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honest belief that the property was worth the valuation put upon it, and the excessive valuation was made in good faith, and not intended to mislead or defraud the insurance company, then such over-valuation is not a fraudulent over-valuation that will defeat a recovery: Id.
INTERNAL REVENUE. See Broker. JURISDICTION. See Bankruptcy; Constitutional Law. Supreme Court of the United States.—Where the question before the Supreme Court of the United States is the effect, under the general public law, of a state of sectional civil war upon a contract of life insurance, the court has no jurisdiction, as no federal question is presented for determination : The New York Life Ins. Co. v. Hendren, S. C. U. S., Oct. Term 1875.
LANDLORD AND TENANT. Landlord's Lien.-A purchaser of grain raised by a tenant, upon which the landlord has a lien for rent, with knowledge of that fact and that the rent is not fully paid, will be liable to the landlord for the rent due, to the extent of the value of the grain purchased by him: Prettyman v. Unlund, 77 III.
MALICIOUS PROSECUTION. Evidence-Change of Law-Retroactive Statute.--In an action for malicious prosecution founded on a criminal proceeding before a magistrate, and when the issue involves malice and probable cause, it must be tried by direct and competent evidence to the jury. And it is error on such issue to permit witnesses to rehearse the testimony given before the magistrate by witnesses other than the defendants : John v. Bridgman and Wife, 27 Ohio St.
But it is competent to prove by any competent witness who was present, and heard the testimony, that no evidence in support of the criminal charge was offered or given by the defendant. Richards v. Foulke, 3 Ohio 52, distinguished and followed : Id.
In such trial the record of the magistrate is competent evidence, at least to show the facts of the acquittal and discharge of the plaintiffs : Id.
When at the time the action was brought, a witness would have been incompetent, but an amendatory law in force at the time of the trial makes him competent, the law in force at the time of the trial governs the question. The unpublished case, 25 Ohio St. 500, decides this. Nor in such law so applied liable to the objection of being retroactive within the prohibition of the Constitution of 1851 : Id.
MANDAMUS. See Municipal Bonds.
MARRIED WOMAN. Separate Estate-Land bought and improved by Wife with Money acquired before Marriuge and with separate Earnings- Acquiescence of Husband.-A., a married woman, purchased land with money which had been given to her previously to her marriage by her father. The buildings erected thereon were constructed partly with such money and partly with her subsequent earnings. At the time of her marriage, the common law governed in the District of Columbia, where she lived, as to the rights of married women to the personal property possessed by them previously to their marriage, and as to their subsequent earnings. By that law the money which the wife then possessed and her subsequent earnings heloage! exclusively iv her husband. A.'s husband have ing acquicsced for fifteen years in her holding the land in her own name and in making improvements thereon with her earnings : Held, that in a controversy between the parties after a divorce, this was evidence of his original authorization of the investments, constituting a voluntary settlement upon his wife, and that therefore the property belonged to A.: Jackson v. Jackson, S. C. U. S., Oct. Term 1875.
MASTER AND SERVANT. Negligence-Liability of Master for. - Where a brakeman of a railway company is injured while in the service of the company, in consequence of a defective ladder, which giving way, caused him to fall
, the company will not be liable to such servant, unless it had notice of the defect, or might have had such knowledge by the exercise of a proper degree of diligence and care : Toledo, Wabash & Western Railway Co. v. Ingraham, 77 III.
MISTAKE. See Evidencc.
MUNICIPAL BONDS. Regularity of Proceedings cannot be inquired into against a bonâ fide holder - Mandamus.—Where specific power is given by the legislature authorizing a board of education to issue negotiable bonds for school purposes upon certain conditions prescribed, the regularity of the proceedings of the board cannot be disputed, where the bonds, upon their face, purport to have been issued under the law in question, and where they have been sold by the board and afterward passed into the hands of a bonâ fide holder : The State ex rel. Robertson v. Board of Education, 27 Ohio St.
Mandamus is the proper remedy to compel the board to appropriate moneys already in their treasury for that purpose, towards the payment of such bonds, and to levy such tax as may be necessary to complete such payment: Id.
