Gambar halaman


Vaughan v. Davies, 2 H. Bl. 440; Hall v. Ody, 2 B. & NEW YORK COURT OF APPEALS ABSTRACT.
P. 28; 4 id. 22; George v. Elston, 1 Scott, 518; and in
Chancery, Taylor v. Popham, 15 Ves. 72; Ex parte, CONSTITUTIONAL LAW-EMINENT DOMAIN-PRIVATE
Rhodes, id. 541; Gurish v. Donovan, 2 Atk. 166; Shine USE.-The fact that the use to which real estate is in-
v. Gough, 2 B. & B. 33.

tended to be put, or the structures intended to be In Collett v. Preston, 15 Beav. 458, an application to built thereon, will tend incidentally to benefit the pubset off costs recovered by B. against A., against costs lic by affording additional accommodations for busirecovered in a suit respecting the same matter, by A. ness, commerce or manufacture, is not sufficient to agaiust B., was refused, because it would interfere bring the case within the right of eminent domain, so with the solicitor's lien; see Nicholson y. Norton, 7 long as the structures are to remain under private Beav. 67.

ownership or control, and no right to their use or to Iu Ex parte Cleland, L. R., 2 Ch. App. 808, C.'s solici- direct their management is conferred upon the public, tor was held entitled to a lien on costs ordered to be and the taking for such a use without the consent of paid to C. by D., as against a debt due from C. to D., the owner cannot be authorized by statute. Accordat the time when D. made an assignment for the bene- ingly held that the provision of the act of 1881 (Ch. fit of his creditors.

667, Laws of 1881), purporting to authorize the E. B. Some American cases hold that the solicitor's lien is W. & M. Co. to acquire title to lands by proceedings subordinate to equities existing between the parties in invitum, was unconstitutional and void. Matter of to the judgment, Porter v. Lane, 8 Johns. 357; Ross v. Eureku Basin, elc., Co. Opinion by Rapallo, J. Dole, 13 id. 306: People v. Manning, 13 Wend. 619; [Decided May 6, 1884.] Crocker v. Claughly, 2 Duer, 684; Shirts v. Irons, 54

MORTGAGE FORECLOSURE Ind. 13; Ex parte Lehman, 59 Ala. 631 ; even after the

HOLDER, RIGHTS OF - LACHES-FORFEITURE.-- After judgment has been assigned to the attorney, as secur

the foreclosure sale the only property interest which ity for his costs, Cooper V. Bigalow, 1 Cow. 206;

a stockholder of the old company has left is in the Wright v. Treadwell, 12 Tex. 252; wuless the claims sought to be set off arise out of other matters, Carter surplus, if any, after satisfying the mortgage and

other preferential claims. It is entirely optional with v. Bennett, 6 Fla. 215; Robertson v. Shutt, 9 Bush, 659;

him whether he will come in under the plan and join Mohawk Bank v. Burrows, 6 Johns, Ch. 317; and notice of the lien has been given by the attorney, Hurst option or privilege to join the new company by a com

the new company. All the statute secures to him is the v. Sheets, 21 Iowa, 501; Andrews v. Morse, 12 Conn.

pliance with the terms of the plan. If he elects to 444; Leavenson v. Lafontane, 3 Kan. 523; Peckham v. Barcalow, Hill & Den. 112; Johnson v. Ballard, 44 Ind. join the new company, then he gets a proportional in

terest therein which may be of great value to him. 270; Daniels v. Pratt, 6 Lea, 443; see Newbert v. Cun

But his right to join the new company, so far as it deningbam, 50 Me. 231; Walker v. Sargeant, 14 Vt. 247. The lien of the attorney however in an assigned judg. six months.” If he fails within that time to exercise

pends upon the statute, must be exercised “within the ment is now generally recognized as superior to any his right by assenting to the plan, and thus becoining right of set-off as to the judgments between the parties,

a party thereto, he cannot take or claim any rights Terney v. Wilson, 16 Vr. 282; Shapley v. Bellows, 4 N.

