the bailee, and when returned was injured in a way that does not ordi-
narily occur without negligence. Id.
BANKRUPTCY.
See INSOLVENCY.
EVIDENCE. IT IS ERROR IN BASTARDY PROCESS TO PERMIT INSPECTION BY
JURY OF INFANT CHILD six weeks old, to enable them to judge from a
comparison of its appearance, complexion, and features with those of the
defendant, whether any inference could legitimately be drawn therefrom
as to its paternity; to decide otherwise would establish an unwise, dan-
gerous, and uncertain rule of evidence. Clark v. Bradstreet, 221.
See MARRIAGE AND DIVORCE.
BILLS OF LADING.
See COMMON CARRIERS.
1. BONDS.-IN JOINT OBLIGATION, VOLUNTARILY ASSUMED, EACH OBLIGOR
Owes to the others the exercise of good faith for their joint interest. A
confidential relation exists between them, each owes a duty to the others
to disclose anything affecting the joint interest, and each represents the
others in matters relating to the payment and discharge of their joint
liability. Green v. Rick, 760.
2 ALL CO-OBLIGORS IN JOINT BOND SECURED BY MORTGAGE ARE LIA-
BLE for the amount of the bond, although the purchaser of the land
subject to the mortgage has discharged the latter by payment to the
mortgagee of record, such payment having been made in good faith and
without notice that the debt secured by the bond was payable to an-
other; and in a suit against the obligors, in which such purchaser is
made a party defendant, if judgment is had against the defendants gen-
erally, it will be vacated as to him and sustained against the other de-
fendants, the obligors. Id.
8. NOTICE. REFERENCE IN COUPONS TO THE MORTGAGE AND BONDS, and in
the bonds to the terms and conditions of the mortgage, charges the
holders of both coupons and bonds with notice of the provisions con-
tained in the instruments to which reference is made. McClelland v.
Norfolk R. R. Co., 397.
4. NEGOTIABILITY OF COUPONS, THOUGH DETACHED FROM THE BOND, IS DE.
STROYED if they contain a reference to other instruments, and from such
instruments it appears that the time of payment of such coupons is sub.
ject to a contingency over which their holders have no control. Id.
5. A COUPON, To be Negotiable, must provide for unconditional payment to
a person, or order or bearer, of a certain sum of money at a time capable
of exact ascertainment. Id.
6. WHERE A MAJORITY OF BOND-HOLDERS WERE AUTHORIZED, IN CASE OF DE-
FAULT, to waive such default, and to instruct the mortgage trustees to
waive it, but no action on the part of the bond-holders or trustees was
to affect any subsequent default, the bond-holders cannot anticipate a de-
fault, nor, in advance of such default, can they give the trustees a valid
instruction to postpone the payment of interest five years. Id.
1. TRUE TEST OF LEGAL PUBLIC CHARITY IS OBJECT SOUGHT TO BE ATTAINED,
the purpose to which the gift is to be applied, and not the motive of the
donor. Fire Ins. Co. v. Boyd, 745.
2 INSURANCE Patrol COMPANY IS PUBLIC CHARITY when the object of its
incorporation is to protect and save life and property in and contiguous
to burning buildings, it appearing that the company made no distinc-
tion in saving and protecting property between property insured and
not insured, and that it was without capital stock or moneyed capital,
and no profits or dividends were made and divided among the corpora
tors, although it is supported by the voluntary contributions of fire in-
surance companies. Id.
CONFLICT OF LAWS.
See COVENANTS, 2.
1. TRANSPORTATION COMPANY IS COMMON CARRIER, AND 18 RESPONSIBLE AS
SUCH where, although it owns no railroad itself, nor any part of the
route, it employs such lines of others, acting for itself alone, as it sees
fit to use, and contracts to furnish every means of transportation upon
the entire journey. Merchants' D. T. Co. v. Bloch, 847.
2. LIABILITY OF COMMON CARRIER MAY BE LIMITED IN ITS EXTENT BY EX-
PRESS CONTRACT; such limitation must be reasonable; it must not stipu.
late for exemption from liability for the consequences of the negligence
of the carrier, its servants or agents. Id.
3. VOID STIPULATION IN CARRIER'S CONTRACT. Where common carrier,
having the whole contract for transportation, and reserving to itself the
right to select its own lines, stipulates in an agreement for carriage of
goods that the company alone upon whose line the goods may be lost or
injured should be liable therefor, the effect of such stipulation would be
to exempt such carrier from liability for the negligence of its agents,
and is therefore void. Id.
4. SUBCARRIER OF TRANSPORTATION COMPANY, ACTING AS COMMON CARRIER,
IS ITS AGENT, and not that of consignor or consignee. Id.
B. BURDEN OF PROOF IS UPON COMMON CARRIER, IN CASE OF Loss, to show
that such loss arose from a cause for which he was not responsible. Id.
6. CONDITION IN BILL OF LADING EVIDENCE. The fair and honest accept-
ance of a bill of lading, without dissent, raises a presumption that all
limitations contained therein were brought to the shipper's knowledge,
and agreed to by him. Id.
