Imágenes de páginas

This extraordinary piece of news has not been offi- | more and Sir R. Amphlett, did not agree with the cially proclaimed as yet, but it seems to be true all the | majority; but 'iniquitous' in his mouth sounded same, and the Pall Mall, being convinced of its truth, strange. A correspondence between the Lord Chief says:

Baron and Lord Cairns has, not unnaturally, arisen “The surprise at Mr. Thesiger's appointment but

out of this statement, which has bitherto circulated little exceeded the astonishment at the appointment without contradiction. The Lord Chief Baron denies being made from the bar at all. Scarcely any one had that he used the word 'iniquitous; ' but he owns that doubted that Lord Justice Amphlett's successor would

he 'may have hazarded an opinion that there was be one or other of the judges of the High Court; and unless the new Lord Justice were to be chosen

much of policy rather than of law in the judgment,' which, perhaps, he should have been – from the Chan and he admits that he authorized Mr. Ellis to state as cery Division, it was Mr. Justice Lush who was gener

publicly as he thought fit that the Lord Chief Baron ally supposed to possess the highest claim to promo

dissented from the majority. The Lord Chancellor's tion. But there are several others who could be named as fitting successors to Lord Justice Amphlett, and answer is in effect that the permission to Mr. Ellis was whose appointment would fully have satisfied profes a serious departure from the well-understood obligasional and public opinion. If, however, the Lord

tion of a Privy Councillor, who must be aware of the Chancellor intended to go further afield, if he intended to dispense with judicial experience and proved judi ordinance which says that when the business is carcial capacity, it was at least expected that he would ried according to the most voices, no publication is make an appointment which he could justify by the

afterward to be made by any man how the particular traditions reserving certain judicial prizes for important political service or distinguished forensic success.

voices and opinions went;' and that when a Privy But these expectations have been altogether disap Councillor has declared his dissent from the judgment pointed in the selection of a nominee who is neither

of the majority, it has always been with the permisfitted for the post by judicial experience, by reputed learning, or even by length of years; while he can put

sion of the whole committee." — which permission was forward no compensating claim whatever on the distinctly refused in this case. ground of political service or professional distinction.

The Lord Chief Baron replied to this, questioning the A Queen's Counsel whose silk gown is four years old,

applicability to ecclesiastical proceedings of the order and its wearer only thirty-nine, and who has never in any way distinguished himself above his fellows, has

cited, and declaring that, but for the view taken by been passed over the heads of twenty judges into one Lord Cairns, he should have held, without doubt, that of the most important judicial offices in the State.

it was in nowise binding or operative upon such proSuch an appointment appears inexplicable."

ceedings. The entire correspondence was published I need not add any thing to the Pall Mall's brief

in the Times of Monday last, and is generally regarded summary of Mr. Thesiger's qualifications. He has

as a grave scandal; all the more, that the Lord Chief not yet earned a place in Vapereau or “Men of the

Baron, unconvinced and obstinate, persists in feeling Time," and his appointment is received with almost

aggrieved that his colleagues in the judicial commituniversal disapproval. Of course the unfriendly

tee refused to grant his request to allow him to publish critics of the government have numerous explanations his dissent, and when he published it in spite of them to offer, all more or less discreditable. Here is one invoked against him this " relic of the Star Chamber." from a correspondent of a provincial newspaper:

Three of the Penge convicts have been sent to penal "I am afraid that this is an instance of the tyranny servitude for life, while the fourth, Alice Rhodes, of personal considerations in politics. When Mr. Dis has been pardoned. The four were found guilty of the raeli first became Prime Minister, he found the amiable and graceful but feeble Lord Chelmsford in the seat of

murder of Mrs. Staunton by starvation. In the the Chancellor, where Lord Derby had placed one of opinion of the medical men who signed the memorial his earliest friends. Mr. Disraeli did not believe in to the Home Secretary, the cause of death was not Lord Chelmsford, and he quietly shelved him in favor of Sir Hugh Cairns, Mr. Disraeli's “able henchman.'