under the plan. It is clearly a condition precedent H. 347; Duukin v. Vandenbergh, 1 Paige, 6:22; Grid

that he must signify his assent to the plan within six ley v. Garrison, 4 id. 647 (but see Nicoll v. Nicoll, 16

months. If he fails to do so, he forfeits no property, Weud. 446); Zogbaum v. Parker, 55 N. Y. 120; Firme

as that was swept away by the foreclosure sale; he nich v. Bovee, 1 Hun, 532; Prouty v. Swift, 10 id. 232;

loses simply the right or privilege to join and become Davidson v. Alfaro, 16 id. 353; 80 N. Y. 600; Eberhardt

interested in the new company, and thus to acquire an v. Schuster, 10 Abb. N. C. 374; Currier v. Boston R., interest in property. That is a forfeiture, if it can 37 N. H. 223; Boyer v. Clark, 3 Neb. 161; Rice v. Garn

properly be so called, which the law imposes, and hart, 35 Wiś. 282; Warfield v. Campbell, 38 Ala. 5:27 ; against which the courts can give no relief. Story Renick v. Ludington, 16 W. Va. 378; Diehl v. Fries- Eq. Jur., ss 1325, 1326; Robinson v. Cropsey, 2 Edw. ter, 37 Ohio St. 473; Brown v. Bigley, 3 Tenn. Ch. 618; Ch. 138; Gorman v. Low, id. 324; Weed v. Weed, 94 N. Wells v. Elsam, 40 Mich. 218; Ripley v. Bull, 19 Conn.

Y. 243. In such a case equity cannot relieve him from 53; Stratton v. Hussey, 62 Me. 289; even where the

the performance of the condition precedent, and thus judgment songht to be set off was recovered before

vest him with rights of property which he did not the other judgment, Benjamin v. Benjamin, 17 Conn.

otherwise have. City Bank v. Smith, 3 Gill & J. 265; 110; Ely v. Cooke, 2 Hilt. 406; 28 N. Y. 365; Perry v. Chester, 53 id. 240; Ennis v. Curry, 22 Hun,' 584; Nay: Bapham v. Bumfield, 1 Vern. 83. It would lead to in

tolerable inconvenience, confusion and difficulty if the lor v. Lane (N. Y.), 29 Alb. L. J. 212; see Dingee v.

stockholders of the old company could in such a case Shears, 29 Hun, 210; Stillman v. Stillinan, 4 Lea, 271;

take their own time to assent to the plan of reorganiJeffres v. Cochrane, 47 Barb. 557 ; 6 Alb. L. J. 198; zation, and to assert their right to become members of Prince v. Fuller, 34 Me. 122; Neil v. Staten, 7 Heisk.

the new company upon such facts as they would be 290. See further, 1 Am. Law Reg. (N. S.) 419, vote.

able to establish in a court of equity. Vatable v. N. Especially where the judgment has been assigned to Y. Lake Erie & West. R. Co. Opinion by Earl, J. the attorney as security for his costs. Rumrill v. Hunt (Decided May 6, 1884.] ington, 5 Day, 163.

TRUST- VALID - MORTGAGE TO SECURE A defendant against whom a judgment has been re- STATUTES AS TO ASSIGNMENT-PRACTICE-AMENDMENT covered cannot, by thereafter purchasing a judgment -DISCRETION.-(1) A conveyance by a solvent debtor, against the plaintiff, offset it so as to defeat the at

of a portion of his property to trustees, to pay a portorney's lien. Bradt v. Koon, 4 Cow. 416.

tion of his creditors, containing a provision that any The attorney must prove clearly what is the amount

surplus after execution of the trust shall be returned

to him, is not as matter of law fraudulent and void as of his costs and disbursementa, Hooper v. Brundage,

to creditors not provided for. A conveyance of real 22 Me. 460; Adams v. Lee, 82 Ind. 587 ; Ocean Ins. Co. estate upon such a trust is authorized by the Revised v. Rider, 22 Pick. 210; and move promptly to secure Statutes (1 R. S. 728, $ 55), and an assignment of perhis lien. Holt v. Quinby, 6 N. H.79; see Stone v. Hyde, sonal property upon such a trust, with a reservation 22 Me. 318.-J. H. STEWART, REP.

of the surplus, does not violate the statute against per:


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son al uses. 2 Rev. Stat. 135, $ 1; Cooper v. Whitney, deducting them from the debts, legacies and expenses
3 Hill, 95; Curtis v. Leavitt, 15 N.Y. 9. (2) An insolv- of administration. It is undoubtedly true that an in-
ent, and even a solvent debtor cannot convey all his terest given in one clause of a will, in terms denoting
property to trustees to pay a portion of his creditors, an absolute estate, may by force of a subsequent
with a provision that the surplus shall be returned to clause, be qualified by a limitation over in a certain
him, leaving his other creditors unprovided for; be-event, or be cut down or made to take effect only on a
cause such a conveyance ties up his property in the contingency. This is but the application of a familiar
hands of his trustees, places it beyond the reach of his rule, that the construction of a will or other instru.
creditors by the ordinary process of the law and thus ment is to be made upon the whole words and not
hinders and delays them, and is therefore void as to upon a part only, and that a particular word or clause
the creditors unprovided for. But there is no rule of | may, in the light of other words or clauses, mean more
law and no reason for holding that a solvent debtor or less than it imports, considered singly or by itself
may not devote a portion of his property, by a trust alone. Taggart v. Murray, 53 N. Y. 233. But there is
deed, to the payment of a portion of his creditors, and another rule of construction of equal force and not in-
if he leaves property sufficient for the payment of his consistent with the one just stated, and that is that
other creditors, they have no just or legal ground of when an interest is given or an estate conveyed in one
complaint. Here there was evidence justifying the clause of an instrument, it cannot be cut down or
referee in finding that upon the execution of the trust taken away by raising a doubt from other clauses, but
deed assailed, the assignor had ample property to pay only by express words or by clear and undoubted im-
all his creditors not mentioned in that deed. (3) That plication. Thornbill v. Hall, 2 Cl. & Fin. 22; Rose-
any debtor, whether solvent or insolvent, may, acting boom v. Roseboom, 81 N. Y. 356. The surrogate dis-
in good faith, mortgage a portion or the whole of his allowed the claim of the mother of the testatrix to
property to secure one or more of his creditors for any said one-sixth, and directed the whole residuary estate
indebtedness, cannot be doubted. The referee found to be invested and retained by the executor until the
that the assigner was at the time solvent, and it has infant child died or became of age; the mother did
never been questioned that such a debtor may mort. not appeal. The executor appealed in 1880 from other
gage his property to secure existing claims as well as parts of the decree. In her answer to the appeal, the
future loans and advances. Hendricks v. Robinson, 2 mother alleged said portion of the decree to be errou-
Johus. Ch. 283; Leavitt v. Blatchford, 17 N. Y. 521; eous. Held, that the General Term bad jurisdiction
Dunbam v. Whitehead, 21 id. 131; Robinson v. Will- to review and to reverse said decision. Rule 42 of Sup.
iams, 22 id. 380; Ackerman v. Hunsicker, 85 id. 43; 39 Ct., rule (1878); Code of Civ. Pro., $ 2587. Freeman v.
Am. Rep. 6:22; Simous v. First Nat. Bank, 93 N. Y. Coit. Opinion by Androws, J.
269. (4) The statutes regulating assignments for the [Decided May 6, 1881.)
benefit of creditors (Ch. 318, Laws of 1860; ch. 860,
Laws of 1867 ; cb. 92, Laws of 1870, and ch. 838, Laws of
1872) have reference ouly to general assignments made UNITED STATES SUPREME COURT AB-
by insolvent debtors for the benefit of all their credi-

tors. (5) Where the court has power to order a com-
plaint to be amended and other parties brought in, it

JURISDICTION-FEDERAL QUESTION-PUBLIC LAWis not bound to exercise that power, and may dismiss the complaint without prejudice to the right to bring tion in this case. The right of San Francisco under

DECISION OF STATE COURT.-There is no Federal ques. another action. Knupp v. McGowan, Assignee. Opin- the treaty of Guadalupe Hidalgo to the lands in dision by Earl, J.

pute as pueblo lands is not depied. Precisely what that [Decided May 6, 1884.]

