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REMOVAL OF CAUSES.
1. Appeal lies from order of Superior Court, granting petition for removal to U. S. Circuit Court. Ellis v. Railroad Co., 816.
2. Bond filed with petition for removal contained condition that petitioner "shall enter in such Circuit Court, on the first day of its session next after the granting of said petition, a copy of the record." That next session was the next after the filing of the petition. Held, that the variation in form of bond from words of sect. 689, Rev. Stat., was immaterial. Id.
3. Company incorporated by two states cannot remove into United States Court suits brought against it in either by citizen thereof. Railroad Co. v. Alabama, 624.
4. Individual members of corporation created by a foreign state are conclusively presumed to be citizens of that state. Steamship Co. v. Tugman, 78.
5. Sufficient if citizenship appear affirmatively, by record. Id.
6. Upon filing petition and bond, jurisdiction of state court absolutely ceases, and it is not restored by failure to file the transcript within the time prescribed. Id.
7. Petition and bond were duly filed, and state court ruled suit not removable; party seeking to remove consented to reference, and contested suit to final judgment in state courts; held, that jurisdiction of state court was not thereby restored. Id.
8. Person acting as guard in aid of U. S. marshal officially engaged in enforcing revenue law, is acting under authority of that law, and entitled to have prosecution against him for act done in performance of his duty, removed into United States Circuit Court under sect. 643 of Rev. Stat. Davis v. South Carolina, 624.
9. To secure the benefit of separable controversy provision in Act of 1875, where suit was begun before act was passed, required an application to remove at or before the term at which case could first be tried after act went into operation. Myers v. Swan, 487.
10. Where legal title is in certain defendants whose presence is necessary to get equitable owner out of possession, they are not nominal but necessary parties, and being of same citizenship with plaintiffs, suit cannot be removed under local prejudice act. Id.
11. In will case two contestants were citizens of other states, and remaining contestants and executors citizens of Michigan : each set of contestants took an appeal. Held, that there was but one contest, and that the appeal by citizens of other states was not removable. Fraser v. Jennison, 151.
12. Where upon removal of cause from state court, copy of record is not filed within time fixed by statute, it is within legal discretion of federal court to remand the cause, and order remanding it for that reason should not be disturbed unless it clearly appears that discretion has been improperly exercised. Railway Co. v. McLean, 423.
13. If upon first removal, federal court remands cause because of failure to file copy in time, party is not entitled to file second petition for removal on
same ground. Id. REPLEVIN. See ATTACHMENT, 2. SHERIFF, 3
1. Does not lie at common law by one out of possession of realty against one in adverse possession to recover chattels severed from the realty. Renick v. Boyd, 307, and note.
2. Where statute authorizes a recovery for timber, lumber, coal or other property” severed from the realty, those words only include property ejusdem generis and not growing crops. Id.
3. Tannery owner, when removing hides omitted some. Tannery was sold, and many years after, plaintiff while laboring for defendant, in erecting tory on premises, discovered these hides. Held, that owner had not lost title, and that finder acquired none. Livermore v. White, 423.
4. A. exchanged horses with B., then B. exchanged with C., without notice to C. of any infirmity of title. B. did not own horse he let A. have, and A. had to give him up to true owner. Then A. sought to reclaim from C. his original horse. Held, that C.'s title was good. Tourtellott v. Pollard, 423.
5. One of principals to replevin bond was a married woman and a minor. REPLEVIN.
Held, that only she and defendant in replevin could take advantage of her disability, not her co-obligors. Goodell v. Bates, 423.
6. Where ordinance of municipal corporation provides that owners of horses or mules should not permit same to run at large within city limits, and subjects one violating its terms to fine therefor, if city marshal impound mischievous horse running at large in streets, owner cannot proceed against him by possessory warrant. King v. Ford, 551.
7. By common law cattle wandering about, damage feasant, might be taken
up and impounded. Id. RES ADJUDICATA. See EXECUTORS AND ADMINISTRATORS, 2. FORMER
Doctrine of, applies to judgments of courts of last resort. Choteau v.
