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defendant to its stockholders, among them to Sheehan, who transferred his interest to the plaintiff, and the dividend, instead of being paid in money, was credited, by an agreement, as a payment of the first call under the subscription. Stockholders who did not subscribe for the new stock were paid in money.

The evidence does not justify the inference that the dividend was a fictitious or fraudulent one. The defendant has treated the dividend as though actually paid, not only crediting it as a payment, but in its dealings with the other stockholders, and it is now too late to question its validity.

The plaintiff bought it of Sheehan and paid for it in full. His rights are the same as though he had borrowed the money of Sheehan to make the payment of the call.

Judgment is ordered for plaintiff for $13,980, with interest from February 20, 1866.

Abstract of Decisions.

UNITED STATES SUPREME COURT ABSTRACT.

[Reprint from the Albany Law Journal.]

ASSIGNMENT.

Claims against United States not assignable.-Claims against the United States can not be assigned so as to enable the assignee to bring suit in his own name in the Court of Claims. This is the rule of the common law, and the statute of February 26, 1853 (10 Stat. 170, § 10), also forbids such assignments. Beecher vs. Sweetzer, 15 Minn. 437; Sim's Case, 1 C. C. 12; Cooper's Case, id. 87; Cote's Case, 3 id. 65. And the Act creating the Court of Claims did not work a repeal of the Act of 1853, in this respect. Judgment of Court of Claims reversed. United States, appellant, vs. Gillis. Opinion by Strong, J. Bradley and Field, J. J., dissent.

BAILMENT.

Bailee for custody not presumed to have authority to sell goods.-Plaintiff, the owner of certain whisky, put it in the custody of M. M. was not employed as å salesman, and while plaintiff remained in the neighborhood he made no sales, but made small sales in the absence of plaintiff. When plaintiff left the place he left the whisky in charge of M. Held, that none of these facts tended to show that M. was clothed by plaintiff with authority to sell the whisky. A bailee for custody has not the indicia of an agent to sell. An agent's authority can not be proved by his own acts alone, and sales only do not prove authority to sell. Judgment of Supreme Court of Colorado affirmed. Thatcher, plaintiff in error, vs. Kaucher. Opinion by Strong, J.

FIRE INSURANCE.

Conditions in policy as to ownership.—In a fire insurance policy on buildings, issued to plaintiff below, it was provided that "if the interest of the insured in the property be any other than the entire, unconditional, and sole ownership of the property for the use and benefit of the insured, or if the buildings insured stand on leased grounds, it must be so represented to the company and so expressed in the written part of the policy, otherwise the policy shall be void.” The plaintiff owned the land upon which the buildings were erected in fee simple, and the premises were leased to another party for a term of years. Nothing was expressed in the policy to indicate that the interest of the insured was other than the entire, unconditional, and sole ownership of such property, or indicating that most of the buildings stood on leased ground. Held, that the condition of the policy was not violated, and plaintiff was entitled to recover on the policy in case of loss. Judgment of United States Circuit Court, N. D., Illinois, affirmed. Lycoming Fire Ins. Co., plaintiff in error, vs. Haven. Opinion by Clifford, J.

LIFE INSURANCE.

1. Reinstatement of policy: representations as to health: when representations not continuing.-One whose life has been insured in a company at Newark, New Jersey, but who had failed to keep up the premiums, so that, the policy lapsed, applied for a reinstatement of the policy to the agent at Washington, D. C., on the first of October. He paid the premium and gave his certificate of health to the agent on that day, and the physician of the company signed his certificate of examination, all of which was forwarded at once to the company. On the twelfth of October the company returned its renewal receipt, dated back to the time of the lapsing of the policy, and this receipt was, on the fourteenth, given to the insured, who made no statement as to his health then. In an action on the policy it was claimed by the company that between the first and the fourteenth of October there was a change in the health of the insured that would have caused the rejection of the policy, and the court was, at trial, asked to charge that the representation, as to health, was a continuing one up to the fourteenth, whlch request was refused. Held, that such refusal was no error. The jury would have been warranted in finding that the contract was understood and intended by the parties to take effect by relator to the first of October, and the question was proper for submission to the jury. Colt vs. Phonix Fire Ins. Co. 54 N. Y. 597; Tipton vs. Fertner, 20 id. 423; Lightbody vs. N. A. Ins. Co., 23 Wend. 24; Perkens vs. Wash. Ins. Co., 4 Cow. 465; Cooper vs. Pacific M. L. Ins. Co., 3 Big. Ins. R. 656; 7 Nev. 616; Carpenter vs. M. S. Ins. Co., 4 Sandf. Ch. 408; Am. Horse Ins. Co. vs. Patterson, 28 Ind. 17; City of Davenport vs. Peoria M. and F., 17 Iowa, 276; Le Farom vs. Insurance Co., 2 Big. Ins. R. 158. Judgment of Supreme Court of District of Columbia affirmed. Mutual Benefit L. Ins. Co., plaintiff in error, vs. Higginbotham, administrator. Opinion by Hunt, J.

