2. Courts of equity will not entertain a petition for such writ where the party
applying therefor has grounds for a divorce a menså because of ill-treatment,
although she has conscientious scruples against applying for a divorce. Ib.
See OFFICIAL BOND; PRINCIPAL AND SURETY; PROMISSORY NOTE, 5; RECOG-
1. An act of the legislature, authorizing a town to raise by tax a sum of money
for the use and benefit of a private educational institution, is unconstitutional
and void. Curtis' Adm. v. Whipple, 187.
2. The fact that an educational institution is incorporated does not render it
public, so far as relates to the power of taxation for its aid. Ib.
See NATIONAL BANK; CONSTITUTIONAL LAW.
TELEGRAM.
See TELEGRAPH COMPANY.
1. A telegraph company, notwithstanding special printed conditions at the head
of the dispatch sent, exonerating it therefrom, is responsible for mistakes
happening in consequence of its own fault, such as want of proper skill or
ordinary care on the part of its operators, or the use of defective instruments,
but is not, under those conditions, responsible for mistakes occasioned by
uncontrollable causes, such as atmospheric electricity, provided these mistakes
could not have been ascertained and guarded against, or prevented by the
exercise of ordinary care and skill on the part of the operating agents of the
company. Sweetland v. Illinois, etc., Telegraph Co., 285.
2. Telegraph companies cannot adopt general printed rules, exacting, as a con-
dition of sending messages, that the sender shall exonerate or release the
company from damages caused by defective instruments, or by want of
proper skill in the operators, or by their failure to use due care. Ib.
8. A condition, requiring a party who desires a message to be sent with absolute
correctness to have the same repeated, is a proper one, and where the con-
dition as to repeating exists, and is known to the party, or where he is
bound to take notice of it, and a mistake occurs in an unrepeated message, the
mere proof of such mistake, without some other evidence of carelessness on
the part of the company, will not make it liable. It must be shown that the
mistake was caused by the fault of the company. Ib.
4. A telegram, written upon a printed form containing certain terms, and sub
scribed by the sender, amounts to an agreement on the part of the sender that
the telegram shall be sent according to such terms. Wolf v. Western Union
Telegraph Co., 387.
5. A condition that a telegraph company "will not be liable for damages in any
case where the claim is not presented in writing sixty days after sending the
message," is neither contrary to law, unreasonable, nor contrary to publie
-policy. Ib.
6. Plaintiffs' agent in Chicago telegraphed to his agent in Oswego for 5,000
sacks of salt. By the carelessness of the operator the telegram was made to
read “casks;" and 5,000 casks were sent, for which there was no market in
C., and which were sold at a loss. In an action against the telegraph com
pany for damages arising from the mistake,-Held, that the measure of
damage was the difference between the market value at O. and at C., together
with the cost of transportation from O. to C. GROVER, J., dissentrente. Leonard
V. The New York, etc., Telegraph Co., 440.
Held, also, that the failure of the plaintiffs' agent at Oswego to attempt to with-
draw the shipment, on learning the mistake, after the goods had been shipped,
and, as he supposed, had actually gone, but, in fact, as afteward appeared,
before they had gone, was not such legal negligence as would prevent the
plaintiffs' recovering. Ib.
Per HUNT, J. Where a telegraph company receives a message to be transmitted
to a point beyond its own line and on a connecting line, it undertakes for
care and attention in transmitting it over its own line, and for its prompt
delivery to a competent and responsible company for further transmission.
When so delivered its liability terminates, and that of the receiving company
begins.
A telegraph company is not liable as a common carrier, but only for ant e ́
proper care and attention. Ib.
1. The Pennsylvania legislature established the twenty-ninth judicial district,
by act of 28th February, 1868, under which act J. G. was elected and com-
missioned president judge of the district. By an act passed March 16th,
1869, the former act was repealed, and the district was abolished. Held, that
the act of 1869 was invalid, as being an attempt, substantially, to abolish the
office of president judge of the twenty-ninth district. Commonwealth v.
2. The term of the judicial office is fixed by the constitution, and it is beyond
the power of the legislature to diminish it. Ib.
8. The powers, authority and jurisdiction of an office are inseparable from it.
The legislature may diminish the aggregate amount of duties of a judge, by
the division of his district, or otherwise, but must leave the authority and
juris.iction pertaining to the office intact. Ib.
