The question whether a territory claiming to be a school district, is a legally existing district, cannot be tried upon an information in the na ture of a quo warranto against the person elec- ted as a committee of the district. State ex rel. Woodford v. North et al. 90
The People having, through their constitu- tional agents, ratified an election at which a ju- dicial officer is elected, it is not competent for them to question it by quo warranto. People v. Flanagan. 565
To remove a duly elected officer of a society, because of alleged ineligibility, the proper mode of proceeding is by quo warranto, and not by mandamus to compel a new election. Matter of Hebra Hased Va Emet. 584
Railroad bonds payable to hearer, with place of payment left blank, and the amount of princi- pal and interest secured thereby indefinite and uncertain, are not negotiable. Jackson v. The V. S. & T. R. R. Co. et a.
To make the company liable the passenger must in some way bring to the knowledge of the company the fact that the property checked is merchandize, not baggage. Ib.
In an action against a railroad company for killing an animal at a crossing, it is not suffi- cient to show that the employees of the com- pany neglected to ring the bell or sound the whistle in order to authorize a verdict against the company, but it must also be shown that such negligence caused the damage. Holman v. The C., R. I. & P. R. R. Co. 474
A railroad company is bound to use more cau- tion in crossing a street in a crowded city than in crossing a country road. Zimmer v. The N. Y. C. & H. R. R. R. Co.
Where a conductor attempts to eject a passen. And where the President is authorized by enger from the train for refusing to pay his fare a dorsement to name the place of payment where- by the amount secured is made certain, and en- dorses the bonds but leaves the place of payment blank, an innocent holder acquiring possession from a thief is not authorized to fill the blank. Ib.
A passenger railway, which is required by its act of incorporation and by a city ordinance, to keep the streets, upon which its track is, in good | repair, is bound to clear away debris, &c., carried on to the street by an unprecedented freshet Pittsburg & Birmingham Pass. R. R. Co. v. City of Pittsburg. 136
The ticket issued by a railroad company is not conclusive evidence of the right of the holder, but only a token or voucher, adopted for convenience, to show that the passenger has paid his fare from and to the point named. Nelson v. The Long Island R. R.
second time, the passenger has a right to pro- tect himself against any such attempt, and may resist to such extent as may be necessary to maintain such right. English v. The Prest., &c., of the D. & H. C. Co. 580
The train being in motion, the passenger is justified in repelling any attempt to eject him which would endanger his life or subject him to great hazard and peril, and his resistance can- not be urged against his right to recover dama- ges for injuries sustained through such ejec-
A contract between a railroad company and an express company which provides that the railroad company should assume the usual risks upon express matter, except that it should not a sume any risk or loss upon any money, &c., for which, with the express company's safes and messengers, no charge for carriage was to be made and the latter were to ride free, will not protect the railroad company from liability for negligence of its employees, by means of which one of the messengers is killed. Such protection can only be invoked where there is an express provision to that effect in the con- tract. Blair, adm'r, v. The Erie R. Co. 598 As to taxation of railroad companies, see TAXES.
An order "to execute and acknowledge for- There is a distinction between a reservation mal satisfaction and discharge of all real estate of a question as to the effect of evidence, and a mortgages" held by a receiver, authorizes him reservation as to its admissibility. Lathrop et to satisfy and discharge, upon payment, a mortal. v. Bramhall, admr., et al. gage not yet due. Hurmans, trustee, v. Cark-
Where, on motion for a receiver, an order is made that a named person on giving security be appointed receiver, the appointment takes effect from the date of the order; and therefore where, after such an order, and before the re- ceiver so appointed perfected his securities, cer- tain execution creditors, who had received notice of the appointment, put the sheriff in pos- session of the goods over which the receiver was appointed, Held, That immediately on notice being given of the appointment the sheriff ought to have been withdrawn. Edwards v. Ed- wards. 314
Receiver permitted to come into an action and serve an answer setting up his appointment, and forbidden to allege anything in hostility to plaintiff, may not afterwards amend such answer and allege other matters. Harlow, trustee, v. Southworth, receiver.
The appointment of a receiver in proceedings for the voluntary dissolution of a corporation, of the property of the corporation, before the report of the referee appointed under the order, was irregular and in no way vested property in receiver or prevented creditors from pursuing their ordinary remedies. Chamberlain v. Roch- ester Seamless Paper Vessel Co. 588
While a court of equity will, on a proper application, protect its own receiver, when his
Unless the party's rights or interests are in- juriously affected by the referee's action in the former case, no rule of law is violated, and the referee has a right to use his discretion in re- serving his decision. lb.