starvation, but natural disease; and it was generally From that day to this there has been coldness between

assumed that a respite was granted on their representhe Thesigers and the Prime Minister and the Lord tations. But as the three Stauntons have received the Chancellor. Lord Chelmsford held that he was shab

heaviest punishment short of death, it must now be bily treated, and never forgave the affront. It is to make compensation for the injury done ten years ago

assumed that the Home Secretary believes they were that 'young Thesiger' has been put over the heads of actually guilty of causing the death of Mrs. Staunton. experienced judges in 1877. Lord Chelmsford will for

It results that the perpetrators of what Mr. Justice give in the honor done to his son the dishonor done to that son's father, and Lord Beaconsfield, leading Lord

Hawkins desiguated as a “hideous and barbarous Cairns by the hand, will seek for that affection in the crime," have been saved from the gallows by the breast of an estranged friend which bas of late been clamor raised in their behalf by the conviction, perwithheld."

haps, that Sir Henry Hawkins' opinions were too The “Ridsdale case," one of those numerous con strong for a just judge. tests between the “ High Church” and “Low Church". As a direct consequence of this case, a bill is to be factions of the Establishment, was recently decided | presented to Parliament, by Sir J. Eardly Wilmot, for in favor of the State, as pursuer of the ritualistic de- the establishmentof a High Court of Criminal Appeal. fendant, by the judicial committee of the Privy Coun The bill, as drafted, provides that the court shall concil. Soon afterward a statement was published by a sist of the Lords Chief Justices of the Queen's Bench “Rev. Mr. Ellis," that the Lord Chief Baron of the and Common Pleas, three senior judges, and the Home Exchequer thought the Ridsdale judgment was “an Secretary, five to be a quorum. The court shall be iniquitous one; that it was not a judgment based on entitled to take up any case on which there has been a law, but on policy.” Mr. Ellis added that the Lord capital conviction on an appeal from the person conChief Baron had sanctioned his publication : “As Sir demned, and counsel will be heard both for the proseFitzroy Kelly was one of ten judges before whom the cution and for the prisoner, the expenses of the appeal Ridsdale case was heard, and in whose names the to be borne by the Crown. The judgment of this court judgment was given, the terms of the anuouncement must be affirmed by a majority of two-thirds, the took every one by surprise. It was believed, indeed, execution of the sentence to be stayed until the that the Lord Chief Baron, together with Sir R. Philli- | determination of the court is known.

MORTGAGES UPON PROPERTY TO BE AC and machinery, carries not only those in existence at QUIRED.

the date of the mortgage, but such as take their place, In the case of Putnam et al., appellants, v. Bill, just

or are subsequently added to them by the company

and exist at the time of the foreclosure. This kind I decided by the Supreme Courtof the United States,

of property is necessarily undergoing constant wear the effect of a mortgage by a railroad corporation

and consequent destruction, and the mortgages in which in terms covers " all the following present and

suit, so far as that property is concerned, would have in future to be acquired property,” as to subsequently

been of little value if their lien did not extend to such acquired property was considered. The court, after

as took its place or was added to it by the company. passing upon certain questions of practice and decid

Pennock v. Coe, 23 How. 117; Philadelphia, Wilminging (1) that the appearance of counsel specially for a

ton and Baltimore R. R. Co. v. Woelpper, 64 Penn. St. railroad corporation, and moving to dismiss the peti

366; Phillips v. Winslow, 18 B. Monr. 431. tion of an individual creditor for the appointment of a receiver of its property, do not preclude him from subsequently appearing for the trustee of the bond

EVIDENCE IN ELECTION CASES. holders in proceedings to foreclose mortgages of the company; (2) that upon a supplemental bill in Chancery no process of subpoena need issue unless new parties

SUPREME COURT OF KANSAS, OCTOBER 26, 1871. are brought in, a rule upon parties already served to answer the supplemental bill being sufficient; and (3) that where a corporation is insolvent and has no funds

HUDSON V. SOLOMON. at the place where its bonds are payable, demand of

1. As between the ballots cast at an election and a canpayment at such place need not be made before suit vass of those ballots by the election officers, the former brought to foreclose its mortgages, executed to secure

are the primary, the controlling evidence.

