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NEW YORK COURT OF APPEALS ABSTRACT.

CORPORATION - LIABILITY OF TRUSTEE-PRESUMPTION AS TO HOLDING OVER ASSIGNMENT OF STOCK.

(1) In this action plaintiff sought to hold defendant liable for a debt contracted by a manufacturing corporation organized under the general act, on the ground that he was a trustee of such corporation when such debt was contracted, and that the corporation failed to file and publish the annual report required by section 12 of the act (Laws 1848, chap. 40, etc). The debt was contracted in 1874. The certificate of incorporation was filed in 1871, in which defendant was named as one of the trustees "for the first year.' There was no proof that defendant held over or acted as trustee after the expiration of this term. Held, not sufficient to make him liable for debts contracted after the expiration of this term. There is no presumption that the trustee holds over after the expiration of his term. Van Amburgh v. Baker, 21 Alb. L. J. 354. (2) In this case defendant offered to show that in 1873 he filed a petition in bankruptcy, including in his assets his stock in the corporation named, that he was adjudged a bankrupt, and that he assigned and delivered this stock to the assignee in bankruptcy, which the assignee continues to hold, that he was discharged in bankruptcy, and that since that time he has had nothing to do with the corporation. Held, admissible as showing that defendant was not in 1874 trustee, and that the offer was not too broad. Judgment reversed and new trial ordered. Philadelphia and Reading Coal and Iron Co. v. Hotchkiss et al., appellants. Opinion by Finch, J. [Decided Nov. 9, 1880.]

COUNTER-CLAIM WHEN ADMISSION OF PLAINTIFF'S CLAIM DOES NOT SHUT OUT CARRIER - LIABILITY

FOR DAMAGE TO GOODS CARRIED.-(1) In an action for freight upon beans carried by plaintiff for defendants, the answer admitted that the amount claimed in the complaint was due for freight, and set up as a counterclaim injury to the beans by reason of negligence on the part of plaintiff in transporting them, to a larger amount than the freight, and claimed judgment for the difference. To this a reply was interposed. After the trial the defendants requested the referee to find the facts defendants deemed established and the conclusions of law they supposed would follow, "and each and every of the same and each and every part thereof." The proposed conclusions of law were; "First, that the plaintiff is entitled to recover of the defendants $159.77; second, that the defendants are entitled to recover damages of the plaintiff, in the sum of $1452.10; third, the defendants are entitled to judgment against the plaintiff in a balance $992.33 and their costs." The referee found, first, that plaintiff was entitled to recover the amount agreed for freight, stating it; and, second, that defendants were not entitled to recover for injury to their property. Defendants excepted to the conclusions of law in the report and to the referee's refusal to find the second and third requests of defendants. Upon appeal the General Term held that the finding of the referee upon the first clause in accordance with the request of the defendant, and the omission of the latter to except thereto, entitled the plaintiff to maintain the judgment. Held, erroneous. Take defendants' requests together and they asked that they should havo judgment for the balance. And an exception to the conclusions of the referee was sufficient. The admission by defendants that plaintiff was entitled to freight did not preclude their defense. The cases precluding a defense when the claim is allowed, such as Davis v. Tallcott, 12 N. Y. 184; Bellinger v. Craigue, 31 Barb. 534; Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 id. 150, rest upon a principle that if defendants'

claim was well founded it would defeat plaintiff's. Such is not the case here. To the owner of goods injured in transportation several ways are open. He may pay the freight and sue for damages, or, refusing to pay, submit to suit, set up his damages by way of counter-claim or bring a cross action. Gillespie v. Torrance 25 N. Y. 309; Spalding v. Vandercook, 2 Wend. 432; Batterman v. Pierce, 3 Hill, 171; Dunham v. Bower, 77 N. Y. 80. And a payment of freight or a submission to judgment therefor would afford the carrier no answer to the counter-claim or to the action. 1 Parsons' Marit. Law, 215; 3 Kent's Com. 225; Griswold v. New York Ins. Co., 3 Johns. 321. (2) Plaintiff agreed to carry on the deck of his canal boat beans for defendants from one port to another, and to furnish sufficient material to cover them. He was warned by defendants' agent that if wet the beans would be injured. He neglected to furnish covering although it rained during the time the beans were on his boat's deck being transported, and the beans were injured by being wet. The consignees of the beans refused to receive them by reason of their damaged condition, and they were stored on account of the boat. Thereafter, at the joint request of plaintiff and defendants, the consignees took the beans and sold them as they best could. Held, that the defendants were entitled to recover for damages sustained by the injury done to the beans, less the freight. Judgment reversed and new trial granted. Schwinger v. Raymond et al., appellants. Opinion by Danforth, J. [Decided Dec. 14, 1880.]

