15. The guardians of Halifax Union brought an action against As to the sum of £287 9s. 5d. the defendant claims the protection their clerk, Barstow (a copy of the pleadings and particulars in of the Bankers Act (16 and 17 Vict. c. 53, s. 19), which provides which was annexed to, and was to be taken as part of, the case)." that any draft or order drawn upon abanker for a sum of money This action was settled upon the terms stated in a paper, which payable to order on demand, which shall, when presented for paywas, as far as is material, as follows: "Between the guardians of ment, purport to be indorsed by the person to whom the same shall Halifax Union, plaintiffs, and Charles Barstow, defendant. Mem- be drawn payable, shall be a sufficient authority to such banker to orandum of the terms of settlement in this action. The defendant pay the amount of such draft or order to the bearer thereof; and to consent to a judge's order for staying proceedings on payment that it shall not be incumbent on such banker to prove that such to the plaintiffs of £2,320 4s. 6d.,the amount of certain of the orders indorsement or any subsequent indorsement was made by or under or cheques enumerated in the particulars of the plaintiff's demand the sanction or authority of the person to whom the said draft or in this action. This sum to be accepted in full discharge of all order was or is made payable either by the drawer or indorser claims, demands and liabilities in this action, or otherwise, against thereof." The provisions of this section can not protect the defendant. The arbitrator has found that the plaintiffs were not negligent, and that their conduct did not conduce to the forgery. The defendant is not a banker within the statute. The plaintiffs are a corporation; they are forced to employ certain officers, the treasurer amongst others; the relation, therefore, between the plaintiffs and the defendant is that of master and servant or principal and agent. The treasurer's duties are clearly defined by the orders, and he is not thereby made a banker; he is merely a salaried servant of the bank as well as the plaintiffs' treasurer, and the section does not protect him: Ogden v. Benas, 22 W. R. 805, L. R. 9 C. P. 513. The sum of £191 is the third item. Paragraph the defendant as clerk to the board." 16. The particulars delivered in the case of The Halifax Guardians v. Wheelwright, claimed £2,379 95. 5d. in respect of the different classes of orders above referred to. Thirty-five of these orders, on which an amount of £1,302 had been fraudulently obtained, were orders payable to Barstow. The particulars in the action of The Halifax Guardians v. Barstow, claimed in all £3,681 175. 5d. All the orders enumerated in the particulars in the action against Wheelwright were included in the particulars in the action against Barstow. The plaintiffs in the present action gave the defendant credit for £1,302, being the amount by which the thirty-five orders payable to Barstow had been fraudulently increased, as they considered that the compromise with Barstow deprived them of the moral, though not as they said of the legal, right to recover upon them. 14 of of the case deals with this, and the facts as found do not de bar the plaintiffs from recovering this sum. The principle is clear: a customer has money at his bankers; no authority is given them to pay it; they pay it, however, on a supposed authority; no negThe defendant contended, first, that the compromise with Bar-ligence is proved on the customer's part. Even if there were a stow extinguished the claim of the plaintiffs to recover in respect of want of caution, that is not negligence. He cited also the followany of the items specified in the particulars of this action, and secondly, that as to the sum of £287 95. 5d. the defendant was with-ing cases: Hall v. Fuller, 5 B. & C. 750; Young v. Grote, 12 Moore, 484, 4 Bing. 252; Scholey v. Ramsbottom, 2 Campbell, 485; Robin the provisions of the 16 and 17 Vict. c. 59, s. 19, and as to the arts v. Tucker, 16 Q. B. 560; The Governors of the Bank of Iresum of £273 95. 4d. he was liable to no part of it, or at all events land v. Evans, 5 H. L. 389. [CLEASBY, B., referred to Coles v. only for the amount of £82 12s. 4d., being the amount for which Bank of England, 10 Ad. & Ell. 437.] Swan v. The North British the orders were originally drawn. Australian Company, 11 W. R. 862, 2 H. & C. 175. 17. The questions for the court are as follows: (1) Does the settlement in the action of The Halifax Guardians v. Barstow prevent the plaintiffs recovering against the defendant in this action? If this question is answered in the affirmative, then a verdict for the defendant is to be entered in the action of Halifax Guardians v. Wheelwright, and I direct that a plea be taken to have been added, setting up this defence, that the plaintiff be taken to have demurred thereto, and that judgment in the demurrer be deemed to have been given for the defendant. If this does not so operate, then (2) are the plaintiffs entitled to recover from the defendant any and which of the following sums: -the sum of £287 9s. 5d., being the amount of the cheques of which Laidler forged the endorsements; the sum of £273 12s. 4d., being the total amount of the cheques of which Laidler both increased the amounts and forged the indorsements? Or in case the court should be of opinion that the plaintiffs are not entitled to recover the whole of the last-mentioned sum, then are they entitled to recover the sum of £82 12s. 4d., being the amount for which such last-mentioned orders were originally drawn, or the sum of £191, being the amount of the fraudulent additions to such orders? If the plaintiffs are entitled to recover any one or more of these sums, a verdict is to be entered for the plaintiffs for the amount. If the plaintiffs are not entitled to recover any of thèse sums, a verdict is to be entered for the defendant. Jan. 20.