203. Core v. West Virginia Oil and Oil Land Co. Error to the District Court of Warren County.

BY THE COURT.

In an attachment suit against a non-resident defendant, the notice was first published on November eighth, in a weekly newspaper. It appeared in each successive weekly issue of the paper until December thirteenth, the last publication being in the paper of that day, which was Friday. The notice contained a summary statement of the object and prayer of the petition, and added: “And that an attachment has been issued in said case, and that said defendant is required to answer on or before December 28, 1878." A copy was duly mailed to the defendant. A farm was seized under the writ, and the debtor having sold it,the purchaser, who still owed the purchase money, was duly served as garnishee under the same writ and paid the money into court. The court, by order, released the farm and held the money.

Held: 1. The service was complete on December thirteenth. 5051 Rev. Stats.

2. The notice was sufficient. No description of attached property was necessary.

8. The release of the farm did not deprive the court of jurisdiction. Judgment affirmed.

24. Riddle et al. v. Commissioners of Hardin County et al. Error to the District Court of Hardin county. Settled and dismissed at costs of plaintiff in error.

91. Smith v. Foreman, assignee, etc.

Error to the District Court of Har

rison County. Smith waited too long before objecting. Judgment affirmed. No report.

102. Stuck v. Godfrey. Error to the District Court of Mercer County. Judgment of the district reversed and that of the common pleas affirmed. No report.

139. Zimmerman v. Zimmerman. Error to the District Court of Mahoning County. Judgment affirmed. No report、

190. Core v. West Virginia Oil and Oil Land Company et al. Error to the District Court of Warren County. Judgment affirmed. No report.

200. Hanauer v. Cummings. Error to the District Court of Delaware County. Judgment of the district court reversed and that of the common pleas affirmed. No report.

276. Bowen v. Rice. Error to the District Court of Brown County. Dismissed for want of preparation.

277. Gilliland et al. Brown County. 278. Gilliland et al.

Brown County.

v. Reynolds et al.
Dismissed for want

Error to the District Court of of preparation.

v. Reynolds et al. Error to the District Court of Dismissed for want of preparation.

279. Clark v. Bruce. Error to the District Court of Highland County. Dismissed for want of preparation.

281. Spitznagle v. Spitznagle. Error to the District Court of Putnam County. Dismissed for want of preparation.

279. Campbell v. Rousheimer. Error to the District Court of Brown Connty. Dismissed for want of preparation.

296. Ford et al. v. Hildebrant. Error to the District Court of Clinton County. Judgment affirmed. No report.

MOTION DOCKET.

12. Flickinger et al. v. Saum et al. Motion to reinstate cause No. 184 on the General Docket. Motion granted.

14. Gaff v. Crigler. Motion to compel plaintiff in error to correct printed record, etc. Motion granted. Corrected printed record to be filed by April 20, 1884. All questions as to costs of motion and of said printing reserved for future decision.

15. Boltz v. Stolz. Motion to reinstate cause No. 197. General Docket. Motion granted.

16. Bills v. Bills. Motion for order of revivor in cause No. 338 on the General Docket. Motion granted.

17. C. C. C. & I. Ry. Co. v. Nazor. Motion to reinstate cause No. 265 on the General Docket. Passed for proof of notice of motion to opposite counsel.

18. Brock et al. v. Hidy et al. Motion to reinstate cause No. 251 on the General Docket. Motion granted.

19. Homestead Building & Savings Association et al. v. Continental Life Ins. Co. et al. Motion to reinstate cause No. 252 on the General Docket. Motion granted.

ASSIGNMENTS FOR ORAL ARGUMENT

Wednesday, March 26.

129. B. & O. R. R. Co. v. Holgate.

159. B. & O. R. R. Co. v. Gibson.

Wednesday, April 9.

144. Brainerd et al. v. Elwell.

145. Brainerd et al. v. Moulton.

Wednesday, April 16.

137. Ohio Valley Insurance Company v. Kirk et al. 140. L. S. & M. S. R'y Co. v. Gates, administrator, etc.

Wednesday, April 23.

160. McGill, executor v. Williamson.

178. Harvey et al. v. Gardner et al.

Wednesday, April 30.

183. Clermont v. Irish Building Association.

194. Castle v. Ensign.

Wednesday, May 7.