PARTNERSHIP-DISSOLUTION

WHEN PARTY DEALING WITH FIRM BOUND RY AGREEMENT OF DISSOLUTION-VESTING ONE PARTNER WITH CONTROL OF LIQUIDATION FACTOR. It is well settled that while a factor to whom goods are sent for sale, without instructions as to the terms of the sale, is at liberty to sell at such time and upon such terms as he may deem proper in the exercise of a sound discretion, yet he is bound to obey the subsequent instructions of his principal as to the sale, although he has made advances, unless the principal, after reasonable notice, fail to pay such advances. Marfield v. Goodhue, 3 N. Y. 62. Upon the dissolution of a firm it is competent for the partners to constitute one of their number a special agent for winding up the firm's affairs, and when this is done, parties who with notice of the arrangement deal in matters connected with the liquidation with the partners not thus intrusted, are subject to the equitable rights of the other partners. Robbins v. Fuller, 24 N. Y. 572. If the arrangement made comes to the knowledge of the parties dealing with the firm, it is sufficient to put them on guard, and if they act in disregard of such knowledge, they must be held responsible for consequences which ensue. In the case at bar, the firm of U. & Co. dissolved; defendant V., who was solvent, by arrangement between the partners taking charge of the liquidation and assuming the payment of all the debts. U., another partner, who was insolvent, had nothing to do with the liquidation. Of these facts plaintiffs, who had as factors of the firm goods on sale, had knowledge. After the dissolution, V. notified plaintiffs not to sell the goods they held as factors, below a specified price. In spite of this notice plaintiffs, without notice to V., upon consultation with U., who was employed by them as clerk, sold the goods at a less price than the one specified. Held, that such sale was without lawful authority. The cases of Napier v. McLeod, 9 Wend. 120; Gram v. Cadwell, 5 Cowp. 489, and Porter v. Taylor, 6 M. & S. 156, distinguished. Judgment reversed and new trial granted. Hilton et al. v. Vanderbilt et al., appellants. Opinion by Miller, J.; Rapallo, Earl, and Finch, JJ., concurred; Folger, C. J., and Andrews and Danforth, JJ., dissented. [Decided Nov. 30, 1880.]

PRACTICE-ORDER FOR PUBLICATION UNDER OLD CODE, § 135 WHAT SUFFICIENT TO AUTHORIZE. - To authorize a judge to grant an order for the service of a summons on an absent defendant, by publication under the 135th section of the old Code, it was sufficient if the affidavit presented to him contained allegations tending to show that efforts had been made to find the defendant within the State, and that he was not there. In such a case the judge was vested with jurisdiction to pass upon the sufficiency of the proof of the facts submitted to him, and if the proof satisfied him, neither his order nor the judgment based thereon could be impeached collaterally. Affidavits upon which such an order was granted showed that plaintiff placed in the hands of the sheriff of New York county a summons in the action, and received from him an official return that he had used due diligence to find defendants in his county, but was unable to do so. The affidavit further alleged that plaintiff's attorney had himself made inquiries to find defendants, which resulted in information from a reliable source that they resided in another State. Such was in fact the case. Held, that there was sufficient to sustain the order. Order affirmed. Belmont v. Coenen et al., appellants. Opinion by Rapallo, J.; Folger, C. J., and Danforth, J., dissented.

[Decided Oct. 5, 1880.]

UNITED STATES SUPREME COURT ABSTRACT.

