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receiver's appointment, and of the right to compensation.-KIMMERLE V. DOWAGIAC MANUF'G CO., Mich., 63 N. W. Rep. 529.

104. RES JUDICATA-Boundaries. A decree for specific performance of a contract to convey land does not prevent a subsequent adjudication between the parties as to the boundaries of the same land, where that question was not raised in the first suit because one party did not know that the other claimed a different boundary.-PETERSON V. SOHL, Ind., 40 N. E. Rep. 910.

105. RES JUDICATA- Replevin. - Where, in replevin, the owner obtains judgment merely for the value of the property, and not for its return, such judgment, while unsatisfied, is no bar to another action to recover the same property from one who has purchased it from the judgment debtor, with or without notice.-LEDBETTER V. EMBREE, Ind., 40 N. E. Rep.

928.

106. SALE-Bill of Lading-Stoppage in Transitu.-As against the right of a vendor to stop goods in transitu, a bank to which the vendee has transferred the bill of lading as security is a holder for value, even though the transfer was for a pre-existing debt, and not for a loan made on the promise of such transfer.- FIRST NAT. BANK OF DENVER V. SCHMIDT, Colo., 40 Pac. Rep. 479.

107. SALE-Evidence.-Statements of the vendor of goods, made after the sale, and out of the presence of the purchaser, are not admissible in evidence to defeat the latter's title. --MILLING V. HILLENBRAND, III., 40 N. E. Rep. 941.

108. SALES-Measure of Damages. Since the remedy of the vendor in a contract for the sale of goods not specific, against a vendee who refuses to receive the goods, is by action for special damages in the amount of the difference between the market value of the goods at the time agreed for delivery and the contract price, his failure, in such action, to submit evidence of the market value as compared with the price, will defeat his recovery.-JONES V. JENNINGS BROS. & Co., Penn., 32 Atl. Rep. 51.

109. SALE-Rescission. -A false statement made to a mercantile agency as to a firm, to the business and title of which the vendees subsequently succeeded, and not communicated to the vendor till after the sale, afforded the vendor no right to rescind.-MANHATTAN BRASS CO. V. REGER, Penn., 32 Atl. Rep. 64.

110. SALE-Warranty - Notice - Waiver.-Notice in writing, that a machine sold does not comply with the warranty, required by the contract to be given the seller, is waived where he acts on an oral notice given his agent. DEAN V. NICHOLS & SHEPHARD Co., Iowa, 63 N. W. Rep. 582.

111. SHERIFF-Voluntary Escape-Liability.-Where a sheriff permits a defendant, committed to his custody for non-payment of a final judgment in bastardy proceedings, to go at large, unattended, on his promise to return, there is a voluntary escape, rendering the sheriff liable for the payment of the judgment.HOAGLAND V. STATE, Ind., 40 N. E. Rep. 931.

112. SLANDER - Evidence Damages.-Damages for mortification and disgrace suffered as the result of slander are general, and may be recovered under an allegation of injury to reputation.- NICHOLSON V. ROGERS, MO., 31 S. W. Rep. 260.

113. SPECIFIC PERFORMANCE-Payment of Price. In an action for specific performance of an agreement to convey land upon the payment of the price, where the petition contains no averment of a willingess or offer to pay the price, the burden is on plaintiff to show that he has in fact paid it.-HILL V. CHEATHAM, MO., 31 S. W. Rep. 261.

114. STATUTE-Enactment-Fraudulent Enrollment.Where a bill is duly signed by the president of the senate and speaker of the house, a court cannot go behind this record, and inquire whether, in the passage of the bill, it was fraudulently enrolled before it had been read before each house the number of times required

by the constitution, though such fact is apparent on the face of the journal which each house is required by the constitution to keep of its proceedings.-CARR V. COKE, N. Car., 22 S. E. Rep. 16.

115. TAXATION-Action to Recover Taxes-Pleading. -In an action of debt against a corporation to recover taxes assessed on its capital stock, an allegation in the declaration that the plaintiff complains of the defendant, "a corporation created and existing under and by virtue of the laws of the State of Illinois, having its place of business in" a certain county, is, on motion in arrest of judgment, a sufficient averment that the corporation had its principal office or place of business in said county, though on demurrer such allegation would be insufficient.-TWIN CITY GAS WORKS V. PEOPLE, Ill., 40 N. E. Rep. 950.