2. In order to continue the ballots as controlling evidence the bonds, thus argue and hold as to the principal it must appear that they have been preserved in the question, Mr. Justice Field delivering the opinion.

manner and by the officers prescribed in the statute,

and that while in such custody they have not been so The objection that the decree covers property not exposed to the reach of unauthorized persons as to afembraced or intended to be embraced by the mort

ford a reasonable probability of their having been

changed or tampered with. gages is equally untenable. The terms of the mortgages are as broad and comprehensive as could be used. RIGINAL proceedings in quo warranto. Everest & They embrace all existing property of the company U Waggener, for plaintiff. John Doniphan, and Smith except such surplus lands as were not required for & Solomon, for defendant. the roadway, depots and stations, and other uses of

BREWER, J., delivered the opinion of the court. the road, and all its future property, both such as might be purchased with the proceeds of the bonds The question in this case is as to the number of votes issued and such as might be acquired by other received by the two gentlemen, parties to this action, means. The language used is, “all the following, respectively, in the second ward of the city of Atohipresent and in future to be acquired property of son, at the last city election for the office of city attorthe parties of the first part” pertaining to the ney. The canvass, as made by the judges and clerks road, "that is to say, their road made and to be of election on the night of the election, gave Mr. made, including the right of way and land occu- | Hudson 120 and Mr. Solomon 100 votes. This, in conpied thereby, together with the superstructure and junction with the votes in the other wards, elected tracks thereon, and all rails and other materials | Mr. Solomon by 20 majority. A recount of the balused therein or procured therefor, inclusive of the lots, made in the presence and under the direction of iron rails purchased or to be purchased or paid for the justices of this court, gave Mr. Hudson 143 and with the above-described bonds, or the money obtained | Mr. Solomon 100 votes. In addition there was found therefor, and the machinery purchased with the same; | one ballot, probably intended for Mr. Hudson, but bridges, viaducts, culverts, fences, depot-grounds and which, owing to the manner in which different parts of buildings thereon, engines, tenders, cars, tools, mate- it were pinued together, was not counted by us as cast rials, machinery, and all other personal property, for either. This would elect Mr. Hudson. right thereto or interest therein pertaining as afore The question, then, is which should obtain, the cansaid, together with the tolls, rents or income to be had vass of the election officers, or the result as shown by or levied therefrom, and all franchises, rights and the ballots themselves? It is a primary rule of elecprivileges of the said parties of the first part of, in, to, tions that the ballots constitute the best, the primary, or concerning the same;" with a proviso that the sur evidence of the intentions and choice of the voters. plus lands mentioned might be sold.

State ex rel. v. Judge, etc., 13 Ala. 805; People ex rel. v. The reference made in this description to the prop Holden, 28 Cal. 123; McCrary on Elections, SS 291, 439; erty which might be afterward purchased with the Cooley's Const. Lim. 625. In the case from California bonds issued, does not operate as a limitation of the lien | the court uses this language: “Intrinsically considof the mortgage to such future acquired property, but ered it must be conceded that the ballots themselves only to remove any doubt that might otherwise possi- | are more reliable, and therefore better evidence, than bly arise whether the property thus purchased would a mere summary for them. Into the latter errors also go to increase the security offered. We do not may find their way, but with the former this cannot deem it of any moment whether the rolling stock and happen. The relation between the two is at least machinery in use by the company at the date of the analogous to that of primary and secondary evidecree were acquired with the proceeds of the bonds | dence." A canvass is but a count of the ballots, a or with the subsequent earnings of the company. A convenient and expeditious method of determining the mortgage of a railroad company which covers, in the choice of the people as disclosed by the ballots, and terms of the two mortgages in suit, its engines, cars therefore but secondary evidence. The necessities of the case make it prima facie evidence, but unless ex Four days after Mr. White received it, he placed some pressly so declared by statute it is never conclusive. tape around the box and sealed it at the corners, and State ex rel. v. Marston, 6 Kan. 524; Russell v. State, 11 the seals were unbroken when brought into our presid. 308. As between, therefore, the ballots themselves ence. and a canvass of the ballots, the ballots are control It thus appears that from the time of the canvass to ling. This is of course upon the supposition that we that of our examination, the ballots were in the cushave before us the very ballots that were cast by the tody of three persons, each of whom testifies that voters.

