right of recovery against the defendant in his action of assumpsit upon that judgment. The confusion on this subject seems to result from not distinguishing between a domestic judgment as constituting of itself a debt of record, and a foreign judgment, which is only evidence of an indebtedness, as upon a simple contract.

NEW YORK COURT OF APPEALS ABSTRACT.

ATTACHMENT- UNDER OLD CODE-SUBSEQUENT CREDITOR MAY MOVE TO VACATE.- - Where, under the old Code, the affidavit upon which an attachment against property of a defendant was issued, wholly omitted to show that plaintiff had any cause of action against the defendants upon which an attachment could be founded, or to specify the grounds of his claim, held, that these were jurisdictional defects and that a creditor who had procured a subsequent attachment against the property of the same defendant had a standing in the court to impeach and set aside such attachment. In such case the right existed under the old Code independently of section 682 of the Code of 1877. Order reversed. Jacobs v. Hogan. Opinion by Rapallo, J.

[Decided April 26, 1881.]

FORECLOSURE-ORDER OF SALE WHERE SEVERAL PARCELS MORTGAGED TO DIFFERENT PERSONS. The general rule that where there are several successive grantees of different portions of mortgaged premises, the land on foreclosure is to be sold in the inverse order of alienation, is applicable to the case of successive mortgages of parts of mortgaged premises on a foreclosure of a prior mortgage on the whole property, where by its application the equitable rights of all parties will be secured. Stuyvesant v. Hall, 2 Barb. Ch. 151. But this rule yields to circumstances. Guion v. Knapp, 6 Paige, 35; Kellogg v. Rand, 11 id. 59. In this case, H. owning premises 100 feet in front, mortgaged the whole to plaintiff for $5,000. Subsequently she mortgaged the same premises to G., but thereafter G. released, at her request, 40 feet, which 40 feet she subsequently mortgaged to E. After this H. died, devising the 40 feet and 60 feet to different beneficiaries. Upon the foreclosure of plaintiff's mortgage it appeared that there was due on that $5,000 and interest; on G.'s mortgage $6,300 and interest, and on E.'s mortgage $5,462 and interest. It was shown that the value of the 40 feet was $8,000; of the 60 feet $12,000, and that the sum due on the three mortgages exceeded the whole value of the lot. Held, that the whole lot should be sold, plaintiff's mortgage and costs paid, after that the mortgage to G., and the balance applied on the mortgage to E. Judgment modified. Bernhardt v. Lymburner. Opinion by Andrews, J. [Decided April 19, 1881.]

INTEREST -COMPOUND INTEREST- ALLOWABLE IN - PreACTION FOR DIVIDENDS ON PREFERRED STOCK.

ferred stock was issued by a railroad company, the agreement in the certificate being that the dividends were to be paid semi-annually out of the net earnings of the company, before any portion should be applied to the payment of dividends upon the remaining stock. The company having in its hands on the 1st of August, 1864, from its earnings, a sufficient sum to pay all arrears of dividends upon preferred stock, in violation of its agreement, applied a portion of the same in paying dividends upon common stock, and subsequently made other dividends upon that stock. In an action to compel the payment of the dividends due upon the preferred stock by those holding it, against the company, held, that plaintiffs were entitled to recover interest upon the sums to which they were entitled as dividends. The general rule is well established

