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be paid only upon the certificate of three persons named therein, that the
relics were genuine, etc. HM, that a certificate signed by two of the persons
named, which stated that the third met with them, but refused to join in the
certificate, was sufficient. 1878. Pe(tple y. NiehoU (52 N. Y. 478), XI, 784.
When real eHate broker entitled to — See Broker.

COMMISSION BIERCHANTS— /S^ Agenct.

COMPROMISE.

1. Oonsidaration. The compromise of a doubtful and confiicting claim is a
good consideration for a new agreement. 1860. Pitkin y. JVbyM (48 N. H.
294), II, 318.

a. There is no consideration in contemplation of law for a promise by a

ereditor that a sum less than the debt shall be received in satisfaction, and

13



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90 COMPROMISE — CONFEDERACY.

such a promise will not release a soretj. 1869. Ob&mdorfY, Union Bank qf
BaUimore (31 Md. 126). I, 31.

3. An agreement by a creditor to accept, in satisfaction and discharge of

a liquidated debt, a sum less than the full amonnt dne, provided that no other
creditor shall receive more than a like per cent on his claim, is void. 1868.
PwrMm V. Lookwood (100 Mass. 249), 1, 103.

4i Defendants being unable to pay an undisputed liability of $6,400,

which they had incurred by breach of a contract with plaintiff, it was agreed
that if defendants would borrow of their friends and pay $8,{KX), and agree to
pay an additional sum as soon as they were able, up to seventy-five cents on
the dollar, plaintiff would compromise his claim. Defendants borrowed and
paid the $8,500, mainly in checks of their friends. Held, that this did not
preclude plaintiff from suing for the residue of the claim, there being no con-
sideration for the compromise. 1872. Bunge v. Eoop (48 N. Y. 225), VIII, 546.

CONCEALED WEAPONS.
An act of the legislatiire provided " that it shall not be lawful for any per-
son to publicly or privately carry a dirk, sword-cane, Spanish stiletto, belt or
pocket pistol or revolver." Held^ constitutional, with the exception of the
prohibition as to the " revolver." 1871. Andrews v. State (8 Heisk, Tenn. 165X
Vin, 8, and note, 22.

CONDITIONAL SALE ^ See Sale; Stofpaob in transitu.

CONFEDBRACT.

1. Gkiremniisnt de footo. The Confederate States government was a de facto
government so fkr as relates to its own citizens and adherents, and all consum-
mated transactions under it between such citizens, not in conflict with the con-
stitution and laws of the United States, will not be distured by the courts.

1868. CaaeU v. Backraek (43 Miss. 56), II, 590.

2. Not de fiiota The plaintiff, in payment of a tax, levied by the State on
his cotton, in 1866, tendered to the sheriff a *' cotton note," issued under an act
of the confederate legislature of 1861, and made receivable in payment of all
present or future taxes. The sheriff refusing to receive the note, plaintiff
brought suit for an Injunction to restrain the sale and compel acceptance.
BM, that the Confederate States government being neither a dejure nor defaeto
government, ite acta were not binding on a succeeding lawful government ;
and that the notes in question, being issued in aid of the rebellion, were void,
and, therefore, not receivable. 1869. Thomoi v. Taylor (42 Miss. 651), n, 625.

3. Oonfsderate money — consideration. In an action on a note given in
Louisiana for a loan of Confederate money, Jield, that the courta of Mississippi
would not enforce the contract, since the courta of Louisiana had declared all
contracta, the consideration of which was Confederate money, Ulegal and void.

1869. Ivey v. Lalland (42 Miss. 444), n, 606.

4i A trust deed contained a power to sell real estate in payment of a

note made in 1868, in consideration of " Confederate treasury notes," and



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CONFEDEBACY. 91

renewed in 1865. HM, that neither the deed nor the note was void. 1870.
Bh&rfy y. Argenbright, (1 Heiskell, 128), U, 690.