right was may not be easy to state. Mr. Justice Field WILL-LIMITATION OVER-INTEREST QUALIFIED-speaking for the court, said, in Townsend v. Greely, 5 BUBSEQUENT CLAUSE.—The will of S., after giving cer- Wall. 336: “It was not an indefeasible estate; owner. tain legacies, gave in case of her leaving any child or ship of the lands in the pueblos could not in strictness children her surviving, two-thirds of her residuary es. be affirmed. It amounted in trutb to little more tate to her executors in trust for the benefit of such than a restricted and qualified right to alienate porchild or children until of age, with remainder in fee to. tions of the land to its inhabitants for building or culthe children on arrival of age; the remaining one- tivation, and to use the remainder for commons, for third was given to her husband aud mother to be pasture lands, or as a source of revenue, or for other equally divided between them. The will then pro- purposes. This right of disposition and use was in all vided that in case of the death of all the children of particulars subject to the control of the government of the testatrix (if she bad any), after her death and be- the country.” This definition was accepted as subfore they became of age, her husband should receive, stantially accurate in Grisar v. McDowell, 6 Wall. 372, out of her estate in full of all claims under the pro- and Palmer v. Lowe, 18 U. S. 16. The act of July 1, visions of the will, the sum of $20,000 theretofore 1864, ch. 194, § 5, 13 Stat. 333, simply released to the loaned to him by the testatrix, and the residue was the city all the right and title of the United States in given to her mother. In case sho left no surviving the lands (Hvadley v. San Francisco, 94 U. S. 5), and children the testatrix gave to her husband said $20,- thus perfected the incomplete Mexican title for the 000 and the residue of the estate to her mother. The uses and purposes specified. Palmer v. Lowe, supra. testatrix died leaving her husband, one child, an in- Its effect was to surrender all future control of the fant, and her mother. In proceedings for au acoount- United States over the disposition and use of the ing by the executors, held that the clause providing property by the city. The only controversy in this for the case of the death of the children under age was case is as to the effect of the alcade grant of the pueblo solely intended to dispose in that event of the two- title; and the precise question submitted to the Suthirds previously given to them, and did not affect the preme Court of the State for determination was gift of the one-sixth to the mother, and that she took whether, after the conquest,

* * * and before an absolute title to said one-sixth upon the death of the incorporation of the city of San Francisco, and be the testatrix; also held that there was no error in com- fore the adoption of the Constitution of the State of pelling the account of said one-sixth interest upon the California, a person exercising the functions of an alaggregate of the principal and interest of the whole calde of the pueblo of San Francisco

* could estate up to the time of the surrogate's decree, after make a valid grant of pueblo lands, as such officers bad

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* * *

been before such conquest accustomed to do," and if the strength of meager and indefinite testjinony. (3) 80, what would be the effect of such a grant? This does An agreement for the sale of lands examined, in an acnot depend on any legislation of Congress, or on the tion to enforce a vendor's lien, and the time from terms of the treaty, but on the effect of the conquest which interest should be allowed to the vendor on the upou the powers of local government in the pueblo un. price of the lands determined. Baines v. Clarke. Opinder the Mexican laws. That is a question of general ion by Waite C. J. public law, as to which the decisions of the State court

REMOVAL OF CAUSE-FORCING HEARING-ACT OF are not reviewable here. This has been many times

MARCH 3, 1875—WHEN RIGHT TO REMOVE LOST.-(1) decided. Delmas v. Insurance Co., 14 Wall. 661; Tar

Where a case is removed from the State to the United ver v. Keach, 15 id. 68; New York Life Ins. Co. v.

States court, and a party is forced to a hearing in the Hendren, 92 U. S. 286; Dugger v. Bocock, 104 id. 596;

latter, although the petition for removal was filed too Allen v. Mo Veigh, 107 id. 433. City of San Francisco v.

late, and a motion to remand refused, the party having Scott. Opinion by Waite, C. J.

saved his rights by record may have the error cor[Decided May 5, 1884.]

rected in the appellate court after the final decree be BANKRUPTCY-SALE FREE FROM INCUMBRANCES low. Removal Cases, 100 U. S. 475; Railroad Co. v. RIGHTS OF LIEN-HOLDERS-MERGER-QUESTION OF IN- Koontz, 104 id. 16. (2) When a term, at which a cause as TENTION.–Where a bankrupt sale of property is made a cause cau be first tried, has passed by all right of refree from all incumbrauces, it does not bind the holder moval, under the act of March 3, 1875, is gove, and a of a lien against the property whom the record fails to file pleadings being afterward granted, does not to show was served with process, or otherwise notified create a new right of removal. It is true that the credof the proceedings. Ray v. Norseworthy, 23 Wall. 128. itors got leave to file pleadings within ninety days,and In equity, where an incumbrancer of property, by that their answers and cross-bills were in before that mortgage or otherwise, becomes the owner of the legal time expired. But this operated only as an amendtitle or of the equity of redemption, merger will not be ment of the original pleadings, and created no pew held to take place, if it is apparent that it is not the right of removal. As was said in Babbitt v. Clark, 103 intention of the owner, or if it is against his manifest U.S. 612, “the act of Congress does not provide for interest. Where the mortgage of property secures the removal of a cause at the first term at which a trial notes held by different parties, a bankrupt sale, by or- can be had on the issues as finally made up by leave der of court, will not merge part of the mortgage and of court or otherwise, but at the first term at which keep a part alive, the legal and equitable title being the cause as a cause could be tried." Edrington v. united, although one of the holders had notice of the Jefferson. Opinior by Waite, C. J. sale and the other had not. And the party who had no- [Decided May 5, 1884.] tice, the mortgage being kept alive, is entitled to a share in the proceeds of a new sale, and to be recompensed out of the proceeds for taxes and improvements, UNITED STATES CIRCUIT AND DISTRICT although he must account for rents and profits. The