that compound interest cannot be recovered by law without an agreement to pay the same, entered into after it becomes due. State of Connecticut v. Jackson, 1 Johns. Ch. 13; Ackerman v. Emott, 4 Barb. 649. But the agreement in question did not bear the character of ordinary obligations, where the allowance of interest would be compounding the same. The preferred stockholders merely obtained an interest in the assets of the company which entitled them to the ordinary dividends the same as the common stockholders. The agreement to pay preferred dividends was an inducement to take the stock, and the dividends provided for were the only return for the moneys advanced. The security differs from an annuity or ordinary dividends, or an agreement to pay interest. The fund was wrongfully applied to pay dividends on the common stock, and the company should pay interest on the sums its wrongful act prevented from being applied to the payment of dividends on the preferred stock. No demand was necessary on the part of the preferred stockholders, as there were no specific dividends to demand until they had been declared. The English cases where interest on annuities has been refused (Aylmer v. Aylmer, 1 Malloy, 87; Anderson v. Dwyer, 1 Sch. & Lef. 301; Booth v. Leycester, 3 My. & Cr. 45; Earl of Mansfield v. Ogle, 4 DeG. & J. 38; Torre v. Brown, 5 H. of L. Cas. 555; Booth v. Coulton, 7 Jur. [N. S.] 207; Jenkins v. Bryant, 16 Sim. ) appear to establish such a practice, but are not in point when the claim to interest rests on an unlawful appropriation of moneys. The earlier English cases do not tend in the same direction as those cited, Litton v. Litton, 1 P. Wms. 541; Ferrers v. Ferrers, Talb. Cas. 2; Robinson v. Cumming, 2 Atk. 211; Morris v. Dillingham, 2 Ves. Sr. 170; Morgan v. Morgan, 2 Dick. 643. Motion denied. Boardman v. Lake Shore & Michigan Southern Railway Co. Opinion by Miller, J. [Decided May 10, 1881.]

JUDGMENT BY DEFAULT CANNOT BE REVIEWED BY MOTION. While in cases where a judgment can be taken only on application to the court, it may be said that a default admits only the facts pleaded and not the legal conclusions of liability or its extent (Argall v. Pitts, 78 N. Y. 243; Wright v. Hooker, 10 id. 59; Frick v. White, 57 id. 107), the result is different where no application is necessary. The party in default must be taken to have admitted both the right of recovery and its amount. Therefore he cannot appeal and he cannot contradict his admission by a motion. In this case defendant, after default, disputed plaintiff's right to recover interest. Held, that this was a matter of substance and not of form, and could not be contested on a motion. The only proper remedy of defendant, illegally charged with interest, was to excuse his default and come in and defend. He could then offer judgment for the amount he admitted to be due and defend as to the residue. If error existed in the allowance of interest, it was a judicial error and one of substance, which cannot be corrected on motion. Lillie v. Sherman, 39 How. Pr. 287; Libby v. Rosicrans, 55 Barb. 203; New York Ice Co. v. North-West Ins. Co., 32 id. 534. Order reversed. Bullard v. Sherwood. Opinion by Finch, J.; Folger, C. J., dissented. [Decided May 3, 1881.]

TRIAL AFFIRMATIVE OF ISSUE -RIGHT OF ONE HOLDING, TO OPEN AND CLOSE-ACTION ON LIFE INSURANCE POLICY - APPEAL. —(1) When the right of a party holding the affirmative upon an issue of fact upon trial to open and close the evidence, and upon the final submission of the case to reply in summing up, is denied by the judge upon the trial, such denial furnishes ground for exception, which is the subject of review on appeal. Millard v. Thorn, 56 N. Y. 402. (2) In an action upon two policies of life insurance, each of which contained a provisiou avoiding it if the

insured should die in or in consequence of the violation of the laws of any nation, State or province. The complaint alleged among other things that the death of the insured was not caused by the breaking of any of the conditions and agreements in either of the policies. The answer denied this allegation of the complaint, and set up that the insured died in consequence of a violation of the laws of the State of New York, and in consequence of an unlawful assault committed by him upon a person named, and admitted that the defendant insured the life referred to in the complaint, by two policies, copies of which were annexed to the complaint, and referred to the originals when they should be produced. Held, that defendant had the affirmative of the issue. The allegation in the complaint that there had been no breach of the policy was unnecessary and need not be proved. The rule is well established that in an action upon a policy of insurance, where the answer admits the issuing of the policy and the allegations in the complaint, and alleges a breach of its conditions, the burden of proof is upon the defendant, and the plaintiff is entitled to recover unless the defendant satisfies the jury by a preponderance of evidence that the conditions had been broken. Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79; Van Valkenburgh v. American Pop. Life Ins. Co., 70 id. 605; Elwell v. Chamberlin, 31 id. 611. Judgment reversed. Murray v. New York Life Insurance Co. Opinion by Miller, J.