6. Confederate treasury notes held not to be a good consideration for a

pTomiflsorj note made between residents of the south during the civil war*
1870. Hale ▼. Euiton (44 Ala. 184), lY, 124 ; Lawaan y. MUler (44 Ala. 616).
IV, 147.

6. One who receives payment of a note in Ck>nfederate money cannot

afterward recover the amount of the note although the money received was
illegal and worthless. 1869. i2itoAu» v. iSuwtft (82 Tex. 888), V, 245.

7. In an action on a promissory note, it appearing that the agreement

was to pay in Ck>nfederate money, though not so expressed upon the face of
the instrument, hM that no recovery could be had. 1869. DariUy v. lindaU
(82 Tex. 48), V, 284.

8. A note given since the war to city officers for a tax assessed during

the existence of a Confederate government, by a dty subject to that govern-
ment, is void for want of consideration. 1870. (^ Byrne v. Mayor, (41 Ga.
881), V, 582.

9. Where a person was, before the late civil war, the bona fide holder

of two bonds of the State, which had been issued ten years before, for pur-
poses of internal improvements, and which were then due and payable, and,
in 1862, received from the State in payment thereof treasury notes to the
amount of the bonds, which expressed on their face that they were fundable
in the bonds of the State, thereafter to be delivered, and the bonds had never
been delivered ; held, that the daim was founded upon an illegal consideration,
and the State was not bound to pay it. 1871. Band v. State qf North Oa/ro-
Una (65 N. 0. 194), VI. 741.

10. Jodioial saleb On vacating a sale of lands of a testator made under

order and decree of the so-called court of probate of the late Confederate
government of Alabama, if such sale has been made for Confederate treasury
notes of the so-called " Confederate States of America," the purchaser should
be charged with the value of the use and occupation of the land during his
possession, and allowed credit for the value of Confederate treasury notes at
the date of the purchase, if the sale was for cash, and if said notes were of
benefit to the testator's estate or his heirs, and for the value of all necessary
repairs and improvements by him made on said land. 1871. Moeeiey v. IkU"
hiU (45 Ala. 621), VI, 710.

IL An agent of the Oonfederate goremment drew a negotiable order on
the war department, and it was indorsed to plaintiff for value. Heid, illegal.
1872. Or(mly v. HaU (67 N. C. 9). XII, 597.

12. Tax sales. B. sued C. for taking and carrying away two bales of
cotton. C. had purchased the cotton in 1864, at a regular tax sale made by a
collector of taxes for the Confederate States government for taxes due that
government from B. Both parties were residents in, and adherents to, the
Confederate States during the war. Held, thai B. could not recover 1868*
CaaeU v. Baekraek (42 Miss. 66), II, 590.



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92 CONFLICT OP LAWS — CONSIDERATION.

13. Senrioe of a summoiui issued from a Confederate court/ during the
rebellion, is not binding upon the party to appear, and a judgment entered
thereon is void. 1871. Thompson y. Mankin (26 Ark. 586), VU, 628.



CONFLICT OP LAWS.

1» Penalty. An action to recover a penalty imposed hj statute will not lie
outside of the State which enacted the law. 1870. Mrst National Bank v.
Priee (88 Md. 487), lU, 204.

2. Marriages between whites and blacks. By a law of Indiana, intermar-
riage between white persons and negroes is made a felony. Upon a prose-
cution for violation of this law, held, that the regulation of the marriage
contract is under the control of the State governments, and that the statute in
question was not abrogated by the act of congress known as the civil rights
bill, or hy the fourteenth amendment of the Federal constitution. 1871. 8late
y. Gibson (86 Ind. 889), X 42.

3. Bflarxied women. Action on a promissory note of a married woman,
living in Mississippi, executed in Louisiana, where, for local reasons, the con-
tract was valid and enforceable. Held, that the action could not be maintained
in Mississippi, where a married woman was not personally liable on her con-
tracts. 1872. Ba»*v.TFi«ta7iM(46Mi8s.618),Xn,819.