2. Trial: ruling working no harm not error.-Where the disposition of a subject by a judge can work no legal injury to the party objecting to it, there is no Starbird vs. Barrons, 43 N. Y. 200; Pepin vs. Lachenmeyer, 45 id. 27 ; People vs. Brandreth, 36 id. 191; 1 orter vs. Ruckman, 38 id. 211; Corning vs. Troy Iron and Nail Works, 44 id. 577. Ib.

error.

NEGLIGENCE.

1. Rule as to, when both parties guilty of.--One who, by his negligence, has brought an injury upon himself, can not recover damages for it. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such cases is: (1) whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, (2) whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution that but for such negligence or want of care and caution on his part the misfortune would not have happened. In the former case the plaintiff is entitled to recover. In the latter he is not. Tuff vs. Warman, 5 Scott's C. B. (N. S.) 572; Butterfield vs. Foster, 11 East. 60; Bridge vs. G. J. R. R. Co., 3 M. & W. 244; Davis vs. Mann, 10 id. 546; Clayards vs. Dethic, 12 Q. B. 439; Van Lien vs. Scoville Co. 14 Abbot's Pr. (N. S.) 91; Insurance Co. vs. East Bost. Co., 106 Mass. 149. Judgment of Supreme Court of District of Columbia reversed. Baltimore and Potomac R. R. Co., plaintiff in error, vs. Jones. Opinion by Swayne, J.

2. Facts constituting contributory negligence.—Plaintiff, a laborer in the employ of defendant, when about to leave the place where he was working on one of defendant's trains, was told by the person superintending him, who was also conductor of the train, to get on anywhere, as the train was in a hurry to leave. Plaintiff got on the pilot of the locomotive, which was a dangerous place to ride. While on the trip he was injured by a collision between the locomotive and some other cars of defendant, caused by defendant's negligence. The proper place for plaintiff to ride was in a box-car on the train provided for the employees; he had been told previously to always ride there, and had been forbidden riding on the pilot of the locomotive. No one of those in the boxcar were injured, and plaintiff would not have been if he had ridden there. Held, that plaintiff was guilty of contributory negligence and could not recover of the defendant for the injury. Hickey vs. R. R. Co., 14 Allen, 429; Todd vs. R. R. Co., 3 id. 18; S. C., 7 id. 207; Gavett vs. R. R. Co., 16 Gray, 501; Lucas vs. R. R. Co., 6 Id. 64; Ward vs. R. R. Co., 2 Abbot's Pr. (N. S.) 411; Galena R. R. vs. Yarwood, 15 Ili. 468; Dogget vs. R. R. Co., 34 Iowa, 285. Ib.

STATUTE OF FRAUDS.

Agreement not signed by party to be charged: performance by other party : admission of agreement in other writing: evidence: parties.—An agreement was made, reading as follows: "This is to certify that the undersigned have taken 2205 head of cattle, valued at $36,681.60, on shares, from George C. Beckwith; time to expire on the fifth day of December, 1872; then George C. Beckwith to sell the cattle and retain the amount the cattle are valued at above. Of the amount the cattle sell at over and above the said valuation George C. Beckwith to retain one half, and the other half to be equally divided between C. W. Talbot, and Elton T. Beckwith, and Edwin F. Beckwith." This agreement was signed by the plaintiff below, C. W. Talbot, and E. T. and E. F. Beckwith, but was not signed by the defendant below, George C. Beckwith. Defendant took possession of it and kept it, and wrote several letters in which he referred to "the agreement" as binding. Plaintiff and the two others signing it performed their part of it, but defendant refused to perform his part. In an action