116. WAREHOUSEMEN-Insurance.-A policy of fire insurance issued to a storage company on merchandise, "their own, or held by them in trust, or on which they have an interest or liability and have agreed to insure under this policy and not removed, stored or hereafter stored during the continuance of this policy," insures, to the extent of the company's storage liens thereon, merchandise deposited with the company as public warehousemen without any agreement that it should be insured by the company, and for which the company has issued certificates stipulating that it would not be liable for loss or damage by fire.-PITTSBURGH STORAGE CO. V. SCOTTISH UNION & NATIONAL INS. CO. OF EDINBURGH, Penn., 32 Atl. Rep. 58.

117. WILL.-A testatrix demised lands in trust for her son for life, "and, at the time of my son's death, it is my wish and will to leave all the property of all kinds to be equally divided among my nephews and nieces on my father's side, according to law:" Held, a grandniece, the daughter of a nephew dead at the time of making the will is not entitled to any interest in the lands.-BUSBY V. ROBERTS, N. J., 32 Atl. Rep. 9.

118. WILL Perpetual Trust.-Testator left to his executors a homestead and a money fund, in trust; the land to be conveyed in fee simple to his nephew 8, and his descendants, and the income of the fund to be ex clusively used for the purpose of keeping the homestead and a cemetery lot and monument "always in good repair:" Held, that the money trust, so far as intended for keeping the homestead in repair, was void, and that such part of the fund became the absolute property of S.-IN RE BARTLETT, Mass., 40 N. E. Rep. 899.

119. WILL- Residuary Real Estate. - Where testator, after making certain legacies, devises "the rest, residue, and remainder" of his estate, "real and per sonal," and the personal estate is insufficient to pay the legacies, the real estate is liable for the deficiency. -IN RE WATT'S ESTATE, Penn., 32 Atl. Rep. 42.

120. WILLS-Restraint of Alienation. A legacy conditioned that the legatee shall pay all premiums on a policy of life insurance procured by testatrix for the benefit of her adopted son, and that such insurance, or some part thereof, shall be actually paid to the adopted son within one year from her decease, though future and contingent, vested as a right, and could be sold by the legatee at any moment after the death of the testatrix, and did not suspend the power of alienation.-SAWYER V. CUBBY, N. Y., 40 N. E. Rep. 869.

121. WILL-Testator's Real Estate.-Though an executor is given power by the will to sell the real estate, he is not entitled to possession thereof, as against the residuary legatee, unless and until he takes possession for purposes of a sale; and therefore, having collected rents after testator's death, he cannot hold them as assets, but the residuary legatee is entitled to have them paid over to him.-IN RE WATT'S ESTATE, Penn., 32 Atl. Rep. 25.

122. WITNESS-Leading Question.- Allowing a wit ness, on direct examination, to answer a leading question, is not reversible error, where substantially the same question is asked and answered on crossexamination.-Fox V. STEEVER, III., 40 N. E. Rep. 942

Central Law Journal.

ST. LOUIS, MO., AUGUST 9, 1895.

shuttlecock between the two claimants until the contest should be "decided" by a judgment, which would really be the conclusion of the law as applied to the controversy. We do not believe such results were intended by the statutes on this subject, and hence that a construction permitting those results is not sound.

State v. Woodson, recently decided by the Supreme Court of Missouri, serves to remind us that good judges will often differ about questions of law, which to the ordinary mind seem plain and free from substantial difficulty. The case referred to was an election contest, the lower court having decided in favor of the contestant. The contestee appealed and the exact question presented above was whether an appeal duly taken, with bond given as provided by statute, suspends the execution of a judgment by the lower court. The majority of the court held that it did not, notwithstanding that the statute governing contested elections, provides that "in every case of a pending contested election, the person holding the certificate of election may give bond, qualify and take the office * * * until the contest shall be decided," and though the right of an appeal in a contested election case was undoubted. The court, it must be said, grounded its decision upon a construction of the language of the statute governing appeals. The dissenting judges, however, contended, and we think with reason, that the words of the statute "until the contest shall be decided" refer to the final decision of the contest, whenever that may occur, and that no intermediate judgment duly appealed from should be carried into execution during such an appeal. Of course the question presented was one largely of construction of statutes, but, as it seems to us, the view of the dissenting judges was clearly the correct one. If, as the dissenting judges say, the conclusion of the court is warranted and if each decision during the progress of the case s to be held final, for the purpose of effecting schange of officers, we might, in one contest, see, first, the contestee filling the disputed office, under his certificate of election; next, the contestant taking it under a judgment of the Circuit Court; then, upon a possible reversal of that judgment for some error of law, the contestee would be replaced, until a second trial could occur on the circuit, with, perhaps more changes upon further litigation. ❘ only authorized to engage in the general dis