COURT ABSTRACT.* rule on this subject is thus stated by Jones Mort., S 848: “It is a general rule that when the legal title becomes united with the equitable, so that the owner has

SHIP AND SHIPPING-COLLISION PRESUMPTION OF the whole title, the mortgage is merged by the unity

FAULT-PREPONDERANCE OF EVIDENCE.—Where a colof possession. But if the owner has an interest in

lision happens between two sailing vessels, the one keeping these titles distinct, or if there be an inter

sailing close-hauled, the other with the wind free, the vening right between the mortgage and the equity,

night being clear and the lights of both vessels seen, there is no merger.” And in the case of Forbes v.

the legal presumption is prima facie that the fault was Moffatt, 18 Ves 384, Sir William Grant says: “The

in the vessel sailing free. This presumption is inquestion is always upon the intentions, actual or pre

creased by proof of the absence in the latter of any sumed. of the person in whom the interests are

lookout other than the captain standing near the united.' Other authorities cited by Mr. Jones sus.

wheel. The evidence of neither of the persons on tain the principle. Clark v. Clark, 56 N. H. 105, is di

deck of the latter being obtained, the captain having rectly in point. Loud v. Lane, 8 Met. 517; Titsworth

been knocked overboard and drowned at the time of v. Stout, 49 Ill. 78; Armstrong v. McAlpin, 18 Ohio

the collision, and the wheelsman having died before St. 184. It is to be observed in the present case that as

the trial, and the only evidence in her behalf being the mortgage, which secured the two notes owned by

that of the captain of another schooner about half a the insurance company, was the same which secured

mile ahead, sailing in the same direction, who testiMrs. Murphy's notes, ag between which there was no

fied that the schooner, sailing close-hauled, just be

fore she was reached luffed up into the wind so that priority, it would hardly be held, on the order of the court to sell the property free from all incumbrances,

her sails shook, and then paying off ran down on the that the purchase by the insurance company merged

other schooner, and several witnesses from the schoo.

ner close-hauled contradicting the alleged luff, and part of the mortgage, while part was kept alive. This is expressly decided in Barker v. Flood, 103 Mass. 474.

giving a consistent and probable narrative involving Factors and TradersIns. Co. v. Murphy. Opinion by improbable under the circumstances, and not sustained

no fault on their part, held, that the luff alleged was Miller, J. [Decided May 5, 1884.)

by the weight of proof; that the libellants had not over

come the presumption against them by any preponderVENDOR AND VENDEE-LIEN OF VENDOR-DECREE

ance of proof; and that the libel must be dismissed. INTEREST, HOW COMPUTED.-(1) Where it is evident The E. H. Webster, 18 Fed. Rep. 724; The City of from the report of the master in chancery, in an ac- Chester, id. 603: The Albert Mason, 8 id. 768; S. C., 2 tion to enforce a vendor's lien, based on a contract for id. 821. Dist. Ct., S. D. New York, April 28, 1884. the sale and purchase of land, that the amount of the Carll v. The Erastus Wiman. Opinion by Brown, J. lien, as fixed by the decree, was found by estimating

SHIP AND SHIPPING - COLLISION-DUTY OF VESthe quantity of land, and not by actual survey, the sur


:-(1) A steamer in the East vey having afterward been made, and the true quan

river, having upon her own starboard hand another tity of land ascertained, the decree will be made to conform to it. (2) A decree will not be disturbed on

*Appearing in 20 Federal Reporter.