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by plaintiff for damages for defendant's breach of the agreement, held: (1) that the letters were a recognition of the agréement, making it binding on defendant (Johnson vs. Dodgson, 2 Mees. & Welsb. 653; Salmon Falls Co. vs. Goddard, 14 How. 456; (2) that parol proof was admissible to show that the agreement mentioned in the letters was the one in question; and (3) that plaintiff was entitled to maintain a separate action for his equal share of the profits. Servante vs. James, 10 B. & C. 410. Judgment of Supreme Court of Colorado affirmed. Beckwith, plaintiff in error, vs. Talbot. Opinion by Bradley, J.

Notes of Recent Decisions.

"Civil damage" law-Joint liability of seller and owner of property—proximate and remote cause-variance.-Schroder vs. Crawford.-Appellate Court of Illinois, 1 Monthly Jurist, 574. 1. A saloon-keeper and the owner of the building where the same is kept are jointly liable for injuries arising in consequence of sales of intoxicating liquors made by the former. 2. Where a person keeps a dram-shop in the vicinity of several railroads, and causes the intoxication of a person by the sale or gift of intoxicating liquors, and, in consequence thereof, such person is run over and killed by the cars: Held, that the result being one which might reasonably or probably follow as the result of such sale, the seller will be held responsible, and that the cause of action is not too remote. 3. The plaintiff averred that deceased met his death "without any fault on the part of said railroad company," but introduced no proof to sustain such allegation. Held, that in torts the plaintiff is not required to prove all the allegations of his declaration. If enough is proved to support the charge it is sufficient.

Exhibition of wild animals on streets-frightening horses—liability of city—Little vs. City of Madison. Supreme Court of Wisconsin, 1 Monthly Jurist, 537. Opinion by Cole, J. If a municipal corporation license a person to exhibit on its streets bears or other things tending to frighten horses, it will be held responsible to persons for damages caused by the frightened horses. It is the duty of municipal corporations to keep their streets free from all obstructions and nuisances. If the corporation, by its license, sanctions the exhibition, or its officers know that its streets were thus obstructed, it will be held sufficient knowledge to make it liable.

San Francisco Law Journal.

VOL. I.

JANUARY 26, 1878.

No. 22

Current Topics.

PROPERTY in the hands of assignees in bankruptcy has been decided by Lowell, J., in the United States District Court of Massachusetts, In re Mitchell, to be liable to taxation under State laws. The tax was resisted by the assignees, on the ground that they were officers of the court; that the funds in their hands were in the custody of the law, and, therefore, not to be disturbed or interfered with by any action on behalf of the State. The learned judge remarked that an "able opinion" to this effect had been given by one of the registers in Re Booth, 14 N. B. R., and concluded: "I can not subscribe to that opinion. I can see no interference or obstruction of the court, or of the law, in taxing to the owner thereof any fund that may happen to be, in whole or partly, in the registry of the court, or under its direction, as was the case with money here, provided there is no attempt to fix upon it a lien, or in some way to disturb the actual custody of the fund. Such an assessment is merely an official declaration that the owner of the fund should pay his share of the public burdens. I do not know why a ship in the hands of the marshal should escape taxation to the owner, though, undoubtedly, it will be free from levy or seizure as long as it remains in his official possession. If the State undertook to tax an assignee in bankruptcy as such, that is, to tax his office and franchise-his right to exercise a function under the laws of the United States-or in any mode to discriminate against an assignee, or against the estate of a bankrupt, very different considerations might arise. It is said the assignee is an officer of the court; and so he is, in a certain sense, and so is every attorney who practices in the court; and this will protect them from taxation as such officers, but not necessarily in respect to funds which they are to administer for private persons, though their administration should be under the control of the court."

ON Monday last Judge Wright decided the long and hotly-contested case of A. P. Needles vs. John W. Pearson et al. (Trustees of the Woodville Mining Company). The plaintiff was represented by himself and H. A. Powell, and the defendants by Stewart and Greathouse. The action was based upon and a test of a statute passed by the Legislature, "for the better protection of stockholders in mining companies," etc., and is to the general purport that any stockholder may demand from the secretary of a company an "inspection" of the

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