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purpose. This service is not common to him and the hands placed under him. They have nothing to do with it. His duties and their duties are entirely sep. arate and distinct, although both necessary to produce the result. It is his to command, and theirs to obey and execute. No service is common that does not admit a common participation, and no servants are fellow servants when one is placed in control over the other."

In Louisville & Nashville R. Co. v. Collins, 2 Duvall, 114, the subject was elaborately considered by the Court of Appeals of Kentucky. And it held that in all those operations which require care, vigilance and skill, and which are performed through the instrumentality of superintending agents, the invisible corporation, though never actually, is yet always constructively present through its agents who represent it, and whose acts within their representative spheres are its acts; that the rule of the English courts, that the company is not responsible to one of its servants for an injury inflicted from the neglect of a fellow servant, was not adopted to its full extent in that State, and was regarded there as anomalous, inconsistent with principle and public policy, and unsupported by any good and consistent reason. In commenting upon this decision in his treatise on the Law of Railways, Redfield speaks with emphatic approval of the declaration that the corporation is to be regarded as constructively present in all acts performed by its general agents within the scope of their authority. "The consequences

until the gravel train, coming on the same road from an opposite direction, had passed; and the court charged the jury that if they so found, and if the plaintiff did not contribute to his injury by his own negligence, the company was liable, holding that the relation of superior and inferior was created by the company as between the two in the operation of its train; and that they were not within the reason of the law fellow servants engaged in the same commou employment.

As this charge was in our judgment correct, the plaintiff was entitled to recover upon the conceded negligence of the conductor. The charge on other points is immaterial; whether correct or erroneous, it could not have changed the result; the verdict of the jury could not have been otherwise than for the plaintiff. Without declaring therefore whether any error was committed in the charge on other points, it is sufficient to say that we will not reverse the judgment below if an error was committed on the trial which could not have affected the verdict. Brobst v. Brock, 10 Wall. 519. And with respect to the negligence of the conductor of the gravel train, no instruction was given or requested. Judgment affirmed.

Contra: Nashville, etc., R. Co. v. Wheless, 10 Lea, 741; S. C., 43 Am. Rep. 317; Robertson v. Terre Haute, etc., R. Co., 78 Ind. 77; S. C., 41 Am. Rep. 552; Slater v. Jewett, 85 N. Y. 61; S. C., 39 Am. Rep. 627; Rodman v. Michigan Central R. Co., 20 N. W. Rep. 788, Sup. Ct. Mich.-ED.

of mistake or misapprehension upon this point," says the author, "have led many courts into conclusions greatly at variance with the common instincts of reason aud humanity, and have tended to interpose NEW YORK COURT OF APPEALS ABSTRACT. an unwarrantable shield between the conduct of railway employees and the just responsibility of the company. We trust that the reasonableness and justice of this construction will at no distant day induce its universal adoption." Vol. 1, 554.

There are decisions in the courts of other States, more or less in conformity with those cited from Ohio and Kentucky, rejecting or limiting to a greater or less extent the master's exemption from liability to a servant for the negligent conduct of his fellows. We agree with them in holding-and the present case requires no further decision-that the conductor of a railway train, who commands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it, aud control over the persons employed upon it, represents the company, and therefore that for injuries resulting from his negligent acts the company is responsible. If such a conductor does not represent the company, then the train is operated without any representative of its owner.

If now we apply these views of the relation of the conductor of a railway train to the company, and to the subordinates under him on the train, the objections urged to the charge of the court will be readily disposed of. Its language in some sentences may be open to verbal criticism; but its purport touching the liability of the company is, that the conductor and engineer, though both employees, were not fellow servants in the sense in which that term is used in the decisions; that the former was the representative of the company, standing in its place and stead in the running of the train, and that the latter was in that particular his subordinate, and that for the former's negligence, by which the latter was injured, the company was responsible.

It was not disputed on the trial that the collision which caused the injury complained of was the result of the negligence of the conductor of the freight train, in failing to show to the engineer the order which he had received, to stop the train at South Minneapolis

CONTRACT-GUARANTY-CONSIDERATION -STATUTE OF FRAUDS-COLLATERAL.-Defendants guaranteed, in writing, the return in six months of certain bonds loaned by plaintiffs to the R. I. M. Co. The bonds not having been returned, and defendants having been informed that plaintiffs intended to sell them upon the guaranty, verbally agreed that if plaintiffs would recover a judgment against the company, they would take an assignment thereof, return to them the bonds and pay the costs. Plaintiffs in pursuance of the agree. ment, immediately brought suit against the company, recovered and perfected judgment, and tendered a written assignment thereof to plaintiffs, and demanded a performance of the agreement, which was refused. In an action upon the agreement, held, that it was sup

ported by a sufficient consideration; that the performpromise was conditioned supplied the place of a preance by plaintiffs of the acts upon which defendant's vious promise to perform. The contract was not within the statute of frauds and was valid and biuding. The agreement was not collateral to any obligation of the company, but was an original undertaking and for the purpose of settling the claim the plaintiffs entered into by the defendants for their own benefit, had against them on their original guaranty, and obtaining such indemnity as they could by a judgment against the company. Beckwith v. Brackett. Opinion by Rapallo, J.