7. DELIVERY WHICH WILL DISCHARGE A COMMON CARRIER MAY BE CON-
STRUCTIVE. Tarbell v. Royal Ex. S. Co., 350.
& TO CONSTITUTE A CONSTRUCTIVE DELIVERY, the carrier must, if practicable,
give notice to the consignee of the arrival, and when this has been done,
and the goods are discharged in the usual and proper place, and reason-
able opportunity afforded to the consignee to remove them, the liability
of the carrier as such terminates. Id.
9. DUTY OF CONSIGNEE TO RECEIVE AND TAKE GOODS is as imperative as the
duty of the carrier to deliver them. He cannot, at his option, continus
the stringent liability of the carrier, but must act promptly in taking
the goods. If he does not, the liability of the carrier as an insurer,
nevertheless, ends. Id.
10. CARRIER'S GENERAL DUTY IS NOT ESSENTIALLY VARIED OR LIMITED BY A
STIPULATION IN THE BILL OF LADING that the goods are "to be deliv.
ered from the ship's deck (when the ship-owner's responsibility shall
cease) at the port of New York," nor by a stipulation that the goods
were "to be received by the consignees immediately the vessel is ready
to discharge, or otherwise they will be landed and stored, at the sole ex-
pense and risk of the consignees, in the warehouses provided for that
purpose, or in the public store, as the collector of the port shall direct.
Id.
ii. CARRIER'S LIABILITY AS CARRIER WAS HELD TO HAVE TERMINATED when
it appeared that he gave the consignee prompt notice of the arrival of
the goods, and thereafter discharged them at the proper wharf, where they
were suffered to remain three days. Id.
12. THOUGH CARRIER'S LIABILITY AS SUCH HAS TERMINATED BY A CONSTRUC-
TIVE DELIVERY OF THE GOODS, he remains answerable for the negligence of
himself or his servants, whereby goods remaining in his possession are
lost. Id.
13. CARRIER WHO WISHES TO WHOLLY TERMINATE HIS LIABILITY FOR GOODS
MUST WAREHOUSE THEM; otherwise he is charged with a duty as bailee
or warehouseman to take ordinary care of the property. Id.
14. EXCEPTION IN BILL OF LADING AGAINST LOSS BY THEFT WILL NOT
RELIEVE THE CARRIER from liability for loss of goods resulting from
his negligence in permitting them to be taken from his custody, after
they had been constructively delivered to the consignees, by one who
took them without intent to steal. This exception must be construed as
operating only while the goods are in possession of the carriers as such
under the bill of lading. Id.
15. WRONGFUL DELIVERY BY CARRIER. - Where defendant undertook to
carry by water and deliver to plaintiff certain property belonging to the
latter, but after the carriage was completed made no attempt to so de-
liver the property, but allowed the master of the vessel, who was his
servant, and assumed to be a deputy United States marshal, to deliver
the property, without the consent of the owner, to a third party, the act
of so delivering the property to a third person is a tortious one on the
part of defendant, and a wrongful conversion, for which trover will lie,
Gibbons v. Farwell, 301.
16. WHERE CARRIER OF GOODS allows an officer to take the goods he is car
rying, it is no defense against an action of trover for their value to
show that the officer took them without also showing that he had a legal
right to take them by virtue of his writ. Id.
17. WHERE CARRIER HAS ALLOWED AN OFFICER to take goods he is carry-
ing, and in an action of trover seeks to show a better right to the prop-
erty or to its control than the plaintiff's, the legal proceedings upon
which the officer's writ or order is based should be introduced. Id.
18. INSTRUCTIONS - DEPARTURE FROM PETITION. — Where petition in action
against railroad company for personal injury alleges negligence in not
stopping a reasonable time for plaintiff to alight, and negligence in put-
ting him off, also an assault on him by defendant's agent, and the in-
structions authorize a recovery upon finding the negligence alleged, but
are silent as to the assault, they are not erroneous, as a departure from
the petition, especially if they present the real issue made by the evi-
dence. Owens v. Kansas City etc. R'y Co., 39.
19. WAIVER OF CONITION IN PASSENGER CONTRACT "TICKET."-CONTRACT
INDORSED ON RAILROAD PASSENGER TICKET for passage to a certain
point and return, entered into between the railroad company and a pas-
senger, containing a requirement that the ticket should be stamped by
the company's agent at the point of destination, is a simple contract in
writing, and such requirement may be waived by parol. To show such
waiver, evidence that a person stamped the ticket for the return trip at
a station other than that designated in the contract, and that such per-
son was an authorized agent of the company, is admissible. Taylor v.
Seaboard etc. R. R. Co., 509.
20. NEGLIGENCE-DAMAGES. —IN ACTION AGAINST A RAILROAD COMPANY for
injuries received in being negligently and forcibly pulled from the cars,
the plaintiff is entitled to recover upon proof of the negligence, though
an invalid, and the injuries may have been aggravated and rendered
more difficult to cure by reason of ill health; and it is no defense to say
that the injuries would not have occurred, or would not have been so
great, had the passenger been in good health. Owens v. Kansas City etc.
R'y Co., 39.