FRANCHISE -DOES NOT INCLUDE IMMUNITY FROM TAXATION - RAILROAD.-A decree in chancery ordered in case another sale should not be made that commissioners might sell "all the property and franchises of " a railroad company. M., for himself and others, made an offer for the railroad, in which he said, "I expect a full and perfect title to the road, including the State's interest, franchises and privileges." This proposition was accepted by the commissioners and the sale reported to the court, was confirmed by decree, which treated the sale as one of the "property and franchises" of the company, and directed the commissioners, "in conformity with the previous decrees," to "make title to the purchasers according to the terms of the contract and former decrees of this court." Held, that the purchasers acquired title only to the property and franchises of the company, and that an immunity from taxation would not, under the rule iu Morgan v. Louisiana, 93 U. S. 217, pass to the purchasers. The term "franchises" is not synonymous with "rights, privileges and franchises," "rights, powers and privileges" and the like. This case is distinguishable from Humphrey v. Pegues, 16 Wall. 244, where it was held that an immunity from taxation did pass under a transfer of all the powers, rights and privileges" of a railway corporation. Judgment of Tennessee Sup. Ct. affirmed. East Tennessee, Virginia and Georgia Railroad Co., plaintiff in error, v. Hamblin County. Opinion by Waite, C. J.

[Decided Nov. 29, 1880.]

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MUNICIPAL BONDS-ISSUE IN EXCESS OF CONSTITUTIONAL LIMIT OF MUNICIPAL LIABILITY RECITALS IN BONDS BONA FIDE HOLDER-ESTOPPEL.-Bonds issued by a city in Illinois each contained this recital: "This bond is issued under authority of an act of the general assembly of the State of Illinois, entitled 'An act authorizing cities, incorporated towns, and villages to construct and maintain water-works,' approved April 15, 1873, and in pursuance of an ordinance of the said city of Litchfield, No. 184, and entitled 'An ordinance to provide for the issuing of bonds for the construction of the Litchfield water-works,' approved December 4th, 1873." The act referred to was a gen

eral statute conferring upon cities, etc., authority to erect and maintain water-works and to that end to borrow money. The Constitution of Illinois provides that "no county, city, town, township, school district, or other municipal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum ou the value of taxable property therein, to be ascertained by the last assessment for State and county taxes previous to incurring such indebtedness." At the time the bonds were issued the debt of the city named was five per cent of the assessed value of the property in the city as ascertained by the last assessment. The proceeds of the bonds were used in erecting city water-works. Held, that the bonds were not valid against the city even in the hands of a bona fide holder for value without notice, and even if it was not practicable at the time they were issued for a purchaser to ascertain what was the assessed value of the property of the city at the last assessment. This case differs from those cases where the bonds recited that they were issued in conformity with a statute which legally authorized them. See Town of Colona v. Eaves, 92 U. S. 490; Orleans v. Pratt, 99 id. 682, where it is said that "where the bonds on their face recite the circumstances which bring them within the power, the corporation is estopped to deny the truth of the recital." Knox v. Aspinwall, 21 How. 542; Kinnicut v. Supervisors, 16 Wall. 464; County of Moultrie v. Savings Bank, 92 U. S. 631; Marcy v. Township of Oswego, 92 id. 637. A recital that the bonds were issued under the authority of the statute, and in pursuance of the city ordinance, did not, necessarily, import a compliance with the Constitution. Judgment of U. S. Circ. Ct., S. D. Illinois, affirmed. Buchanan, plaintiff in error, v. City of Litchfield. Opinion by Harlan, J. [Decided Nov. 22, 1880.]

REMOVAL OF CAUSE UNDER ACTS OF 1866 AND 1867 - WHAT IS FINAL TRIAL OR HEARING.-In an action in a State court begun in 1868 for rents and profits, and a reconveyance of real estate held by appellants here, there was but a single issue between the parties, to wit, whether the appellants were the absolute owners of the property in dispute, or whether they held the title in trust for the appellee here. This issue was heard and decided in favor of the appellants in the common pleas where the action was brought. The suit was then taken by appeal to the Supreme Court of the State, where it was again heard and a decision rendered in favor of the appellee here, and the cause was remanded with a direction to take an account between the parties. In accordance with this decision the case was referred to a master, but before his report was filed, so as to enable the court of Common Pleas to make a final decree, appellants, in 1874, filed a petition for a removal to the Federal court under the act of 1866, U. S. R. S., § 639, subd. 2. Subsequently they filed a petition for removal under the act of 1867, U. S. R. S., § 639, subd. 3. In both these acts it is provided that the petition shall be filed "before the trial or final hearing of the suit." Held, that the petition for removal was not in time. The hearing of this case, originally begun in the Common Pleas, was transferred by the appeal to the Supreme Court. That court, on the appeal, had the right to re-examine what had been done in the Common Pleas. In effect, it took up the case on the hearing begun below. If on the appeal the decree below had been reversed and the cause sent back for a rehearing, then the final hearing, for the purposes of the statutes under consideration, would not have begun until the court below had again entered upon the determination of the cause. Then the reversal would have perfected the right to a second hearing in the court of original jurisdiction, and, under the rule stated in