The case of Farley v. Bateman, decided by the Supreme Court of Appeals of West Virginia is noteworthy, not so much for what it decides as for the very forcible language of Dent, J., in illustrating the keen eye of a court of equity in detecting fraud. "A boy," he says, "may satisfy his mother that his wet hair is the result of sweat, and not of his going in swimming contrary to her commands, but he will hardly convince her that his back and arms were sunburned, and his shirt turned wrong side out, in crawling through a rail fence backwards." The case turned upon a question of notice by a subsequent purchaser of a prior undocketed judgment and the court used the above impressive language to show that the fact of notice may be inferred from circumstances, as well as proved by direct evidence.

The decision of the Supreme Court of Illinois declaring the whisky trust to be illegal is a telling blow at "trusts' in general, and will doubtless prove far reaching. The Illinois court holds that what is known as the whisky trust exceeded the powers conferred by its charter by forming a combination to control prices rather than to manufacture whisky. The claim made by the trust that the surrendering and gathering in of the stock of different distilleries purged the trust of illegality was disposed of by the court with the declaration that there is no magic in a trust certificate that can remove the taint of illegality from the trust scheme. It was urged on behalf of the trust that by its charter it was authorized to purchase and own distillery property, and that there was no limit placed upon the amount of property which it might thus acquire. The court, however, declares that by its certificate of organization it was

Thus, the office might be tossed about like a
Vol. 41-No. 6.

tillery business in Illinois and elsewhere and to own the property necessary for that pur

pose. Grants of power in corporate charters, the court says, are to be construed strictly, and what is not given is by implication denied, and the trust is authorized to own such property only as is necessary for its business and no more. The court further declares that in accumulating distillery property in the manner and for the purpose shown the trust not only misused and abused the powers granted by its charter, but usurped and exercised powers not conferred by and wholly foreign to that instrument, so that the judgment of ouster was clearly warranted.

NOTES OF RECENT DECISIONS.

MUNICIPAL CORPORATION - LIABILITY FOR TORTS. In the recent case of Love v. City of Atlanta, 22 S. E. Rep. 29, the Supreme Court of Georgia discusses the anomalous condition of the law on the subject of the liability of a municipal corporation for torts. The action was founded on injuries sustained by plaintiff through having the buggy, in which he was riding, collided with by a runaway mule, in charge of a small negro boy and attached to a garbage cart. It was alleged that the driver of the cart was negligent, and, moreover, that he was incompetent for the discharge of his assigned duty, and that the mule was vicious, dangerous and liable to run away. The direction of a verdict for defendant was affirmed on the ground that the removal of garbage was a "governmental function," as it concerned the public health, and that, therefore, the municipality was not liable for negligence committed in connection with the performance of such public duty. The following is from the opinion:

Distinctions do not appear to have been at all times accurately drawn between the classes of cases in which a municipal corporation would be liable and those in which it would not be liable for the misfeasance or non-feasance of a public servant employed under municipal authority in the discharge of duties relating to corporate affairs. One general proposition, however, seems to have received general recog. nition at the hands of courts of last resort wherever that class of cases has been considered, and that class of cases is that, where an injury sustained is inflicted because of the misfeasance of an agent of a corporation while engaged in a duty pertinent to the exercise of what are termed "governmental functions of a corporation," the city is not liable. Where injuries under similar circumstances are inflicted by the agent of a corporation acting for it in the discharge of a duty on behalf of a municipal corporation where it is

