all persons to procure tickets before entering the

The St. Louis & S. W. R. R. Co. v. Myrtle.
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 Railroad companies are not liable for the loss
ture of a quo warranto against the person elec- of merchandize delivered to them as baggage
ted as a committee of the district. State ex rel. for transportation with a passenger. Sloman v.
Woodford v. North et al.
90 The G. W. R. R. Co.,

The People having, through their constitu To make the company liable the passenger
tional agents, ratified an election at which a ju. must in some way bring to the knowledge of
dicial officer is elected, it is not competent for the company the fact that the property checked
them to question it by quo warranto. People v. is merchandize, not baggage.



In an action against a railroad company for
To remove a duly elected officer of a society, killing an animal at a crossing, it is not sufli-
because of alleged ineligibility, the proper mode cient to show that the employees of the com-
of proceeding is by quo warranto, and not by pany neglected to ring the bell or sound the
mandamus to compel a new election. Matter of whistle in order to authorize a verdict against
Hebra Hased Va Emet.

584 the company, but it must also be shown that

such negligence caused the damage. Holman v.
The C., R. I. & P. R. R. Co.

Railroad bonds payable to learer, with place A railroad company is bound to use more cau-
of payment left blank, and the amount of princi- tion in crossing a street in a crowded city than
pal and interest secured thereby indefinite and in crossing a country road. ` Zimmer v. The N.
uncertain, are not negotiable, Jackson v. The V. Y. C. & H. R. R. R. Co.

8. & T. R. R. Co. et a .


Where a conductor attempts to eject a passen.
And where the President is authorized by en ger from the train for refusing to pay his fare a
dorsement to name the place of payment where second time, the passenger has a right to pro-
by the amount secured is made certain, and en tect himself against any such attempt, and may
dorses the bonds but leaves the place of payment resist to such extent as may be necessary to
blank, an innocent holder acquiring possession maintain such right. English v. The Prest., &c.,
from a thief is not authorized to fill the blank. of the D. & H. C. Co.


The train being in motion, the passenger is

justified in repelling any attempt to eject him

which would endanger his life or subject him
A railroad company must maintain fences to great bazard and peril, and his resistance can.
along the line of its road, and at crossings, not be urged against his right to recover dama-
gates, &c. Spinner v. N. Y C. & H. R. R. R. Co. ges for injuries sustained through such ejec-


Failvre to keep gates shut is evidence of neg.

A contract between a railroad company and
ligence, and the company is liable for any dam.
age occasioned thereby.


an express company which provides that the

railroad company should assume the usual
A passenger railway, which is required by its risks upon express matter, except that it should
act of incorporation and by a city ordinance, to not a sume any risk or loss upon any money,
keep the streets, upon which its track is, in good &c., for which, with the express company's safes
repair, is bound to clear away debris, &c., carried and messengers, no charge for carriage was to
on to the street by an unprecc tented freshet. be made and the latter were to ride free, will
Pittsburg & Birmingham Pass. R. R. Co. v. not protect the railroad company from liability
City of Pittsburg.

136 for negligence of its employees, by means of

which one of the messengers is killed. Such
The ticket issued by a railroad company is protection can only be invoked where there is
not conclusive evidence of the right of the an express provision to that effect in the con.
holder, but only a token or voucher, adopted for tract. · Blair, adm'r, v. The Erie R. Co. 598
convenience, to show that the passenger has As to taxation of railroad companies, see
paid his fare from and to the point named. TAXES.
Nelson v. The Long Island R. R.


The representations of a ticket agent who re-
ceives the money and hands out the ticket, as

to the time the ticket bas to run, are admissible
and binding on the company.


A passenger, having been ejected from a train An action to recover an assessment on stock
for wrongfully refusing to pay his fare, has no beld by defendant may be maintained by the
right, upon an offer to pay his fare after such receiver of a national bank. Stanton, rec'r, v.
expulsion, to be again admitted as a passenger Wilkeson.

on the train.


The U. S. District Court has jurisdiction of
A railroad company have a right to require such an action.