[Decided Oct. 7, 1884.]

SPECIFIC PERFORMANCE-PURCHASER OBJECTING TO TITLE-DEFECTS IN RECORDS CURED BY PAROL.-A purchaser cannot justify his refusal to perform his contract by a mere captious objection to the title tendered him; nor is it sufficient for him when the jurisdiction of an equity court is invoked to compel him to perform his contract, merely to raise a doubt as to the vendor's title. Before he can successfully resist performance of his contract on the ground of defect of title, there must be at least a reasonable doubt as to

the vendor's title-such as affects its value, and would interfere with its sale to a reasonable purchaser, and thus render the land unmarketable. A defect in the record title may, under certain circumstances, furnish a defense to the purchaser. But there is no inflexible rule that a vendor must furnish a perfect record or paper title. It has frequently been held that defects in the record or paper title may be cured or removed by parol evidence. Seymour v. Delancey,Hopk.ch.436; Miller v. McComb, 26 Wend. 229; Fagen v. Davison,2 Duer, 153; Brooklyn Park Com. v. Armstrong, 45 N. Y. 234; Murray v. Harway, 56 id. 337; Shriver v. Shriver, 86 id. 575. In this action the records in the county clerk's office showed a deed of the lands to "Electa Wilds," and a subsequent deed, executed in 1867, from “ Electa Wilder" to one S., which deeds were in plaintiff's claim of title; the defect alleged was that the records showed no conveyance from Electa Wilds. It appeared that under the last deed, the title was held and the land occupied up to the trial of the action in 1881; that the deed to S. had been destroyed, but a mortgage given by him for purchase-money was produced, in which Electa Wilds was named as mortgagee. The commissioner who took the acknowledgment to said deed and S. both testified that the grantor was Electa Wilds, and that said grantor and the grantee in the former deed was the same person. Held, that there was no defect in the title, and defendant was not justified in refusing to perform. Hellreige v. Manning. Opinion by Earl, J.

[Decided Oct. 7, 1884.]

BANK-TRANSFORMED FROM STATE INTO NATIONAL -RIGHT TO ENFORCE CONTRACTS.-Where under the provisions of the National Banking Act, and under authority of the Act of 1865, ch. 97, a State bank is trausformed into a National bank, it is but a continuance of the same body under a change of jurisdiction, and between it and those who have contracted with it, it retains its .dentity and may, as a National bank, enforce contracts made with it as a State bank. Where therefore a State bank, at the time of its change to a National bank, held a continuing guaranty of loans made by it to defendant's firm, upon the strength of which it had made loans, and after the change further advances were made, held, that an action was maintainable by the National bank upon the guaranty, and that guarantor was liable for the loans made both before and after the change. The general scheme of the National Banking Act is that State banks may avail themselves of its privileges and subject themselves to its liabilities, without abandoning their corporate existence, without any change in the organization, officers, stockholders, or property, and without interruption of their pending business or contracts. All property and rights which they hold before organizing as National banks are continued to be vested in them under their new status. Great inconveniences might result if this saving of their existing assets did not include pending executory contracts, and pending guarantees, as well as vested rights of property. Although in form their property and rights as State banks purport to be transferred to them in their new status of National banks, yet in substance there is no actual transfer from one body to another, but a continuation of the same body, under a changed jurisdiction. As between it and those who have contracted with it, it retains its identity, notwithstanding its acceptance of the privilege of organizing under the National Banking Act. City Nat. Bank of Poughkeepsie v. Phelps. Opinion by Rapallo, J.

[Decided Oct. 7, 1884.]