- Field, Q.C. (Gibbons with him), for the plaintiffs.The first question is, whether anything in the way of a compromise has taken place. Has the compromise with Barstow any effect? King v. Hoare, 13 M. & W. 494, and Brinsmead v. Harrison, 20 W. R. 784, L. R. 7 C. P. 547, will be relied on by the defendants; but in those cases there was a joint tort. Now here there is no join tort; the duties were independent, and the torts are independent. Wills Q.C. (Mellor with him), for the defendant.-As to the third point it is submitted that the customer must suffer for his own want of caution. In this case the handwriting was the same throughout the cheque; the bankers could not discover any alteration. In Hall v. Fuller, 5 B. & C. 750, the customer was not in fault; there a chemical process was used. In Young v. Grote, 12 Moore, 484, it was conceded that the cheque was good, but the difference was between what the plaintiff's wife put and what the forger inserted. Drawing a cheque is giving authority to the banker. [POLLOCK, B.-May there not be estoppel by negligence as well as by authority ?] There is an implied contract that the customer should use proper care: Ex parte Swan, 7 C. B. N. S. 400; Swan v The North British Australian Company, 11 W. R. 862, 2 H. & C. 175; Orr v. Union Bank, 1 Macq. H. L. 513. Secondly, the Bankers Act does not protect the defendant. Doubtless the words of the section apply to bankers only, and not to persons acting as bankBut the defendant was really a banker. On the facts of this case any jury would have found that the bank was the principal; quoad the plaintiffs, the defendant must be taken to be a banker. The tort here is one to which both contributed. This transaction could not have been complete without the acts of both. plaintiffs can not alter the substance of the matter. It is admitted that if the tort is joint, the judgment against one would settle the action against both: Brinsmead v. Harrison, 20 W. R. 784, L. R. 7 C. P. 547. The compromise with Barstow applies to every item in the particulars, and every item against the defendant is included in the compromise. Cur, adv. vult. ers. The May 8.-CLEASBY, B., delivered the judgment of the court:*The question in this case is whether the defendant, who was the treasurer of the plaintiffs, is liable to them for moneys received Cleasby, Pollock, and Amphlett, BB, c. 59, s. 19. Previous to that statute, if a banker paid a checque with a forged endorsement upon it, he could not charge it against his customer, but the effect of that statute was to enable him to do so. Two arguments were addressed to us upon this part of the case. First it was said, taking that statute together with several other statutes on the same subject, the word "bankers," was not to be restricted to persons regularly engaged in the business of bank and not accounted for. This question arises upon two items. These two items are, first, £273 12s. 4d., composed of two amounts of £191 and £82 12s. 4d.; and secondly, £287 9s. 5d. The question on the first item is whether the defendant can claim the credit of payments made by him upon orders which had been signed by the plaintiffs, but which had become forgeries by the amounts being increased. Under ordinary circumstances he could not claim the benefit of those payments; but it was said the forgeries were attrib-ing, but that any person who received the money of another into utable to the negligent and improper manner in which the drafts were drawn. his charge, and, according to the course of business between them, pays it out by honoring drafts drawn upon him, payable to order, The alleged negligence was the leaving blanks in the drafts, ought to be considered a banker within the enactment. We which admitted the insertion of increased amounts by the per- can not agree to that argument. We think the legislation son who wrote them and who committed the forgeries. Since they had reference to a particular class—that is, to persons carrywere signed by and on behalf of the plaintiffs in the improper ing on the business of bankers and conferred on them a form in which they had been drawn, the case is the same as if great privilege. Such a privilege can only be claimed if it has they had drawn them in their proper form, and the plaintiffs can been conferred in the clearest language. A confidence might not, we think, avail themselves of the fact that the drafts were well be placed in the integrity and character of persons not drawn by themselves, but by some person in the office carrying on the ordinary business of bankers which would not beof their clerk. We have upon the consequences of the neg- long to any other person entrusted with money. The other ground ligent drawing of the drafts the following statement in par- taken deserves more consideration. It was contended that all the agraph 12 of the case. "The orders thus fraudulently in- facts of the case taken together showed that the account of the creased in amount, but genuine in all other respects, were guardians ought to be regarded as a bankers' account kept by presented and paid at the bank in the ordinary way, and a them with the Halifax Bank. The manner in which the orders find that the payment by the treasurer's clerks of the excess were drawn as stated in paragraph 8 of the case, not being drawn in these instances, was due solely to the fact that they were mis- on the bank but on the treasurer, who was manager of the bank, led