[Decided April 26, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

APRIL, 1881.

INTERNATIONAL LAW-PROPERTY OF CITIZEN IN ENEMY'S TERRITORY PRODUCING PROFIT. In 1860 the claimant, a native of Georgia, was domiciled at Dalton in that State, and doing business as a merchant. About the time the State seceded he left his home and his business and went to Indiana, where he remained until the end of the war. Before leaving he appointed an agent to manage for him while he was gone. The agent, in 1864, bought for him, with moneys collected or acquired on his account, two bales of cotton, that were afterward captured by the military forces of the United States at Savannah. Held, that claimant was entitled to the cotton as against the United States. If he had remained in Georgia during the war, acquiring his money and buying his cotton himself, he would have a right to claim it. No actual change of his domicile is shown, and his agent has done for him no more than he might himself have lawfully done if he had stayed where his property was. In no just sense was he trading across the lines with the enemy through the operations of this agent. He was simply saving what he had been compelled to leave in order to avoid becoming in law an enemy of his government. His property being in enemy territory was enemy property, and subject to capture as such, but he was both in law and in fact a friend. The agency he left behind was only to manage what he could not take away, and as the money invested in the cotton was collected or acquired through this agency, it will be presumed that it was obtained at the place he left, rather than sent through the lines. Judgment of Court of Claims affirmed. United States v. Quigley. Opinion by Waite, C. J.

securities. The company depositing its interest, she, at his instance, returned the bonds, and received from him in exchange bonds of the I. railroad company for $75,000. This was June 24, 1871. Those last bonds were dated April 1, 1870, were negotiable, were secured by mortgage of that date, and each had attached interest coupons from the same date, two of which were overdue, being payable October 1, 1870, and April 1, 1871. The bonds and the mortgage contained a provision authorizing foreclosure in case of default in interest for six months; the bonds required a demand to be made, but the mortgage not requiring it. At the time she received the bonds the I. railroad was only a projected railroad. C. was vice president and acting president of the company. The bonds were regularly executed and in possession of C., who had no express authority to dispose of them, but who claimed a lien on them for advances made to the company. Held, that S. was a bona fide purchaser for value from C., and could enforce the bonds against the I. company. Possession of negotiable bonds carries with it the title to the holder. Murray v. Lardner, 2 Wall. 121. S., therefore, bought the bonds of a person presumptively the owner, and paid for them a full and valuable consideration. The provision of the bonds requiring demand before the debt became due controlled that of the mortgage, which did not. The bonds were, therefore, not due when S. purchased. The mere presence of two unpaid coupons upon the bonds purchased was not of itself sufficient evidence of the dishonor of the bonds to which they were attached. This point has been expressly ruled by this court in Cromwell v. Sac County, 96 U. S. 51. In that case it is said: "The non-payment of an installment of interest when due could not affect the negotiability of the bonds or of the subsequent coupons. Until their maturity the purchaser for value, without notice of their invalidity as between antecedent parties, would take them discharged from all infirmities." To the same effect see Nat. Bk. of N. A. v. Kirby, 108 Mass. 497, and Boss v. Hennett, 15 Wis. 260. In the case of Parsons v. Jackson, 99 U. S. 434, the bonds which were the subject of controversy had never been issued, but had been stolen from the office of the company. They were made payable either in New Orleans, New York, or London, as the president of the railroad company might by his indorsement on the bonds determine. The bonds contained no indorsement of the president designating the place of payment, they were offered in sideration, and coupons for several years, due and unthe New York market and sold for a very small conpaid, were attached to them. The court held that all these circumstances affected the purchaser with notice of the invalidity of the bonds. It is true the court said that the presence of the past-due and unpaid coupons was of itself an evidence of dishonor sufficient to put the purchaser on inquiry. But the case did not turn on this circumstance alone. There were other significant indications of the invalidity of the bonds and the opinion must be restricted to the case before the court. Even if S. was put on inquiry, the facts that she would have discovered would have explained satisfactorily the presence of the unpaid coupons. "The party who takes negotiable coupon bonds, before due, for a valuable consideration, without knowledge of any defect of title and in good faith, holds them by a title valid against all the world. Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transaction, will not defeat his title. That result can be produced only by bad faith on his part." Murray v. Lardner, 2 Wall. 110. "Bonds for the payment of money, with interest warrants attached, are everywhere encouraged as a safe and convenient medium for the settlement of balances among mercantile men;