CERTIORARI-MOTION TO QUASH DENIED-ORDER APPEALABLE.-Au order denying a motion to quash a

It

common-law certiorari improperly issued in a case not reviewable by certiorari is appealable to this court. is claimed that order is not appealable and the case of Jones v. People, 79 N. Y. 45, is referred to as an authority to that effect. That case simply decides that where a certiorari has been lawfully issued, it is discretionary with the court whether or not to quash it. The question presented in that case was whether the Supreme Court might lawfully issue a certiorari to remove an indictment into that court from the Court of Oyer and Terminer, at the instance of the prosecution. This court held that the Supreme Court had power to issue the writ, and therefore it was within its discretion whether to quash it, or remand the case to the Oyer and Terminer, or proceed to its disposition in the Supreme Court, and that no appeal would lie from an order denying a motion to quash. The case is not an authority for the proposition that an order denying a motion to quash a certiorari irregularly or improperly issued, in a case not reviewable on certiorari, is not appealable. In such a case this court might of its own motion direct the writ to be quashed. Such a writ lies only to inferior tribunals or officers exercising judicial powers to correct errors of law affecting materially the rights of parties. The fact that a public agent exercises judgment and discretion in the performance of his duties does not make his action or powers judicial in their character. People v. Walter, 68 N. Y. 403. The board of commissioners of the department of public parks of the city of New York, claiming authority by statute, Laws 1871, §§ 1, 3, ch. 534; ch. 613, Laws 1873; § 14, ch. 329, Laws 1874, consented to the construction of an elevated bridge over the Harlem river by the S. R. I. Co., and entered into a contract with that company for the building of the bridge at its expense under certain regulations and conditions. Held, that the proceedings of the board were not reviewable by certiorari, as if they had the power they acted as public agents, and their action was not subject to review in that manner; if they had no power, their consent was a nullity and affected the rights of no oue. A writ of certiorari was directed to the board as such. Held, that as the board was a mere department of the city government (Laws 1873, ch. 335), and no action could be brought against it by its official name, the writ was irregular; it should have been directed to the members of the board " by their names." Section 2129 of the Code of Civil Procedure provides that where the writ is brought "to review the determination of a board or body other than a court, if an action would lie against the board or body in its associate or official name, it must be directed to the board or body by that name; otherwise it must be directed to the members by their names. People ex rel. Second Ave. R. Co. v. Board of Com. of Dept. Pub. Works. Opinion by Rapallo, J. [Decided Oct. 7, 1884.]

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TRIAL-ISSUES IN EQUITY CASES-VERDICT OF JURY MERELY ADVISORY-CODE, $$ 972, 1003-EVIDENCEADMISSIONS - FAILURE TO ANSWER LETTER BOUND BY STATEMENTS THEREIN.-The provisions of the Code Civil Pro., §§ 972,1003, providing for the determination of the other issues of fact in an equity case, where one or more specific questions have been submitted to a jury, and also for the review of the verdict of the jury upon the questions submitted, does not change the old practice, and under the Code the verdict of the jury, although a motion for a new trial has been denied, is not conclusive upon the court, and can only be read on the hearing with full power in the court to follow or to reject as it may deem fit and proper. It is only a part of the evidence, and if for any reason it is deemed unauthorized, it can be rejected, and is not obligatory upon the court. The object of

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, 474. (2) 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 him 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 Vermilyea v. Palmer, 52 id. 471. Within this rule, under ordinary circumstances, the facts cannot be reviewed upou appeal to this court. (3) An omission 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 demand 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 the statement made in the letter. The letter itself cannot be regarded as coming within the rule that where a statement 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 plaintiff 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 gesta. Taylor Ev., § 585; Beaver v. Taylor, 1 Wall. 637; Milne v. Leisler, 7 H. & N.786, 796. The question here discussed has been the subject of consideration in a recent decision of this court. Talcott v. Harris, 93 N. 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 having 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 in reference to the letter of the plaintiff

in the case at bar; and if silence could be regarded as an admission of the correctness of the statement made, the same rule is applicable to each case, and the decision last cited is controlling. Numerous other cases tend in the same direction. Waring v. U. S. Tel. Co., 4 Daly, 233; Anthoine v. Coit, 2 Hall, 40; Robinson v. Fitchburg R. Co., 7 Gray, 92; Hill v. Pratt, 29 Vt. 119; People v. Lockwood, 3 Hun, 304; Fairlie v. Denton, 3 Carr. & P. 103; Draper v. Crofts, 15 Mees. & Welsb. 166; MeGuire v. Corwine, 3 MacArth. 81. It may well be 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 oue party to obtain an advantage over another, and has no sanction in the law. Keen v. Priest, 1 Fos. & Fiu. 314; Roe v. Day, 7 Carr. & Payne, 705; Gaskill v. Skene, 14 Q. B. 664; Fenno v. Weston, 31 Vt. 345; Allen v. Peters, 4 Phila. 84, distinguished. Ridley v. Gyde, 9 Bing. 349; Thorndike v. City of Boston, 1 Metc. 242; relate to the question of intent, and have no application to the case at bar. Learned v. Tillotson. Opinion by Miller, J.

