where a statemeut is made at the time credit is given, as in an action for falsely representing the solvency of a strauger, proof may be given that the plaintiíf trusted him in consequence of the misrepresentation or evidence of declarations in kindred cases accompanying the acts done, which constitute a part of the res geste. Taylor Ev., $ 585; Bearer v. Taylor, 1 Wall. 637; Milne v. Leisler, 7 H. & N.9786, 796. The question hero discussed has been the subject of consideration in a recent decision of this court. Talcott r. Ilarris, 93 V. Y. 567, 571. It was there said : “ While a party may be called upon in many cases to speak where a charge is made against him, and in failing to do so may be considered as acquiescing in its correctness, his omission to answer a written allegation, whether by affidavit or otherwise, cannot be regarded as an admission of the correctness thereof, and that it is true in all respects. Reasons may exist why he may choose and has a right to remain silent and to vindicate himself at some future period, and on some more opportune occasion.” We are unable to see why the case cited is not directly in point. The affidavits constituted a statement by the plaintiff, which was not contradicted, no motion baring been made to vacate the order of arrest, upon the ground that the facts were not true, and no exception having been made to the same. The facts are very similar iu reference to the letter of the plaintiff

PATENT-INJI NCTION-XOT GRANTED TO UNITED) STATES-ACTION TO REPEAL--ACTION FOR INFRINGEMENT.–This suit is brought by direction of the attorney general, to repeal letters-patent granting exclusive rights to inventions, and has now been heard on a motion for a preliminary injunction to restrain commencement or prosecution of suits for infringement. The patent has expired, and no injunction is asked against assignment of the patent. The right to maintain such a suit is placed upon the same ground as that to repeal a patent for land. United States v. Gunning, 18 Fed. Rep. 5511. In a suit to vacate a patont for land it would hardly be claimed that the patentee shoul be restrained from preventing, or prosecuting suits for trespasses to the land during the pendency of the suit. Such acts would work no injury to the title or property of the l’nited States in question in the suit. The United States deals with the lands as a proprietor, and brings such suits to be restored to its proprietary rights. United States v. Schurz, 102 U'. S. 378; l'uited States v. Stone, 2 Wall. 52). Protection of the property would not impair those rights. Iu. fringement of a patent is a trespass upon the exclusive rights granted. The l'nited States, as un owner or proprietor, has no interest in promoting such trespasses; and their prerention, or the prosecution of suits for their commission, cannot be an injury to the United States as a proprietor. If the patent is repealed the suits may fall, or may not; but whether they do or not is a matter entirely between the parties to the suits, and not at all between the United States and either of the parties. No reason for granting the motion appears, and it must therefore be denied. ('ir. ('t., s. 1). New York, Aug. 9, 1881. I’nited States v. Colgate. Opinion by Wheeler, J.


* Appearing in 21 Federal Reporter,

TION OF CONSTITUTION.-(1) The damage to property, by the Constitution of Missouri, is placed upon the same basis as the value of the property taken, and neither can be done without compensation first made. This constitutional guaranty needs no legislative support, and is beyond legislative control. Johnson v. Parkersburg, 16 W. Va. 40:2-4:22; S. C., 37 Am. Rep. 779; Blanchard v. City of Kansas, 16 Fed. Rep. 444; Chambers v. Cincinnati R. Co., 69 Ga. 320; Thompson v. Grand Gulf R., 3 IIow. (Miss.) 240; Oakley v. Williamsburgh, 6 Paige, 262; Gottschalk v. C., B. & Q. R., 14 Neb. 550 ; Mollandin v. U. P. R., 14 Fed. Rep. 394. (2) When property is damaged by establishing the grade of a street, or by lowering or raising the grade of a street previously established, it is damaged for public use, within the meaning of the Constitution. Blanchard v. City of Kansas, 16 Fed. Rep. 444; Werth v. City of Springfield, 78 Mo. 107. (3) That a city was incorporated under a special charter before the adoption of the Constitution of 1875, and its charter continued in force, will not render the constitutional provision in respect to damages to property inoperative within the territorial limits of such city. Cir. Ct., W. D. MO., Aug., 1884. McElroy v. Kansas City. Opinion by Brewer, J.