195. Burt et al. v. Wilcox Silver Plate Co.

206. Peckham Iron Co. v. Harper et al.

Wednesday, May 14.

208. Keys v. Jacob D. Cox et al.

214. Layman et al. v. Cunningham et al.

All cases up to No. 325 are called and should be ready as reached, un

less further time be granted for cause on application. Sessions begin at 9 o'clock A. M.

(cc)

DIGEST OF CASES.

Brokers-Sale-Title.-Where a purchaser deals with a firm of brokers, the fact that they are known to the purchaser to be brokers is not, of itself, evidence of notice to the purchaser that they are not the owners, but are selling the goods for some one else. Elwell v. Mersick. Conn. Sup. Ct. of Errors, 1883. 17 Rep. 297.

Corporation-Unpaid Subscription to Capital Stock-Trust Fund For Creditors-Practice.-1. The capital stock of a moneyed corporation is a trust fund for the payment of its debts; and upon its insolvency, creditors may compel, by bill in equity, the payment of the unpaid subscriptions to the capital stock so far as is necessary for the satisfaction of their debts. 2. Upon the insolvency of a corporation, uncalled and unpaid subscriptions due on the capital stock cannot be reached by a judgment creditor by an attachment execution. If there are other assets adequate, for the payment of debts, the creditor cannot insist on such calls. Therefore an account is required, and the unpaid subscriptions constitute a trust fund to be administerd in equity for the benefit of creditors. [In re Glen Iron Works, Bankrupts. 40 Leg. Int. 296, disapproved.] Bunn's Appeal, Lane's Appeal. Pa. Sup. Ct. 14 Pitts. Legal News 106.

Deed-Absolute on its Face-When a Mortgage.-Whether a deed given in consideration of the grantee's assuming and paying the debts of the grantor is an absolute sale of the land conveyed, or a mere mortgage to secure the repayment of such debts, depends upon the intention of the parties at the time of conveyance. Such intention may be ascertained by evidence, oral or otherwise, of the situation of the parties, the value of the consideration in connection with the value of the property conveyed, the conduct of the parties before and after the conveyance, and all of the surrounding circumstances tending to explain the real character of the transaction. The evidence in this case reviewed, and the conveyance in question held to be a mortgage. Stephens v. Allen et al. Oregon Sup. Ct., Jan. 14, 1884. 2 West Coast Rep. 193.

Deed-Absolute on its Face- When a Mortgage.—A deed absolute on its face, given by A. to B. for real estate therein described, and a bond given by B. to A., agreeing to convey to A. a portion of the same property at a stipulated time, although given on the same date and for the same price, if not intended to be a mortgage or security for money by the parties themselves, and not appearing to be such on the face of the instruments, will be held to be an absolute bargain and sale, and not a mortgage. The intention of the parties is to be learned, first, from the instruments themselves; secondly, from parol testimony; and when ascertained, will be carried out by the courts. Winters v. Swift et al. Idaho Sup. Ct., Feb. 19, 1884. 2 West Coast Rep. 184.

Navigation-Collision with Mooring Vessel-Contributory NegligenceRemedy.-1. While the right of mooring vessels at public wharves is as much to be protected as that of navigation itself, it is to be exercised with due regard to the necessities of passing vessels. 2. A steamboat lay at the public landing at Pittsburgh, with her bow to a wharf-boat and quartering out into the river so that her stern unnecessarily encroached upon a considerable portion of the then working channel for descending coal-tows. The libellants' loaded coal-boat, in charge of a tow-boat descending the river, struck the steam-boat and was wrecked. Held: That the steam-boat was answerable. 3. A vessel is not chargeable with contributory negligence in a collision where her improper position is the result of a previous collision for which she was not to blame. 4. The innocent owner of a tow, who sustains a loss by the concurrent negli. gence of the tow boat and another boat, may pursue and recover the entire damages from either wrong-doer. O'Neil & Co. v. The Steam-boat St. Lawrence. U. S. D. C. W. D. Pa., January 23, 1883. 14 Pitts. Legal News 236.