by want of proper caution on the part of the guardians and was relied on, and no doubt with some reason, to show that there their clerk, in signing the orders fraudulently prepared by Laidler was not a banking account between the guardians and the bank. for their signature." The question, therefore, which arises upon And if there was no other evidence on this part of the case it would this item is, whether the negligent drawing of the drafts disentitle's be conclusive. But it appears from paragraph 3 that the course of them to complain of the cashing of those drafts. Upon this ques- the business was for money to be paid to the credit of the plaintion we had before us the principle case of Young v. Grote, 12 tiffs across the counter. It further appears from paragraph 4 that Moo. 484, 4 Bing. 252, followed by several others; Robarts v. for some time the plaintiff's account was kept in a pass book in the Tucker, 16 Q. B. 563; Swan v. The North British Australian Com-useual manner, and that afterwards it was kept in a treasurer's book pany, 10 W. R. 841, 7 H. & N. 603. We think the position taken by the defendant is made good by those authorities. It is true that there is some difference of opinion as to the proper legal ground for the conclusion, and perhaps, some difficulty in determining which is the soundest. It is put on the ground of the negligence itself disentitling the party guilty of it in one cited case, when the fault is said to be all on one side, and when the conclusion is justified, in the judgment of Chief Justice Best, by an apposite quotation from Pothier. In the case of Robarts v. Tucker, 16 Q. B. 578, upon error, Mr. Baron Parke, in no way impeaching the judgment in Young v. Grote, considered that it was founded on this, that the person who negligently drew the checque, as it were, gave authority to the party to fill up the checque in the way it was filled up. In the last cited case, Swan v. The North British Australian Company, 11 W. R. 862, 2 H. & C. 175, the present Lord Chief Justice of the Queen's Bench preferred putting the conclusion upon the ground of avoiding curcuity of action, which is certainly the most exact ground, and agrees with what is said by Pothier in the passage referred to. But these various reasons for the conclusion only show how incontestable the conclusion itself is, and it is, perhaps, only an application of those general principles which do not belong to the municipal law of any particular country, but which we can not help giving effect to in the administration of justice, viz., a man can not take advantage of his own wrong, and a man can not complain of the consequences of his own default against a person who was misled by that default, and not through any fault of his own. So far, then, as regards this item of £273 12s. 4d., we think the plaintiffs can not recover. As to the other item of £287 9s. 5d., the question raised is one of some difficulty, and we thought proper to take time to consider it. This may be taken to be the amount of the orders which were paid upon the forged endorsements, and the negligent drawing of these orders does not apply to it at all. The question raised is whether under the circumstances of the case, the defendant can claim the protection given to the bankers by the statute 16,17 Vict. in the prescribed form. It seems clear that until the change the bankers were the bankers of the plaintiffs, and though the statement is not very full still it is clear that the change was not for the purpose of altering the relation between the defendant, the plaintiffs, and the bank, but to comply with the rules as regards the treasurer. This conclusion, moreover, is fully warranted by the statement in paragraph 7, from which it appears that unquestionably in point of fact the guardians had for their own benefit an account of some sort with the bank, and the money was by consent of both parties regarded as theirs, and the plaintiffs received considerable sums of money from the bank as interest for their money; it was, therefore, a banker's account. But it was forcibly argued that according to the poor law regulations this could not be. The guardians are to pay to the treasurer, and the treasurer ought to have had his own account with the bankers. The answer to this seems to be that the guardians chose to make use of the manager as treasurer, and in that way to have the benefit of an account with the bank. We must, upon the question before us, deal with the facts as they are, not as they ought to have been. It follows that the plaintiffs, having chosen to keep and have the benefit of a banker's account, must take it with its incidents, and one of those is that the payment of a genuine cheque with a forged endorsement is a discharge. It may be said that although the bankers are discharged as against the plaintiffs, still the treasurer is not, as he has bound himself to account for what he receives. But the answer to that seems to be that there was, in consequence of the manner in which the plaintiffs, who were the masters, chose to have the account kept, no receipt except by the bankers, and the defendant could not help himself; he can only, therefore, be regarded as receiving subject to the consequences of the manner of receiving. It may, also, further be said that if the account must be regarded as the account of the treasurer with the bank, still it was so kept by him by the plaintiff's order, and they ought not to make a claim which he could not have enforced against the bank. The case is one of difficulty in consequence of the parties having departed from the Attorneys for the plaintiffs, Le Riche & Son. NOTE.