TRUST-RESULTING—EXECUTOR PURCHASING TRUST PROPERTY-FRAUD.-An executor who negotiates a mortgage upon part of his decedent's estate, to provide funds for a child and devisee of such decedent, cannot afterward purchase the mortgage land under foreclosure proceedings and hold it for himself. The quality of his estate therein will be a resulting trust for the benefit of the child for whom the mortgage was made. In Michoud v. Girod, 4 How. 552, it was held that a purchase by an executor of the property of the testator is fraudulent and void, though the sale was at public auction, judicially ordered, and a fair price was paid; that a purchase by a trustee of a particular property of which he has the sale, or in which he represents another, or which he holds in a fiduciary way for another, carries fraud on the face of it; and Justice Swayne quotes with an emphatic approval the following rule in equity from Sir Edward Sugden's chapter on “Purchases by Trustees, Agents,'' etc.? be laid down as a general proposition that trustees,

* agents, commissioners of bankrupts, assignees of bankrupts, solicitors to the commission, auctioneers, creditors who have been consulted as to the mode of sale, or any persons who, by their commection with any other person, or by being employed or concerued in his affairs, have acquired a knowledge of his property, are incapable of purchasing such property themselves. * * For if such persons having a confidential character were permitted to avail themselves of any knowledge acquired in that capacity, they might be induced to conceal their information, and not to exercise it for the persons relying on their integrity. The characters are inconsistent." See also Church v. Marine Ins. Co., 1 Mas. 341; Daroue v. Fanning, 2 Johns. ('h. 252. ('ir. C't., W. D. La., March, 1881. Allan v. Gillett. Opinion by Boarman, J.

TRADEMARK CORPORATION HAS RIGHT TO ANOTHER CORPORATION CANNOT TAKE.- A corporation may acquire a property right to the use of a name other than its original corporate name as a trademark, or as incidental to the good will of a business, as well as an individual; and if it has acquired such a right, it cannot be deprived thereof by the assumption of such name subsequently by another corporation, whether the latter selects its name by the act of corporators who organize under the general laws of the State, or the name is selected for it in a special act by a legislative body. The name of a corporation hils been said to be the “knot of its combination,” with

out which cannot perform its corporate functions. Smith Merc. Law, 133. It has neither the right nor the power to change the corporate name originally selected without recourse to such formal proceedings for the purpose as may be authorized by the laws under which it has been incorporated, or by the consent of the authority from which its charter is derived. Nevertheless it may become known by another name by usage; and the courts have frequently treated acts done and contracts entered into by corporations under another name, as though done or entered into by it with the true name. Minot v. Curtis, 7 Mass. 441; South School-dist. V. Blakeslee, 13 Com. 227; Eastham v. Blackburn R. Co., 23 L. J. Exch. (N. S.) 199; Boisgerard v. N. Y. Banking Co., 2 Sandf. Ch. 23. Cir. Ct., S. D. New York, Aug. 15, 1884. Goodyear Rubber Co. v. Goodyear's Rubber Manfy. Co. Opinion by Wallace, J.

EMINENT DOMAIN-TRACK IN PUBLIC STREET--ABUTTING LOT OWNER-DAMAGES ESTOPPEL.- Where a railroad company has, by consent of the municipal authorities, laid its track upon a public street, and such occupancy permanently obstructs the use of the street, not only by the public, but also by the occupiers of abutting lots, in an action by the owners of such abutting lots against the railroad company for damages, held, that they were entitled to recover full compensation for the depreciation in the value of their property caused thereby. In estimating the damages the same standard was to be applied as in direct proceedings by the railroad company to condemu for its use the private right of such owners in the street. A recovery in this action will estop the owners from claiming that such occupancy was without their consent, and that full compensation had not been made for it. Hatch v. C. & I. R. Co., 18 Ohio St. 9:2, and was recognized in Railroad Co. v. Cobb, 35 id. 94; Railroad Co. v. Williams, id. 168; Railroad Co. v. Mowatt, id. 281; Railroad Co. v. Lawrence, 38 id. 41; and the right in such a case to recover for permanent injury to the adjacent property was distinctly decided in L. M. R. Co. v. Flambleton, to appear in 40 Ohio St. A. & G. W. R. (o. v. Robbins, 35 id. 531, distinguished. Cir. Ct., S. D. Ohio, July, 1884. Grafton v. Bultimore & Ohio R. Co. Opinion by Matthews, J.