MUNICIPAL CORPORATION. Municipal Subscriptions and Bonds.-If the people of a county vote a subscription in aid of a railway company to be paid in bonds of the county upon certain conditions precedent, the county authorities cannot delegate power to others to determine when the conditions are performed, but must determine that fact themselves, as the authorized agents of the people. This is an official trust, which cannot be delegated : Supervisors of Jackson County v. Brush, 77 III.
License of Vehicles.--A provision in a city charter gave the power “to license, tax and regulate and control wagons and other vehicles conveying loads in the city ; to prescribe the width and tire of the same, the weight of loads to be carried and the rates of carriages.” Held, not to apply to the case of wagons used by the defendant in the regular course of his business as a merchant, but only extends to wagons of common carriers for hire : Joyce v. East St. Louis, 77 III.
NATIONAL BANKS. Who liable as Stockholilers.—Primarily, a creditor of a national bank may proceed against the party in whom the legal title to the stock is vested. Where shares of stock in a banking corporation have been hypothecated, and placed in the hands of the transferee, he will be subjected to all the liabilities of ordinary owners, for the reason that the property is in his name, and the legal ownership appears to be in him: Wheelock v. K'ost, 77 Ill.
NEGLIGENCE. See Master and Scrvant.
NOTICE. See Agent.
OFFICER. Payment for Services.-A person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of those duties, even though subsequently imposed by statute or ordinance. And a promise to pay an officer an extra sum beyond that fixed by law, is not binding, though he renders services and exercises a degree of diligence greater than could legally have been required of him: City of Decatur v. Vermillion, 77 Ill.
PRACTICE. See Error. Assignments of Error.- The object of the rule requiring an assignment of errors is to enable the court and opposing counsel tu see on what points a reversal of judgment is to be asked, and to limit the discussion to such points. The practice of unlimited assignments covering the whole case and compelling the court to sift out for itself the points really relied on, is a perversion of the rule, and the court will only notice such as seem to it material: Phillips Construction Co. v. Seymour et al., S. C. U. S., Oct. Term 1875.
PUBLIC USE. Dedication to.—Where the plat of a village showed a square, not divided into lots as the other blocks, with no designation of its use, and the proof showed the sale of lots around the same at an enhanced price, and an intention to dedicate the square to public use, and a long acquiescence in the use of the same as a public park, this was held, to be a dedication at common law to the public use : Village of Princeville v. Auten, 77 III.
RECORD. See Error.
SALE. When Delivery to pass Title. — To affect subsequent purchasers without notice, and creditors, there must be an actual delivery of personal property, to consummate a sale; but the rule has its exceptions, in the case of warehouse receipts : as where a warehouseman purchased grain stored by him, for another person, and with such other person's money, and took up his outstanding receipt, held by the vendor, and issued a new receipt to the person for whom he bought, it was held that the grain was not liable thereafter to be taken in execution against the warehouseman : Broadwell v. Ilowarl, 77 Ills.
SET-OFF. When allowed— Debts owing by and to an insolvent Corporation.The debts which may be set-off against each other must be in the same
right, and this rule is the same at law and in cquity : Scammon v. Kimball, Assignee of Mutual Security Insurance Co., S. C. U. S., Oct. Terin 1875.
Where an insurance company which has become insolvent has money on deposit with a banker, the latter may sct-off against the company's assignee in bankruptcy, his claims under policies of the company
for losses en properties destroyed by fire: N.
But he cannot sct-off his claims under such policies against his notes for subscriptions to stock of the company. The stock and money duo from its sale constitute assets in trust for payment of the company's debts, and the rights of creditors are superior to those of a stockholder, although the latter be also a creditor: 1.1.
In the ordinary course of business, funds deposited with a banker become his property and constitute an ordinary debt payable on demand in instalments at the depositor's option, and the subject of set-off, but semble if they were deposited with him as treasurer of a corporation the funds would be held upon a trust and not subject to set-off: Id.