[Decided Oct. 7, 1884.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

PATENT-INJUNCTION-NOT 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. 511. In a suit to vacate a patent for laud it would hardly be claimed that the patentee should 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 United States in question in the suit. The United States deals with the lauds as

a proprietor, and brings such suits to be restored to its proprietary rights. United States v. Schurz, 102 U. S. 378: United States v. Stone, 2 Wall. 525. Protection of the property would not impair those rights. Iu. fringement of a patent is a trespass upon the exclusive rights granted. The United States, as an owner or proprietor, has no interest in promoting such trespasses; and their prevention, 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 grauting the motion appears, and it must therefore be denied. Cir. Ct., S. 1). New York, Aug. 9, 1884. United States v. Colgate. Opinion by Wheeler, J.

CONSTITUTIONAL LAW-EMINENT DOMAIN-DAMAGE -CHANGE OF GRADE-INCORPORATION BEFORE ADOP*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. 402-422; 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 How. (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. Ct., W. D. Mo., Aug., 1884. McElroy v. Kansas City. Opinion by Brewer, J.

Cir.

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 Onl "Purchases by Trustees, Agents," etc.? "It may 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 connection with any other person, or by being employed or concerned 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; Davoue v. Fanning, 2 Johns. Ch. 252. Cir. Ct., W. D. La., March, 1884. Allan v. Gillett. Opinion by Boarman, J. TRADEMARK CORPORATION HAS RIGHT ΤΟ 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 has been said to be the "knot of its combination," with

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out which it cannot perform its corporate functions. Smith Mero. 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 Conn. 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 Manfg. Co. Opinion by Wallace, J.

EMINENT DOMAIN-TRACK IN PUBLIC STREET--ABUTTING LOT OWNER-DAMAGES ESTOPPEL.- Where & 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. 92, and was recognized in Railroad Co. v. Cobb, 35 id. 94; Railroad Co. Williams, id. 168; Railroad Co. v. Mowatt, id. 284; 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. Hambleton, to appear in 40 Ohio St. A. & G. W. R. Co. v. Robbins, 35 id. 531, distinguished. Cir. Ct., S. D. Ohio, July, 1884. Grafton v. Baltimore & Ohio R. Co. Opinion by Matthews, J.

V.

JURISDICTION-FOREIGN CORPORATION-DESIGNATION OF AGENT ON WHOM PROCESS MAY BE SERVED.The act of Congress prescribing the place where a persou 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 which 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 Congress. 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

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may consent to be sued anywhere he pleases, and cer. tainly jurisdiction will not be ousted because he has consented. Here the defendant companies have provided that they can be found in a district other than that in which they reside, if a particular mode of prooeeding is adopted, and they have been so found. In our opinion therefore the Circuit Court has jurisdiction of the causes, and should proceed to hear and deoide them." Similar views are announced in Railroad Co. v. Harris, 12 Wall. 65; St. Clair v. Cox, 106 U. S. 355-357; S. C., 1 Sup.. Ct. Rep. 354; N. E. Mut. Life Ins. Co. v. Woodworth, 111 U. S. 146; S. C., 4 Sup. Ct. Rep. 364. Like rulings have been made many times in the various Circuit Courts. Cir. Ct., Dist. Cal., Aug. 18, 1884. Gray v. Quicksilver Mining Co. Opinion by Sawyer, J.

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Municipal corporations have no power to purchase the outstanding judgments or obligations of their creditors for any purpose whatsoever, not even to set them off against the claims of said creditors. A. obtained judgment against a borough; B., the treasurer of that borough, held a judgment against A., which was subsequently purchased by said borough. The avowed purpose of this transaction was to use the borough as a means to collect B.'s judgment by way of set-off against A.'s judgment. Held, that this was a loan of the credit of the borough within the prohibition of article 9, section 7, of the Constitution of Pennsylvania, and hence that the proposed set-off is inadmissible. Early's Appeal. Opinion by Gordon, J [Decided May 21, 1883.]