Vannever v. Bryant, 21 Wall. 43, a demand for the transfer might properly be made. Here, however, the Supreme Court granted no new hearing. It reversed what had been done below, and then proceeded, under the original submission, to decree on the merits. It thus continued the hearing under the original submission, decided the controversy so for as the primary rights of the parties were concerned, and through the Common Pleas sent the case to a master to settle the details of the final decree. No power was given the court below to rehear the case, but only to proceed in due course with the hearing that had been begun until the inquiry as to the whole subject-matter was completed. Judgment of U. S. Circ. Ct., W. D. Pennsylvania, affirmed. Jifkins v. Sweetser. Opinion by Waite, C. J.

[Decided Nov. 22, 1880.]

NEW JERSEY SUPREME COURT ABSTRACT.
JUNE TERM, 1880.*

Wall. 636; Hannah v. Swarner, 8 Watts, 11. The question of delivery must be left as a question of fact to the jury upon the whole evidence in the cause. The court may instruct the jury to find a delivery, when the whole testimony shows a state of facts from which delivery is a positive inference of law. But where there is conflicting testimony, the case should be left to the jury, with proper instructions. Lindsay v. Lindsay, 11 Vt. 621; Murray v. Starr, 2 B. & C. 82. Jones v. Swayze. Opinion by Van Syckel, J.

MUNICIPAL CORPORATION IRREGULAR EXERCISE OF POWER IN ISSUING BONDS DOES NOT INVALIDATE BONDS RECITALS IN DEED DO NOT ESTABLISH DEED.

(1) Where a municipal corporation had the right to borrow money for a specific purpose on bonds running for twenty years, and by mistake issued bonds for the same purpose under another grant of authority, such bonds running for a less period, held, that the bonds so issued were legal obligations. An irregularity in the exercise of a granted authority will not illegalize the transaction. If the city officials were mistaken with respect to the mode in which the power was to be exercised, the mistake was of no consequence if they had the right to effect the same end in another mode. In Township of Rock Creek v. Strong, 6 Otto, 271, it was decided that provisions respecting the rate of interest to be paid by town bonds, and the length of time which they are to run, are directory and not of the essence of the power. For illustrations of the appli

Rock, 1 Dill. 261; Mott v. United States Trust Co., 19

CONSTITUTIONAL LAW-ACT EMBRACING LIMITED DISTRICT WHEN NOT LOCAL-FISHERIES.-The Constitution of New Jersey provides that "no general law shall embrace any provision of a private, special or local character." Held, that a statute regulating the fisheries throughout the State was not unconstitutional with respect to a provision making penal the use of nets at certain times in particular counties, such counties embracing all the waters within the jurisdic-cation of the same rule, see also, Gilchrist v. Little tion of the State. A law is not necessarily of a special or local character because it prohibits the doing of a thing in a certain locality. If this were so, a law regulating the use of the public roads of the State, and imposing penalties for infringement, would be illegitimate, as such a law would be local, in the sense that it prohibited the doing of certain acts in particular localities, to wit, within the bounds of the public highways. One cannot see how a law can be said to have a special or local character, that does not confer either a particular benefit, or does not impose a particular burthen upon the inhabitants of a designated place or district. It is plain that the law in question is free from such characteristics. Its purpose is to regulate throughout the State a public interest. The operation of the statute is as broad as the subject to be regulated, for it extends its adjustments to all the waters under the dominion of the State, and when it imposes the restrictions in the clause under criticism, such burthens are laid not only upon the inhabitants of the two counties that are mentioned, but upon all the citizens of the State. Doughty v. Connover. Opinion by Beasley, C. J.