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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 mort al. v. Bramhall, admr., et al.
gage not yet due, Hurmans, trustee, v. Cark-

290 Unless the party's rights or interests are in-

juriously affected by the referee's action in the
Where, on motion for a receiver, an order is former case, no rule of law is violated, and the
made that a named person on giving security referee has a right to use his discretion in re-
be appointed receiver, the appointment takes serving his decision.

effect from the date of the order; and therefore
where, after such an order, and before the re Where a complaint and bill of particulars is
ceiver so appointed perfected his securities, cer served setting up certain items, a referee cannot
tain execution creditors, who had received render a judgment on another and different claim
notice of the appointment, put the sheriff in pos- when the complaint is not amended or no notice
session of the goods over which the receiver was given of any claim on such new item. Hallen-
appointed, Held, That immediately on notice bake v. Phelps et al.

beivg given of the appointment the sheriff'
ought to have been withdrawn. Edwards v. Ed-



The character of an action on contract to re-
Receiver permitted to come into an action and cover money deposited with a person on his
serve an answer setting up his appointment, I promise to return same when demanded, is not
and forbidden to allege anything in hostility to changed by the allegation that the depositary
plaintiff, may not afterwards amend such answer misappropriated and converted the funds. Har.
and allege other matters. Harlow, trustee, v. den v. Corbett.

Southworth, receiver.


The complaint is controlling in determining
The appointment of a receiver in proceedings the nature of an action.

for the voluntary dissolution of a corporation,
of the property of the corporation, before the Where the accurracy of an account is brought
report of the referee appointed under the order, in question the case is referable. Cowden v.
was irregular and in no way vested property in Teale.

receiver or prevented creditors from pursuing
their ordinary remedies. Chamberlain v. Roch-

As to practice on a reference, see PRACTICE.
ester Seamless Paper Vessel Co.


While a court of equity will, on a proper
application, protect its own receiver, when his

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. I'voeed 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

Under section 4 of the Act ef 1813, providing
with the possession of the receiver, but only to for the incorporation of religious societies, it
obtain a judgment on a claim for damages: must appear that the property was given or
Allen v. Central R. R. of Iowa.


granted to the society or for its use, or no title
As to power of receiver in supplementary will. vest: if, from the nature of the society's
proceedings to bring action of partition, see Pan- holding it is apparent that the owner of the fee

did not so intend, no title passes. The Aleran-

der Presbyterian Church v. The Presbyterian
As to actions against receivers, see CONTEMPT. Church, cor. 5th ave. and 19th-st.

As to appointment of receiver of national See CORPORATIONS.

As to power of State court to direct receiver

of national bank to pay over moneys, see JURIS.

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
The test by which to determine whether the trial had been granted, and which was pending
referee ehould find the facts which he was call. after the passage of the said act, may be re-
ed on to find is, are they material, or were they moved from such State Court to the Circuit
mere items of evidence not proper subjects for Court of the United States. Andrews, exr., v.
specific findings. Steele et al. v. Lord.
225 Garrett et al.

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 10
upon such terms as he shall deem just. Knapp the U. S. Court, where there is but a single de
vi Ilungerford et al.
49. fendant, Vose v. Yulee.


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After trial, appeal and reversal, it is too late per se work a forfeiture of the right to be allow-
to remove under the act of 1789.

Ib.ed to file supplemental bill, but is only a cir-

cumstance bearing on the good faith of the ap-
A party seeking to reinove a cause must complication.

ply strictly with the statute.


Section 121 of the code includes not only legal
The act of Congress only authorizes a remov- representatives but successors in interest. Ib.
al where application therefor is made before
final hearing or trial, and this means before final

A proceeding by petition :.gainst a former
judgment in the court of original jurisdiction. trustee to open an order by which he was dis-
Brice et al. v. Sommers et al.

478 charged as trustee under the statute, on the

ground of gross misinanagement and violation
An application made after an appeal has been of duty while acting as trustee, may be revived
taken, is too late.

Ib. against his representatives in case of the death
A suit to annul a will as a muniment of title, ings. In the matter of will of Foster.

of such former trustee pending such proceed-

and to limit the operation of a decree admitting
it to probate, in all its essential elements is a

suit for equitable relief, and if it can be main-
tained in a state court, may also be maintained

The rule that the sale of an interest in a vessel
by original process in a Federal court, or re- by a part owner, who is also a master, carries no
moved thereto, where the parties are residents right to the command, is founded on the policy
of different States. Gaines v. Fuentes et al. 554 of the law, and a contract to sell the command,

even by the owners of a majority interest, is in.

capable of enforcement. Willinm8 v. Ireland. 281
In an action to recover personal property, no

Any contract that fetters the judgment of the
demand is necessary of a defendant who wrong owners, or binds them to the selection of a par.
fully detains the property, not being a bona fide ticular person, is in violation of the rights of the
purchaser. Salamon v. Van Praag. 28

other parties, whose property or lives are in.

volved in the voyage, and therefore void. 1b.
At common law and by statute of 1875, (Conn.)
a right to immediate possession is necessary to

Where a master, who is also part owner, sells
maintain replevin for goois unlawfully detain- his share and transfers the command to his
ed. Spencer v. Roberts.

