ments should be positive. CONSTITUTIONAL LAW-APPROPRIATION The present case was commenced in the Su- OF STREET TO PRIVATE PURPOSES. preme Court of New York, and was thence removed, on the petition of the defendant, to the HESSING V. SCOTT. Circuit Court of the United States for the Eastern District of New York. The record does not satisfactorily show the citizenship of the parties. The Supreme Court of Ilinois, Nov. 20, 1883. complaint filed in the State court shows that the A tax payer has no ground of complaint because firm of Wm. R. Grace & Co., composed of Wm. R. one of the streets of his city has been vacated and Grace, Michael P. Grace and Charles R. Flint, is given to a corporation upon which to erect a building doing business in New York, and that Wm. R. for its private purpose, especially when he has sufGrace and Charles R. Flint are residents of that fered no greater injury than the public generally. State. The petition for the removal of the cause shows that the defendant is a corporation of the Error to the Superior Court of Cook County. State of Missouri; that Wm. R. Grace and Charles WALKER, J., delivered the opinion of the court: R. Flint reside in New York; and that Michael P. Appellant filed a bill in cha ery against the Grace is a resident of some State or country un city of Chicago, the Board of Trade and a numknown to defendant, but other than the State of ber of persons praying to have an ordinance vaMissouri. The record, however, fails to show of cating a portion of La Salle street, in Chicago, what State the plaintiffs are citizens. They may declared void, and that portion of the street be doing business in and have a residence in New cleared of obstructions, and to compel the city to York, without, necessarily, being citizens of that perform the trusts reposed in it regarding such State. They are not shown to be citizens of some highway, and thereby enable the public to enState other than Missouri. Bingham v. Cabot, 3 joy their rights in the street; also to enjoin the Dall, 383; Abercrombie v. Dupuis, 1 Cr. 313; Jack other defendants from interfering with the street. son v. Twentyman, 2 Pet. 136; Sullivan v. Fulton Complainant alleges that he is an inhabitant and Steamboat Co., supra; Horthall v. Collector, 9 tax-payer of the city and State. Wall. 565; Brown v. Keene, supra; Robertson v. He alleges in his bill that the street had previ. Cease, supra. ously been established and improved at large exIt is true that the petition for removal, after pense to the city. That the abutting property stating the residence of the plaintiffs, alleges holders, to enhance the value of their property, "that there is, and was at the time when this ac. desired that portion of the street vacatei, so that tion was brought, a controversy therein between the Board of Trade might erect a building therecitizens of different States.” But that is to be on, and for that reason they petitioned for the deemed the unauthorized conclusion of law which vacation of the street. That the object of its vathe petitioner draws from the facts previously cation was to enable the Board of Trade to erect averred. Then there is the bond given by the de- ! such a building to be used for private and not for fendant on the removal of the cause, wbich recites public purposes. He also states it his belief that the names of the firm of Wm. R. Grace & Co., bribes were offered to aldermen to induce them to and describes it as “of the county of Kings and vote for the ordinance vacating the street, and inState of New York." If that bond may be con sists the ordinance should be annulled and vacasidered as part of the record for the purpose of ted. He fails to allege that the vacation of the ascertaining the citizenship of the parties, the street will impose any of the slightest additional averment that the plaintiffs are “of the county of burthen or tax, or that he will be in any wise inKings and State of New York,” is sufficient to jured or suffer the slightest inconvenience or show citizenship. Bingham v. Cabot, 3 Dall.382; loss. The bill seems to proceed on the grounds Wood v. Wagnon, 2 Cr. 9. that the city held the street in trust for the pubAs the judgment must be reversed and a new lic, and by vacating the street was guilty of a trial had, we have felt it to be our duty, notwith breach of the trust. That complainant is a cestui standing the record, as presented to us, fails to