21. NEGLIGENCE-DAMAGES.-IN ACTION AGAINST RAILROAD COMPANY for
injuries received through its negligence, plaintiff may describe the injuries
received, and the evidence cannot be excluded because plaintiff testifies
that the nerves of her head, side, and leg were paralyzed. It is not in
the nature of expert evidence. Id.
1. PERSONAL LIBERTY.—In all free and most civilized countries, people may
assemble to parade together, or to form processions for political, reli-
gious, and social demonstrations, by day, or reasonable hours of night,
with banners and paraphernalia, and with music of various kinds; and
cities can possess no repressive power over these movements, except
when they create public disturbances, or operate as nuisances, or create
or manifestly threaten some tangible public or private mischief. In re
Frazee, 310.
2 SALVATION ARMY.-RELIGIOUS LIBERTY DOES NOT INCLUDE the right to
introduce and carry out every scheme which persons see fit to claim as
part of their religious system, but it is not legal to make any exceptions
for or against the "Salvation Army," so called, because of its theories
concerning practical work. It has the same right and is subject to the
same restrictions, in its public demonstrations, as any secular body
which uses similar means for drawing attention or creating interest; and
whatever regulation is made regarding it must operate uniformily, under
the same conditions, which must be fixed expressly and intelligibly, and
not left to the caprice of any one.
Id.
8. SECTION OF PENAL CODE OF NEW YORK DECLARING THAT "No PERSON
CAN, BY REASON OF RACE, COLOR, OR PREVIOUS CONDITION OF SERVITUDE,
be excluded from the equal enjoyment of any accommodation, facility,
or privilege furnished by innkeepers or common carriers, or by owners,
managers, or lessees of theaters or other places of amusement, by teach.
ers and officers of common schools and public institutions of learning,
AM. ST. REP., VOL. VI.-59
or by cemetery associations," is constitutional. The statute is a valid
exercise of the police powers of the state. People v. King, 389.
See MUNICIPAL CORPORATIONS, 10-13.
1. FACT THAT PARTY COULD NOT READ OR WRITE DOES NOT PREVENT AP-
PLICATION OF RULE THAT WRITTEN CONTRACT DULY EXECUTED, after
its contents were explained, cannot be overthrown upon the mere oppos-
ing testimony of one party, contradicted by the oath of another, espe-
cially where the latter is a disinterested person. North v. Williams, 695.
2. ACCEPTANCE OF OFFER WITHOUT OBJECTION OR CONDITION BINDS PARTY
ACCEPTING, and the party making the offer has the right to understané
that the acceptance was according to the terms of the offer. Drew ▾.
Edmunds, 122.
8. GENERAL RULE THAT TIME IS NOT DEEMED BY COURTS OF EQUITY as be-
ing of the essence of contracts has well-defined exceptions, which are as
constantly recognized as the rule itself. And when the parties have ex-
pressly treated time as of the essence of the contract, or if it necessarily
follows from the nature and circumstances of the agreement that r
should be so regarded, such courts will not lend their aid to enforce
specifically, regardless of the limitation of time. Coleman v. Applegarth,
4 IT IS COMPETENT FOR PARTIES TO SIMPLE CONTRACT IN WRITING,
BEFORE ANY BREACH of its provisions, either altogether to waive, dis-
solve, or abandon it, or to add to, change, or modify it, or vary or qualify
its terms, and thus make it a new one, which must in such case be
proved partly by the written and partly by the subsequent unwritten
parol contract which has thus been incorporated into and made part of
the original one. Taylor v. Seaboard etc. R. R. Co., 509.
B. CONTRACT TO MAKE COMPENSATION FOR INJURY DONE BY PAST ILLEGAL
COHABITATION, which contains no stipulation for future intercourse, is
not invalid, even though the intercourse be kept up after the contract
has been fully executed, where there is no evidence of any promise or
understanding other than that inferred from the fact of future illicit
intercourse between the parties. Smith v. Du Bose, 260.
8. RIGHTS AND LIABILITIES OF COLORED RACE IN RESPECT TO ILLICIT INTER-
COURSE are the same as those of the white race. And whatever rights
and privileges belong to a white concubine, or to a bastard white woman
and her children, belong also to a colored woman and her children. The
same principles of law govern the rights of each race. Id.
7. WHITE MAN MAY LAWFULLY MAKE COMPENSATION TO HIS COLORED PARA-
MOUR for past illegal cohabitation. Id.
8. COURT WILL NOT DECLARE TRANSACTION VOID ON GROUNDS OF PUBLIC
POLICY, except in cases free from doubt. And what constitutes public
policy, and what contravenes it, is a question of law for the court, and
not one of fact for the jury. Id.
9. RESCISSION OF A CONTRACT ON THE GROUND OF FRAUD MUST BE PROMPTLY
MADE, or the right to make it is waived. A defrauded party has but
one election to rescind, and must exercise that election with reasonable
promptitute after discovering the fraud. When he once elects, he must
abide by his decision. Dennis v. Jones, 899.
10. ELECTION Not to Rescind a Contract on the Ground of FRAUD MAY
BE INFERRED from payments of purchase-money after notice of the
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