Must be in toto. Hurzfeld v. Converse, 487.
1. A merchant warrants what he sells to be reasonably suited to the use for which it is bought. This applies to fertilizers. Barry v. Usry, 349.
2. Upon delivery of goods on executory contract, purchaser, with full opportunity for examination, waives defects unless he refuses to accept under contract, or accepts only on condition ; mere objection that goods are defective, insufficient. . Olson v. Mayer, 287.
3. Delivery of bill of parcels to purchaser, who thereupon gives to seller lease of same chattel, without other delivery or change of possession, is not sufficient to pass title against subsequent purchaser in good faith from original seller. Harlow v. Hall, 78.
4. By conditional sale of wagon if vendee failed to pay note, he forfeited what he had paid, and vendor could take wagon. There was failure to fully pay ; but vendor allowed wagon to remain with vendee, and accepted payments after last instalment was due. Without making demand he brought suit to recover balance of note, attaching wagon and holding it by virtue of attachment until trial commenced, when he entered nonsuit and claimed to hold it under contract. Held, if demand were necessary, bringing of suit was sufficient; that by making attachment, defendant did not waive his right under conditional sale, nor was he estopped from asserting it; and that he did not waive forfeiture by accepting payments after note was due. Matthews v. Lucia,
1. Sheriff who suffers arrested debtor to escape is liable in his official character and not as bail ; and has no remedy over against debtor. Carpenter v. Fifield, 552.
2. Officer who allows one lawfully arrested to go at large without taking bail, suffers escape of such person. Id.
3. Where property levied on has been replevied, replevin bond is substituted for lovy; and if the officer deprives plaintiff of advantages to be derived from bond, action will lie against him for breach of duty in not making money under his process ; and in such cases a liberal protection will be extended over the rights of parties equitably interested against acts of mere nominal par
ties. Harrison v. Maxwell, 151. SHERIFF'S SALE
1. Plaintiff purchasing at execution sale is presumed to have notice of all SHERIFF'S SALE.
defects in record and proceedings, and will not be protected as bona fide purchaser if notice was insufficient. Collins v. Smith, 552.
2. Title of party in possession, to standing crops, is not divested until execution of sheriff's deed ; and if fully matured at that time they will not pass by
conveyance. Everingham v. Braden, 151. SHIPPING.
1. Collision between vessels through negligence of either, without waves or wind or difficulty of navigation contributing to accident, is not “a peril of the sea" within that exception in a bill of lading. Woodley v. Michell, 757.
2. Where under charter-party or contract of affreightment, duty of discharging vessel rests upon affreighters and they neglect to perform same seasonably they will not be relieved from payment of damages by omission of express provision for payment of demurrage, or express agreement as to number of lay days. Hayden v. Whitmore, 287.
3. Where through negligence of those managing steam tug in towing schooner in navigable waters of Chicago river, schooner is run into elevator on land, breaking same and causing loss of quantity of grain, tort is not within exclusive jurisdiction of court of admiralty ; state courts may afford remedy.
Johnson v. Elevator Co., 487. SLANDER.
No defence that words are spoken, when no one else is present, to person who knows them to be false and does not repeat them until after action brought.
Marble v. Chapin, 78. SPECIFIC PERFORMANCE.
1. Purchaser of land has right to good and marketable title ; one about which there is no doubt that would produce a bona fide hesitation in the mind of the judge passing upon it. Gill v. Wells, 487.
2. Specific ENFORCEMENT OF CONTRACTS TO TRANSFER STOCK, 489. STATUTE. See Jury, 1. LIMITATIONS, STATUTE OF, 3. MUNICIPAL COR
PORATION, 12. ORDINANCE. REPLEVIN, 2.
1. Statute of one state or country re-enacted in another, will there be given same construction. Skrainka v. Allen, 487.
2. Statute revising whole subject matter of former statute and evidently intended as substitute for it, repeals it without express words. State v. Roller, 692.