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large steamer, evidently engaged in turning around in NEBRASKA SUPREME COURT ABSTRACT.
a way that must cross the course of the former, is
bound to keep out of her way, and give room for her LIMITATION - ACKNOWLEDGMENT - OPENING AND
necessary path in turning. When that duty has at-

CLOSING.-(1) A writing signed by the party as follows: tached, she cannot relieve herself of it by getting

“I am sorry that you have had to pay the notes of across the bows of the latter aud claiming that the lat

Frank Pillond and myself, upon which you were sureter is then in the position of a following or overtaking ty for us. I cannot at this time pay you the money, vessel. The Franconia, % Prob. Div. 8; The Cayuga,

but propose to pay you my share, which I am told is 14 Wall. 270. There was danger of collision from the

about $413. I hope to be able to pay you soon, but will very act of sheering to the westward, and the Unit

let you know in a few days what I can do;" held, to was therefore bound to refrain from such a change.

take the debt out of the statute of limitations. (2) A The Nichols, 7 Wall. 656; The Free State, 91 U. S. 200.

partial payment, ackoowledgment of the debt, or (2) A large steamer, engaged in making a turn in the

promise to pay, made after the debt is barred, will reEast river, is bound to special watchfulness and care vive it. (3) A defendant is not entitled to the opening to avoid contact with other vessels. The lookout hav.

and closing on a trial, unless he by his answer admits ing failed to continue his attention to a tug and tow

the allegations of the plaintiff's petition, and relies enon the opposite side of the river, and a collision hay

tirely upon an affirmative defense. Rolf v. Pillond. ing happened, which by such attention would have

Opinion by Reese, J. been avoided by the steamer's timely backing, held,

[Decided May 28, 1884.] that both were in fault, the steamer for inattention, and the tug for steering across the steamer's path, CONTRACT-ILLEGAL-PUBLIC POLICY.-No court of instead of stopping, as he might have done. The pre- law or equity will lend its assistance in any way towvious fault of the tug did not relieve the steamer of

ard carrying out an illegal contract, therefore such a her duty to keep constant watch for the purpose of contract cannot be enforced by any one party against avoiding injury. The Maria Martin, 12 Wall. 31; The

the other, either directly, by asking the court to carry Vim, 1.2 Fed. Rep. 906; The Pegasus, 19 id. 46. Dist.

it into effect, or indirectly, by claiming damages or Ct., S. D. New York, April 29, 1884. The State of Texas.

compensation for a breach of it. Sykes v. Beadon, 11 Opinion by Brown, J.

Ch. Div. 170; 27 Eug. R. 435, note. A contract by

which G. & K., who were the holders of a license to REMOVAL OF CAUSE-AMOUNT IN DISPUTE-ACT OF

trade with the Fort Peck Indian agency, agreed to pay 1875-CITIZENSHIP.-(1) In order that a cause may be

to K. & S. the one-half of the net profits of such trade removed from the State courts to the United State

for the consideration of the said K. & S. purchasing all courts, under $ 639, Rev. Stat., the sum in dispute, ex

goods and supplies necessary and proper for said trade clusive of costs, must exceed $500 at the time of the

at their own account and credit, and immediately recommencement of the action in the State courts. In

sell and invoice such goods to said G. & K. at said Spear on the Law of the Fed. Judic., at p. 462, speaking of the amount in dispute, the author says: “The

agency at cost price, cost of trausportation and insur

ance added, and one of the said K. & S. take entire absence of this condition is fatal to the right of re

charge, management and control of said business, demoval as given by the statute. The right depends

voting his entire time and attention thereto, and reupon a statute, and the facts as they existed when the

siding at Fort Peck, is illegal, for the reason that it suit was commenced in the State court in respect to

contemplates the violation of the statute as well as the the sum or value in dispute must determine whether

public policy of the government of the United States. this particular condition of the statute is present,”

Chief Justice Marshall, in the case of Armstrong v. citing Roberts v. Nelson, 8 Blatchf. 74, n. This au

Toler, 11 Wheat. 268, stated the law with great clear. thor adds: “These general provisions of the statute

ness and perspicuity in the following language: "Quesapply to all the cases enumerated therein, and con

tions upon illegal contracts have arisen very often, stitute a part of the legal requirements in the removal

both in Eugland and in this country, and no principle of these cases from the State courts to the Circuit

is better settled than that no action can be maintained Courts of the United States." (2) A suit cannot be

on a contract, the consideration of which is either removed from a State court to the United States

wicked in itself or prohibited by law.” We have seen courts under the act of 1875, unless the requisite citi.