^ Insolvent's assignment — ▼esse! at sea. By an order of the insolvent
court of Massachusetts, the property of an insolvent resident of that State was
assigned to duly appointed as8ignees. The property so assigned consisted in
part of a vessel which was then at sea in the Pacific ocean, but which, on its
arrival at the port of New York, was seised by a New York creditor of the in-
solvent, by virtue of an attachment issued by a New York court, subsequent
to the assignment in solvency. Held, that the lien of the attachment was
valid against the claims of the assignees in insolvency. 1871. KeUjf v. Orapo
(46 N. Y. 86), VI, 86. (Reversed. U. S. Sup. Ct. 16 WaU. 610.)

See Cabribb; CoNSTiTxrnoNAL Law; Contract; JuDeioBirrs.

OONSIDBRATION.

1. The oomproinise of a doubtful and conflicting claim is a good considera-
tion for a new agreement. 1869. Pitkin v. Noj/es (48 N. H. 294), II, 218.

2. Confederate money. Confederate treasury notes were not a valid con-
sideration for a promissory note made between parties residing in the south
during the civil war. 1870. Hale v. Huston (44 Ala. 184), IV. 124; Lawson v.
Miller (44 id. 616), id. 147.

3. A promissory note which was by parol agreement to be paid in Con-
federate money, held void. 1869. Donley v. TindaU (82 Tex. 43), V, 284.

4. ^e oonfid«no« indnoed by undertaking a service for another is a suffi-
cient consideration to create a duty in the performance of it. 1871. Ham-
mond V. Hussey (51 N. H. 40), XII, 41.



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ooNSPiBAcr. 93

5. Where the note or bill of a married woman Ib void when made, there Ib
no oonsideratioor for a promise by her after her husband's death to pay the
same. 1873. PorUrfield v. Butler (47 Miss. 165). XII, 829.

See Bills and Notes.

CONSIDERATION FOR AGREEMENTS -^ iSca CJontkacts.

CONSIDERATION FOR A PROMISE ~/6^ Promibb.

CONSIGNER AND CONSIGNEE.

^e oomdgner of goods has a right of action against a carrier for their loss
although title to the goods has passed to the consignee. 1870. Hooper v.
Chicago, etc,. By, Co, (27 Wis. 81), IX, 439. See. however, KrucUer v. EUiion
(47 N. Y. 86), VII, 402 ; Thompson v. Fargo (49 N. Y. 188), X, 842.

CONSPIRACY.

1. Action for — proof— damages. In an action on the case, grounded on
an alleged conspiracy by the defendants to injure the plaintiff, he cannot
recover unless there is evidence that he sustained actual damage. The fact of
conspiracy is simply matter of aggravation, and should be proved in order to
entitle the plaintiff to recover in one action against several. 1871. Kimball
V. Harman (34 Md. 407), VI. 840.

2. In an action on the case, alleging that the defendants combined and

conspired together to defeat the right of plaintiff to receive and possess a cer<
tain lot of bedsteads which he had purchased of one of the defendants, he is
not entitled to recover damages against such defendant for breach of the con-
tract of sale. i&.

3. A oonspiraoy to obtcdn from a master mechanic money, which he is
under no legal obligation to pay, by inducing his workmen to leave him, and
by deterring others from entering into his employment, or by threatening to do
this, so that he is induced to pay the money demanded, under a reasonable
apprehension that he cannot carry on his business without yielding to the
demand, is an illegal conspiracy ; and the money thus obtained may be recov-
ered back from the conspiring parties, who are, also, liable for all damages to
the business of such mechanic occasioned by such illegal acts. 1870. Carevo
▼. Buiherford (106 Mass. 1), VUI, 287.

CONSTITUTIONAL CONVENTION.