3. An affirmative statute to repeal a prior law must express such purpose, or be in irreconcilable conflict with it, or cover the whole ground occupied by it. Red Rock v. Henry, 349.
4. Where act is made punishable by fine and imprisonment, words in which offence is defined and punishment prescribed must be strictly construed. Shultz v. Cambridge, 222.
5. General words following particular and specific words, must generally be confined to things of same kind. Id.
6. In ordinance prohibiting saloon-keepers from permitting at, in or about doors, windows, openings, or in interior of saloons, any blind, screen, painted or frosted glass, shade, curtain or other device,” words - other device" do not embrace board partition between different rooms, extending from floor to ceiling, fastened in usual manner, and intended, when made, as permanent acces
sion to realty. Id. STOCK. See EstOPPEL, 3. SPECIFIC PERFORMANCE, 2. STOPPAGE IN TRANSITU. See Common CARRIER, 5. SUBROGATION. See INSURANCE, 24. SUNDAY. See CRIMINAL LAW, 29. NEGLIGENCE, 20. SURETY. See ADMIRALTY, 2. Bail. BILLS AND Notes, 24, 25. GUARDIAN
AND WARD. MORTGAGE, 7-9.
1. Verbal notice to creditor to proceed against debtor insufficient to release surety. Petty v. Douglass, 488.
2. If surety in replevin bond given by administrator pay judgment, he can recover amount from sureties in probate bond. State v. Farrar, 692.
3. Sureties on executor's general bond not liable for failure to pay over balance of proceeds of sale of real estate, for which special bond has been given. Robinson v. Millard, 350.
4. Sureties upon official bond of city treasurer are not liable where municipality induced and was privy to misconduct of treasurer, alleged as breach of bond. Newark v. Dickerson, 552.
5. That book-keeper is also teller will not relieve his sureties as book-keeper, unless errors were connected with some improper act as teller or superinduced by his employment as such. Bank v. Traube, 79.
6. Such interchange of assistance between bank officers, as temporary need may require, is fairly within contemplation of appointment of such otheer, and his sureties are liable for default made while temporarily filling place of another officer. Bank v. Zeigler, 249, and note.
7. Liability of sureties on official bonds of public officers. Id., note. TAX AND TAXATION. See Constitutional Law, 36. EQUITY, 7. Muni
CIPAL CORPORATION, 3, 12, 14. PAYMENT, 1.
State r. Railroad Co., 79.
2. United States commissioners established rule that they would receive taxes on property advertised for sale only from the owner in person. Held, that the rule avoided the sale. Kaufman and Strong v. Lee, 151.
3. Mortgagor bound to pay taxes, or his tenant, cannot permit estate to be sold for them, and by purchase acquire title against mortgagee; nor can tenant for life or years against reversioner. Dunn v. Snell, 152.
4. If owner of credits reside in state, there is jurisdiction over his person and credits, which in law, in absence of anything showing a situs elsewhere, accompany him: if absent, but credits are in fact here, in hands of agent, for renewal or collection, with view of re-loaning money by agent as permanent business, they have a situs here for purpose of taxation. Goldgart v. People, 624.
5. Non-resident creditor, having debts due him from residents of state not put into hands of agent here, is not liable to taxation in this state. ld.
6. Court will not enjoin collection of taxes, due and unpaid, if same are legally imposed. That assessment is not strictly according to letter of law is insufficient. And when there is no ground for enjoining collection of tax, collector cannot be enjoined from making tax deed to holder of certificate of
purchase, unless for matters transpiring since sale. Moore v. Wayman, 816. TELEGRAPH.
1. Condition on printed blank “that no claim for damages shall be valid unless presented in writing within twenty days from sending the message,” is valid. Delay in receiving message, occasioned by mistake of company, would not modify condition, if reasonable time was left, after knowledge of mistake, to present claim. Herman v. Tel. Co., 624.
2. Reasonableness of time fixed to be determined by court. Id. TENDER.
Not necessary, though required by contract, where other party declares that, if tendered, property will not be accepted by reason of alleged defect therein.