92 vendee, the latter takes only an expectancy that

he will be allowed by the owners to retain the
Under statute of 1866, title was sufficient. 15. command, and whatever he pays for this ex-
A refusal based upon one ground to deliver pectancy is a profit to the former master for his
personal property to one claiming it, is a waiv. relinquishment of the command, and not any
er of all other objections to a delivery, which part of the ship's earnings, in which the other
cannot afterwards be abandoned and others in owners are entitled to share.

sisted upon. Bradley v. Cole.


No demand is necessary to maintain replevin
where defendants' possession is illegal and

An exact meeting of the minds of the parties
wrongful. Shoemaker et al. v. Simpson.. 93

with reference to all its terms and incidents is

necessary to constitute a contract of sale. Alex-
The claim itself is consideration enough to ander et al v. Fowler.

support an undertaking upon claim and delivery
of personal property. Harrison, survivor, v.

As to sales and re-sales on foreclosure, see
Utley et al.

It is not necessary that the property should sonal property out of the statute, see STATUTE

As to what is necessary to take a sale of per-
be taken and retaken in order to sustain an
action on the bond, the taking and retaking
may be claimed and bond given directly. Ib.


The findings of a referee in proceedings for
As to place of business in New York City giv. to a purchaser upon which he may rely. In the

the sale of an infant's land are representations
ing a residence in this State, see ATTACHMENTS. matter of the application of Jackson, an infant,
for leuve to sell her real estate.



A grandfather, who took his grandchild in

her infancy, and adopted and supported hei un-
A supplemental complaint may be filed to til she was fifteen, when she left his house, and
carry into effect a judgment of foreclosure upon supported herself, may maintain an action for
application of the assignee or the representative her seduction. Certwell v. Hoyt.

of a deceased plaintiff. Robinson v. Brisbane et


A lapse of over four years from the date of In summary proceedings to remove tenants, a
the recovery of judgment, and nearly three service of the summons upon the tenants and
years from the date of the assignment, does not undertenants by leaving a copy thereof at their



* has

place of business with a person of mature age, The heirs could not be compelled to take the
and who at the time of the service was on ind house so built under such agreement, and pay
employed on the premises, is in sufficient. People for same; they could be compelle i to convey
X rel. Mordaunt v. Fowler, Justiee.
560 same to such third party.

And where an objection to the regularity of

ile service is made preliminarily, which is over-
ruled and exception taken, by subsequently Where State bonds are required to be en.
offering evidence the tenants do not waive the dorsed by the State, and the endorsement refers
defect in the service of thə summons. 1b to the statute under which they were issued,

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 executtd 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. Burgexs,


Judgments can only be set off on summary
application by motion Swift v. Prouty. 406 To take a sale of personal property out of the

Where a party, as security for another, bas statute there must be a payment or a delivery
deposited certain bonds in bank, and has given

and acceptance of the article. Delivery without
liis note for an amount represented by some of acceptance is nut sufficient. Brewster et al. v.


those bonds, and by the order of the court some
of those bonds are sold ; in an action on the A sale of growing timber, to be taken away
note by party for whose benefit the de sit was by the purchaser as soon as possible, is not a
made, the amount of the bonds sold may be off contract for or sale of land or any interest there-
set against the note. Manning v. Sweeting. 443 in, within the 4th Section of the Statute of

Frauds. Marshall v. Green.


Such a sale is within the 17th Section, and a
Sheriit has a right to pay money into court portion of the trees having been cut, that wag
where there are contesting claimants to it. Weld acceptance and actual receipt of a part of the
v. Conner, sheriff, et al.

100 goods sold, which made the oral contract of

sale binding within the meaning of the Sec
Court may direct him so to do.
Ib. tion.

As to right of holder of sheriff's certificate to A verbal promise by a vendee who takes land
surplus moneys on sale under deed of trust, see subject to encumbrances to pay such encum.

brances is valid. Taylor et al. v. Preston. 68

The law raises an implied promise on the

part of the vendee taking subject to encumbran-
Words spoken, inputing unchastity to a fe- ces, wlfen they enter into the consideration, to
male, are not actionable without special dam- indemnity the vendors against them, and the
age. Pollard v. . Lyon.