As to practice on a reference, see PRACTICE.
An agreement not to sue one of several possession is sought to be disturbed, and while joint debtors, or one of several conspirators, does a plaintiff desiring to prosecute a claim against not release the others. The People v. Tweed et the receiver might, very properly, obtain leave to prosecute, yet his failure to do so is no de- fense to his action on the trial thereof, and espe- cially so where there is no attempt to interfere with the possession of the receiver, but only to obtain a judgment on a claim for damages. Allen v. Central R. R. of Iorou.
As to power of receiver in supplementary proceedings to bring action of partition, see PAR-
As to actions against receivers, see CONTEMPT. As to appointment of receiver of national bank, see NATIONAL BANKS,
As to power of State court to direct receiver of national bank to pay over moneys, see JURIS- DICTION.
The test by which to determine whether the referee should find the facts which he was call- ed on to find is, are they material, or were they mere items of evidence not proper subjects for specific findings. Steele et al. v. Lord. 225
RELIGIOUS SOCIETIES.
Under section 4 of the Act ef 1813, providing for the incorporation. of religious societies, it must appear that the property was given or granted to the society or for its use, or no title will vest: if, from the nature of the society's holding it is apparent that the owner of the fee did not so intend, no title passes. The Alexan- der Presbyterian Church v. The Presbyterian Church, cor. 5th ave. and 19th-st.
REMOVAL OF CAUSE FROM STATE TO FEDERAL COURT.
A suit commenced and actually tried in a State court, before the passage of the act of Congress of March 3, 1875, but in which a new trial had been granted, and which was pending after the passage of the said act, may be re- moved from such State Court to the Circuit Court of the United States. Andrews, exr., v. Garrett et al. 142
A referee has power to amend a complaint by Under the act of 1866 (14 U. S., S. at Large striking out or inserting the name of a party 306) a cause cannot be removed from a State to upon such terms as he shall deem just. Knapp the U. S. Court, where there is but a single de v. Hungerford et al.
per se work a forfeiture of the right to be allow- ed to file supplemental bill, but is only a cir- cumstance bearing on the good faith of the ap- Ib.
After trial, appeal and reversal, it is too late to remove under the act of 1789. Ib. A party seeking to remove a cause must complication. ply strictly with the statute. Ib.
The act of Congress only authorizes a remov- al where application therefor is made before final hearing or trial, and this means before final judgment in the court of original jurisdiction.
Brice et al. v. Sommers et al.
Section 121 of the code includes not only legal representatives but successors in interest.
A proceeding by petition.gainst a former trustee to open an order by which he was dis- charged as trustee under the statute, on the ground of gross mismanagement and violation of duty while acting as trustee, may be revived against his representatives in case of the death ings. In the matter of will of Foster. of such former trustee pending such proceed- 220
The rule that the sale of an interest in a vessel
by a part owner, who is also a master, carries no right to the command, is founded on the policy of the law, and a contract to sell the command, even by the owners of a majority interest, is in- capable of enforcement. Williams v. Ireland. 281
Any contract that fetters the judgment of the owners, or binds them to the selection of a par ticular person, is in violation of the rights of the other parties, whose property or lives are in- volved in the voyage, and therefore void. lb.
Where a master, who is also part owner, sells his share and transfers the command to his vendee, the latter takes only an expectancy that he will be allowed by the owners to retain the command, and whatever he pays for this ex- pectancy is a profit to the former master for his relinquishment of the command, and not any part of the ship's earnings, in which the other owners are entitled to share.
place of business with a person of mature age, and who at the time of the service was on and employed on the premises, is in sufficient. People x rel. Mordaunt v. Fowler, Justice. 560
And where an objection to the regularity of the service is made preliminarily, which is over- ruled and exception taken, by subsequently offering evidence the tenants do not waive the defect in the service of the summons.
The heirs could not be compelled to take the house so built under such agreement, and pay for same; they could be compelle i to convey same to such third party. lb.
Where State bonds are required to be en- dorsed by the State, and the endorsement refers to the statute under which they were issued, * * has Neither a party nor a witness attending a and "that the undersigned governor court in this State from a foreign State can be hereunto set his hand and caused to be affixed served with a summons, unless he loses his hereto the seal of the State," and the seal was privilege by remaining within the State an un- affixed, the bonds are well executed by the gov reasonable length of time after the close of the ernor signing his name without the addition of trial. Person v. Markle et al. 567 his official designation. Levy et al v. Burgess, 403
A parol agreement between an ancestor and a third person by which, for a consideration, the former agrees to sell and convey certain real es-
tate to the latter, when performed, binds the
heirs of the vendor. Admissions of ancestor are
admissible to establish such agreement. Knapp v. Hungerford et al.