-See Nat. Bank v. Allen, ante, 612. Notes and Queries. STATUTE OF LIMITATIONS-PART PAYMENT-SURETY. LIBERTY, MO., Oct. 9, 1875. EDITORS CENTRAL LAW JOURNAL:- Refer your correspondent from Vandalia, Ill. (ante, p. 647), also to Hunt v. Bridgman, 2 Pick. 581; White v. Hale, 3 Pick. 291; Cady v. Shepherd, 11 Pick. 400; Hopkins v. Banks, 7 Cow 650; Lawrence Co. v. Dunkel, 35 Mo. 395; Craig v. Callaway Co., 12 Mo. 94: McClurg, et al. v. Howard, 45 Mo. 365. S. H. Briefs. [Our object in noticing briefs is to enable our readers to assist each other by a gratuitous exchange of briefs. Any brief here referred to can be had by addressing the attorney who prepared it.] Forcing a Railroad into hands of a Receiver.-County of Livingston, Missouri, v. St. Louis, Council Bluffs and Omaha R. R.,in the circuit court of said county, p. 15. Plaintiff took certain stock in said road, upon condition that the road would be built to a given point, which extension the defendant has failed to make. Whereupon a petition was filed for an order of court to put the railroad in the hands of a receiver, to further the performance. of the contract on the part of defendant. Argument is in favor of plaintiff. [Address Messrs. Low & McDougal, Hamilton, Mo.] Ejectment-Saline Lands.-J. S. Morton et al. v. J. T. Green et al., Supreme Court of United States. Argument for defendant, pp. 22, appeal from Supreme Court of Nebraska. The question at issue seems to be, whether certain lands claimed by plaintiffs, were properly obtained by them under a military bounty land warrant, issued under act of Congress, 11th of Feb'y, 1847, (by causing them to appear as ordinary lands), or were they, because of being saline lands, reserved by Congress from the grant made to Nebraska in 1854. [Address R. H. Bradford, Esq., Washington, D. C.] Ejectment-Judicial Sale.-W. C. Clark, et al., apps. v. J. R. Bayley, respnd. In the Supreme Court of Oregon. Argument for respondent, pp. 8. This was a case in chancery, and involved consideration of equity rulings, equitable estoppel, and judicial sales. [Address R. S. Strahan, Esq., Corvallis, Oregon.] Liability of Corporation for Acts of Agent.-Opinion and argument by Messrs. Randolph, Singleton and Browne, on behalf of the New Orleans Mutual Ins. Association, on suits brought against the association by the holders of drafts drawn by its secretary on Seignouret Frères, Bordeaux, France. It seems that the corporation referred to, was chartered solely to do the business common to insurance companies, and was especially prohibited from doing a general mercantile business. Nevertheless, said corporation did engage to a certain extent in banking, and the suits in question were on certain bills of exchange drawn by said corporation as a banking institution. Among the topics discussed are, how a corporation may bind itself; how corporations are created; how they may contract; acts beyond the scope of a corporation's charter; estoppel; power of a president and secretary to bind a corpor tion; and many others of like nature. This argument is elaborate and masterly and worthy of careful study. [Address the authors at New Orleans, La.] Respondeat Superior-Railway Negligence.-Mary Durkin, Adm'x. of Lawrence Durkin, v. T. W. and W. R. W. Co. In the Supreme Court of Illinois. Brief for defendant, pp. 4. A train on defendant's road ran into some cattle, thus throwing a car from the track and killing Lawrence Durkin. The opinion of Judge Breese of the Supreme Court is also given, in favor of defendant. [Address G. B. Burnett, Esq., St. Louis.] Easement of Way.-Dillmann et al v. Hoffman. In the Supreme Court of Wisconsin. Brief for Dillmann, respondent, pp. 14. Case not stated. Authorities cited are numerous. [Address Messrs. Smith & Stark, Milwaukee, Wis.] Right of Railroad to lay Track on Street.-H. & T. C. R. R. Co. v. B. M. Odom. In the Supreme Court of Texas. Brief for the railway, pp. 32. The plaintiff laid its track along a street which defendant claimed to own, thereby damaging defendant's property. The railway company seems to have interpreted the terms of its charter generously. [Address Messrs. Hancock, West & North, Austin, Texas.] Indemnity Bond.-Vogel v. Melrus. Supreme Court of Wisconsin. The question, though not stated, seems to be Argument for Melru›, pp. 10. whether two parties were alike bound by the same promise, or not. [Address Messrs. Smith & Stark, Milwaukee, Wis ] Homestead - Mortgage - Administration. - Cannon, Adm'r, and Decherd, Widow, v. Bonner, trustee. Supreme Court of Texas. Argument for plaintiffs. Suit for the recovery of certain lands, claimed as a homestead, for which mortgage and notes had been given. It is sought to make the notes stand as an independent contract, and to set aside mortgage because mortgagor's wife did not sign it. [Address T. T. Gammage, Esq., Palestine, Texas.] Commissions of Land Agents.-William Love et al. v. Scott Miller et al. Argument for appellees, pp. 19. In the Supreme Court of Indiana. Defendants contracted to pay plaintiffs a commission for selling certain land, which it is claimed was not sold by plaintiffs, though they ask for the commission. [Address Messrs. Smith & Hawkins, Indianapolis, Indiana.] Sale of Stock by a Stock Board.-W. W. Baldwin et al. v. State of Kentucky. In the Supreme Court of that State. Brief for defendant, pp. 19. The state held certain stock in several railroads, which stock a board of commissioners were authorized to offer for sale. They did so, and plaintiff entered into negotiations for their purchase, but did not buy. Finally, the legislature asked the board not to sell. The state brought action against the railroads for dividends, and plaintiff, interpleading, claimed to own the stock, and asked to have the state turn it over to him. It is urged that the plaintiff could not sue without authority from the state legislature. [Address, T. F. Hargis, Esq., Frankfort, Ky.] The Lutheran Church Independent in Form.