JURISDICTION-FOREIGN CORPORATION -DESIGNATION OF AGENT ON WHOM PROCESS MAY BE SERVED. The act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant wbicli he may waive; and when a foreign corporation, in pursuance of the laws of a State in which it carries on business, designates a person upon whom process may be served, it thereby consents to be sued in the district embracing such State, and waives the exemption granted to it under the act of ('ongress. In Ex parte Schollenberger, 96 U. S. 377, 378, the Supreme Court says upon this subject: “A corporation cannot change its residence or its citizenship. It can have its legal home only at the place where it is located, by or under the authority of its charter; but it may, by its agents, transact business anywhere, unless prohibited by its charter, or excluded by local laws. Under such circumstances it seems clear that it may, for the purpose of securing business, consent to be 'found' away from home, for the purposes of a suit, as to matters growing out of its transactions. The act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant

“It may




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may consent to be sued anywhere he pleases, and cer. GIFT ACCIDENT POLICY — DONOR'S INTENTION tainly jurisdiction will not be ousted because he has CREDITORS.--A., in contemplation of leaving home, consented. Here the defendant companies have pro- purchased an accident insurance ticket, which by its vided that they can be found in a district other thau terms was uon-transferable under pain of forfeiture. that in which they reside, if a particular mode of pro. Before leaving home he laid the ticket on a table in ceeding is adopted, and they have been so found. In front of his wife, and said to her that she should our opinion therefore the Circuit Court has jurisdic take it and take care of it, and if he got killed before tion of the causes, and should proceed to hear and de he got back she would be $3,000 (the amount of the poloide them.” Similar views are announced in Railroad icy) better off.” Ileld, that these facts were insufficient Co. v. Harris, 12 Wall. 65; St. Clair v. ('ox, 106 U. S. to establish a gift of the ticket to A.'s wife as against 355-357 ; S. C., 1 Sup.. Ct. Rep. 354; N. E. Mut. Life his creditors; that in order to establish such a gift it Ins. Co. v. Woodworth, 111 U'. S. 116; S. C., 4 Sup. Ct. was necessary to prove that A. intended to part with Rep. 364. Like rulings have been made many times in both the possession and property of the ticket. the various Circuit Courts. Cir. ('t., Dist. Cal., Aug. Linsenbigler v. Gourley, 6 P. F. Smith, 166; Craw. 18, 1884. Gray v. Quicksilver Mining Co. Opinion by ford's Appeal, 11 id. 52; Trough’s Estate, 25 id. 115. Sawyer, J.

William's Appeal. Opinion by Mercur, C. J. (See 30


[Decided May 19, 1881.] ABSTRACT.


LAW. - A. filed a bill in equity CONSTITUTIONAL LAW-ART. 9, $ 7—MUNICIPAL COR

against B., praying for an injunction to PORATION—ULTRA VIRES — JUDGMENTS —

strain repeated and SET-OFF.

threatened trespasses Municipal corporations have no power to purchase the upon certain alley way and parcel of land, outstanding judgments or obligations of their credit the title to which the bill alleged to be vested in A. ors for any purpose whatsoever, not even to set them B. filed an answer denying A.'s title to the premises off against the claims of said creditors. A, obtained in controversy. Held, that no special ground for judgment against a borough; B., the treasurer of equitable relief being shown, the court had no juristhat borough, held a judgment against A., which was

diction in the premises until the rights of the parties subsequently purchased by said borough. The avowed should be established at law, and that therefore the purpose of this transaction was to use the borough as

bill should be dismissed. Where the title to real esa means to collect B.'s judgment by way of set-of

tate is in dispute and no special grounds for equitable against A.'s judgment. Held, that this was a loan of relief, such as irreparable damage or the like, are disthe credit of the borough within the prohibition of

closed, equity will not interfere by injunction to rearticle 9, section 7, of the Constitution of Pennsylva- strain repeated and threatened alleged trespasses until nia, and hence that the proposed set-off is inadmissi

the rights of the parties have been determined at law. ble. Early's Appeal. Opinion by Gordon, J