A constitutional convention has no power to grant by ordinance, or
otherwise, new trials. 1878. Laman v. Jeffries (47 Miss. 686), Xn, 842.



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94 CONSTITUTIONAL LAW.

CONSTITUTIONAL LAW.

L Unitkd Rtatbs CJonbtitution.
n. State Constitutionb.

1. Oeneral prineiples.

2. Laws impamng dtUgatwM of cantrcicU,
8. Vested rights,

4. Taking private property for pMie use,

5. Bmineni domain,

6. TaoDotion,

7. Municipal aid to railroads.

8. Jury trial and due process of law.

9. PcUce power,

10. Offices and power to vacate,
IL Miscellaneous cases.

I. UioTED States oonbtitution.

1. Regnlatlon of oommeroa — intentate trafflo. Bj an act passed in 1868.
it was provided tliat no person, not being a pennanent resident of this State,
shall sell, etc., within the limits of Baltimore, any goods, etc., other than agri-
cultural products and articles manufactured in the State of Maryland, etc.,
either by card, sample or list, without first obtaining a license so to do. The
rate of license is $800. Held, that such license is a tax upon a particular
branch of business carried on in a particular mode within the limits of the
State by a particular class of persons, and not a tax upon goods or merchan-
dise imported into the State, either from foreign countries or from other States.
1869. Ward v. State (81 Md. 279), 1, 50. (Reversed, U. S. Sup. a., 12 WalL 418.

2. Such a tax is not repugnant to that clause of the eighth section of

article one of the United States constitation, which grants congress the power
to regulate commerce through the several States. lb,

3. Such tax is not repugnant to the clause of the second section of arti-
cle four of the United States constitution, which declares that the citizens of
each State shall be entitled to all the privileges and immunities of the citisens
of the several States. lb.

4i Tonnage tax. A tax levied upon railroads and transportation companies
within the State, generally at certain rates per ton upon all goods carried by
them, and making no discrimination as to the source or destination of such
goods, is not in conflict with the federal constitution. Therefore where the
State of Pennsylvania imposed, by act of April 80, 1864, a tax of from two to
five cents per ton upon all the freight traflic of all railroad, canal, etc., compa-
nies doing business in the State. Held^ that the act was a lawful exercise of
State power over creations and uses brought into existence by her own authority
and a proper tax upon the franchises granted by her. 1869. Cofnnumwealth
V. Erie By. Co. (62 Penn. St. 286), I, 899. (Reversed, U. S. Sup. Ct., 15 Wall.
282; see id. 284.)

5. Such a tax, although the amount is determined by the number of

tons carried, is not a tonnage tax. The tonnage of the federal constitution is



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CONSTITUTIONAL LAW. 95

one of capadtj not of weight. Nor does it attempt to regulate commerce
between the different States ; nor does it impose a duty npon imports and
exports. The purpose of such a tax being to raise revenue, and not to regu-
late transportation, the right to impose it arises from the power to raise reve-
nue, and not from a power to control commerce. lb.

6. A State law must act directly as a regulation of commerce before it

will be pronounced unconstitutional. lb,

7. Requtxlng bond in behalf of Immigrants. The legislature passed an act
requiring the master of any vessel arriving at the port of San Francisco, from
any port out of the State, to make a report of the condition, occupation, etc.,
of every person or passenger not being a citisen of the United States. The
act also required the owner or consignee of the vessel to give a bond for each
passenger included in such report, conditioned to indemnify each and every
town, county or city against all costs and expenses incurred for the relief or
support of the persons named in the bond, within two years from the date of
the bond. In an action brought against defendants to recover a forfeiture for
a f^ure to give said bonds, the complaint alleged, among other things, that
defendants' steamship brought four passengers, not dtiiens of the United
States ; that the master had duly made his report thereof, but that the defend-
ants had refused, after due request, to give the bonds as required by statute.
The answer alleged that the said four passengers were persons in the prime
of life, sound in body and mind, and neither paupers, vagabonds nor criminals.
On demurrer to the answer, ?iM, that so much of the act as required a bond
for persons sound in bpdy and mind, and neither paupers nor criminals, was
in violation of the constitution of the United States and void. 1873. 8UUe v.
8team$hip " Oaniiitudon" (42 CaL 578), X, 808.