440 vendor may sue to the use of the holder of the

encumbrances without showing that he bas
The special damage should be alleged and paid it.

proved specifically. (See, however, Laws of N.
Y., 1871, c. 219.)

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
Where, under a parol contract for the purchase debt, is not within the statute of frauds.
of land, the vendee has paid the consideration Tisdeli v. Morgan.

but received no deed, consent that the vendee
may take possession of the land will be implied;

An action may be sustained for the price of
it cannot be inferred that the vendor intends to goods, value over $50, where the sale was by
retain the consideration and the use of the land parol, no money paid at the time of sale, and
Miller v. Ball.


the delivery made some time subsequent to the
sale. Delion et al. v. Stanton.

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

Under the bank charter which bound the indi.
heirs of the vendor. Admissions of ancestor are vidual property of the stockholders for the ulti-
admissible to establishı such agreement. Knapp mate redemption of the bills issued, a right of
v. Ilungerford et al.


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-
16. | ings. Terry v. Tubman.



In an action for work done, the plaintiff, in chase, whether it was known to the vendor or
answer to a plea of the Statute of Limitations, not, no right of stoppage exists. Gallagher v.
put in evidence the two following letters, writ. Whitaker.

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 :

One who holds under a grantee of a fraudu.
“ I shall be obliged to you to send in your ac lent

conveyance is not entitled, on paying the
count, made up to Christmas last. I shall have

amount of a judgment, to be subrogated to the
much work to be done this spring, but cannot
give further orders till this be done." "You rights of judgment creditor who hus had such
have not answered my note. I again bog of conveyance set aside. Cole v. Malcolm, impla.

you to send in your account, as I particularly
require it in the course of this week."

One who, after foreclosure, purchases of the
Held, That they amounted to a promise to pay mortgagor a term of years, and agrees to pay in-
the balance due on the account, and took the cumbrances tbereon, so far as may be neceesary
case out of the satute uincey v. Sharp et to protect his title, does not stand in the position

446 of a surety, and is not entitled to be subrogated.
Where notes are transferred by indorsement Bloomingdale v. Barnard.

in part payment of a debt, payment of the notes
at maturity by the makers does not operate as

The doctrine of subrogation is applicable
an acknowledgment of the residue of the in- where a party is compelled to pay the debt of
debtedness; they not being the authorized another to protect his own rights or to save his
agents of the debtor. Smith survivor v. Ry- own property. Coie v. Malcolm, impld., &c. 476


As to right of second mortgagee to be subro.
There is no agency between several joint gated to right of first mortgagee, see MORT.
debtors or between principal and surety or an | GAGE.
insolvent debtor and his assignees which will
make apayment by one evidence of an acknowl.

edgement of the debt by the others so as to re-
vive it.


As to service of summons in, see SERVICE,
The delivery of notes in part payment operates

only as of the day of delivery to take the case
out of the stutute.


Section 1, Chap. 855, of the laws of 1869 as
As to limitation of time to contest discharge amended by Chap. 260, la ws of 1874, and Sec. 2.
of bankrupt, see BANKRUPTCY.

of the former as amended by the latter act, pro-

vides for two separate and distinct classes of

The People ex rel. Atkinson et al., comrs.
v. Tompkins, supervisor, &c.


The provision of Sec. 1, that the officers must

meet on the first Monday in September, is mere.
ly directory.

A person selling pledged stock “under the
rule” may purchase it himself. Quincey v.

A Board of Supervisors are empowered to

37 name the officer by whom town bonds, to raise

money for road or bridge improvements, shall be
It is not per se unlawful as against public executed.

policy for several persons to unite in specu-
lating in a particular stock. As to what kind As to whether Court Officers are entitled to
of combination would be u ilawful Quaere. 16. extra compensation for the care of individual

In a purchase of stock by a broker, and a sale jurors by night and on days when the court is
in default of margin, it is a question for the not holding, is for the Board of Supervisors to

determine and not for the courts. Cahill v. The
jury whether the broker was to borrow money

on the stocks for the purpose of carrying the Mayor, &c., of New York
same. Also, what is proper notice of sale for

As to damages recoverable in actions agairst
default of margin. A regular sale, namely, a sale supervisors, see DAMAGES.
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.

As to power of receiver to bring action for


partition, see PARTITION.

As to proceedings for contempt in, see CON-

Delivery of goods by a vendor to a carrier is a
delivery to the vendee But until the transitus is See also GARNISHMENT.
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 A Court of Equity will not interfere by in.



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