-Trustees of Zion's Lutheran Church of Lima, O., v. The Rev. A. S. Bartholomew et al. In the District Court of Allen County, Ohio. Argument for defendants, pp. 44. This brief holds that the Lutheran Church has an independent form of church polity. [Address, I. Pillars, Esq., Lima, Ohio.] Liability of Barkeepers for Selling Liquor by which one becomes Habitual Drunkard.-William Roth, appellant, v. Mary Eppy, appellee. In the Supreme Court of Illinois. Brief for appellant, pp. 49. Mary Eppy brought action, under the 5th section of act of 1872, against Roth, for selling liquor to her husband, whereby he became an habitual drunkard and lost his reason. [Address, Messrs. Puterbaugh, Lee and Quinn, Peoria, Illinois.] Recent Reports. REPORTS OF Cases Argued AND ADJUDGED IN THE SUPREME COURT OF THE STATE OF FRORIDA. Reported by WM. ARCHER COCKE, AttorneyGeneral. Volume XV., No. 1. Tallahassee: Floridian Office. 1875. We have in this modest looking, paper-covered volume, an example of promptness in the publication of reported decisions, well worthy of imita tion by the majority of state reporters. The volume before us, which is intended to comprise about one half of the fifteenth volume of reports when complete, contains the cases decided at the October term, 1874, and the January and June terms, 1875. We do not remember a like instance of despatch in the publication of state reports. The fact that the Florida reports are always published in parts, never being bound into complete volumes by the state, makes little difference. If Judge Cocke, the able and honored attorney-general of the state, whose official duty it is to report the decisions of the supreme Court, can, among the multitude of his other official and literary engagements, accomplish so desirable a purpose, it seems difficult to perceive any good reason why an equal degree of promptness should not be attainable at least by those reporters whose sole business it is to perform the same duty. This portion of Vol. 15, contains over 450 pages, and reports 27 cases. The paper and press-work are none of the best, but probably the best the reporter could secure in the state. A minute of the proceedings of a meeting of the bar, held for the purpose of paying a tribute of respect to the memory of Hon. MARIANO D. PAPY, a distinguished member of the bar, and former Attorney-General and Reporter, appears in the volume. The Supreme Court of Florida, as now constituted, is one of the best in the South, and its reported decisions can not fail to take a prominent place among the reports. We have space to notice only a few of the cases reported. United States Direct Tax-Certificate-Evidence-Assignment. Billings v. McDermott, p. 60. Opinion by Randall, C. J. The certificate of the sale of lands by the direct tax commissioners, under the act of Congress of June 7, 1862, is only prima facie evidence of the regularity and validity of the sale and of the title of the purchaser; and an assignment of the certificate, does not divest the purchaser of his title, nor give the assignee a right of action in ejectment in his own name. Dower--Right of, in Land sold before Marriage.-Rain v. Roper, p. 121. Opinion by Randall, C. J. The right of dower in real estate which the deceased husband contracted to sell before marriage, depends on compliance by the purchaser with the terms of the contract. If he pays the purchase money contracted for, he is entitled to a deed free from dower. If the contract be rescinded, the widow will be entitled to dower. Dower-Relinquishment of-Consideration for Settlement. Nalle & Co. v. Lively, p. 130. Opinion by Fraser, J. A relinquishment of dower by wife for benefit of husband is a sufficient consideration to support a subsequent settlement, and such is not fraudulent, Judge-Disqualification.--State of Florida et al. v. Jacksonville, etc., R. R., p. 201. Opinion by Westcott, J. Attorney of third person, not a party to suit, in proceedings against a receiver in the suit is not disqualified from sitting as judge to hear the case, when the equities are independent of the rights of his client. Injunction-Appeal.-Ibid. A defendant can not, by injunction, be prevented from appealing, when he has a clear right to appeal; nor should perpetual injunction be granted which in effect determines rights involved in the issues of the cause. Receiver-In Prior and Subsequent Suits. Ibid. The general rule is that a receiver, appointed in a prior suit should not be displaced by the appointment of a receiver of the same subject-matter, in a subsequent suit, but the receivership in the first should extend to the second. If such subsequent receiver be appointed, however, the first receiver should deliver to the second. Appointment of Receiver-Notice--Of Mortgaged Property. Ibid. Notice, except in extreme cases of urgency, should always be given of application for appointment of receiver. Where the subject-matter is mortgaged property, the mortgagee is not entitled to have a receiver appointed as to the other property not included in the mortgage. Direct Tax Commissioners-Effect of Acts of.--Billings v. Stark P. 297. Opinion by Randall, C. J. Neglect or refusal of one of three form ing a board of United States Direct Tax Commissioners, or his dissen: from proceedings of the majority of the board, will not invalidate the act of the majority. A tax sale certificate signed by two of the commissioners is "prima facie evidence of the regularity and validity of that sale, and of the title of the purchaser." Direct Tax Sale-Officers of Treasury Department-Powers of. Ibid. There is no power vested by law in the officers of the treasury department to set aside a sale, or vacate a title acquired by a purchaser at a sale for direct taxes. Evidence-Title of Former Owner as against Purchaser at Direct Tax Sale.