When thus determined, or when they are admitted in [Decided May 21, 1883.]

the pleadings, or otherwise clearly appear, an equity

based upon that right, superinduced by the acts of the COVENANT-EASEMENT — INCUMBRANCES - RECORD

parties, may be asserted, and a decree for equitable reING ACTS.—(1) A covenant to convey land in fee sim

lief made. Thus equity is made the means not of estabple, subject to the reserved right in the grantor to all

lishing the legal right, but of giving adequate protec the coal underlying the same, does not bind the covenantee to accept a deed when the property is subject irreparable injury has been shown, and it does not yet

tion in the enjoyment of it when thus established. No to certain easements and incumbrances not mentioned

appear that a multiplicity of suits must result under proin the agreement, although the deed by the grantor to

ceedings at law; all parties in interest may be put upon a third party creating the easements and incumbrances

the record in a single suit, and non constat that the was on record at the time the covenant was entered

trial and determination of that suit may not end the into. Withers v. Atkinson, 1 Watts, 236; Stitzel v. Kopp, 9 W. & S. 29. (2) It is the duty of the court,

controversy; the right to equitablo relief may follow and not of the jury, to construe a written contract;

if any equity is superinduced by the act of the parties, it would

but the interference of equity in such a case rests, ils have been

to submit to the jury the question whether the defendant had orally Newburgh, 2 Johns. (h. 164, “on the principle of a

stated by Chancellor Kent in Gardner v. Village of agreed to purchase from the plaintiff subject to the

clear and certain right to the enjoyment of the subrights of a third party, when there was neither allega

ject in question, and injurious interruption uor proof of a mistake or omission in the written contract. Pegg v. Rist. Opiuion by Truukey, J.

tion of that right, which upon just and equitable

grounds ought to be prevented.” To the same effect [Decided March 3, 1884.]

are the cases of North Pem. ('oal. Co. T. Snowden, 6 MUNICIPAL CORPORATION-STREETS-NEGLIGENCE, Wright, 488; Norris' Appeal, 61 Penn. St. 275; Tillmes A township is not an insurer against all defects or v. Marsh, 67 id. 507; IIaines' Appeal, 73 id. 169; and obstructions, latent as well as patent, in the public | Grubb's Appeal, 90 id. 2:28. In Rhea r. Forsyth, 1 highways. Where the owner of adjacent property ran Wright, 503, Mr. Justice Woodward, after a review of a small gaspipe under a highway in such a manner the cases, concluded as follows: “From these and that the same was exposed at the bottom of the gut. many more authorities, which might be cited to the ters, and after remaining there about six weeks said same effect, it is apparent that where the plaintiff*s pipe was broken the point where it traversed the right has not been established at law, or is not clear, gutter by the deviation of a passing team, and within but is questioned on every ground on which he puts it, an hour afterward a person passing witb a light was not only by the answer of the defendant, but by proofs injured by an explosion of gas escaping from the frac in the cause, he is not entitled to remedy by injunc. tured pipe, the township is not liable for the injury, tion. It is not enough that he is able to produce some there being no evidence that the township authorities evidence of his right, where there is conflicting evi. had any knowledge of the existence of the pipe up to dence that goes to the denial of all right. When the the time of the accident. Otto Township v. Wolf. emergency is pressing, and the injunction atidarits Opinion by Paxson, J. (See 30 Alb. L. J. 424.) disclose a prima facie right in the plaintiff, the proper [Decided June 9, 1884.]

practice, I apprehend, is for the court to interfere by



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