que trust, and has the right to invoke the aid of a disclose a case of which the court below could court of equity, to compel the city to execute the take cognizance, to indicate, for the benefit of trust. That inasmuch as public necessity, or even parties at another trial, the conclusion reached by public convenience, did not require the vacation us on the merits. And we have called attention of the street, the council had no power to perform to the insufficient showing as to the jurisdiction the act, and it was a violation of duty and repug. of the circuit court, so that, upon the return of nant to law to vacate the street. the cause, the parties may take such further steps, Defendants demurred to the bill, and the court touching that matter, as they may be advised. below held that it failed to show equity on its The judgment is reversed and the cause re face, and sustained the demurrer and dismissed manded, with directions to set aside the judg the bill. From that decree complainant appeals ment, and for such further proceedings as may to this court and asks a reversal. not be inconsistent with this opinion. After a careful examination, we find no facts in this case to distinguish it from the case of the City of Chicago v. Union Building Association, 102 Ill. 379. In fact, there were facts in that case which appealed more strongly to the Chancellor for relief than do the facts in this case. There it appeared that complainant would, in common with others, suffer an applicable loss in the reduction of rents of its property; yet it was held that there was no grounds for equitable interference. Here the complainant shows no special injury. If he sustains injury, it is the same as every other taxpayer of the city. He does not even claim that it will subject him to the slightest loss or produce the least inconvenience whatever. All of the material facts of that and this case are similar, and that case must be held decisive of this. The difference in the facts of the two cases are unimportant and unessential. It is true that the complainant in that case was a private corporation, and in this the complainant is a natural person. But such bodies under our laws are entitled to the same protection as are natural persons, in all of their legal and equitable rights. This is required by the clearest principles of justice. There it was held that complainant having no separate and distinct interest, nor having snffered any peculiar injury, not common to all other residents of the city, it could not maintain its suit for its part of the common injury sustained by the public. The courts of this State have exercised the jurisdiction of restraining the abuse of the taxing power by municipalities, when exercised without charter power oz for purposes not warranted, or the expenditure of corporate funds for purposes not authorized. And it may be the courts would interfere where the corporation were endeavoring to squander corporate funds in violation of the charter powers when it would unnecessarily increase the burthens of taxation. In such cases, it may be a court of equity has the power, on the application of a resident taxpayer, to restrain such abuse of power. But appellant made no such case by his bill. He does not allege that it will impose on him a particle of loss, nor that he has or will sustain the slightest injury or inconvenience distinct from the general public. He has therefore shown no right to the relief sought, and the court below did not err in sustaining the demurrer and dismissing the bill. The decree of the court below is therefore affirmed. Decree affirmed. 1. CRIMINAL LAW-ASSAULT WITH INTEXT TO KILL - ANONYMOUS LETTERS. Threatening letters, anonymously written, and re ceived by the defendant a day or two before his commission of the assault, which he is charged to have made with intent to murder the person as. saulted, though proved to have been written by the person assaulted, "furnish neither excuse nor palliation for the assault,” and are only admissible evidence for the single purpose of showing the hostile feeling of the person assaulted, and there. by affecting his credibility as a witness. Bunker v. State, S. C. Ala.; 2 Ala. L. J. 313. 2. CRIMINAL LAW HOMICIDE JUSTIFICATION UNLAWFUL ARREST. sisting, and if necessary to regain bis liberty, in 115. 3. CRIMINAL LAW-INSANITY-BURDEN OF PROOF REASONABLE DOUBT. cases, it must be established to the satisfaction of acquittal. Ford v. State, S. C. Ala.; 16 Rep. 647. 