engaged in the exercise of some private franchise, or some franchise conferred upon it by law which it may exercise for the private profit or convenience of the corporation or for the convenience of its citizens alone, in which the general public has no interest, for such injuries a right of recovery lies against the city. Some difficulty has arisen in the application of these general principles to the facts of particular cases which, from time to time, have arisen. Some difficulty has arisen in the proper classification of cases in order to assign each to its appropriate position with reference to the liability or non-liability of a corporation, and the courts have not been altogether happy nor entirely consistent at all times in this regard. As an illustration of this, it is held that cities are liable for damages resulting from the non-repair or from the dangerous condition of public streets, and this in the absence of strict statutory liability imposed by law. It has been held that they are not liable for damages occasioned by their fire departments for injuries to persons or property in going to or from fires. The former case is one that might properly have been originally classified among the cases of non-liability. The duty of keeping its streets in repair is a public duty, in which the general public is interested. The State commits to it the discharge of those governmental duties incident to the sovereign power, by which it is required to maintain for the use of the general public and for the public convenience a system of roads throughout the State, and the assignment of this particular duty to municipal corporations within their limits may fairly be said to be a delegation of what appears to us to be one of the functions of the government. The latter case, referring to the fire department, is a case of non-liability, and, if not the exercise of a private power for the benefit of the corporation itself and the inhabitants thereof, in which the general public in no way participates, it reaches the verge upon that line. We cite these as simple illustrations of our statement that the courts have not at all times been consistent, but with no purpose either to disturb the precedents established by repeated rulings of respectable courts of last resort in nearly all the States, or to intimate that there is such a doubt as to their soundness as would in any sense justify the adoption of other rules. With respect to matters concerning the public health, however, there is no serious conflict of reason, opinion, or authority upon the correctness of the proposition that the preservation of the public health is one of the duties that devolve upon the State as a sovereign power. It is such a duty as, upon proper occasion, justifies the exercise of the right of eminent domain, and the demolition of structures which endanger or imperil the public health. In the discharge of such duties as pertain to the health department of the State, the State is acting strictly in the discharge of one of the functions of government. If the State delegate to a municipal corporation, either by general law or particular statute, this power, and impose upon it, within its limits, the duty of taking such steps and such measures as may be necessary to the preservation of the public health, the municipal corporation likewise, in the discharge of such duty, is in the exercise of a purely governmental function, af fecting the welfare not only of the citizens resident within its corporation, but of the citizens of the com monwealth generally, all of whom have an interest in the prevention of infectious or contagious diseases at any point within the State, and in the exercise of such powers is entitled to the same immunity against suit as the State itself enjoys. Such a duty would stand upon the same footing as its duty to preserve the public peace, and its liability or non-liability would depend upon the same principle which relieves the city from liability for the misfeasance of a police officer in the discharge of his duty.

CRIMINAL LAW-RECEPTION OF VERDICTABSENCE OF DEFENDANT. - In Commonwealth v. McCarthy, decided by the Supreme Judicial Court of Massachusetts, it is held that when a defendant on trial for felony, who is on bail, voluntarily absents himself without leave when the jury retire to consider the case, and remains absent, a verdict rendered in his absence will be binding. Knowlton, J., says:

It is a general rule, both in England and in this country, that a trial for a felony cannot be had without the personal presence of the accused. 1 Co. Inst. 227b; 3 Co. Inst. 110; 1 Chit. Cr. Law, 635, 636; Rex v. Ladsingham, T. Raym. 193, 2 Keb. 687, and Vent. 97; 2 Hale, P. C. 298-300; 4 Bl. Comm. 375; State v. Hurlbut, 1 Root, 90; People v. Perkins, 1 Wend. 91; Sargent v. State, 11 Ohio, 472; Jones v. State, 26 Ohio St. 208; Prine v. Com., 18 Pa. St. 103; State v. France, 1 Overt. 436; Harriman v. State, 2 G. Greene, 271; Cole v. State, 10 Ark. 318; State v. Hughes, 2 Ala. 102; State v. Battle, 7 Ala. 259; Kelly v. State, 3 Smedes & M. 518; State v. Cross, 27 Mo. 332; People v. Kohler, 5 Cal. 72. The trial is not concluded until the verdict is received and recorded. Maurer v. People, 43 Ν. Y. 1, and cases above cited. In this commonwealth we have a statute which embodies the same general rule. Pub. St. ch. 214, § 10. See Com. v. Costello, 121 Mass. 371. Under this statute, as well as at the common law, it may well be held that, when a defendant is in custody under an indictment for a felony, the verdict cannot properly be taken in his case with. out his personal presence, even if he has been in attendance in all previous stages of the trial, and that, whether he is in custody or on bail, the trial cannot properly be begun in his absence. But whether a defendant who is on bail, and who has been present during his trial until the case has been given to the jury, can nullify the whole proceedings by absenting himself until it becomes necessary to discharge the jury, is a very different question. We have seen no well-considered case that decides this question in the affirmative. In most of the reported cases the defendant was in custody, and the failure of the authorities to have him present when the verdict was taken deprived him of a right; in others, when the defendant was on bail, there was an attempt to convict him without his being present at all; and in two or three others the general rule was applied, without discussion, to the case of a defendant on bail who had been present during a part of the trial, and was ab. sent when the verdict was rendered. But it has been repeatedly held, upon careful consideration, that while it is a right of the defendant indicted for a felony to be present when the verdict is rendered, as well as during the earlier parts of the trial, and while it is irregular and improper to begin the trial in such a case without the presence of the accused, yet if he is on bail, and is present at the commencement of the trial, and afterwards voluntarily departs without leave, and is absent when the verdict is returned, he may be defaulted, and a verdict which will be binding upon him may be taken in his absence. Fight v.