INCUMBRANCES

RECORD

COVENANT-EASEMENT ING ACTS.—(1) A covenant to convey land in fee simple, subject to the reserved right in the grantor to all the coal underlying the same, does not bind the covenantee to accept a deed when the property is subject

to certain easements and incumbrances not mentioned in the agreement, although the deed by the grautor to a third party creating the easements and incumbrances

was on record at the time the covenant was entered into. Withers v. Atkinson, 1 Watts, 236; Stitzel v. Kopp, 9 W. & S. 29. (2) It is the duty of the court, and not of the jury, to construe a written contract; it would have been error to submit to the jury the question whether the defendant had orally agreed to purchase from the plaintiff subject to the rights of a third party, when there was neither allegation nor proof of a mistake or omission in the written contract. Pegg v. Rist. Opinion by Truukey, J. [Decided March 3, 1884.]

MUNICIPAL CORPORATION-STREETS-NEGLIGENCE. A township is not an insurer against all defects or obstructions, latent as well as patent, in the public highways. Where the owner of adjacent property ran a small gaspipe under a highway in such a manner that the same was exposed at the bottom of the gutters, and after remaining there about six weeks said pipe was broken at the point where it traversed the gutter by the deviation of a passing team, and within an hour afterward a person passing with a light was injured by an explosion of gas escaping from the fractured pipe, the township is not liable for the injury, there being no evidence that the township authorities had any knowledge of the existence of the pipe up to the time of the accident. Otto Township v. Wolf. Opinion by Paxson, J. (See 30 Alb. L. J. 424.) [Decided June 9, 1884.]

GIFT ACCIDENT POLICY-DONOR'S INTENTION CREDITORS.--A., in contemplation of leaving home, purchased an accident insurance ticket, which by its terms was non-transferable under pain of forfeiture. Before leaving home he laid the ticket on a table in front of his wife, and said to her that "she should take it and take care of it, and if he got killed before he got back she would be $3,000 (the amount of the policy) better off." Held, that these facts were insufficient to establish a gift of the ticket to A.'s wife as against his creditors; that in order to establish such a gift it was necessary to prove that A. intended to part with both the possession and property of the ticket. Linsenbigler v. Gourley, 6 P. F. Smith, 166; Crawford's Appeal, 11 id. 52; Trough's Estate, 25 id. 115. William's Appeal. Opinion by Mercur, C. J. (See 30 Alb. L. J. 386, 459.)

[Decided May 19, 1884.] INJUNCTION

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THREATENED TRESPASS RIGHTS

ESTABLISHED AT LAW.-A. filed a bill in equity against B., praying for an injunction to restrain and repeated threatened trespasses upon a certain alley way and parcel of land, the title to which the bill alleged to be vested in A. B. filed an answer denying A.'s title to the premises in controversy. Held, that no special ground for equitable relief being shown, the court had no jurisdiction in the premises until the rights of the parties should be established at law, and that therefore the bill should be dismissed. Where the title to real es

tate is in dispute and no special grounds for equitable relief, such as irreparable damage or the like, are disclosed, equity will not interfere by injunction to restrain repeated and threatened alleged trespasses until the rights of the parties have been determined at law. When thus determined, or when they are admitted in the pleadings, or otherwise clearly appear, an equity based upon that right, superinduced by the acts of the parties, may be asserted, and a decree for equitable relief made. Thus equity is made the means not of establishing the legal right, but of giving adequate protec irreparable injury has been shown, and it does not yet tion in the enjoyment of it when thus established. No appear that a multiplicity of suits must result under pro. ceedings at law; all parties in interest may be put upon the record in a single suit, and non constat that the trial and determination of that suit may not end the controversy; the right to equitable relief may follow if any equity is superinduced by the act of the parties, but the interference of equity in such a case rests, as stated by Chancellor Kent in Gardner v. Village of Newburgh, 2 Johus. Ch. 164, "on the principle of a clear and certain right to the enjoyment of the suban injurious interrupject in question, and tion of that right, which upon just and equitable grounds ought to be prevented." To the same effect are the cases of North Penn. Coal. Co. v. Snowden, 6 Wright, 488; Norris' Appeal, 64 Penn. St. 275; Tillmes v. Marsh, 67 id. 507; Haines' Appeal, 73 id. 169; and Grubb's Appeal, 90 id. 228. In Rhea v. Forsyth, 1 Wright, 503, Mr. Justice Woodward, after a review of the cases, concluded as follows: "From these and many more authorities, which might be cited to the same effect, it is apparent that where the plaintiff's right has not been established at law, or is not clear, but is questioned on every ground on which he puts it, not only by the answer of the defendant, but by proofs in the cause, he is not entitled to remedy by injunction. It is not enough that he is able to produce some evidence of his right, where there is conflicting evidence that goes to the denial of all right. When the emergency is pressing, and the injunction affidavits disclose a prima facie right in the plaintiff, the proper practice, I apprehend, is for the court to interfere by

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