COUNSEL.

of this remuneration, and admitted the amount of debt due for such
remuneration to be a certain sum, and promised to pay it: Held, that
these facts did not constitute any obligation on the part of the defendant
to pay. Kennedy vs. Broun,

COUNSEL FEES.

1. Are recoverable upon a bond for payment of costs and damages.
Corcoran vs. Judson,

COUNTY COMMISSIONERS.

1. Facts certified by are not traversable on certiorari. Mendon vs.
Commissioners of Worcester,

2. Nor will their proceedings be reversed for technical inaccuracy. Id.

COURTS.

See CORPORATIONS, 9-10.

JUDGMENT, 4.

I. Jurisdiction of Federal Courts.

1. An action was commenced in the Supreme Court of New York by
A., a resident of that State, against B., a foreign corporation located in
Massachusetts. The cause of action was a breach of implied contract, in
neglecting to protest certain drafts forwarded to B. by C., a banking cor-
poration located in the State of Ohio. The cause of action was assigned
by the Ohio Bank to the plaintiff. The action was commenced by sum-
mons, which was served by publication, and a warrant of attachment was
afterwards issued by which the defendants' property in New York was
attached under the provisions of the code of procedure applicable to
foreign corporations. The defendants entered an appearance in the State
Court, and obtained an order removing the case to the U. S. Circuit Court
under the 11th section of the Judiciary Act of 1789. On an application
to remand the case to the State Court for want of jurisdiction: Held, that
the State proceeding is substantially one of foreign attachment, and that
it is a "suit" within the meaning of the 11th section. Barney vs. The
Globe Bank,

2. The validity of the removal is to be tested by the 12th section.
The objection that the defendant is not an inhabitant nor found in the
district at the time of serving the writ, cannot avail the plaintiff in a case
where the defendant has appeared in the State Court and removed the
cause to a Circuit Court of the United States. There is no distinction in
principle between the case where the defendant, having removed the
cause to the Circuit Court, moves to have it remanded for want of juris-
diction (Sayles vs. North Western Ins. Co., 2 Curtis C. C. 212), and the
case where a plaintiff makes a similar application. Id.

3. A corporation is a "citizen" within the meaning of both these
sections. Id.

4. That clause of the 11th section which provides that no District or
Circuit Court "shall have cognisance of any suit to recover the contents
of any promissory note or other chose in action in favor of an assignee,
unless a suit might have been prosecuted in such Court to recover said
contents if no such assignment had been made," has no application to a
case like the present. This is not a suit to recover the "contents" of a
chose in action within the meaning of the Act. Only those choses in
action are included within the term "contents" which are founded on a
contract containing within itself some promise or duty to be performed.
When the suit is founded on a mere right of action to recover damages
imposed by law for a delinquency, the clause has no application, and the
assignee may bring an action in this Court if the other conditions re-
quired by the Judiciary Act exist. Id.

5. The attachment issued under the State process will hold the goods

357

251

445

221

COURTS.

attached until the final judgment in this Court. The words "original process," as used in the 12th section, include any mesne process issuing out of the State Court by which the property is seized before the case is removed into this Court. Barney vs. The Globe Bank,

6. The Federal Courts have jurisdiction and power to issue the writ of mandamus to a municipal corporation to compel it to perform its duty, although such duty is created and enjoined by state law alone. States ex rel. Learned vs. Burlington,

11. Jurisdiction of State Courts.

See DRAFT, 2, 3.

221

United

394

7. Where on a return to a writ of habeas corpus, a State Court is judicially apprised that the party is in custody under the authority of the United States, such Court can proceed no further. The prisoner is then within the dominion and exclusive jurisdiction of the United States. re Jordan,

In

8. Under the second section of chapter 25 of the Laws of Congress of 1862, it is declared that "hereafter no person under the age of eighteen years shall be mustered into the United States service, and the oath of enlistment taken by the recruit shall be conclusive as to his age." The prisoner having been mustered into the United States service, and having, at the time of enlistment, made a declaration under oath that he was twenty-one years of age, and these facts having been stated in the return to the writ of habeas corpus by the party claiming to hold him in custody under color of the authority of the United States: Held, that the state Judge was "judicially apprised" that the prisoner was in custody under the authority of the United States, and that he was ousted of his jurisdiction. Id.