Promissory Note-Proviso Appended-Indorsers.-1. “On or before March 12, 1882, I promise to pay A two hundred dollars, at City National Bank, with interest at ten per cent. per annum, value received. This note becomes due and payable when, if before March 12, 1882, A, B & Co. shall dispose of a part or all their interest in the New York hotel, or when the interest of B may be disposed of," is in effect a promissory note, and is not affected by the provision appended to the body thereof. 2. One who indorses such promissory note before its delivery and to give it credit, will not be heard to plead a want of consideration for such indorsement, but will be held as an original promissor and joint maker of the note. Though he may not have participated in the consideration, he will be deemed to have adopted the consideration of his joint maker. 3. Such original promissor and joint maker cannot at the same time be liable as surety merely, so as to be released, by acts of obligee which would release a surety. Kiskadden v. Allen. Col Sup. Ct., Feb. 29, 1884. 4 Col. Law Rep. 499.

Privileged Communication-Statements made to Prosecuting Attorney— Slander.-A communicaton made to a state's attorney, in Illinois, his duty being to “commence and prosecute" all criminal prosecutions, by a person who inquires of the attorney whether the facts communicated make out a case of larceny for a criminal prosecution, is an absolutely privileged communication, and cannot, in a suit against such person, to recover damages for speaking words charging larceny, be testified to by the state's attorney, even though there be evidence of the speaking of the same words to other persons than such attorney. Vogel v. Gruaz. U. S. S. C., Feb. 4, 1884. 4 Sup. Ct. Rep. 12.

Patent Non-Patentable Improvements— Injunction.—A non-patentable invention or improvement is not the subject of an exclusive right or property, but is common property open to all the world. Albright v. Teas. N. J. Ct. of Ch., May, 1883. 17 Rep. 278.

Practice-Married Women-Agency—Individual Liability of Wife.When a husband and wife are living together, and she hires servants or purchases articles for domestic use, the law imparts to her the character of agent and regards him as the principal debtor. She may contract as principal, but in order to charge her it must appear affirmatively that she pledged her individual credit. Dunn v. Raynor. N. J. Sup. ¡Ct., Feb. 1884. 7 N. J. Law Jour. 82.

Patent-Infringement-Machine-Other Method.—In a suit for the infringement of a patent, the claim was for a cigar with a longitudinal opening in its drawing end, when made by the machine described by the patentee as employed for that purpose. Held, that defendant should not be restrained from making cigars in a similar way without the use of a machine. Schalscha v. Sutro. U. S. C. C. S. D. of N. Y., Feb. 6, 1884. 17 Rep. 291.

Replevin-Contract Signed Only By One, but Acted On by Both Parties— Evidence.-A contract signed by but one of the parties thereto is binding upon both, when acts thereunder have been performed by both parties, and is properly receivable in evidence. Where, under the contract, corn was set apart in bins marked with plaintiff's name, this was a designation of the corn for the plaintiff, and evidence that such corn was bought from and stored for third parties is not properly admissible in an action of-replevin; nor is evidence as to where corn was afterwards shelled and shipped. Dows v. Morse. Ia. Sup. Ct., Dec., 1883.

Statute of Limitations--Non-Residents.-The statute of limitations is no bar to an action brought in this state on a promissory note made and payable in New York, although the parties continued to reside there until any action thereon was barred by the statute of that state, when it does not appear that the payer has not resided in this state six years since the note became due. Nor is it material that the maker of the note had attachable property in this state for eleven months after the note was payable. Thompson v. Read. Maine Sup. Jud. Ct., Sept. 13, 1883. 29 Alb. L. J. 189.

66

Summons-Legal Holiday.-The Legal Holiday Act" only contemplates the prohibition of actual sessions of courts, and does not extend so far as to close the courts on the days specified for the purposes of the returns of writs. A summons returnable on a legal holiday is valid. Howell v. DeCamp. N. J. Sup. Ct., Jan., 1884. 7 N. J. Law Jour. 47.

Will-After Acquired Lands.—At common law a will would not pass lands acquired by a testator subsequent to the date of his will. By statute, lands acquired by a testator after the date of his will, will pass by his will, provided it contains words sufficient to pass them when he made his will. But after-acquired lands will not pass under a will which declares that the estate given by it consists of personalty only. Gardner v. Gardner. N. J. Ct. of Ch., Oct. 1883. 29 Alb. L. J. 190.