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Vol. I.]

DIGEST OF CASES.

[No. 10.

CORPORATION.

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WHEN SIGNATURE OF PRESIDENT WILL BIND THE CORPORATION. EVIDENCE. CONTRACT. "This A contract was made which began: indenture made. . . . . between A of Chicago, party of the first part, and B, President of the Northwestern Distilling Co. of the same place, party of the second part." In the body of the contract the parties were mentioned as of the first and second part, and the pronouns he, his, or him used to denote the party of the second part. One of the covenants was as follows: "And the said party of the second part further covenants with the said party of the first part, that at the expiration of the term, he will yield up the demised premises to the said party of the first part, in as good condition as when the same were entered upon by the said party of the second part," &c. The instrument concluded," In testimony whereof, the said parties have hereunto set their hands and seals, the day and year first above written," and was signed and sealed: D. R. Brant, [Seal.] Northwestern Distilling Co., [Seal.] By Edward Lawrence, President. Held, that it might be shown that it was the intention of the corporation to make the contract, and that the action was properly brought against it. N. W. Distilling Co. v. Brant, Chicago L. N., Aug. 8, 1874.

See BANKRUPTCY, 4; CONSTITUTIONAL LAW, 2; ESTOPPEL; REMOVAL OF CAUSES.

CRIMINAL LAW.

1. TWICE IN JEOPARDY. -A defendant is placed in jeopardy, when he is regularly placed on trial. His jeopardy is real unless it shall subsequently appear that a verdict could never have been rendered by reason of the death or illness of the judge or juryman, or that after due deliberation the jury could not agree, or by reason of some other like overruling necessity which compels their discharge without the consent of the defendant. People v. Hunckler, Pac. Law Rep., Aug. 11, 1874.

2. STATE OFFICER. BRIBERY. A state senator is "an officer of the State" within the meaning of the statute of Kansas touching bribery. State v. Pomeroy, Cent. L. J., Aug. 20, 1874.

3. POSSESSION OF STOLEN PROPERTY AT UNSEASONABLE HOUR.- The larceny appeared to have been committed sometime during the night, and the property was found by the police in the possession of the defendant and another person with him, in a small boat managed by them, at half after three o'clock in the morning. Held, that the possession at that unseasonable hour for lawful traffic was, within the authorities, sufficient to maintain the presumption of the defendant's criminal agency in procuring it; that it was so recent, and so suspicious, that it was consistent with no other rational conclusion than that of guilt. Dillon v. The People, Daily Reg., Aug. 27, 1874.

See CONSTITUTIONAL LAW, 4.

Vol. I.]

DIGEST OF CASES.

[No. 10.

DEBTOR AND CREDITOR.

See BANKING.

ECCLESIASTICAL LAW.

THE

OF PROCEEDINGS BY CHURCH COURTS IN THE UNITED STATES. CHENEY CASE. In the year 1869 the Rev. Mr. Cheney, at that time a presbyter of the Protestant Episcopal Church in the diocese of Illinois, and rector of Christ Church, in the city of Chicago, was presented for violation of the constitution and canons of said church. After a church court, composed of five presbyters, the number prescribed by the canons of said church, had been organized, a bill was filed to restrain such court from proceeding, and an injunction granted, which was dissolved upon appeal. In the mean time one of the presbyters of the church court became ineligible and a trial was had by four presbyters, which resulted in the conviction of the accused, and sentence of suspension was pronounced by the bishop of the diocese.

Notwithstanding the sentence the Rev. Mr. Cheney continued to act as rector of Christ Church, whereupon he was tried, under protest, in the year 1871, by a new church tribunal, for contumacy, of which charge he was found guilty and a sentence of deposition pronounced by the bishop in due form.

Disregarding the second sentence, also, Mr. Cheney continued in charge of Christ Church, whereupon suit was brought by the complainants, communicants of the Protestant Episcopal Church and pew-holders in said Christ Church, to restrain him from officiating as rector, and the vestrymen and wardens from permitting him to officiate as rector in said Christ Church, on the ground that said Cheney had been, in May, 1871, in due form and manner, in compliance with the laws of the Protestant Episcopal Church, put upon his trial for offences against the laws of said church, and upon said trial found guilty, and thereafter sentenced and deposed from the priesthood and ministry in said church; and that by reason of said deposition said Cheney had lost all right to the use of said church as rector, and the parsonage connected therewith, and the other defendants were perverting their trust in devoting the income of said church to the support of a deposed minister. The bill prayed for a perpetual injunction, restraining such use of the church property and such a diversion of the church income. Held, that the verdict of the first tribunal which consisted of only four presbyters, being one less than the number prescribed by canon, was a nullity, and that the verdict of the tribunal which found the accused guilty of contumacy was, consequently, equally void. The Rev. Mr. Cheney, therefore, had never been suspended or deposed and the bill was without equity.