DEED- -DELIVERY OF, TO THIRD PERSON FOR USE OF GRANTEE WHEN EFFECTIVE-WHEN QUESTION FOR JURY. A delivery of a deed to a third person for the use of the party in whose favor a deed is made, where the grantor parts with all control over the deed, makes the deed effective from the instant of such delivery; the law will presume, if nothing appear to the contrary, that a man accepts what is for his benefit. Garnons v. Knight, 5 B. & C. 671; Zenos v. Wickham, 106 E. C. L. 381; S. C., on appeal, 108 id. 435, and on final appeal, id. 861; Church v. Gilman, 15 Wend. 656; Ernst v. Reed, 49 Barb. 367; Brown v. Austen, 35 id. 342. The statement in 2 Washb. Real Prop., 581, that "the better opinion seems to be that no deed can take effect as having been bona fide delivered until such act of delivery has been assented to by the grantee," is not supported by the authorities cited, viz.: Maynard v. Maynard, 10 Mass. 458; Jackson v. Dunlop, 1 Johns. Cas. 114; Stephens v. Buff. & N. Y. R. Co., 20 Barb. 332. See, also, Young v. Guilbeau, 3 To appear in 13 Vroom's (42 N. J. Law) Reports.

The re

Barb. 569; Northwestern Mut. Ins. Co. v. Overholt, 4
Dill. 287. In De Voss v. Richmond, 18 Gratt. 338, the
city council were authorized to borrow money and
issue bonds, and it was ordered to insert the considera-
tion on the face of certain bonds. This was not done,
but the instruments nevertheless were held valid, the
court saying that such direction was not a limitation
on the power granted. (2) A recital in a bond is not an
estoppel to the obligor setting up that it is not his
deed. The legal rule that makes the statements of a
sealed instrument incontestable by the party to it,
grows out of the circumstance that such statements
are the deliberate utterances of such party, and conse-
quently such rule has no place until it is settled
whether the given instrument be his deed.
citals, as against adverse proofs, cannot help to estab-
lish the legal existence of the specialty. If a married
woman should execute a conveyance declaring in it in
never so solemn a form that she was a feme sole, no one
would pretend that the fact of her coverture could not
be shown. The question is settled in Hudson v. In-
habitants of Winslow, 6 Vroom, 437, where it was
directly ruled with respect to the doctrine of estoppel
by reason of recitals in sealed instruments, that "the
principle is applicable only where the existence of the
deed as the act of the party is admitted." See, also,
in accord with this ruling: Chisholm v. Montgomery,
2 Wood's C. C. 594; Starin v. Genoa, 23 N. Y. 439;
Fairtitle v. Gilbert, 2 T. R. 169; Bigelow on Estop.,
283; New York and Oswego R. Co. v. Van Horn, 57
N. Y. 474; Shapley v. Abbott, 42 id. 443. Singer Manu-
facturing Co. v. City of Elizabeth. Opinion by Beas-
ley, C. J.

NEW JERSEY COURT OF CHANCERY AB-
STRACT.
MAY TERM, 1880.*

NEGLIGENCE IN

IN

FOR
ATTORNEY LIABILITY
VESTIGATING TITLE - LIABILITY FOR INVESTMENT OF
MONEY.-A bill in equity will not lie against an attor-
ney for damages for negligence in investigating a title,

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Appearing in V Stewart (32 N. J. Eq.) Reports.

but otherwise if such attorney becomes a trustee to invest. The evidence showing that the attorney, in this case, promised the complainant to obtain first mortgages for her, he was held (it being a case of mingled trust and agency) accountable for the amount of the incumbrances on the property prior to hers, but not for any subsequent depreciation in the value, caused by general business depression, the property at the time of loaning being shown to have been, apart from the prior incumbrances, abundant security. Nancrede v. Voorhis. Opinion by Runyon, Chancellor.