-Ibid. Evidence by claimant of former owner's good title, and deed from him, is no defence to the title acquired by purchaser at direct tax sale. Mandamus.-State of Florida ex rel. v. Hon. W. W. Van Ness, p. 317. Opinion by Westcott, J. Mandamus does not lie to compel a judge to hear a cause in which he has determined himself to be disqualified. Collection of Taxes-Set-off.-Finnigan v. City of Fernandina, p. 379. Opinion by Westcott, J. Equity will not interpose to enjoin collection of taxes because the municipal corporation to which they are due is indebted to the delinquent tax-payer, nor on account of irregularities in the manner of notice of time and place of sale. Taxes are not subject to set-off. Tenant in Common-Crop.-Bird v. Bird, p. 424. Opinion by Westcott, J. Crops grown by one tenant in common, on the common estate, belong absolutely to him; other co-tenants have no property in them. The relation of landlord and tenant does not exist between them. See Bird v. Earle and Perkins, p. 447. C. A. C. Summary of Our Legal Exchanges. AMERICAN LAW TIMES AND Reports, October.* Criminal Law --Insanity in Murder Cases-Evidence to Establish-Competency of Juror who Entertains Unsettled Opinion. Ortwein v. Commonwealth, Supreme Court of Pennsylvania. [2 Am. L. T Rep. (N. S.) 435; S. C., 76, Penn. State.] Opinion by Agnew, Ch. J. 1. Under sect. 66 of act of 31st March, 1860 (Criminal Code), the jury, before finding the fact of insanity specially, must be satisfied of it by the evidence. 2. A reasonable doubt of the fact of insanity in a criminal case, is not a true basis for the finding of it as a fact, and as a ground of acquittal. 3. The evidence to establish insanity as a defence in a criminal case, must be satisfactory, not merely doubtful. 4. A person charged with a crime must be judged to be a reasonable being, until a want of reason positively appears. 5. To make a want of reason appear, the evidence must be satis factory, not merely doubt. *New York: Hurd and Houghton. ful; nothing less than satisfaction can determine a reasonable mind to believe a fact contrary to the course of nature. 6. Insanity, as a defence, must be so great as to have controlled the will, and taken away the freedom of moral action. 7. When the killing is admitted, and insanity is alleged as an excuse, the defendant must satisfy the jury that insanity actually existed at the time of the act; a doubt as to the insanity will not justify the jury in acquitting. 8. Where a juror had formed his opinion in part from testimony taken before the coroner, as read in the newspapers, and part from rumor, but his opinion was so unfixed that he could hear and determine the case from evidence given on the trial, uninfluenced by previous impressions, he was not incompetent. 9. The enquiry as to the juror's incompetency from previous opinion is, whether his opinionis a pre-judgment, with such fixedness and strength as would propably influence and control his judgment, or formed upon the same evidence as will be given on the trial. 10. Evidence before a coroner has not the same weight as that given on the trial. When and how Deed, Absolute on its Face, may be shown to be a Mortgage.-Plumer v. Guthrie. Mr. Justice Mercur gave the opinion. [2 Am. L. J. Rep. (N. S.) 446; S. C., 76 Penn. St.]. 1. To show by parol that a deed absolute on its face is a mortgage, the proof must be clear, explicit, and unequivocal. 2. The proof must establish an agreement substantially contemporaneous with the execution and delivery of the deed, and not rest on the subsequent admission and declarations of the mortgagee only. 3. Guthrie's land was sold at sheriff's sale, purchased by Lane, a creditor; he conveyed to Plumer. Evidence of conversations between Lane and Guthrie, months before the conveyance to Plumer and not in his presence, tending to show an understanding that Plumer would advance Guthrie's debt to Lane, and take the property as security for Guthrie, held to be admissible. 4. To convert an absolute deed into a mortgage, the contract to do so need not be express, it may be inferred from facts and circumstances; but a knowledge of these must be brought home to the owner of the legal title before he can be affected by them. 5. Evidence of such facts and circumstances should be received with caution, and if it does not make a case on which a chancellor would decree a conveyance, should not be submitted to the jury. 6. Eleven years after the conveyance to Plumer he made a lease of the land to Guthrie, who took possession under it. If the original conveyance to Plumer was a mortgage, the lease was evidence of Guthrie's abandonment of it. 7. Evidence in this case not sufficient to submit to a jury on the question whether the deed was a mortgage. Contract by Carrier to Make Collection of Promissory Note Beyond its Terminus-Custom-Damages.