The court discusses at great length divers points presented, affecting the jurisdiction of church tribunals, their relations to the civil courts, the powers of a bishop of the Protestant Episcopal Church in the United States, and other questions incidental to the cause. Calkins v. Cheney, Chicago L. N., August 22 and 29, 1874.

Vol. I.]

DIGEST OF CASES.

[No. 10.

ESTOPPEL.

DECREE AT SUIT OF STOCKHOLDER WHERE THE CORPORATION WAS NOT A PARTY. — In an action in a state court by a city against a railroad corporation to collect certain taxes, the answer set up by way of estoppel a decree rendered in a United States court, at the suit of a stockholder, which enjoined the collection of the taxes in question. It did not appear that the suit was prosecuted for the benefit of the corporation or in its behalf, nor that the corporation knew of the pendency of the proceedings or claimed the benefit thereof. Held, that there was no estoppel; that the corporation was neither party nor privy to the suit; that the decree would not have bound the defendant if it had been adverse to the plaintiff therein, which was necessary to constitute it a bar to the present action, it being well settled that a former adjudication must have the effect to equally estop both parties to be conclusive. Davenport v. Chicago R. R. R. Co., West. Jur., August, 1874.

See TAXATION, 2, 3.

EVIDENCE.

1. PROOF OF FRAUD.-An offer to prove the circumstances alleged to establish fraud should not be refused on the ground that the fraud complained of is merely inferential. Fisher v. Doty, Leg. Int., August 14, 1874.

2. THE COMPETENCY OF A WITNESS, not subject to objection before the passage of an act permitting parties to testify, is not affected by such an act. McFerran v. Mont Alto Iron Co., Leg. Int., August 21, 1874; Leg. Chron., August 29, 1874.

3. THE CREDIBILITY OF AN ADVERSE WITNESS may be assailed by proof that he cherishes a feeling of hostility towards the party against whom he is called; and it may be established, by proof of the acts or declarations of the witness, provided his attention is first called to the particular acts or declarations proposed to be proved, with sufficient minuteness as to time and circumstance, to afford him an opportunity to explain. Silvey v. Hodgden, Pac. Law Rep., July 14, 1874.

TO LATTER.

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4. WIFE AS WITNESS IN ACTION BY HUSBAND AND WIFE FOR INJURY In an action by husband and wife for injuries to the latter, the wife is a competent witness. Harriman v. Stowe, Čent. L. J., August 13, 1874.

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5. DECLARATIONS TO PHYSICIAN AT TIME OF ACCIDENT. who had sustained an injury stated to a physician shortly after the injury took place that it was caused by falling through a trap-door. Held, that such statement was admissible as part of the res gesta.

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6. EVIDENCE TO SHOW IMPROPER SPEED OF TRAIN NEAR RAILROAD CROSSING. A witness testified that he saw a train, which ran against plaintiff's wagon, before it reached the crossing where the accident occurred, and at the distance therefrom of nine hundred feet, and that it was running at the rate of fifteen miles an hour, and no bell was rung or whistle sounded. The evidence was objected to as the train was not seen by the witness at the place of the accident. The object in introducing it was to show want of care on the part of the persons in charge of the train.

Vol. I.]

DIGEST OF CASES.

[No. 10.

Held, that the evidence was competent, it being necessary to slacken speed at a distance from the point where thedesired rate is to be attained. It was for the jury to determine whether, in the exercise of proper care, the whistle ought to have been sounded or the brakes applied at the place where the train was when seen by the witness. Black v. Burlington &c. R. R. Co., West. Jur., August, 1874.

See CORPORATION; PLEADING AND PRACTICE, 5.

FIXTURES.

HOUSE SET UPON BLOCKS. PORTABLE FENCE. A house set upon blocks which rest upon the surface of the ground, and which may be removed without disturbing the land, is not a part of the realty. Nor is a portable fence. Tennybecker v. McDougal, Pac. Law Rep., July 14, 1874.

FRAUDULENT CONVEYANCE.

A CONVEYANCE BY HUSBAND TO WIFE of his interest in real estate, subject to a lien of unpaid purchase money, at a time when he owed no other debts, is not fraudulent. Nippe's App., Leg. Int., Aug. 28, 1874.

INDIAN LANDS.