CONSTITUTIONAL LAW-STATE CANNOT BE SUED WITHOUT ITS CONSENT.-Sovereign States cannot, without their consent, be sued in their own courts, where no provision to the contrary exists in their Constitutions or by special enactments. In 1872, the State granted certain lands under water to the West Line Co., which, as part of the consideration, gave thereon a mortgage of $82,000 to the trustees for the support of public schools. The complainants claim that at the time of this grant they were in possession of the mortgaged premises under an indefeasible title; that the grant was in violation of their vested rights; that in 1874, they themselves obtained from the riparian commissioners of the State a grant of certain contiguous premises, by an instrument containing an agreement that in case the State had no right and power to vest the title to the mortgaged premises in the West Line Co. by the grant of 1872 (which right the instrument declared was claimed by the State, but denied by the complainants), then the State should release to the complainants, free from any incumbrance thereon by mortgage given to the State, all its right, title and interest in the premises. On foreclosure of their mortgage by the trustees, held, that neither the trustees nor any prior grautees of the mortgaged premises could be enjoined from proceeding with the foreclosure and sale by reason of the agreement in the grant of 1874, or by reason of complainant's claim to have it specifically performed, because, even if binding on the State, the State cannot, in its own courts, be compelled to perform it, and also because if the trustees are other than the mere agents of the State, it is not binding on them or on any grantee of the State prior to 1874. Hovenden v. Annesly, 2 Sch. & Lef. 607, 617; Dicey on Parties, 4; Michigan State Bank v. Hastings, 1 Walk. Ch. 9; United States v. McLemore, 4 How. 286; Hill v. U. S., 9 id. 388; Beers v. Arkansas, 20 id. 527; State v. Kirby, 2 South. 835; Loder v. Baker, Arnold & Co., 10 Vr. 49; Priddy v. Rose, 3 Metc. 97; Calvert on Parties, 252, 253; Trustees v. City of Trenton, 3 Stew. Eq. 669; State v. Trenton, 11 Vr. 91; Nurse v. Lord Seymour, 13 Beav. 254; Michigan State Bank v. Hammond, 1 Doug. 527; Hill v. United States, 9 How. 388; Osborn v. U. S. Bank, 9 Wheat. 251; High on Inj., § 266; Freeman v. Elmendorf, 3 Hal. Ch. 475; S. C., on appeal, id. 658; Drake v. Jones, 27 Mo. 428. American Dock and Improvement Co. V. Trustees of Public Schools. Opinion by Runyon, Chancellor.

-DESERTION

WIFE LEAVING HUSBAND

DIVORCE BECAUSE HE GAMBLES.—(1) That a husband gambles and does not properly support his wife, in consequence of which she leaves him, does not constitute desertion by him on which to decree a divorce. It is a recog nized principle that when a husband treats his wife with such cruelty or violence that she is obliged to leave him for safety, or to avoid personal injury, this compulsory flight amounts to a desertion by him, and if he does not seek her and try to persuade her to return, with promises of amendment, such compulsory leaving and consequent remaining away from him, if continued for the requisite time, will be regarded as equivalent to a willful and obstinate desertion by him. Laing v. Laing, 6 C. E. Gr. 248; Palmer v. Palmer, 7 id. 88. But if she leaves him because he gambles away

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his money and does not properly support her, her leaving him cannot be held to be a desertion by him. Lewis v. Lewis, 2 Hal. Ch. 22. Sandford v. Sandford. Opinion by Runyon, Chancellor.

NEGLIGENCE-PROXIMATE CAUSE FIRE COMMUNICATED BY BURNING OIL ON STREAM.-Damages caused by negligence, to be recoverable, must be not only its natural, but also its proximate, consequence. And "proximate," as here used, means closeness of causal connection, and not nearuess in time or distance, and is intended to qualify the generality of the idea expressed by the word "natural." In cases where fire is negligently started, but is not immediately communicated to the property destroyed, but is communicated from oue building to another until it reaches the property destroyed, causal connection will only cease when, between the negligence and the damage, an object is interposed which would have prevented the damage, if due care had been taken. When the burning matter is oil, a running stream may form a natural link in the chain of causation. Where a fire originates in the carelessness of a defendant, and is carried directly by a material force, whether it be the wind, the law of gravitation, combustible matter existing in a state of nature, or a running stream, to the plaintiff's property, and destroys it, the defendant is legally answerable for the loss. Kuhn v. Jewett. Opinion by Van Fleet, Vice-Chancellor.