8. Regulations as to navigate rivers. By a series of enactments, the legis-
lature of Pennsylvania prohibited the floating of saw-logs in the Susquehanna
river, between the town of Northumberland and the Maryland State line,
" without the same being rafted and joined together or indoeed in boats, and
under the control, supervision and pilotage of men especially placed in charge
of the same, and actually thereon," under penalty of forfeiture. Held, that
these enactments were a valid exercise of the police power and the right of
eminent domain and not repugnant to the federal power ** to regpolate com-
merce with foreign nations and among the several States," nor a violation of
a contract created by legislation between Maryland and Pennsylvania, to the
effect that the Susquehanna should be a public highway to the Biaryland line.
1870. Craiff v. EUne (65 Penn. St. 899), m, 686.

9. Bridges over navigable rivers. A Stat^ legislature has the constitu-
tional right to authorize the construction of bridges over the navigable rivers
of the State, provided such bridges do not materially injure navigation. 1869.
Chieago v. MeOinn (51 111. 266), U, 295.

10. Bvidenoe In State oonrts. An act of a State legislature, providing that
•« no * * * Chinese shall be permitted to give evidence in fkvor of, or
against, any white man," is not in conflict with the fourteenth amendment
of the United SUtes constitution. 1870. People v. Brady, (40 CaL 198), VI, 604.



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96 CONSTITUTIONAL LAW.

' 11. The State legislatures hare the power to regulate the competency

of witnesses and the production of evidence in State courts, notwithstanding
the fourteenth amendment of the constitution of the United States. lb.

12. Remoral of cause. The act of congress of March 2, 1807, in so far as it
gives a non-resident plaintiff the right to remove a cause from the State to the
federal courts, is unconstitutional. (Dixon, C. J., dissenting. ) 1870. Whiton
V. Chicago and Northtoestem Ry. Co. (25 Wis. 424), UI, 101. (Reversed, U. S.
Sup. a , 18 WalL 270.)

13. Taacation of bank sharM. By the the statute of June, 1868, chapter 849,
of Massachusetts, entitled, " An act concerning the taxing of bank shares," it
was provided that the shares in national banks, owned by non-residents of the
commonwealth, shall be assessed to the owners thereof in the cities or towns
where the banks are located ; that the rate of taxation shall be the same as on
other moneyed capital ; that the value of such shares shall be omitted from the
valuation upon which the rate is to be based, and that the act shall ^ apply to
taxes assessed and collected for the present year in the same manner and to
the same effect as if it had been in force on the first day of May." HM, that
the act was not unconstitutional, either as being in violation of the act of con-
gress of 1804, chapter 100, section 47, and 1808, chapter 7, or as levying a tax
in a disproportional manner, or as being retrospective in its operation. 1809.
Providenee ImtUuHon v. Boiton (101 Mass, 675), III, 407.

14i The Nevada stamp act, requiring revenue stamps upon bills of exchange,
drawn in that State and payable in another State, is a valid exercise of the
taxing power, and is not in conflict with the United States constitution. 1871.
Ex parte Martin (7 Nev. 140), VIII, 707.

15. Slave oontraots. Plaintiff, on a judicial sale had in October, 1803,
became security for the purchase price of a lot of -slaves sold thereat. HM, that
his bond was valid and its payment obligatory, notwithstanding the emanci-
pation proclamation made before, and that it could be enforced after the adop-
tion of the thirteenth amendment to the United States constitution. 1872.
Hend&rUU v. Thurman (22 Gratt, Va. 400), XII, 520.