Tullos v. Rogers, 692.
Joint defendants in action of tort are liable in solido, and verdict can not be
apportioned. Keeyar v. Hayden, 693. TRADEMARK,
1. Use of trademark which misrepresents person by whom, and place where, article was manufactured, not enjoined. Medicine Co. v. Wood, 488.
2. When right to use trademark is transferred to others, semble, that fact of transfer should be stated in connection with its use. Id.
3. Trader has right to make and sell nuachines similar in form and construction to those of rival trader, and in describing and advertising his own machines, to refer to rival's machines and rival's name, provided he does this in such a way as to obviate reasonable possibility of misunderstanding or deception.
Singer Manuf. Co. v. Loog, 509, and note. TRESPASS. See FORCIBLE ENTRY. INJUNCTION, 6. NEGLIGENCE, 11.,
1. Does not lie for waste committed upon land by permission of person in possession, though unlawfully so. Remedy is an action of unlawful detainer, in which waste and injury committed may be recovered as well as possession. Hawkins v. Roby, 693.
2. Where person holds under paper title apparently good and is in actual possession of part of land, possession of part is possession of whole, and he can maintain trespass quare clausum fregit. Parker v. Wallis, 757.
3. Where defendant, not being owner, dug sand on land from time to time and sold same, his entries for that purpose were successive acts of trespass. Id.
4. Owner of land may enter and expel with reasonable necessary force wrongful occupant without being liable in trespass quare clo or for assault and battery; or for injury to occupant's goods, even if force used would subject owner to indictment at common law for breach of peace, or under stat
ute for forcible entry. Souter v. Codman, 424. TRIAL.
1. Request for charge on weight of testimony, improper. Langdon v. Ins. Co., 388.
2. Where instructions of court give party benefit of all the law asked by his own prayers, he cannot object because they do not give more. Repp v. Berger, 757.
3. Case not to be withdrawn from jury unless testimony so conclusive as to compel court to set aside verdict in opposition to it. Ins. Co. v. Doster, 60, 4. Jury reported they were nal
to agree, whereupon, defendant being present but his counsel not, justice gave additional instructions to jury and caused phonographic clerk to read his report of defendant's evidence. After verdict for plaintiff : Held, that defendant had no ground for exception. Brothers v. Gardiner, 552.
5. Where failure to offer material evidence in proper time is result of inadvertence, and it is not kept back by trick or for any unfair purpose, and the other party will not be deceived or injuriously affected by it, it should be let in, even after demurrer to evidence has been sustained : refusal so to do will be ground of reversal. Tierney v. Spira, 488.
6. Court propounded to jury certain questions, covering only part of material issues of fact. These and answers were returned as special verdict. There was no general verdict or bill of exceptions showing evidence adduced. Judgment recited that it was rendered “upon the special verdict of the jury, and facts credited or not disputed upon the trial.” Held, as facts set out in special verdict were insufficient to sustain judgment, and as without waiver (against which was every reasonable presumption), it was constitutional right of defendants to have jury pass on all material facts in issue ; judgment must
be reversed and new trial had. Hodges v. Easton, 223. TROVER. See COMMON CARRIER, 4. FIXTURES, 9, 11, 12. PLEADING, 3.
1. Minor who hires vehicle to drive to certain place, and then drives elsewhere, is liable in trover for conversion, Freeman v. Boland, 424.
2. One who innocently obtains another's property from third person may, when informed of true ownership, lawfully return it to person from whom he obtained it, provided he does this before demand or suit; but asserting title in himself or returning it after demand, is a conversion. Rembaugh v. Phipps, 79.
3. Plaintiff sold herd of cattle conditionally, taking note and lien by which they were to remain his until note was “ fully paid.” Vendee, without knowledge of plaintiff, sold part of cattle to defendants, who paid him, and he paid plaintiff, who endorsed it on note. In action of trover, note remaining unpaid, held, that defendants were liable; and that money paid by them could not be