PENNSYLVANIA SUPREME COURT ABSTRACT.

CORPORATION -INDIVIDUAL MEMBERS OF BOARD OF MANAGERS CANNOT BIND, AND CONTRACTS NOT IMPLIED FROM THEIR DECLARATIONS. - Plaintiff below claiming to have been employed by a corporation haying charge of a county work-house, to sell all the barrels it should manufacture during a certain year, some two hundred thousand in number, brought action for commissions on making a sale. He endeavored to establish the fact of his employment by proving what had been said by the president of the board of managers of the corporation, by one of the members of the board, and by the superintendent of the work-house, each separately and on different occasions. He utterly failed to show that any corporate action was had by the board, by virtue of which he was employed, or by which the power to employ him was delegated to any member of the board or to the superintendent. Held, insufficient to prove the fact of his employment. Unless they are authorized, the individual members of a corporation cannot bind it by an express promise, nor can corporate engagements be implied from their unauthorized and unsanctioned acts or declarations. The acts or declarations of a director in a corporation will not bind or in any manner affect it unless they are shown to be within the scope of his ordinary powers or of some special agency. Ang. & A. on Corp., § 239; Soper v. Buffalo & Rochester R. Co., 19 Barb. 310. Corporate rights are not to be frittered away by loose and unauthorized declarations, made by persons who at the time had no authority to bind the corporation; and this principle applies as well to individual directors and employees of a corporation as to strangers. Nor is there any hardship in this, because, as is said in Cooper v. Lampteer Township, 8 Watts, 125: Every person is supposed to know the restrictions on the power of the officers of a corporation of a public nature, and the extent of their authority." Allegheny County Work-House and Inebriate Asylum v. Moore. Opinion by Sterrett, J.

[Decided October 25, 1880.]

NEGLIGENCE C-CONTRIBUTORY, OF PARENTS- RAILROAD COMPANY OWES NO DUTY OF PROTECTION TO CHILDREN TRESPASSING UPON ITS TRACK. Parents

who permit their children to trespass upon the property of a railroad company are guilty of negligence; and where a child of tender years, who is allowed to wander upon railroad property is injured, the company owes no duty to the child nor to the parent and is not liable to either for the injury. In Mulherin v. Delaware, Lack. & W. R. Co., 31 P. F. S. 366, it was said: "Except at crossings, where the public have a right of way, a man who steps his foot upon a railroad track, does so at his peril. The company has not only a right of way, but it is exclusive at all times and for all purposes," and Railroad Co. v. Norton, 12 Harris, 465, was cited in support of the rule. In Philadelphia & Read. R. Co. v. Hummell, 8 Wright, 378, it is said that children "cannot be upon the railroad without a culpable violation of duty by their parents or guardians." In Philadelphia & Read. R. Co. v. Long, 25 P. F. Smith, 265, it is said: "To suffer a child to wander upon the street has the sense of permit. If such permission or sufferance exist, it is negligence." And in Duff v. Allegheny Val. R. Co., where a conductor of a train, in violation of the rules of the company, permitted a boy to sell papers on the train, and the boy was killed by the negligence of the company, the right of his mother to recover was denied, upon the ground that the boy was a mere trespasser, and the company owed him no duty. Cauley v. Pittsburgh, Cincinnati & St. Louis Railroad Co. Opinion by Paxson, J.; Trunkey and Sterrett, JJ., dissented.

[Decided November 8, 1880.]

PROCESS NOT PROTECTION TO PARTY BUT ONLY TO OFFICER. In a suit against the plaintiffs in an execution for seizing and selling property thereunder, they must show the judgments on which the executions issued, to justify the taking. The rule is held differently when the suit is against a sheriff or constable who are ministerial officers. When an execution, regular in form, and nothing on its face indicates want of jurisdiction in the justice, is directed to the constable and placed in his hands, it is sufficient to protect him in duly executing it according to its commands. He is not required to examine the record to ascertain whether the justice had jurisdiction, and whether tho proceedings are all regular. The apparent regularity and presumed jurisdiction, as evidenced by the writ, not only protect him in its due execution, but make it his duty to proceed to execute the writ. Among the numerous decisions recognizing this principle may be cited: Kerlin v. Heacock, 3 Binn. 215; Paul v. Vankirk, 6 id. 124; Allison v. Rheam, 3 S. & R. 139; Kingsbery v. Ledyard, 2 W. & S. 37; Moore v. Allegheny City, 6 Harris, 55; Billings v. May, 11 id. 23; Cunningham v. Mitchell, 17 P. F. Smith, 78; Fall Creek C. and I. Co. v. Smith, 21 id. 230; Savacool v. Boughton, 5 Wend. 170; Beach v. Furman, 9 Johns. 230; Holden v. Eaton, 8 Pick. 437. Barr v. Boyles. Opinion by Mercur, J.