TONNAGE TAX.
See CONSTITUTIONAL LAWS, 17, 25.
1. An order of a state court, transferring a cause to the federal courts under the
act of congress of March 2, 1867, is an appealable order, and the State courta
have jurisdiction to hear and determine the appeal.
3. Where there has been a trial in an action at law, or a final hearing in a court
of equity, and an adjudication upon the merits, it is too late to remove the
cause into the federal court under said act, notwithstanding the fact that the
judgment may have been reversed on appeal and the cause remanded for new
trial or further proceedings. Ib.
TRIAL BY JURY.
See REFERENCE.
1. Where a trust results by operation of law, as, for instance, where there is a
devise or bequest to a person upon trust," and no trust is declared, etc., in
such cases the trust results to the heirs at law or personal representatives, and
extrinsic evidence will be rejected. Saylor v. Plaine, 34.
2. Where one known to be a trustee pledges that which is known to be trust
property, to secure his own debt, the act is prima facie unauthorized, and it is
the duty of him who takes such security to ascertain whether the trustee has
a right to give it. Shaw v. Spencer, 115.
8. Where one holding certificates of stock in his name, as "trustee" pledges the
same as security for his own debt, the term "trustee" is a sufficient notice of
a trust, and the pledgee who takes the certificates without inquiry does so at
his peril. Ib.
4. The owner of stock certificates, fraudulently pledged by one holding them as
trustee, is not estopped from claiming them of the pledgee by standing by,
after having notified the pledgee of his claim and demanding the stock, and
without protest witnessing the pledgee pay an assessment theretofore made
on the stock. Ib.
See STATUTE OF FRAUDS, 2 3.
Trustees holding notes, given by other parties for the benefit of a railroad cor-
poration, cannot refuse to surrender such notes to the beneficiary, simply on
the ground that a condition named in such notes, the failure to comply with
which would render them void, had not been complied with. Des Moines
Valley R. R. v. Graff, 256.
To permit usage to govern and modify the law in relation to the dealings of
parties, it must be uniform, certain and sufficiently notorious to warrant the
legal presumption that the parties contracted with reference to it. Citizens'
Bank of Baltimore v. Graflin, 66.
If a vendee allow a vendor to remain in possession, or, after a formal delivery
immediately restore the possession to him, and he afterward sell and deliver
the goods to a bona fide purchaser for value, without notice of the prior sale,
such purchaser is entitled to the goods against the first vendee and all claim-
ing under him. Davis v. Bigler, 393.
This rule depends upon neither the statute 13 Eliz. ch. v, nor statute 27 Eliz. ch
iv, but upon the circumstance that the vendee, by suffering the vendor to
remain in possession, enabled him to commit a fraud upon innocent third
persons. Ib.
The rule of law, that the retention of possession of personal property is con
clusive evidence of a colorable sale, is a rule of policy required for the pre-
vention of fraud, and is to be inflexibly maintained. 16.
1. Warehousemen are responsible for due care in storing the goods intrusted to
them in a place of reasonable safety, and are to be charged only upon proof
of their own negligence, or that of their servants in the course of their
employment. Aldrich v. Boston and Worcester Railroad Co., 76.
2. Where servants of warehousemen are present during the destruction of the
warehouse by fire in the night-time, their neglect to remove goods from the
warehouse is not such negligence as will charge the warehousemen, unless it
be shown that such was a part of the service for which the servants were
engaged. Ib.
See COVENANT OF TITLE; INSURANCE, 4, 5; SALE OF LAND.
1. The heir is always to be favored at law, and not to be excluded on mere con-
jecture. On the contrary, there must be satisfactory evidence of an intention
to give a beneficiary interest to the devisee. Saylor v. Plaine, 34.
2. Where a gift is to take effect in possession immediately upon the death of the
testator, words of survivorship refer to that time. Branson v. Hill, 40.
8. Where the gift is not immediate, there being a prior life carried out, but words
of perpetuity qualify those of survivorship, the survivor will not take the
whole gift to the exclusion of the heirs or representatives of his co-legatee. 1.
4 The burden is on the proponent of a will, not only to prove the due execution
thereof, but also the testamentary capacity of the testator. Williams v. Rob-
inson, 859.
WRONG DELIVERY.
See COMMON CARRIER, 15, 16
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