any course of judicial decision calculated to restrain or impede their free and unembarrassed circulation, would be contrary to the soundest principles of public policy. Such instruments are protected in the possession of an indorsee, not merely because they are negotiable, but also because of their general convenience in mercantile affairs." Smith v. Sac County, 11 Wall. 150. Decree of U. S. Circuit Court, Indiana, affirmed. Indiana & Illinois Central Railway Co. v. Sprague. Opinion by Woods, J.

RECORDING ACT - PRIORITY BETWEEN MORTGAGES. - Under the recording statute of New York which gives priority only to the mortgage first recorded, when that is executed for a valuable consideration, which, according to New York decisions, means some new consideration advanced at the time, and that a mortgage for a pre-existing indebtedness is not protected by a prior record, against a non-recorded mortgage for value. Held, that as between two mortgages—one for a past indebtedness, and one for an indebtedness to be subsequently incurred the one for the past indebtedness must have precedence if first recorded. Rehearing denied. National Bank of Genesee v. Whitney. Opinion by Field, J.

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

REMOVAL OF CAUSE - APPLICATION BY DEFENDANT FOR, DOES NOT WAIVE OBJECTION TO JURISDICTION. - The application of a defendant for the removal of a cause from a State to a Federal court, does not constitute a waiver of the use and service of proper process of summons or citation in the cause, where the first action of the defendant, in both the State and Federal courts, was to except to the process by which it was attempted to give those Courts jurisdiction of his person. United States Circ. Ct., N. D. Texas, Dec. 15, 1880. Parrott v. Alabama Gold Life Insurance Co. Opinion by McCormick, D. J.

ACT OF 1875-RIGHT DETERMINED BY CITIZENSHIP WHEN PETITION FILED. A cause may be removed under the act of 1873 if the required citizenship | exists at the time the petition for removal was filed. In this case the petition for removal, made by the complainant, alleged that at the date of the petition she was a citizen of the State of Illinois, and that the defendant was a citizen of the State of Wisconsin. The defendant moved to remaud, on the ground that the petition for removal did not show that the parties were citizens of different States at the time the action was commenced in the State courts. Held, that the motion to remand must be overruled. Jackson v. Mut. Life Ins. Co., 3 Woods. 413; McLean v. St. Paul & Chicago R. Co., 16 Blatchf. 309; Chicago, St. L. & N. O. R. Co. v. McComp, 9 Rep. 569; Johnson v. Monell, 1 Woolw. 390; McGinnity v. White, 3 Dill. 450; Jackson v. Mut. Ins. Co., 60 Ga. 423; Phoenix Life Ins. Co. v. Saettel, 7 Cent. L. J. 398. United States Circ. Ct., E. D. Wisconsin, Jan., 1881. Curtin v. Decker. Opinion by Dyer, D. J.