they were not handled by any one while in his cusAnd this presents the difficult question in this case. tody. It appears, also, that the box in which were For as under the manner of our elections there is these ballots was itself unlocked and opened but four mothing upon the face of a ballot to identify it as times, and then only for the purpose of taking out the • cast by any particular voter, or even as actually used poll books. Now, unless we impute to some one of

at any election; nothing to distinguish one ballot from these three parties intentional wrong in opening or another of those cast by the members of the same permitting to be opened the box, and changing or perparty, as no file or other mark is made in the canvass mitting to be changed the ballots, and in willful false or otherwise, after the election, upon any ballot by swearing upon this trial, and there is not the least which its actual use at such election may thereafter foundation for such an imputation, it would seem be established, and as at any election there is always a that there could be little doubt that the identical ballarge surplus 'of unused ballots, it is evident that if lots cast at that election have been preserved, and preopportunity were offered ballots might be withdrawn served unaltered, and were those examined by us. from the box and others substituted with but little But it is said that there were opportunities for reachchance of detection. Thus in the case before us, if | ing and opening this box and changing tbe ballots; there was but a single officer to elect, and but a single that this might have been done at The Champion name on the ballot, how easily could one having ac- office, at the house of Mr. Maher, or in the city clerk's cess to the box throw in twenty-three or four addi office, prior to the sealing of the box by Mr. White. It tional ballots and thus bring about the very difference is true there is a possibility of such a thing, but is that appears before us now. And who could there there any probability of it? Take The Champion after tell which were actually voted and which subse- office first, and see what must be assumed. This was quently thrown in? The ballot, then, upon its face | the same night and immediately after the canvass. containing no marks of identification, we must look It must be assumed that someone had a motive. aliunde for evidence of the identity of those offered This implies knowledge of the result of the canvass in and counted before us with those actually cast at the the four wards, and of the number of ballots that must election. And this evidence we find in the testimony be changed. It must be assumed, also, that the party as to the manner in which the ballots have been pre | having motive had knowledge of the presence of the served, a comparison of the canvass made as to all the judge of the second ward election, with the box and balofficers voted for at that election with the result as lots, in The Champion office, and had possession of a shown by the ballots, and certain other circumstantial key fitting the lock of the box; that he could take the evidence.

box off from the desk of Col. Martin, upon which it was And first as to the preservation of the ballots. It placed by Mr. Maher, in the presence of Mr. Maher appears that at the night of the election, as the bal- and of a large number of parties pager about election lots were called off, they were strung on a thread as matters; that he could take the box out of the room, prescribed by the statute. Gen. Stat., p. 408, $ 20. That unlock it, make the changes, and return it to its proper this was done publicly by the judges, in presence of place upon the desk, and all this without detection or several spectators; that after the canvass thus pub exposure. This is so near the impossible as to be of licly made had been completed, the ballots as strung | little moment. together were sealed up in an envelope, duly marked Perhaps the improbability may not be so striking and directed to the city clerk, with the poll books as to the other places named, but the opportunity deposited in the ballot-box; this box had two covers, afforded was so slight, that it seems almost like trifling one an inside sliding cover, fastened by a screw, and with language to speak of it as an opportunity. the other an outside lifting cover, fastened by a pad But beyond the direct testimony as to the manner lock. Both covers were fastened, and the box and of keeping the box and ballots, there is indirect evikey were intrusted to Mr. N. A. Maher, one of the dence of value, as to the identity of the ballots. The judges of election, to be by him delivered to the city testimony shows that they were strung on a thread clerk.