State, 7 Ohio, pt. 1, 180; Wilson v. State, 2 Ohio St. 319; Price v. State, 36 Miss. 531; Hill v. State, 17 Wis. 675; State v. Wamier, 16 Ind. 357. See also, Lynch v. Com., 88 Pa. St. 189. Such a case is treated as an exception to the general rule, and as a waiver by the defendant of his right to be present.

The principal object of the general rule above referred to is that the defendant may have an opportunity to exercise his right of challenge, and may avail himself of other rights which cannot be so well exercised, if exercised at all, by his counsel in his absence. Another object is that he may be present at the end of the trial to receive the sentence of the court if found guilty; but under a system like ours, where the prisoner is allowed to give bail and to go at large during the hours that the court is not in session until the end of the trial, and afterwards, if there are exceptions, or if there is a motion for a new trial, until these matters are disposed of, it would be unreasonable to hold that he can attend until the case is given to the jury, and, when he sees indications that the verdict is to be against him, can make it impossible to complete the trial, and thus nullify all that has been done by absconding. If he could do this, it would be necessary upon his return to try him again de novo, when, perhaps, it would be impossible to procure the evidence which was introduced at the first trial, and when, if he were again admitted to bail, he might a second time defeat the ends of justice by again departing. His departure under such circumstances ought to be deemed a waiver of his right to be present at the taking of the verdict. If the commonwealth has done all that it can reasonably be required to do to secure him his rights, our statute, and the common law of which it is declaratory, ought not to be so construed as to prevent the return of the verdict. This final act of the jury is nothing more than a formal announcement of the result of a trial which up to that point has proceeded with unquestionable regularity. There is no very important reason for requiring the defendant's presence then. It is well that he should be there, ready to receive the sentence of the court, but the possibility of his absence is a risk to the commonwealth, which necessarily results from his admission to bail. He has a right to be personally present to take advantage of irregularities if there should be any; but when he voluntarily absents himself, he cannot complain if the commonwealth chooses to take the verdict when he cannot be immediately subjected to a sentence. The suggestion that the jurors should be required to look upon him, when about to return their verdiet, with the possibility that they may see something in his appearance that time which will affect them in the performance of their duty, is not founded upon any important principle of law or good reason in the practical administration of justice. No detriment can ever come to a defendant from this construction of our statute, and a different construction of it would make it in some cases an instrument of great injustice.

Without determining what power the court has, if any, after the commencement of the trial of a criminal case, to secure the attendance of the defendant when the jury are ready to return their verdict, we are of opinion that the ruling at the trial was correct. Exceptions overruled.

MANDAMUS COLLECTION OF TAXES.-The Supreme Court of Michigan decided in Eyke City Treasurer v. Lange, 63 N. W. Rep. 536, that mandamus will not lie against the cashier of a bank for collection of taxes assessed against a stockholder upon his stock, as another and more adequate remedy exists. The court says:

This tax appears to have been assessed under the law of 1889. See 90 Mich. 592, 51 N. W. Rep. 680. Section 33 makes it the duty of the cashier to pay such tax, and this has been held to mean that the bank shall pay such taxes upon notice to the cashier. Section 34 provides for the collection of taxes by action at law or distress. It is true that this section, strictly construed, would limit the right to actions against the persons assessed; but a reasonable construction of the two sections, taken together, would warrant resort to an action at law against the bank, and this construction is justified by the language of Mr. Justice Cooley, that "it has been shown that taxes are not 'debts' in the ordinary acception of that term, and that the statutory measures are to be resorted to for their collection. Generally, no others are admissible. But the remedy by suit may be given by statute either directly or by implication. If no specific remedy is expressly given, or only an imperfect or inadequate one, the presumption that a remedy by suit was intended is but reasonable. Nothing need be said regarding the proceeding in such suits beyond this: that they would take the ordinary course prescribed by law for the collection of money demands, except as the statute may have otherwise provided." Cooley, Tax'n, 1st ed, p. 300; see, also, Id. 2d ed, pp. 15, 16. Here the law makes it the duty of the cashier (i. e, the bank) to pay in such case, under the above authority, an action would lie; and especially would it be held proper in view of section 34. In Bank v. Douglass Co., 1 Cent. Law J. 584, Fed. Cas. No. 4,799, it was held by Dillon J., that in a similar case the tax might be enforced by distraint upon the property of the bank. The statute of Nebraska, which applied to the case, provided that "the taxes against such shares shall be levied against the holder of the same in the list of personal property, and shall be paid by the bank." Apparently, the statute of Michigan affords a more complete remedy than that of Nebraska. The significance of this is that, there being the adequate remedy, mandamus will not lie. It is a rule of general application that mandamus is not to be resorted to if another adequate remedy exists. Merrill, Nand., sec. 17. This has been repeatedly held in this State. People v. Jackson Circuit Judges, 1 Doug. (Mich.) 302; People v. Branch Circuit Judges, Id. 319; People v. Wayne Circuit Judges, 1 Mich. 359, 19 Mich. 296; People v. Allegan Circuit Judge, 29 Mich. 487; Burt v. Wayne Circuit Judge, 82 Mich. 251, 46 N. W. Rep. 380; Borby v. Durfee, 96 Mich. 11, 55 N. W. Rep. 386. Mandamus is not adapted to the collection of debts, and is not to be used for that purpose. Merrill, Mand. sec. 17. And, if it be said that a tax is not a debt, the fact remains that questions are likely to arise when the legality of a tax is disputed, which cannot well be tried in such proceeding.

It is also significant that the law does not provide for such method of collection. It is strenuously urged in behalf of relator that the law does not provide for collection against the bank by action, and it is inconsistent to give such a reason for invoking a remedy upon which the statute is also silent. Cases are rare when mandamus has been sustained for the collection of taxes. Our attention is called to four-three from Maryland and one from Vermont: Emory v.

State, 41 Md. 38; State v. Mayhew, 2 Gill, 487; Barney v. State, 42 Md. 480; McVeagh v. City of Chicago, 49 Ill. 318; Town of St. Albans v. National Car Co., 57 Vt. 68. In Barney v. State the propriety of the remedy by mandamus appears not to have been discussed. The earlier case of Emory v. State, 41 Md. 38 expressly refers to State v. Mayhew as authority for the proceeding. In that case the proceedings were sustained, but it was expressly decided upon the ground that mandamus was the only existing remedy. McVeagh v. City of Chicago arose under à statute authorizing banks to pay the taxes of stockholders from their dividends. It was held that the bank might be compelled to appropriate the dividends to pay the taxes. It does not appear that the statute provided any procedure or remedy, or that there was a liability upon the bank, other than the duty to appropriate dividends to payment.

In this case the question before us is discussed only so far as to assert the right of the State "to use any means, summary or otherwise, not prohibited by a higher power, to collect them," and "that mandamus is among them." The case of State v. Mayhew is cited, and approved in general terms. The statement that the State "is entitled to use any method not prohibted," unless it refers to a statutory right, is at variance with the doctrine of a cloud of cases cited by Mr. Justice Cooley in his work on Taxation, to the contrary. Cooley, Tax'n, 2d Ed. 15, 16 and note. In Town of St. Albans v. National Car Co., the court admitted that the writ should not issue if the petitioner had any adequate remedy at law. It expressed doubt of the right of action against the bank, and intimated that an action at law would not be an adequate remedy because too slow. If this remedy exists, it must be because the defendant is a corporation; for taxes assessed against a private person cannot be collected by mandamus. See Merrill Mand. sec. 23, and cases cited; Id. sec. 156. Mandamus will lie against a private corporation when it owes a public duty arising out of its franchises. Id. sec. 159. But this is only in cases where there is no other adequate remedy. Id. sec. 163. In Person v. Railroad, 32 N. J. Law, 441, mandamus to compel payment to taxes issued where there was no other remedy.

This tax might have been collected by distress or action against the bank, and we have already held that it could not be collected by action against the cashier. But, where there is another adequate remedy, there would seem to be no greater necessity for the use of this remedy in cases of corporations than in those of private persons; and there are the same objections. We are convinced that mandamus is not a proper remedy against either, and that the order denying the writ was right.

CONTRACT RESCISSION IGNORANCE OF LAW FRAUDULENT REPRESENTATIONS.-In Titus v. Rochester German Insurance Co., 31 S. W. Rep. 127, it is decided by the Court of Appeals of Kentucky that a settlement of a claim for half the amount a party was entitled to made in ignorance of the law and on the fraudulent representations of the other party, who knew of such ignorance and who knew the rights of the parties will be set aside. The court says:

It is true that the ignorance relied upon is an igno

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