-Knapp v. The U. S. & Canada Express Co. Opinion by Foster, Ch. J. [2 Am. L. T. Rep. 476; S. C., 55 N. H.] The plaintiffs gave to the agent of the defendants, an express company, a promissory note, telling him they wanted him to send it by express for collection upon the makers at H. The agent took the note, saying he would send it. The defendants' line did not extend to H., but their practice was to deliver packages and demands for collection going beyond the terminus of their own route to R. & Co.'s Express at L. Between R. & Co., and the defendants there was no business connection, nor any division of profits or compensation for carriage or collections; but, with respect to demands for collection received by R. & Co. from the defendants, R. & Co. reported to the genera agent of the defendants in Boston and followed his directions. Held, these facts did not, as a matter of law, impose any obligation upon the defendants with regard to the collection of the note after its delivery to R. & Co.; but they were evidence of a contract on the part of the defendants to do with the note according to their custom and usage with respect to business of that description, even though a part of that undertaking was to be carried out at a point beyond their line, and by agents not in their immediate employ. Where the defendants' agents were accustomed to receive notes for collection in the circumstances above recited, held, the defendants were estopped to deny that such agents were authorized to make contracts on behalf of the company to transact business of such character beyond the limits of the defendants' route. The makers of the note had property sufficient to pay the same when the defendants received it for collection; but by reason of the defendants' negligence with regard to its collection, the note became worthless upon the failure of the makers of the note. Held, the damages were the amount of the note and interest. Railroad-Freight Train-Refusal to carry Passenger-Danages.-Ill. Central Railroad Co. v. Johnson. [2 Am, L. T. Rep. 433; S. C., 67 Ill.] Opinion by Scott, J. 1. A railroad company has the clear right to make a rule that no one shall be carried as a passenger on its freight trains. But when it is in the habit of carrying passengers on such a train, and has its regular hour for departure posted in its office at the station, it will not be justified in refusing to carry a passenger from such station, or in putting him off of such train. 2. Where a railroad company adopts a rule prohibiting passengers from being carried on its trains, or on its freight trains, without the pur implied, to do one of the things prohibited in the act. The indictment here charges the conspiracy to be to defraud the United States out of the tax upon certain spirits to be distilled at the distillery of Alexander Rogers in Middleton. The first count charges an agreement to manufacture illicit spirits at that place. In other parts it is alleged also that the agreement was to do so by fully for the purpose of manufacturing illicit spirits. Held, that the gist of the chase of tickets, it must furnish convenient facilities to the public by keeping open the ticket office a reasonable time in advance of the hour fixed by its time-table for the departure of the train. Should it fail to do so, a person desiring to take passage will have the right to enter the car and be carried to his place of destination, on payment of the regular fare to the conductor. 3. Where a person, desiring to take passage upon a freight train which carried pas-breaking seals and stamps placed upon certain tubs, and to use them unlawsengers, applied several times to procure a ticket, but could not get one for the reason that the office was closed, and he then got upon the train and tendered the conductor the regular fare, explaining to him his inability to procure a ticket, but the conductor stopped the train and put him off, not at any station or regular place for passengers to get off; held, that the company was liable to such passenger in an action on the case for damages. 4. Where a passenger was put off the the cars of a railroad company by the conductor, for the reason that he had not procured a ticket at the station before getting aboard, and it appeared that the office at the station was closed, so that no ticket could be had; that the passenger so informed the conductor, and offered to pay the regular fare; that the place where the passenger was put off was not any station or usual place for putting passengers off the train, and that this was done in the night-time, whereby the passenger was compelled to walk back; held, that $200 damages were not excessive. [67 Ill. Negligence of Railroad Failure to give Warning of Approach of Train.-Illinois Central R. R. Co. v. Hoffman. [2 Am. L. T Rep. 467; S. C., 67 Ill.] Opinion by Sheldon, J. In this case the deceased was killed while rightfully engaged in unloading wood from a car standing upon the main side-track of the defendant's road. South of the car at which the deceased was at work, distant several feet, were two flat-cars and several box-cars. While he was so engaged, a freight train of defendant, coming from the north, passed near by on the main track, so that the deceased could readily have been seen by the employees of the company there-moval," before it ceases to exercise jurisdiction. If the petition and bond are filed in vacation, and a copy of the record filed in the federal court, it would, upon motion, if fully satisfied that the party filing the petition was not entitled to the removal," order the cause to be placed on the docket, and proceed to trial there, as in other cases. 4. Where the plaintiff was a citizen on. - The servants of the company at the station either knew that he was so engaged at the time, or had reason to know the fact The train passed on until it passed the south end of the switch, when it commenced backing slowly on the side track for the purpose of leaving certain cars, and thus pushed the detached car next to that where the deceased was, so that he was crushed between the bumpers and killed. The only diligence on the part of the company was the ringing of its bell some forty rods south of the deceased, and on the main track. No other warning was given to the deceased, who was not acquainted with the mode of switching cars, or aware that he was in danger. He could not see the train on the south, on account of the box-cars: held, that the company was liable in an action for causing his death, and that the deceased was not guilty of such negligence on his part as to prevent a recovery. COMMERCIAL AND LEGAL REPORTER: SEPTEMBER 29.