above, to my own satisfaction at least, that the plaintzenship of the parties existed both when the action

iffs and defendants in the case at bar cannot be considwas begun and the petition for removal filed. That

ered as partners, for the want of an intention on their proposition is maintained by a line of authorities

part to establish that relationship, as expressed by the cited in Spear Fed. Jud. 501, 502, among which is Jack

language of the contract, as well as the lack of mutual801 y. Ins. Co., 3 Woods, 413, opinion by Judge Woods. There is however a line of authorities to the proposi-iffs are entitled to this remedy for the purpose of fol


ity of its terms. It cannot be claimed that the plainttion that the cause cannot be removed unless the re

lowing their money or property in the hands of the quired citizenship existed, not only when the petition

defendants, and claiming a share of its product or for removal is filed, but also at the time the action is

earnings, for they have placed neither money, property begun in the State court. The case of Houser v. Clay. ton, 3 Woods, 273, opinion by Justice Bradley, and the

uor services there. They have given to the defend

ants, so far as they could, the ægis of their license, for case of Kaeiser v. Illinois Cent. R., 6 Fed. Rep. 1, opin

which the defendants promised them a certain share ion by Judge MoCrary, of the Eighth Circuit, are cited, and other authorities to the same proposition; Spear

of the net profits of their business; but as we have

seen, the consideration being illegal, that promise canFed. Jud. 502, 503. The Supreme Court of the United

not be enforced. It may be claimed that the defend. States, in the case of Gibson v. Bruce, 2 Sup. Ct. ants, having done business in the name of the plaint873, hold that a suit cannot be removed from a State iffs, are estopped to deny the interest of the plaintiffs court, under the act of 1875, unless the requisite citi. in that business. That would probably be so, could the zenship of the parties exists both when the suit was plaintiffs' case ever reach the point at which the debegun and when the petition for removal is filed. Cir.

fendants are required to develop their defense; but

the difficulty is in the inherent weakness of the plaintCt., N. D. Ala., April, 1884. Carrick v. Landman.

iffs' case. They cannot reach the enemies' works ex• Opinion by Bruce, J.

cept through the contract, which, by reason of its illo

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The prisoner in the deckt would not under ordinary

gality, is "no thoroughfare" for them. Gould v. Ken-founded, but if

indictment professes to dall. Opinion by Cobb, C. J.

do a material variance will be fatal; [Decided May 28, 1884.]

if the statute does not support the verdict, it must NEGLIGENCE-DEFENDANT'S QUESTION FOR JURY

fail. If there had been no allegations in the indictOF PARENT NOT IMPUTED TO CHILD.-(1) The plaintiffs

ment as to the law, the iudictment might have been in error employed the defendant in error to labor for sustained; but as these allegations make it quite evi. them in and about a cane-mill while engaged in crush

dent that the finding of the grand jury was upon a law ing sugar cane. The defendant in error was a boy of

which had been repealed I think that judgment must be the age of eleven years, and while feeding the mill his arrested. Cir. Ct., Dist. N. H., May 13, 1884. United hand was caught between the rollers and so severely

States v. Goodwin. Opinion by Clark, J. (20 Fed. injured as to require the amputation of two of his fin

Rep. 237.)
gers. This action was instituted by him, through his
next frieud, for damages resulting from the alleged SENTENCED TO DEATH-A SCENE IN AN ENG-
carelessness of the plaintiffs in error, in requiring him

at his age to feed the cane-mill, that being a dangerous
employment. Upon the trial the plaintiffs in error re-
quested the court to give a number of instructions, a

circumstances attract attention. Shambling, part of which the court refused to give, to which re

undersized and listless, one may see dozens of his type fusal the plaintiffs in error excepted. The jury having hanging around the pit banks any Saturday afternoon, returned a verdict in favor of the defendant in error,

hungry, lazy loafers whose sole object is to drag and motion for a new trial having been overruled, the through an animal existence with as little work as plaintiffs in error bring the case into this court for re

possible. Whether the repeated sight of the weekly view. In an action for damages caused by a personal arrival of the pay clerk with his bags of yellow sovinjury resulting from the alleged negligence of the de- ereigns acted as a cumulative temptation to this man's fendant, held, that the question as to whether the de

vaguely brooding mind, or whether impelled by some fendant was or was not guilty of negligence must be