and then placed in a sealed envelope; they were so It appears that after the canvass, which was finished found by us. It also shows that the straight Republilate in the evening, he carried the box with him to the can tickets were counted first, then the straight Demoffice of The Champion, where were gathered quite a ocratic, and then the scratched; and so we found number of persons to hear the election news. After the ballots arranged on the thread. Again, there were tarrying there a while, he went home, taking the box several offices to be filled at that election, and each with him. He kept the box in his house until the ballot had the names of candidates for respective afternoon of the next day, when he carried it to the offices. So we had a count made of the votes cast for office of the city clerk and delivered it to him. While all, so as to compare the result with the canvass. We Mr. Maher had it in his house, it was deposited in his found the proper number of ballots in the box, so tbat sleeping room and the key carried in his pocket. Mr. if any had been put in an equal number had been Barker, who was city clerk at the time, retained it in taken out. For mayor the canvass gave Mr. Downs his office and custody for six days, when he was suc 232; our count 230. For police judge the canvass gave ceeded in office by the present incumbent, Mr. White, A. Spalding 164 and G. Scoville 79 votes; our count the by whom it has since been kept, part of the time in same. For marshal the canvass gave Tofte 130 and his office and part of the time in the vaults of a bank. | Dobson 111 votes; our count Tofte 129 and Dobson 109

For treasurer of board of education the canvass gave mission of further testimony. The application was A. H. Lamphere 235, and our count 236 votes. For based upon these facts: The poll books show the castmember of board of education the canvass gave A. F. | ing of 245 votes. It appears that one ballot was reMartin 240, and our count 235 votes. For city treasurerjected. Our count gave to the two candidates 243 the canvass gave Wm. Bowman 142 votes, J. M. Lind- votes. Now the defendant files affidavits to the effect ley 82; our count Bowman 163 and Lindley 82. So that several ballots were cast upon which there was no tbat except as to Bowman for treasurer and Hudson name for city attorney. Such testimony might be for city attorney, the canvass and our count substan very important. If, for instance, it could be clearly tially agreed. If any change, therefore, had been established that five ballots were cast with the pame made in the ballots as to the plaintiff it must have of no one thereon for the office of city attorney, the inbeen made as not to increase the total number of bal- ference would seem irresistible that the ballots before lots, as to preserve to Mr. Solomon the same number us were not the same as those canvassed, or at least of votes, to add 23 votes to Mr. Hudson, and leave un untampered with. After reflection, and with some changed the votes for all the other offices except one hesitation, we feel constrained to overrule the applicaof the candidates for city treasurer. The difficulty tion. It was not claimed as a right, but was an appeal of accomplishing this can only be fully appreciated to the discretion of the court, and was refused princiby one who sits down with 240 ballots, nearly half pally for these reasons. The pleadings distinctly gave of which are scratched, and attempts to make the notice to this question. It concluded that 100 votes changes.