9. The case of Ableman vs. Booth, 21 How. U. S. 506, approved and followed. Id.

10. The Supreme Court of Pennsylvania has jurisdiction to review and correct the proceedings of inferior Courts, except where it is expressly excluded by statute, or in a case stated by the parties, wherein they agree to submit their disputes to auditors or referees without expressly reserving their right to a writ of error. Chase vs. Miller,

11. This Court has jurisdiction of a contested election, on certiorari, where it appears from the record that no facts were in dispute; hence the rulings of the Court below upon questions of law purely are reviewable here. Id.

12. This Court is as much bound to take cognisance of questions involving the constitutionality of the election laws, even though they may he raised in a contested election, as they are to pass upon the constitutionality of an Act of Assembly relating to any other subject, as long as the Legislature does not take away that jurisdiction.

Id.

13. The 155th section of the Act of 2d July, 1839, giving to Courts of Quarter Sessions the same powers that are conferred on committees of the Legislature, to compel the attendance of witnesses and the production of papers in contested elections, is only a grant of power for the specific purposes named, and does not make the decision of the Court below, like that of the Eegislature, final and conclusive. Id.

14. Bills of exceptions are not allowed in the Courts of Quarter Sessions, therefore no question which arises outside of the record can be reviewed by this Court. Id.

15. A statute directing a Court to determine a case "at the next term," does not prohibit such Court to determine it after the expiration of the term, if the words of the statute are affirmative only. Such a statute is merely directory, and negative words are necessary to oust the jurisdiction of the Court when it has once attached. Stevenson vs. Lawrence,

749

116

409

1

COVENANT.

See EASEMENT, 3.

1. FOR TITLE running with the Land,

193, 257

566

2. No covenant can be implied in conveyance of real estate in New
York. Sandford vs. Travers,

3. Covenant by executors against their own acts does not contain a
covenant as to the estate of their testator.

CRIMINAL LAW.

See PARDON.

I. Power to discharge Jury.

Id.

5. One who, in expectation of a reward, withholds from the owner,
whom he knows, a lost check received by him from the finder, is not
guilty of stealing the check. Regina vs. Gardner,

V. Murder.

6. A statute of New York of 1860 was held by the Court of Appeals,
on the one hand, to have repealed absolutely all previous statutes pro-
viding for the punishment of murder, and on the other, to be itself
unconstitutional in establishing a new mode of punishment, so far as it
applied to crimes committed before its passage. A judgment on a con-
viction, under an indictment found after the passage of the act, for a
murder committed before, was for this reason reversed in the Supreme
Court, but there was no error in the trial or conviction itself. Held, that
the Court was bound thereupon to discharge the prisoner, and could not
direct a new trial. Kuchler vs. The People,

7. The statute in regard to writs of error in criminal cases, only
authorizes a new trial on reversal of the judgment, where the error is
of a character which renders the trial and conviction illegal, so that the
prisoner cannot legally be said to have been in jeopardy. Id.

8. Evidence in capital cases-exception to decisions and charge of the
Court on the trial. Commonwealth vs. Dower,

CUSTOM.

See CONTRACt, 7.

1. The custom of the lake ports, that on the failure of the consignees
to provide for the delivery of the property consigned to them for twenty-
four hours after the report of its arrival, the master of the vessel was
entitled to store the freight subject to charges at the nearest port, would
not be a reasonable custom at Port Colborne, where there was no facility
for the discharge of the cargo except at one place, and there was some
proof of the custom of the port for vessels to wait their turn at that
place. Strong vs. Carrington et al.,

316

52

181

. 287
2. May be proved, to explain contracts. Note to Strong vs. Carrington, 300
3. In violation of good morals, cannot be given in evidence. Holmes
et al. vs. Johnson,
503

DAMAGES.

1. Person in possession of land under contract to purchase may main-
tain action for injury to his interest. Honsee v. Hammond,

DEBTOR.

See CORPORATIONS, 8, 9.

DEEDS OF TRUST.

TRUSTS AND TRUSTEES, 2.

Lund vs.

1. Cannot volunteer protection to claims of third persons with whom
he has no dealings, to avoid liability on his own contracts.
Seamen's Bank, &c. .

DECEDENT.

1. Right to disposition of body of decedent after burial belongs to next
of kin, not to the widow. Wynkoop vs. Wynkoop,

764

125

503

2. Where the domicil of testator and all his personal property are in
New York, the executors cannot be allowed expenses of proving will in
another State where testator had real estate only. Young vs. Brush et al., 632
3. The distribution of the personal estate in such case is to be accord-
ing to the laws of New York.