ACT OF 1795-RIGHT DETERMINED BY CITIZENSHIP AT COMMENCEMENT OF ACTION AND TIME OF FILING

PETITION. In a case of removal the jurisdiction of the Federal court does not depend upon the form or substance of the bond approved by the State court. A cause cannot be removed under the act of 1795, unless the required citizenship existed, not only when the petition for removal was filed, but also at the time when the action was begun in the State court. In this case a petition for removal stated that the defendants are residents of another State. Held, that the cause must be remanded, upon the ground that the petition *Appearing in 5 Federal Reporter.

was in the present tense. nesota, Dec., 1880. Beede v. Cheeney. Opinion by McCrary, C. J.

United States Circ. Ct., Min

CONDITIONAL SALE

SALE OF PERSONAL PROPERTY VALID AT COMMON LAW-Statute of FRAUDS. - Conditional sales were valid at common law, and their validity was not affected by the English statute of frauds. Such sales, oral or in writing, are valid in Arkansas, and creditors of and purchasers from the conditional vendee acquire no right to the property as against the vendor, who has been guilty of no fraud and no laches in asserting his rights. In Ayer v. Bartlett, 6 Pick. 71, it is said: "If the transaction is fraudulent, the vendor setting up a condition to the sale, yet suffering the vendee to be in possession, exercising full rights over the property, with the intent and purpose of enabling him to obtain credit on the strength of the property, he will not be able to avail himself of such condition, but the sale will be held to be absolute in regard to creditors. But if bona fide, and the object of the condition was merely security to the vendor, he shall not lose his property because some creditor of the vendee supposed it to belong to him. See also, Armington v. Houston, 38 Vt.448; Bigelow v. Huntley, 8 id. 151; Buckmaster v. Smith, 22 id. 203; Chaffee v. Sherman, 26 id. 237; Bradley v. Arnold, 16 id. 382; Paris v. Vail, 18 id. 277; Barrett v. Pritchard, 2 Pick. 512; Marston v. Baldwin, 17 Mass. 606; Merrill v. Rinker, 1 Bald. C. C. 528; Blood v. Palmer, 11 Me. 414; Miller v. Bascom, 28 Mo. 352; Rogers' Locomotive Works v. Lewis, 4 Dill. 158. And it seems to be equally well settled that the vendor, who has been guilty of no laches in asserting his right to the property, may recover it from a bona fide purchaser from the vendee. Coggill v. Hartford R. Co., 3 Gray, 545; Ballard v. Burgett, 40 N. Y. 314; Bigelow v. Huntley, 8 Vt. 151; Sargent v. Metcalf, 5 Gray (Mass.), 306; Hart v. Carpenter, 24 Conn. 427; Parmlee v. Cather-. wood, 36 Mo. 479; Griffin v. Pugh, 44 id. 326; Little v. Page, id. 412; Benner v. Puffer, 114 Mass. 378; Thomas v. Winters, 12 Ind. 322; Dunbar v. Rawles, 28 id. 322; Bailey v. Harris, 8 Iowa, 333; Hamans v. Newton, 4 Fed. Rep. 880. United States Circ. Ct., E. D. Arkansas, July, 1880. Blackwell v. Walker. Opinion by Caldwell, D. J.

SERVICE- -ON ONE IN JURISDICTION BY FRAUD OR FORCE, INVALID. - Where a person has been brought from another State by force, or has been induced to come into a State by the fraud and deceit of another for the purpose of procuring the service of a summons in a civil action, and personal service has been made under such circumstances, the service of process and return of the officer will be quashed on proper plea, where the facts are undisputed. See Lagrave's case, 14 Abb. Pr. 336, 344; Ranstead, v. Otis, 52 Ill. 30; Williams v. Reed, 29 N. J. Law, 385; Dungan v. Miller, 37 id. 182; Junean Bank v. McSpedan, 5 Biss. 64; Steiger v. Boun, 4 Fed. Rep. 17. United States Circ. Ct., Nebraska, Jan., 1881. Blair v. Turtle. Opinion by Dundy, D. J.