A sale of growing timber, to be taken away by the purchaser as soon as possible, is not a contract for or sale of land or any interest there- in, within the 4th Section of the Statute of Frauds. Marshall v. Green. 43
Such a sale is within the 17th Section, and a portion of the trees having been cut, that was acceptance and actual receipt of a part of the goods sold, which made the oral contract of sale binding within the meaning of the Sec tion. 1b-
A verbal promise by a vendee who takes land subject to encumbrances to pay such encum- brances is valid. Taylor et al. v. Preston.
The law raises an implied promise on the part of the vendee taking subject to encumbran- ces, when they enter into the consideration, to indemnity the vendors against them, and the vendor may sue to the use of the holder of the encumbrances without showing that he has paid it. Ib.
An agreement by which one creditor assumes the debt of another creditor and takes security from their debtor for his own debt and the one assumed, and the other creditor realeses the debtor, is not within the statute of frauds. Tisdell v. Morgan.
An action may be sustained for the price of goods, value over $50, where the sale was by parol, no money paid at the time of sale, and the delivery made some time subsequent to the sale. Dellon et al. v. Stanton. 488
STATUTE OF LIMITATIONS. Under the bank charter which bound the indi-
vidual property of the stockholders for the ulti- mate redemption of the bills issued, a right of
action accrues to each bill-holder when the bank refuses to redeem, and is notoriously and contin- Third party can protect his interest in equity, uously insolvent; it is not necessary to first ex and compel heirs to convey to him their in-haust the assets of the bank by legal proceed-
1b.ings. Terry v. Tubman.
In an action for work done, the plaintiff, in answer to a plea of the Statute of Limitations, put in evidence the two following letters, writ- ten within six years of the comencement of the action by the defendant's testator, the person for whom the work was done, to the plaintiff : I shall be obliged to you to send in your ac count, made up to Christmas last. I shall have much work to be done this spring, but cannot give further orders till this be done." "You have not answered my note. I again beg of you to send in your account, as I particularly require it in the course of this week."
Held, That they amounted to a promise to pay the balance due on the account, and took the case out of the satute uincey v. Sharp et al. 446
Where notes are transferred by indorsement in part payment of a debt, payment of the notes at maturity by the makers does not operate as an acknowledgment of the residue of the in- debtedness; they not being the authorized agents of the debtor. Smith survivor v. Ry-
It is not per se unlawful as against public policy for several persons to unite in specu- lating in a particular stock. As to what kind of combination would be u lawful Quaere. 1b. In a purchase of stock by a broker, and a sale in default of margin, it is a question for the jury whether the broker was to borrow money on the stocks for the purpose of carrying the same. Also, what is proper notice of sale for default of margin. A regular sale, namely, a sale to be delivered the next day, not void under the Statute of Frauds. Broker need not keep the identical stock on hand if he had other shares of the same stock to supply their place. Rogers v. Gould.
Delivery of goods by a vendor to a carrier is a delivery to the vendee But until the transitus is completely ended, the vendor has a right to stop them in transitu, if the vendee become in- solvent after the sale and before delivery. If the vendee was insolvent at the time of the 11-
One who, after foreclosure, purchases of the mortgagor a term of years, and agrees to pay in- cumbrances thereon, so far as may be necessary to protect his title, does not stand in the position of a surety, and is not entitled to be subrogated. 455 Bloomingdale v. Barnard.
The doctrine of subrogation is applicable where a party is compelled to pay the debt of another to protect his own rights or to save his own property. Cole v. Malcolm, impld., &c. 476
As to right of second mortgagee to be subro- gated to right of first mortgagee, see MORT- GAGE.
SUMMARY PROCEEDINGS.
The provision of Sec. 1, that the officers must meet on the first Monday in September, is mere. ly directory. Ib.
A Board of Supervisors are empowered to name the officer by whom town bonds, to raise money for road or bridge improvements, shall be executed. lb.
As to whether Court Officers are entitled to extra compensation for the care of individual jurors by night and on days when the court is not holding, is for the Board of Supervisors to determine and not for the courts. Cahill v. The Mayor, &c., of New York
As to damages recoverable in actions against supervisors, see DAMAGES.
SUPPLEMENTARY PROCEEDINGS.
As to power of receiver to bring action for partition, see PARTITION.
As to proceedings for contempt in, see CON-
A Court of Equity will not interfere by in.
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