sudden onslaught of the devil, we cannot tell, but one decided by the jury. Held, also, that the negligence Saturday morning he was noticed lounging near the of a parent or guardian cannot be imputed to an in

bank of the neighboring town, and when poor Merefant who is injured through the carelessness of another dith, little suspecting how short a span of life remained party. Daley v. Norwich & W. R. Co., 26 Com. 591;

for him emerged therefrom, laden as usual with the Bellefontaine, etc., R. Co. v. Snyder, 18 Ohio St. 399; colliery wages, the prisoner quietly followed and in Cleveland, etc., R. Co. v. Manson, 30 id. 451; North

broad day light, on a well frequented highway, almost Pa. R. Co. v. Mahoney, 57 Penn. St. 187; Whirley v.

iu sight of the passers-by, shot him and decamped Whiteman, 1 Head, 620; Government Street R. Co. v.

with the coveted bags. Hanlon, 53 Ala. 70; Norfolk, etc., R. Co. v. Ormsby,

So buugling was the execution of the crime that de27 Gratt. 455. But where the parent sues for loss of

tection and arrest were quick and easy, and now some services sustained by an injury to the child then the

two months after that fatal morning this commoncontributory negligence of the parent may be a bar. Glassey v. Hestonville, etc., R. Co., 57 Pend. St. 172; place criminal stands here to receive his wage and

have his own span of days exactly meted out. The Louisville

, etc., Canal Co. v. Murphy, 9 Bush, 522. promising junior, assigned by the formal humanity of Huff v. Ames. Opinion by Reese, J.

our law for his defense, has made the most of a hope[Decided May 29, 1884.]

less case, resting principally upon a possible insanity of which there has been some faint evidence given, but

the judge has covertly destroyed his slender plea, telling CRIMINAL LAW.

the jury that if such excuses are to be taken, our pris.

ons may at once be turned into lunatic asylums. Mere MANSLAUGHTER--FIGHT IN STREET.—Where F., a empty clap trap this, but when delivered from judicsaloon keeper, and the defendant attempted to ejectial lips by that incarnation of wisdom to rustic jurors, M. and others from a saloon because of their noise and a judge on Circuit, it is abundantly sufficient to seal disturbance, and after something of an altercation M. the prisoner's fate, aud so after a quarter of an hour's departed, with F. in pursuit, and immediately after- retirement, for decency's sake, the twelve have deward they engaged in a struggle in the open street and livered their verdict. in the presence of many people, and F., when in dan- Is there no one here, beside ourselves, who feels a ger of receiving personal chastisement, but not in such sickening doubt of the justice of the dreadful sentence imminent peril as to justify the use of a deadly just impending? Look at that wretched specimen of weapon, shot and killed M., held, that a punishment humanity, not a muscle of whose face or bands befor manslaughter is not excessive, and that the verdict trays what is passing in his dim brain. To the damning is sustained by the evidence. Sup. Ct. Iowa, June 6, evidence, to his counsel's appeal, to the judge's sum1884. State v. Fitzsimmons. Opinion by Reed, J. (19 ming up, to the verdict itself he has listened disconN. W. Rep. 821.)

nectedly with that indolent lack of interest characterINDICTMENT-PLEADING

istic of his stupid class, himself the least concerned PLUSAGE.--It is never necessary to set forth matters spectator in the densely crowded court, and now as of law in a criminal proceeding. U. S. v. Rhodes, 1 the low tones of the judge pronouncing sentence strike Abb. (U. S.) 28. But if the judictment set out the of. on his ear, he looks up at him with a slight vague specufenso with greater particularity than is required the lation in his eyes, evidently noting with dull surprise, proof must correspond with the averment; notbing the black cap which has suddenly appeared on the connected with the offense is regarded as surplusage. judicial wig. It i clear the judge is far too case-barU. S. v. Brown, 3 McLean, 233. And it must be tbat dened to feel any qualms such as are troubling our if the law supposed to govern the offense be set out in less ancient conscience. Behind the expression of the indictment, and the grand jury present it to the decorous pity on his face lurks an irrepressible self court as their finding, it cannot be rejected, if errone- complacency which receives from the tremendous ous, because it was the ground of their action. In power he is now exercising, a gratification unowned, Butler v. State, 3 McCord, 383, it was held that an in- but real and deep. His well-modulated voice, bated dictment need not recite the statute on which it is to a theatric whisper, is under excellent control, and




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