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.
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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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