were cast for Mr. Solomon and alleged that 148 votes But again, it will be perceived that the only sub were cast for Mr. Hudson. So that it would plainly stantial difference between the canvass and our count tend to defeat the plaintiff's case to show that there is in the votes cast for plaintiff and for Mr. Bow were several ballots upon which was the name of neither man. Now the testimony taken by deposition long candidate, and reference was made to this fact in the before our count shows that at the time of the can testimony. Now there is nothing in the affidavit to vass there was some discrepancy between the two show any good reason why this testimony was not inclerks in tallying the 'votes for these officers, and that troduced upon the trial. Some of the gentlemen it was claimed that Mr. Tibbals, one of the clerks, had whose affidavits were filed were witnesses already tallied too many votes for these gentlemen, and answorn and examined. The defendant is too good a attempt was made to correct his tally sheets. An ex lawyer not to have seen the value of such testimony. amination of the tally sheet kept by Mr. Tibbals The manner in which he has conducted this case showed that he tallied 155 votes for Mr. Hudson and shows that he thoroughly understands the strong 157 for Mr. Bowman, but the tallies made by the other points in his favor, and that he has prepared his declerk, Mr. O'Keefe, were accepted as correct, and Mr. fense with care and industry. Again, to open the case Tibbals' sheet corrected accordingly. It is not pre for new testimony would naturally work delay, and tended that the correction was made by a recount of already half the term of office has expired. Further the votes, but simply that the tallies were fixed up to delay should only be granted upon the clearest showthe satisfaction of the judges. Over the tallies as ing. And again, the testimony offered is of a characthey appear on the sheet of Mr. O'Keefe, for these ter which, conceding the utmost good faith and entire two gentlemen, appears a series of dots, corroborating honesty of the affidavits, our knowledge of elections the testimony that at the time of the canvass there and the manner of conducting them satisfies us is was some trouble about the tallies for these officers. very liable to be weakened, if not entirely overthrown, All this testimony taken together forces the convic upon cross-examination. tion on our minds that the ballots have not been We have given to this case more attention than perchanged or tampered with. It is true there is testi haps the importance of the office justifies. The conmony tending in the other direction, the strongest, test is about a city office of small salary, short term, perhaps, being that of a disinterested party who was and not the highest importance. It is a contest which present at the night of the canvass and kept a tally of we think ought to have been commenced and termitbe votes for three of the offices, including that of city nated in the District Court. But having been brought attorney, as called off by the judges, and testifies that in this court, it has given us an occasion for examhis tally corresponds with the result as shown by Mr. ination of some matters of importance in referO'Keefe's sheet and as returned by the canvassing ence to elections and enables us to lay down these as officers. But it is not to be presumed that an out cardinal rules covering elections and election consider, having no interest in the matter, would be as tests : careful as the sworn officers, and the fact is estab First. As between the ballots cast at an election lished by the testimony, and patent from the tally and a canvass of these ballots by the election offisheets, that there was a discrepancy between the two cers, the former are the primary, the controlling eviclerks as to these two offices, and it is undisputed that dence. the discrepancy was attempted to be corrected with Second. In order to continue the ballots controlling out a recount. Other testimony of the judges and | as evidence, it must appear that they have been preclerks that they made an honest canvass, while it is served in the manner and by the officers prescribed in good and satisfactory evidence of the honesty of their the statute, and that while in such custody, they have intentions, does not preclude the possibility of a mis not been so exposed to the reach of unauthorized pertake; a mistake which their own tally sheets show sons as to afford a reasonable probability of their havwas made by one or other of their clerks, and which ing been changed or tampered with. the count made by us shows resulted to the prejudice Judgment will be entered in favor of the plaintiff of the plaintiff's rights.

for the possession of the office and $473, the amount of Some days after the trial had been completed and salary and fees admitted to have been received by the the case submitted to us for decision, an application defendant as city attorney. was made by defendant to reopen the trial for the ad. All the justices concurring.


braced in the agreement to sell, and were affected by

the condition; and (3) that the vendor, on failure to APPEAL.

perform, was entitled to the property, including the Appealable order : order opening default.-A judg- goodwill and the subscription list, as against the genment of foreclosure was taken by default. The judg eral creditors of the firm. Judgment below affirmed. ment with the subsequent proceedings were set aside, Boon v. Moss; Flower v. O'Brien. Opinion by Church, and the defendant was allowed to put in an answer. C. J. Held, that the order opening the default and giving [Decided Sept. 18, 1877.] permission to defend was discretionary with the court

CONTRIBUTORY NEGLIGENCE. below, and was not appealable to this court. Appeal

Explosion of gas: going with lighted candle into closed dismissed. Alling v. Fahey. Opinion per Curiam.

room.—Plaintiff, the occupant of a building into which [Decided Sept. 25, 1877.]

the pipes of a gas company came, being aware that ARREST.

there was a leak in the pipes, and that gas escaped, 1. Disposition of goods to prevent replevin : what nec

went into the cellar of the building which had not essary to authorize arrest.-To authorize an order of been opened for five days, with a lighted candle. arrest under the provisions of section 179 of the old