XL Statb constitution.
1. General prindpleB.

16. Bpaolal legislation— discretion of legislature. Where the constitatioo
provides that the legislature " shall pass no special law for any cause for which
provision can be made by a general law/' the legislature is the sole judge as to
whether provision by a general law is possible. 1872. State v. County Court
of Boone County (50 Mo. 817), XI, 415.

17. Title of act The legislature passed an act, entitled ** An act to authorize
the city of Madison to re-assess and collect certain taxes and assessments," and
authorizing a special re-assessment, for the payment of a patent pavement
already laid in the city, and also the adoption and use of any patented pave-
ment in the future, and the assessment and collection of taxes therefor.
Held, that the act did not '* embrace more than one subject," and that the sub-



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CONSTITUTIONAL LAW. 97

Ject WBB saffidently " expressed in the title " within the meaning of the proyi-
nons of the constitution. 1872. Milli v. Charleton (29 Wis. 400), 12, 578.

18. Ratom of hills to legislature by governor — mandamus to governor.
Under a section of the constitution requiring all bills passed by the legislature
to be presented to the goyemor for his approval, to be returned with his objec-
tions in case of non-approval ; and providing, *' that if anj bill shall not be
returned bj the governor within ten days after it shall have been presented to
him, the same shall be a law, in like manner as if he had signed it, unless the
legislature, bj adjournment, prevent such return/' the governor sent to the
legislature a bill not approved, with his objections, on the tenth day, and before
the usual hour for adjournment. The legislature [had, however, adjourned
to the day following, and the messenger returned the bill to the governor
who retained it thereafter. Held (1), that the governor had not returned
the bill within the meaning of the constitution ; (2), that the legislature had
not by adjournment, prevented such return, the adjournment not being final ;
(8), that the court had jurisdiction to compel the governor, by mandamus, to
cause the bill to be authenticated as a statute. 1870. Harpending v. ffaight
(89 CaL 189), H, 482.

19. Rule of oonstruotion. Courts of justice are authorized to declare a leg-
islative act unconstitutional and void only when it violates the constitution,
dearly, palpably, plainly, and in such manner as to leave no reasonable doubt.
1869. Stewart v. Sup&rvison of Polk County (80 Iowa, 9), I, 288. CofMium-
waUh v. Erie By. Co. (62 Penn. St. 286), I, 899.

20. An act of the legislature may be unconstitutional in two ways ; first,

because it assumes or seeks to confer power not legislative in its nature ; second,
because it violates some specific provision of the national or state constitution.
1869. Haneon v. Vernon, (27 Iowa, 28), I. 215.

21. Aots Judicial in oharaoter. The legislature has no authority to paM a
law in which it exercises judicial powers, by determining the rights of parties.
aate v. Tappan (29 Wis. 664), IX, 622.

22. An act of the legislature authoriied the Court of Appeals to

reopen and rehear certain enumerated cases which had been previously decided
by the court, and upon the hearing thereof, to pass such judgments, orders
and decrees in the said cases as right and justice might require. On a motion
to reinstate said cases, held, that the act was unconstitutional as an attempt on
the part of the legislature to exercise judicial power. 1872. Doreey v. Doreeif
(87 Md. 64), XI, 528.

23. A constitutional convention passed an ordinance granting new

trials in certain cases. Held, that the ordinance was not a legislative ui,
and was void. 1878. Laweon v. Jiifriee (47 Miss. 686), XU, 842.

24. Szemption from general laws. A special statute of Maine authorix-
ing the supreme judicial court of that State, in its discretion, to decree a
divorce between parties named, which, under the general law, the court
had no power to do, is unconstitutional as granting a special indulgence by

18



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98 CONSTITUTIONAL LAW.

way of exemption from the general law. 1870. Simonds v. Simondi (108
Mass. 572), IV, 576.

25. The charter of a ^ij provided that no oqpts should be reooyered



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 13 of 51)