4. CRIMINAL LAW-KEEPING HOUSE OF ILL-FAME EVIDENCE-REPUTATION OF FREQUENTERS. reputation of those who are seep going into it may 1883; 17 N. W. Rep. 117. 5. DEED-ABSOLUTE DEED--MORTGAGE-FRAUD. A person, who executes an absolute deed to his creditor to secure a debt of $200, but states therein as a consideration the sum of $ 500, for the purpose of hindering other creditors, can obtain no aid from a court of equity, as against bis grantee, who would otherwise be held to be an equitable mortgagee. Mundell v. 7'inkiss, Can. H. Ct., Ch. Div., Sept. 29, 1883; 3 Can. L. T. 549. 6. DEED-MARRIED WOMEN-ACKNOWLEDGMENT PRESUMPTION-NOTARY'S CERTIFICATE-"SEPARATE AND APART FROM HER HUSBAND. 1. It is error for the trial court to charge the jury that "the certificate of acknowledgment by the notary to the deed is presumed to be correct, and it must be shown to be false by clear and conclu. sive proof.” The word "conclusive" should not have been used. 2. “Seps rate and apart from her husband'' in the statute relating to the acknowl. edgment of a married woman's deed, means ou of his presence, so that he can not communicate hy word, look or motion. Belo v. Mayes, S. C. Mo., November, 1883. 7. DEED-VOLUNTARY-FRAUD UPON CREDITORS— HUSBAND AND WIFE - ANTE-NUPTIAL AGREEMENTS. A conveyance from husband to wife, based upon an ante-nuptial agreement by which the husband agreed to secure to the wife the amount received by him from her, was based upon a sufficient consideration, and was not fraudulent as to creditors, although not made until after the husband became embarrassed, there being no allegation that the property conveyed was worth more than the husband had received from the wife. Norsworthy v. Sparks, Ky. Ct. App., Oct. 4, 1883. 8. EMINENT DOMAIN-RAILROAD IN PUBLIC HIGH WAY. A railroad built upon a public road is an additional burden upon the land, and the abutting owner is entitled to compensation from the company. Railroad Co. v. Ingalls, S. C. Neb., October, 1883; 16 Rep. 691. 9. EQUITY-IGNORANCE OF LAW. If a cestui que trust through mistake of his legal rights and of the facts, assumes an obligation in respect of the estate, which he would not have assumed but for such mistake, equity will relieve. Wilson v. Ins. Co., Md. Ct. App., October Term, 1882; Reporter's Advance Sheets. 10. EQUITY-NUISANCE-INJUNCTION-REMEDY AT LAW. Suit was brought to perpetually enjoin the defendant from so using its works as to cause smoke, soot, etc., to fall upon and envelop the neighboring premises of the complainant. Held, that in suits to enjoin a nuisance, equity would not decree relief if the plaintiff had adequate redress at law, and a greater injury would ensue by enjoining than by a refusal to enjoin. Daniels v. Keokuk, etc. Co., S. C. Ia. Oct. Term, 1883; 16 Rep. 653. 11. EQUITY-PROMISE TO EXECUTE A MORTGAGE LIEN-FOREclosure. Where a party who proeures a loan, promises to execute a mortgage on his land as security therefor, and subsequently conveys the land to another as security for certain claims, the lender may, upon payment of the amount of such claims, have the amount loaned by him made a lien on the land, to be enforced, if necessary, by a sale thereof. Walsh v. Griffith, S. C. Iowa, Sept. 21, 1883; 16 Ch. Leg. N. 42. 12. EQUITY-SALE FOR VALUABLE CONSIDERATION -FRAUD UPON CREDITORS. When a sale appears to have been for a reasonable price, creditors must prove that not only did the vendor make such sale to hinder and defraud his creditors, but also that the vendee participated in such fraudulent intent, to render such sale void. Ryan v. Young, S. C. Mo., November, 1883. 13. EVIDENCE-DRUNKENNESS-INQUEST. The finding of an inquest of habitual drunkenness, is only prima facie evidence in proceedings to set aside a deed executed by such a person. Muskey's Appeal, S. C. Pa., Oct. 2, 1883; 16 Rep. 663. 14. EVIDENCE-JUDICIAL NOTICE-DISTANCE. The court may take judicial notice of the distance between New York and Philadelphia, but quare whether it can of the time of arrival and departure of the trains between the two points. Pearce v. Langfitt, S. C. Pa. 28 Alb. L. J. 417. A wife who lends money to a firm of which her husband is a member, has no remedy either at law or in equity, even though the other partners have assumed all the liabilities of the firm. Towle v. Torrey, S. C. Mass. September, 1883. 6 Mass. L. R. 14. 