An explosion of gas followed, injuring plaintiff's propCode, there must be a concealment, removal or dis

erty. Held, that the finding of a referee, in an action posal of the property, or some part thereof, with in for such injury against the gas company, that plaintiff tent either to defeat the process of the court or to was guilty of contributory negligence and ought not deprive the plaintiff of the benefit thereof. An intent to recover, should be sustained. (Holden v. Liverpool to put the property beyond the reach of the owner by Gas Co., 3 C. B. 1; Lannen v. Albany Gas L. Co., 44 selling it to a bona fide purchaser, or by so changing | N. Y. 459.) Order of General Term reversed, and its form that it cannot be identified, or by any other judgment on report of referee affirmed. Lanigan v. act, will authorize the order, although the fraudulent | N. Y. Gas L. Co. Opinion by Allen, J. actor may not contemplate an action at law to re- [Decided Oct. 2, 1877.] cover the specific property. Accordingly, where prop

EVIDENCE. erty is fraudulently purchased, and the fraudulent

To sustain credit. -- In explanation of certain repurchaser sells it with intent to put it beyond the

ceipts introduced in evidence, plaintiff stated that they reach of the owner, the intent “to deprive the owner

were given to defendant at defendant's request, in of the benefit thereof," contemplated by the statute,

order that he might use them in a settlement with his is established. Judgment below modified. Barnett v.

partner, one King. The defendant testified in reply Selling. Opinion by Allen, J.

that he had no partner. Held, that it was competent 2. Paid check not subject of replevin.-A check

in response to this to prove that King claimed to be which has been paid, held not a subject of replevin.

defendant's partner, and had brought suit for an acIb.

counting. Judgment below affirmed. Heckler v. [Decided Sept. 25, 1877.]

Leighton. Opinion by Allen, J.

[Decided Sept. 18, 1877.] Composition: inadvertent understatement of debt by

HIGHWAY. bankrupt: effect of.-An inadvertent understatement Town bridges: adjoining towns: when one town not of the amount due a creditor in composition proceed liable to contribute for highway bridge built by another.ings in bankruptcy, under section 17 of the bankrupt Under the provisions of Laws 1841, chap. 225, as act of 1874, held not to invalidate the proceedings or

amended by Laws 1857, chap. 383, requiring adjoining the effect of the composition as to the creditor whose towns, separated by a stream, to contribute jointly to debt is understated. Judgment below affirmed. Beebe

the maintenance of bridges across the stream upon v. Pyle. Opinion by Earl, J.

public highways, and giving a town which erects the [Decided Oct. 2, 1877.)

bridge a right of action for contribution against the CONTRACT.

other, held, that to entitle the town erecting the bridge

to maintain the action the bridge erected must connect Construction of : sale of newspaper : goodwill. — The

with a highway in the adjoining town that is open and owner of a newspaper made an agreement for the sale thereof to a firm, describing the property as follows:

passable. Accordingly, where a bridge did not connect " The Watertown Re-Union establishment, including

with a passable highway in the defaulting town, but

ended in a morass, and there was no road within two the presses, machinery, type of all description, news

hundred feet of the bridge, and that was inaccessible paper and jobbing material, tools, implements, etc.,

to travelers on account of the morass, held, that the appertaining to the said printing business, excepting

last-mentioned town was not liable to contribute, and real estate, and the accounts, notes and demands due

the fact that a highway had been laid out over the said party of the first part." The contract then declared

morass to connect with the bridge, it never having that the parties of the second part were “to have full

been opened or worked, would not make it liable. ownership when the condition and stipulations of this

(Marble v. Whitney, 28 N. Y. 297, distinguished ; also, agreement are fully performed," and provided that until that time, the vendees were to take possession, as

the decision in this case by the Commission of Appeals “tenants or bailees," and so hold the property until

on a former appeal, 65 N. Y. 322.) Judgment below the conditions were fulfilled, and that the owner might

affirmed. Beckwith v. Whalen. Opinion by Church, take possession in case of any default, eto. Held, (1)

C. J. a conditional sale, and the title would not vest in the

(Decided Sept. 18, 1877.] firm until the performance by them of the conditions

TRADE-MARK. and stipulations of the agreement; (2) that the good What constitutes: bull's head upon mustard labels : will and subscription list of the newspaper were em- I colorable likeness: use by others upon other articles. —

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