RHODE ISLAND SUPREME COURT ABSTRACT.*

AUCTIONEER -TO PAY OVER PROCEEDS OF SALE AN OFFICIAL DUTY-OFFICIAL BOND, FORM OF.—(1) Paying over the proceeds of an auction sale to the person for whom he sells is one of the official duties of an auctioneer. Hence neglect so to pay over constitutes a breach of a bond conditioned simply that the auctioneer shall "well and faithfully perform all the duties of said office during his continuance therein." Commissioners of Raleigh v. Holloway, 3 Hawks, 234; Allegany County v. Van Campen, 3 Wend. 48. (2) An * To appear in 13 Rhode Island Reports.

official bond need not follow the words of the statute if it uses words of the same legal effect. Cobb v. Commonwealth, 3 T. B. Mour. 391; Boring v. Williams, 17 Ala. 510; Nunn v. Goodlett, 10 Ark. 89; Justices of Inf. Court v. Administrator of Wynn, Dud. Ga. 22; State v. Layton, 4 Harring. Del. 512. Tripp v. Barton. Opinion by Durfee, C. J. [Decided Oct. 14, 1880.]

MUNICIPAL CORPORATION - LIABLE FOR INJURY FROM FRIGHT TO HORSE BY OBJECT LEFT IN HIGHWAY BY ANOTHER--SUCH OTHER AND TOWN NOT JOINT TORTFEASORS. (1) If an object calculated to frighten horses is left in a highway, and after reasonable notice negligently permitted to remain there by the town charged with the repair of the highway, such town is in Rhode Island liable for the injury sustained by a traveller whose horse is actually terrified by such object and runs away. It is otherwise in Massachusetts, the courts of that State holding that the town is not liable for injury resulting from fright without collision with the object. Kingsbury v. Dedham, 13 Allen, 186; Cook v. City of Charlestown, 98 Mass. 80; Bemis v. Arlington, 114 id. 507; Cook v. Montague, 115 id. 571. The Rhode Island rule prevails in several States. Morse v. Richmond, 41 Vt. 435; Winship v. Enfield, 42 N. H. 197; Chamberlain v. Enfield, 43 id. 356; Bartlett v. Hooksett, 48 id. 18; Dimock v. Suffield, 30 Conn. 129; Ayer v. City of Norwich, 39 iá. 376; Young v. City of New Haven, id. 435; Foshay v. Glen Haven, 25 Wis. 288. (2) In the case at bar the object was three flat cars loaded with immense iron castings. A left it in a highway; B's horse was frightened by it; B sued A for the injury caused by the nuisance, recovered judgment, and committed A on execution. A was discharged under the United States Bankrupt Act; B then sued the town. Held, that A and the town were not joint tort-feasors, A being liable at common law; the town for the neglect of a statutory duty. Held, further, that A and the town were liable for distinct though related torts resulting in the same injury, and that B's action against the town could be sustained. See Hunt v. Bates, 7 R. I. 217; Bennett v. Lovell, 12 id. 166. Bennett v. Fiffield. Opinion by Durfee, C. J. [Decided Oct. 30, 1880.]

NEGLIGENCE TION FOR.

REQUISITES OF DECLARATION IN ACIn trespass on the case a declaration charged that "said city so carelessly and negligently kept and maintained that highway known as, and so carelessly and negligently suffered and allowed said highway to be and remain out of repair, as wrongfully and injuriously to turn and cause to flow upon the lands and estate of the plaintiff next adjoining to said highway, the water which otherwise and ordinarily, or naturally and but for the wrongful acts and omissions of the said city would not have flowed or run upon the plaintiff's lands and estate aforesaid, whereby," etc. Held, on demurrer, affirming Wakefield v. Newell, 12 R. I. 75, that no cause of action was set forth. The requisities of a good declaration in an action for negligence are these: "It ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the defendant has been guilty of negligence, without showing in what respect he was negligent, and how he became bound to use care to prevent injury to others." Gautret v. Edgerton, L. R., 2 C. P. 371. So too it is not enough to state a relation from which the duty may arise under certain circumstances, but unless the duty necessarily results from the relation, the circumstances which give rise to it must likewise be stated. Brown v. Mallett, 5 C. B. 599; Seymour v. Maddox, L. R., 16 Q. B. 326; Wilson v. Newberry, L. R., 7 Q. B. 31; Collis v. Selden, L. R., 3 C. P. 495; Williams v. Hingham, etc., Turn. Co., 4 Pick, 341. In case, for the neglect