[Decided November 15, 1880.]

RECENT ENGLISH DECISIONS.

PATENT-RIGHT OF PATENTEE TO THREATEN LEGAL PROCEEDINGS AGAINST PURCHASERS FROM OTHER MANUFACTURERS WHEN SUCH NOTICE RESTRAINED. A patentee may give notice to persons that they are infringing his legal rights when such notice is given bona fide, without his being bound to follow up such notice by legal proceedings, and he is not liable, in default of his bringing such legal proceedings, to an action for damages or for an injunction restraining him from issuing such notice; but where a patentee threatens the purchasers from other manufacturers, or advertises that the articles sold by other manufacturers are infringements of his patents, knowing that his patent is invalid, or that the article sold by the manufacturers

is not an infringement, and for the purpose of injuring the trade of the other manufacturers, or of the person selling the articles manufactured by them, he is liable to an action. A patentee may be restrained by injunction, notwithstanding he has given the notice bona fide, from continuing to issue the notice where it is shown that his allegation is not true. Rollins v. Hinks, 26 L. T. Rep. (N. S.) 56; L. R., 13 Eq. 355, and Axmann v. Lund, 31 L. T. Rep. (N. S.) 119; L. R., 18 Eq. 330, discussed. Chanc. Div., June 10, 1880. Halsey v. Brotherhood. Opinion by Jessell, M. R., 43 L. T. Rep. (N. S.) 366.

EASEMENT ACCESS OF AIR TO SLAUGHTER-HOUSE.— Where a slaughter-house had been used as such for upward of thirty years, damages were given for an obstruction of access of air, on the ground of implied covenant not to interrupt the free access of air suitable for the purpose of a slaughter-house. Chanc. Div., June 26, 1880. Hall v. Litchfield Brewery Co. Opinion by Fry, J., 43 L. T. Rep. (N. S.) 380.

WILL-ON SEPARATE SHEETS OF PAPER EXTRINSIC EVIDENCE TO SHOW CONSTITUENT PARTS.-M. R.

executed her last will and testament on the 1st August, 1872. The will was entirely in her own handwriting, and was on two sheets of note paper stitched together like a book. On the first page of the outer sheet were the words, "I appoint my nephews, R. J. G. and R. G. L., to be my joint executors to carry my will into effect; I appoint my nephew R. J. G. to be my executor, and sole residuary legatee, M. R.; and placed with my will the 1st August, 1872." The second page of the outer sheet was blauk. Then followed the will, which was written on the first, second, third and fourth pages of the inner sheet, the signature and attestation clause being on the fourth page of the said inner sheet. Then followed the third page of the outer sheet which was in blank, while on the fourth page of the outer sheet was written as an indorsement the words "The will of M. R., 1st August, 1872." At a trial in which the issuo was whether the appointment of executors and residuary legatee on the first page of the outer sheet formed part of the document at the time of the execution thereof; the attesting witnesses having been called, and though able to prove the date of execution of the document, being unable to say what its contents were or on how many sheets of paper it was written. Held, that the declarations, parol and written, of the testatrix, both before and subsequent to the execution of the will, as to her intentions at the time of making it, and as to her subsequent belief that she had carried those intentions into effect, were admissible for tho purpose of showing what were the component parts thereof; and that the fact of the will being in existence, and not lost as in the case of Sugden v. St. Leonards, 34 L. T. Rep. (N. S.) 369, did not affect the question. Probate Div. and Adm. Div., June 22, 1880. Gould v. Lakes. Opinion by Sir James Hannen, P., 43 L. T. Rep. (N. S.) 382.

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