THE GRANT OF THE OSAGE LANDS to the Leavenworth, Lawrence & Galveston Railroad Company expounded by Mr. Justice Miller. U. S. v. L., L. & G. R. R. Co., Cent. L. J., Aug. 27, 1874.

INSURANCE.

1. DENIAL OF LIABILITY. PROOF OF LOSS. - A denial of liability of the company to pay the loss is to be regarded as a waiver of proof of loss. Parker v. Amazon Ins. Co., Ins. L. J., August, 1874.

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2. A MISTAKE BY AN AGENT in filling out a policy does not vitiate it.

MACHINERY.

3. CONSTRUCTION OF POLICY. The policy was issued on the "engine and machinery" contained in a building "used for the manufacture of tin-ware, sheet-iron, japanned and fancy painted ware.' The plaintiffs claimed damages for the destruction of "642 forming and cutting machines," which appeared on trial to be "dies" used in the cutting screw and drop presses, &c. Held, that insurance on the "machinery " included all the essential parts of the machinery, and as the articles could not be manufactured without the dies, they were covered by the policy. Seavey v. Central Mut. Fire Ins. Co. Ib.

4. CONSTRUCTION OF "SANE OR INSANE." -A policy contained a condition that if the insured died by his own hand, sane or insane, the policy should be void. Held, that the plaintiff was bound by the condition, and the jury were instructed that if they believed that the insured took his own life, whether in the possession of his faculties or not, they should find for the defendant. Snyder v. Mut. Life Ins. Co. Ib.

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5. MISREPRESENTATION IN APPLICATION. In the application the question "Have you ever had any serious illness, disease, or personal injury?" was propounded. The answer was "Small-pox thirty years

Vol. I.]

DIGEST OF CASES.

[No. 10.

since." It appeared that five years previously the assured had a severe fall upon his head, and was attended by a physician who treated the injury. Held, that there was such misrepresentation as to vitiate the policy. Ib. 6. CONSTRUCTION OF POLICY. SPARK RISKS. The policy covered certain wood and logs piled up along the line of a railroad, and was intended to insure only such property as actually belonged to the road, and not to cover "spark risks," or property belonging to others, for which the railroad company would be responsible if ignited by sparks from the engines. A large amount of wood not belonging to the railroad company was destroyed by fire from the engines, for which the company settled, and then brought suit against the defendant. Held, that there was nothing on the face of the policy to indicate that it was intended to cover anything more than the plaintiff's own property. Monadnock R. R. Co. v. Man. Ins. Co. Ib.

7. THE MISSPELLING OF PLAINTIFF'S NAME in the proof of loss is of no consequence as long as there is no doubt as to identity. Hibernia Ins. Co. v. O'Connor, Ib.

8. CONSTRUCTION OF MARINE POLICY. A policy contained the following clause: "No vessel shall sail from the harbor of Gloucester after the 10th day of November next, on any voyage east of Cape Sable." On the 13th of November she sailed from Gloucester and was damaged on the 20th. It was admitted in evidence that she was provided with everything suitable for a fishing voyage except bait, and the plaintiffs claimed that she was on her way to Eastport to procure it, and as the voyage was to Eastport, she was covered by the policy. Held, that if the vessel was really intended for the fishing grounds, the putting in at Eastport to procure bait was merely an incident to the voyage, and did not interfere with its destination and purpose. Friend v. Gloucester Mut. Fishing Ins. Co. Ib. See BANKRUPTCY, 4; PLEADING AND PRACTICE, 4.

INTERNAL REVENUE.

1. INTEREST CERTIFICATES. - SCRIP DIVIDEND. - The 'N. Y. Central Railroad Company, in pursuance of resolutions of its directors, issued certain "interest certificates " which ran as follows: "Under a resolution of the Board of Directors of the company, passed Dec. 19th, 1868, of which the above is a copy, the New York Central Railroad Company hereby certifies that being the holder of shares of the capital stock of said company, is entitled to dollars, payable ratably with the other certificates issued under said resolution, at the pleasure of the company, out of its future earnings, with dividends thereon, at the same rates and times as dividends shall be paid upon the shares of the capital stock of the company. company." Held, that such certificates were not to be regarded as stock or scrip dividends, and that a tax upon them as such was illegal. N. Y. C. R. R. Co. v. Bailey, Int. Rev. Rec., July 27, 1874.

2. TAXATION OF DIVIDENDS UNDER ACT OF JULY 14, 1870. - Section 15 of the Act of July 14th, 1870, made taxable those dividends which were declared for the earnings of the year 1871, and also those which were declared during that year, and limited the tax to those dividends only. The tax was to be imposed upon the dividends for that year, and

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