* Rights of Sureties-Bill Quia Timet.-W. B. Miller v. John H. Speed et al. Supreme Court of Tennessee. Opinion by Deaderick, J. 1. Upon bill filed by the surety upon the forthcoming bond of a decedent, who was the husband of the life-tenant of a fund, to be indemnified against probable ultimate loss of the fund, upon the ground that by the changed condition of the property of his principal since his death, and since the complainant became his surety, he fears he will finally have to pay the amount, if permitted to remain unprovided for until the termination of the life estate; held, that complainant was entitled to relief against the personal representatives. 2. Where property is covenanted to be secured for certain purposes, and in certain events, and there is danger of its being alienated or squandered, courts of equity will interpose to secure the property for original purposes; and to this end will require security to be given, or will place the property under the control of the court. Removal of Causes to Federal Courts.-Mayo v. Taylor, Circuit Court Alexander Co., Ills. Opinion by Baker, J., construing the recent act of Congress. 1. It is the correct practice for the state court, in applications for the removal of suits under the act of 1875, to act upon the petitions and bonds. Such a practice is consonant with the practice prior to the act of 1875. 2. The mandate that the state court shall "accept said petition and bond," implies that the state court should take some action, make some order in the case. 3. If a petition and bond are filed in term time for the removal of cause, the court should ascertain that the applicants are "entitled to the re of New York, one of the defendants a citizen of Missouri, the other of New York, and the Missouri defendant appeared and moved for a continuance for want of service on his co-defendant, and the plaintiff took a rule on the Missouri defendant to plead, etc., etc.; that under the Illinois statute and the act of Congress, it was a controversy wholly between citizens of different states, and that the Missouri defendant was entitled to have the suit removed on his petition into the federal court. Legal News and Notes. -MR. JUSTICE SMITH, of Savannah, in an elaborate opinion, has decided that an umbrella is property.-[St. Louis Globe. -"WOE unto you also, ye lawyers; for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers."—[Luke xi, 46. -A LADY in England has lately been fined £5 for giving a false testimonial of character to a friend, named Helm. She said that Helm had lived with her for two years, and had proved an honest and sober servant; when, in fact, the two were merely on terms of calling acquaintance, and she finding her friend in distressed circumstances, took this method of rendering a kindly service. If the law was enforced with equal severity in this country, the custom of men in office of signing their names to recommendations of people whom they do not know, would cease. -MURDER EXCUSED AS A Public Good.-The recent killing of the soidisant Irish giant, by his partner, Michael Finnell, has called forth from many papers favorable comments. As though O'Baldwin's death was worth more to the world than his life, and thanks were due to him who caused the change. To encourge such acts is to establish the right of every man to judge every other as to his fitness for this world or the next, and to give this self-appointed WASHINGTON LAW REPORTER, October 5. Slander-Pleading.-J. B. Cramer v. P. Cullinane, Supreme Court, District of Columbia. A declaration in an action of slander, in which there is a claim for special damage, on account of the plaintiff having been pre-judge the power to put the verdict into execution. Such sentiments are vented from obtaining employment by reason of the slander, ought to name the parties by whom such employment was refused. If not so stated, no evidence of particular persons having refused to employ the plaintiff, will be received. CHICAGO LEGAL NEWS, OCTOBER 2. Conspiracy to defraud the United States out of Tax on Spirits.-U. S. v. S. Rindskopf et al. United States District Court, Western District of Wisconsin. Opinion by Hopkins, J. 1. A conspiracy is an agreement or combination between two or more persons to effect the purpose declared by the act to be illegal. It consists in an agreement expressed or *Nashville, Tenn: James D. Park, Esq. worthy of reprobation alone, and should come only from those who think justice is not for high and low alike, but would introduce lynch law and turn society into anarchy. -SIR EDWARD S. CREASY.-Sir Edward Creasy has retired from the office of Chief Justice of Ceylon with a pension of 1,600/. per annum. Sir Edward is the son of Mr. Edward Hill Creasy, of Brighton, and was educated on the foundation of Eton. In 1832 he was elected a scholar of King's College, Cambridge, where he became a Fellow in 1834. He graduated B. A. in 1835 and M. A. in 1838. He was called to the bar at Lincoln's Inn in 1837, and belonged to the Home Circuit. He was for several years professor of Ancient and Modern History in the University of London, to which office he was appointed in 1840. He also held for some time the post of Deputy Assistant |