of a statutory duty, the plaintiff must show that the duty was imposed for his benefit or existed for his security from the injury suffered. O'Donnell v. Providence & W. R. Co., 6 R. I. 211. Smith v. Tripp. Opinion by Durfee, C. J.

[Decided Dec. 4, 1880.]

UNDERTAKING-IN NE EXEAT TO "ABIDE AND PERFORM." In accordance with an agreement made between the parties litigant to a bill in equity, a respondent who had been arrested on a writ of ne exeat filed a bond with a surety "to abide and perform the orders and decrees of the court in the cause," whereupon the writ was discharged. Subsequently and before final decree the surety moved for an order discharging him from liability on the respondent principal's putting himself within the jurisdiction of the court and subject to its decrees. Held, that the motion could not be granted; that a bond to "abide and perform" differs from a bond to " 'abide," and that on discharging

a writ of ne exeat a court may in its discretion require the respondent to give security to perform the decree. Robertson v. Wilkie, Amb. 177; Atkinson v. Leonard, 3 Br. C. C. 218; Griffith v. Griffith, 2 Ves. 401; La Clea v. Trot, Prec. Ch. 230, case 192; Stapylton v. Peill, 19 Ves. Jr. 615; Debazin v. Debazin, 1 Dick. 95; Johnson v. Clendennin, 5 Gill & J. 463; Matter of Wolfe, 5 N. Y. Leg. Obs. 384. Petition of Griswold. Opinion by Matteson, J.

[Decided Sept. 20, 1880.]

VIRGINIA SUPREME COURT OF APPEALS

ABSTRACT.*

CONSTITUTIONAL LAW-PATENT STATE LICENSE TAX ON VENDER OF PATENTED ARTICLES NOT INVALID.—

In a prosecution for the violation of a provision of the Virginia State revenue law requiring persons selling merchandise by sample to take out a license and pay a tax therefor against a person selling sewing machines manufactured by the Singer Manufacturing Company, as agent of such company, held, that the fact, that the company made its machines under a patent of which it is the assignee, did not entitle the company to bring such machines into the State and sell them there without complying with the requirements of the State revenue laws. See Patterson v. State of Kentucky, 19 Alb. L. J. 156. As was said by Chancellor Kent, in Livingston v. Van Ingen, 9 Johns. 582, “That species of property must likewise be subject to taxation and to the payment of debts as other personal property. The national power will be fully satisfied if the property created by patent be for the given term enjoyed and used exclusively, so far as under the policy of the several States the property shall be deemed fit for toleration and use. There is no need of giving this power any broader construction in order to attain the end for which it was granted; which was to reward the beneficent efforts of genius and to encourage the useful arts." Webber v. Commonwealth of Virginia. Opinion by Staples, J.

[Decided August 19, 1880.]

MUNICIPAL CORPORATION-LIABLE FOR NEGLIGENT CONSTRUCTION OF STREET INJURING PRIVATE PROP

ERTY. - If a municipal corporation, in improving its streets, fills up a street and does it in such way that the water which before had been carried off by gutters is thrown back upon an adjoining lot, the corporation will be liable for the damage to the lot, if by proper care and means it might have been prevented. Municipal corporations, acting under authority conferred by the legislature, to make and repair, or to grade, level and improve streets, if they exercise reasonable care and skill in the performance of the work resolved Appearing in 33 Grattan's Reports.