17. INSURANCE- FIRE-SU BROGATION. Fire insurance is only a contract of indemnity. Therefore, if the insured, after receiving the amount of his loss from the insurer, consummates a sale begun before the fire occurred, and receives from the purchaser the full value of the property, the insurer is entitled to recover back the sum paid, by it. Phillips v. Howfray, Eng. Ct. App. July, 1883. 16 Rep. 575. 18. INSURANCE-LIFE-CONSTRUCTION OF POLICY. Where the words of an insurance policy are ambiguous they are to be interpreted in the sense most favorable to the assured. Burkhardt v. Ins. Co. S. C. Pa.Oct. 1, 1883. 16 Rep. 599. Where a plaintiff for the purpose of acquiring jurisdiction in his county over a resident of another county, procured a warrant for the arrest of the defendant for an alleged criminal offense in the former county, and after he was brought into the former county,the summons in this suit was served upon him, whereupon he was discharged from arrest, such proceedings were an abuse of process; the court aequired no jurisdiction over the defendant, and the judgment obtained was void. Byler v. Jones, S. C. Mo. Nov. 1883. 21. JUROR-DISQUALIFICATION. The fact that a juror has been a member of another jury which tried a case involving the same facts, but between different parties, does not operate as a disqualification to his serving as juror in the second case. Teras etc. R. Co. v. D'Milley, S. C. Texas, Oct. 19, 1883. 2 Texas L. R. 262. 22. LIBEL-PRIVILEGED COMMUNICATION. When a mercantile agency makes a communication to one of its subscribers who has an interest in knowing it, concerning the financial condition of another person, and when such communication is made in good faith, and under circumstances of reasonable caution as to its being confidential, it is a protected privileged communication, and an action for libel cannot be founded upon it, even though the information given thereby was not true in fact, and though the words themselves are libelous. Trussell v. Scarlett, U. S. C. C. D. M o. 19 Fed. Rep. 214. 23. LIBEL AND SLANDER-PRIVILEGED COMMUNICATION. 1. An affidavit made before a masonic society, which is trying one of its members for misconduct, that he is not to be believed under oath,is not a privileged communication. 2. Where a witness is compelled to testify, he is not responsible for his misstatements; but, if he volunteers evidence which is false and irrelevant, he is responsible. Nix v.Caldwell, Ky. Ct. App. October 2, 1883. 5 Ky. L. R. 275. 24. LIMITATION-PART PAYMENT BY SURETY. A part payment by a surety before a debt is barred is not an acknowledgment which will take the residue out of the statute. Miller v. Jolly, Ky. Ct. App. Oct 10, 1883. 24. MANDAMUS-TO REINSTATE EXPELLED MEMBER OF CHURCH. A writ of mandamus will not lie to compel a religious corporation to reinstate a member of the church who has been expelled therefrom. Sale v. Church, S. C. Iowa, Oct. 18, 1883. 16 Ch. L. N. 80. 26. MORTGAGE-SALE UNDER FORECLOSURE-DISCHARGE OF Mortgagor. Where mortgaged property is sold under order of court for sufficient to pay the mortgaged debt,the mortgagor is discharged and the mortgagee must look to the purchaser at the sale, his surety on the bond and to the land. McLaughlin v. List, Ky. Ct. App. Oct. 12, 1883. 5 Ky. L. Rep. 291. 27. NEGLIGENCE-RESPONSIBILITY OF RAILROAD COMPANY FOR NEGLIGENCE OF ATTENDING SURGEON. A railroad company having assumed to furnish a surgeon for passengers injured thereby, its duty to the plaintiff is discharged when it provides a surgeon possessing only ordinary skill; and for any damages caused the plaintiff by the negligence of such surgeon, the surgeon, and not the defendant, would be responsible. Lecord v. R. Co. U. S. C. C. D. Minn., Oct. 9, 1883; 18 Fed. Rep. 221. 28. NEGOTIABLE PAPER-DIVORCE-CONSIDERATION -ILLEGALITY. A note given by a divorced husband to his former wife, the consideration of which is the agreement made between them before the divorce was obtained, which related in part to the payee's release of her interest in her husband's estate, which was duly executed, is supported by a valuable consideration, although the acquiescence by the plaintiff in the obtainment of a divorce by the defendant was a partial inducement, Chapin v. Chapin, S. C. Mass., Sept. Term, 1883; 7 Mass. L. Rep., 1. 