SHERIFF'S SALE. Groun is for setting aside.- Where a plaintiff in cxccution, through his attorneys, bids in a tract of land turned out by the defendant in the cxecution, in satisfaction of the execution, in consequence of the misrepresentations of the sheriff making the levy and sale, that the same was not encumbered, when, in fact, it was encumbered in excess of its value, this will afford no ground for setting aside the sale and satisfaction, as the sheriff is not the agent of the defendant: Vanscoyoc v. Kimler, 77 III.
STOCK. See Contract; Corporations. Unpaid-Liability of Owner.-Unpaid stock is as much a part of the assets of an insurance company as the cash which has been paid in upon it. Creditors have the same right to look to it as to anything else, and the same right to insist upon its payment as upon the payment of any other debt due to the company, As regards creditors there is no distinction between such a demand and any other asset which may
form a part of the property and effects of the corporation : Sanger v. Upton, Assignee, &c.; Upton, Assignee v. Tribilcock, S. C. U. S., Oct. Term 1875.
A fraudulent representation by an agent of the corporation at the time he obtained a subscription to the stock, that only 20 per cent. of the par value was assessable, is no defence to an action by the corporation or its assignee in bankruptcy for the unpaid instalments. A party has no right to rely on a representation that is contrary to law : Id.
TRUSTEE Compensation of:- At common law, in the absence of contract, a trustee is entitled to no compensation for the management of the trust property. He may impose terms as the condition of his acceptance of the trust, and the person creating the trust may accede to the same or not as he chooses. Where the trust is accepted without agreement as to compensation, the trustee may charge for all reasonable and proper expenses incurred in caring for and preserving the trust property or fund: Huggins v. Rider, 77 Ills.
WAR. Effect of Honorable Discharge— Meaning of “ Allowances.”—An honorable discharge of a soldier from service does not restore to him pay and allowances forfeited for desertion: United States v. Landers, S. C. U. S., Oct. Term 1875.
Under the term “ allowances” bounty is included : Id.
Effect of a state of War upon Commercial Intercourse.--As a general rule one of the immediate consequences of a declaration of war and the effect of a state of war, even when not declared, is that all commercial intercourse and dealing between the subjects or adherents of the contending powers is unlawful, and is interdicted. In the United States, however, licences to carry on trade, especially in the case of a civil war which is sectional, may be issued under the authority of an Act of Congress, and in special cases for purposes immediately connected with the prosecution of the war, they may be granted by the authority of the President, as commander-in-chief of the military and naval forces of the United States : Matthews v. McStea, S. C. U. Š., Oct. Term 1875.
Both the Act of Congress of July 13th 1861, and the proclamation of the President of August 16th 1861, exhibit a clear implication that before the first was enacted, and the second was issued, commercial intercourse was not unlawful, and that it had been permitted : 11.
Where a bill of exchange, dated April 23d 1861, and made payable in one year, was drawn on a firm in New Orleans and accepted by them on the day of its date, and A., one of the defendants, and a member of the firm, was a resident of the State of New York, it was held, that the partnership was not dissolved by the war of the rebellion prior to April 23d 1861, and that therefore A. was liable : ld.
WARRANTY. See Constitutional Law.
WATERS AND WATER-COURSES. Municipal Corporation-Damages.-If a city in fixing the grade of a street, or in afterwards changing it, causes water to flow upon a lot that it did not naturally flow upon, the city will be held liable therefor: City of Bloomington v. Brokaw, 77 Ills.
WRIT OF ERROR. From the Supreme Court of the United States to a State Court— To what Court directed— Transmission of Record.—If the highest court of a statc has, after judgment, sent its record and judgment in accordance with the law of the state to an inferior court for safe keeping, and no longer has them in its own possession, the Supreme Court of the United States may send its writ either to the highest court or to the inferior court. If the highest court can and will, in obedience to the requirement of the writ, procure a return of the record and judgment from the inferior court, and send them up, no writ need go to the inferior court. But if it fails to do this, the Supreme Court of the United States may send direct to the court having the record in its custody and under its control: Atherton et al. v. Fowler et ul., S. C. U. S., Oct. Term 1875.