Id.

4. Sale of lands by administrators and guardians as against infant
heirs. Gibson vs. Roll,

DEED.

1. President of corporation not liable on bond signed in his official
capacity. Ellis vs. Pulsifer,

2. Deed absolute on its face will be held a mortgage, if it appear to be
only intended as security. Steel vs. Steel,

3. Memorandum of alterations, &c., should be recorded, and the Judge
may charge that absence of such memorandum on the record is a cir-
cumstance for their consideration where fraud is alleged. Heyer vs.
Heyer,

DEEDS OF TRUST TO SECURE DEBTS, SALES AND TITLES UNder,

DISCIPLINE OF THE BAR,

. 118

182

254

439

641, 705
.691

DOG.

1. Liability of owner for injuries by. Munn vs. Reed,

254

DOMICIL.

1. A domicil once acquired continues till a new one is gained. While
in transit the old domicil remains. Littlefield vs. Brooks,

735

2. An inhabitant of A. on 30th March leaves that place with the inten-
tion of residing in C.; on 1st April he arrives at B. and the next day
reaches C., where he establishes his residence. It was held, that for the
purposes of taxation he was to be deemed an inhabitant of A. on 1st
April, and was liable to taxation there.

ORAFT.

I Misspelling of Name.

Id.

1. One Spangler was properly enrolled among the militia, from whom
a draft was to be made. By mistake the name was written Spangle on
the ballot put into the box from which the quota was to be drawn. This
ballot being among those drawn, the Court were of opinion that the draft
was not vitiated by the error in the name. In the Matter of Spangler, 598
2. Where one person is held in custody by another, acting in the right
of and under the authority of the General Government, or claiming in
good faith and under color of such authority to be so acting, the State

DRAFT.
Courts have no jurisdiction to inquire into the validity of such authority,
and to discharge the person so held from custody. In the Matter of
Spangler,

3. Where a draft was made under a law of Congress, but under the
direction of the Governor of the State, and by Draft Commisssoners ap-
pointed by him, it was held that the persons drafted and in custody of
the Draft Commissioners, were held under national authority, and that
the State Courts had no jurisdiction to inquire into the validity of the
draft on habeas corpus. Id.

II. Tax by Municipal Corporation to exempt its Citizens.

4. Under the Act of Congress of March 3d, 1863, ch. 73, for enrolling
and calling out the National forces, the duty of service by the person
drafted, or of the procuration of a substitute or payment of commutation
in lieu thereof, is strictly a private, personal liability; and a municipal
corporation has no power under the Constitution and laws of Maine to
levy a tax on the public to discharge such liability. Opinion, &c.
DWELLING-HOUSE.

See EMINENT DOMAIN, 1, 2.

EASEMENT.

See EJECTMENT, 1, 2.

PARTY-WALL, 1.

598

621

1. RECIPROCAL,

2. Loss BY ABANDONMENT,

449

513

3. Where tenants in common lay out a lot as a street and covenant
not to build within eight feet of it, each acquires a negative easement
in the lands of all. Greene vs. Creighton,

EJECTMENT.

382

1. Cannot be maintained against a municipal corporation by proof of
use of the property as a public street-such use is only evidence of claim
of a right of way. Cowenhoven vs. Brooklyn,

506

2. Will not lie for an easement of flowing the land with water. Wilk-
low vs. Lane,

247

3. Lease after lessor has conveyed all his interest may be foundation
of title, if followed by actual adverse possession. Id.

ELECTION DISTRICT.

See CONSTITUTIONAL LAW, 21.

ELECTION OF REMEDIES.

1. Bank of Beloit vs. Beale,

EMINENT DOMAIN.

1. It is provided by 5, c. 81, of R. S. of 1840, that in locating
railroads, "no corporation shall take any meeting-house, dwelling-house,
or public or private burying-ground, without the consent of the owners
thereof." Held, that the term dwelling-house, as here used, means only
the house, and includes no part of the garden, orchard, or curtilage.
Wells vs. Somerset, &c., Railroad Co.,

2. The right of eminent domain confers upon the Legislature autho
rity to take private property for public uses, when the public exigencies
require it, subject only to that provision of our Constitution which exacts
just compensation; and a dwelling-house is no more exempt than any
other species of real estate, when the Legislature, in the exercise of that
right, determines that the public exigencies require it. Id.

VOL. XI.-50

. 564

658