29. NEGOTIABLE PAPER NOTE PARTNERSHIP GIVEN BY PARTNER FOR PRIVATE PURPOSES. When one partner permits his co-partner to purchase all goods for the firm and pledge its credit without limitation, he is liable on a note given by his copartner in the firm name, for goods purchased for his private use, to an innocent third person. Where one or two innocent persons must suffer by the act of a third person, he shall suffer, who has been the cause of the loss by the confidence and credit reposed in such third perHayner v. Crow, S. C. Mo., Nov., 1888. 30. NEGOTIABLE PAPER-SALE OF MACHINE-STIPULATION OF WARRANTY-RIGHTS OF PURCHASER. It is no defence to an action on a note given for a threshing machine that it could not do the work for which it was sold, and warranted, unless thə son. defendant prove full compliance with the terms of the warranty, viz.: That, upon discovery of defects, he give immediate notice to his vendor and to the plaintiffs, allowing them reasonable time to remedy the defect, such condition being a condition precedent to the abandonment of the machine. Nichols v. Larkin, S. C. Mo., Nov. 1883. 31. QUANTUM MERUIT-IMPLIED PROMISE OF COMPENSATION FOR SERVICES RENDERED-CONVERSATION WITH DECEASED. The plaintiff was taken by the defendant's testator, treated, supported and educated as a daughter, conducted herself as one in that relation, assisted his wife in her housework, and after her death, when the plaintiff was eighteen years of age, took her place and did the housework, nursing and caring for said testator during his long illness, till 1877, when she was twenty-three years of age. He executed in 1876 a will, to which she always had access by which she was to receive five hundred dollars and twenty acres of land, and his kindred the residue. The jury returned a verdict for the executor. Held, that such verdict should not be disturbed. 2. Held, that the plaintiff could not testify as to a conversation held between her and said testator, by which she expected to prove that he promised to pay her, if she would not leave him. Crowell v. Roberts, S. C. Mo., Nov., 1883. 32. REMOVAL OF CAUSES-JURISDICTION-CHECK NOT BILL OF EXCHANGE." 1. Where it is doubtful whether this court or a state 33. SALE-DEVISE-ASSENT OF TESTATOR. 34. SLANDER JUSTIFICATION REASONABLE In an action of slander for words which imputed to the plaintiff the crime of stealing a horse, the defendant, as a defense, pleaded the truth of the alleged defamatory words. Held, that to maintain this defense, it was not necessary that it be proved beyond a reasonable doubt. Bell v. MeGinnis, S. C. Ohio Com., October 16, 1883; 16 Rep. 695. 35. STATUTE OF FRAUDS. One of two joint purchasers of real estate under a verbal contract cannot take a conveyance to himself, and thereby defeat his co-purchaser's right, upon a plea that the contract between them and their vendor was not in writing, and therefore within the statute of frauds. Brown v. Brown, S. C. App. Va., July 26. 1883; 7 Va. L. J. 687. 36. WILL SELL, CONVEY AND DISPOSE of.” A power to sell, convey and dispose of the property of the testator will not authorize a mortgage of the same to secure the repayment of a loan. Wilson v. Ins. Co., Md. Ct. App., Oct. Term, 1882. Rep. Advance Sheets. INDEX. Cases reported in full are cited by the names of the parties. Reference to digested cases ACCOMMODATION PAPER. See Municipal Bonds; Negotiable Paper. To make valid, what necessary. Johnson v. Hunt, in ACCOUNTING. Fraud or mistake in, will open the account, dig. S. C. How settled accounts may be opened and in what ACTION. A declaration charging defendants with fraudulently For death by wrongful act, lies only in state where "Survival and assignment of actions." Addison G. Upon statutory right of action accruing in another ADJOINING PROPRIETORS. Surface Water on Agricultural Lands." W. W. ADMINISTRATION. Duty of executor to erect tombstone, dig. S. C. Iowa, Voluntary payment to foreign administrator, dig. U. Of lunatic's estate, dig. S. C. Pa., 217. "Garnishment, funds in the hands of an administra- ADMIRALTY. Excessive decree for salvage services, dig. U. S. S. C 19. Contract of affreightment dissolved by vessel's be- AGENCY. Authority of insurance agent to receive notice of can- Declarations of agent as evidence, dig. N. J. Ch. Ct., Effect of ratification by principal of acts of agent, Insurance Agents, not liable for failure to perform Naming bank as place of payment in note makes |
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