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of different States

either party may remove plaintiff and the plaintiff into a defendant, and jurissaid suit." The defendant here contends that the diction of the person of the plaintiff is obtained by the matter in dispute, ou the issue raised by the counter- fact that plaintiff came into court and brought the declaim in the answer, and the reply thereto, exceeds fendant in first, in the action brought by the plaintiff. $500, exclusive of costs; that there is a controversy in It clearly makes a case for removal. But what is to be regard to such matter, made a controversy conclusively removed? The act of 1875 says that “said suit" is to by the plaintiff, by his reply to the counter-claim; and be removed! Is the proceeding or action by the dethat on this ground the defeudant can remove the fendant, his affirmative claim, the only thing that is to whole suit into this court.

be removed, leaving the claim of the plaintiffs to be Under the New York Code of Civil Procedure (sec- litigated in the State court, the former claim being tion 500) an auswer may contain a counter-claim, that $750 and the latter $195? In view of the facts, that the is, a statement of new matter constituting a counter- suit is in form one brought by the plaintiffs against the claim. Such counter-claim (section 501) must tend in defendant, and includes the plaintiffs' claim, by the some way to diminish or defeat the plaintiff's recovery, voluntary act of the plaintiffs, and is made to include and must be one of certain specified causes of action. the defendant's claim by the operation of the statute A plaintiff may (sections 494, 495, 496) demur to a coun- of New York; and that thus there is but one suit, ter-claim, distinctly specifying the objections, one of though there are two controversies in it, and that the which may be that the counter-claim is not of the char- whole suit is to be removed, and that either party may acter specified in section 501. Where a counter-claim remove it, and that the counter-claim necessarily “must is established which equals the plaintiff's demand, tend in some way to diminish or defeat the plaintiffs’ judgment goes for the defendant. Where it is less than recovery," it follows that the whole suit is removed, the plaintiff's demand the plaintiff has judgment for including all the issues, by the complaint, the answer the residue. Where it exceeds the plaintiff's demand and counter-claim and the reply. the defendant has judgment for the excess, or so much The case of West v. Aurora City, 6 Wall. 139, is not thereof as is due from the plaintiff (section 503). The in point. The facts there were not at all like the facts plaintiff, if he does not demur, may reply to the coun- in this case, and it arose under a different statute. ter-claim denying what he controverts (section 514). In McLean v. St. Paul, etc., Railway Co., 16 Blatchf.

A counter-claim is held to be an affirmation of a cause C. C. 309, a construction was given to section 2 of of action against the plaintiff, in the nature of a cross the act of 1875, to the effect that a suit where the reaction, and upon which the defendant may have an quisite citizenship for removal did not exist when the affirmative judgment against the plaintiff. As a cross suit was brought, might become removable by the ocaction, setting forth a cause of action by the defendant currence of the requisite citizenship during the pendagainst the plaintiffs, and demanding a judgment ency of the suit. Under that ruling it must be held thereon for $750 (in addition to the dismissal of the that it is not necessary that the requisite amount in plaintiffs' complaint and the defeat of the plaintiffs' dispute should appear to have existed when the suit claim), the claim in which cross action is disputed by was brought. After proceedings for removal are comthe plaintiffs by the reply, the counter-claim clearly pleted, a party cannot be deprived of his right, by any brings into the suit a matter in dispute which exceeds action of the State court or of the other party, in re$500 in value. Even if the defendant should have judg-ducing the amount appearing to be in dispute. Kanouse meut only for the difference between $195 and $750, v. Martin, 15 How. 198. But there is nothing to prethat would be more than $500; but he claims $750, and vent a State court from allowing an insufficient amount that the plaintiffs shall have no judgment. There may in dispute to become an adequate amount, under the be two actions in one point of view. One may be re- act of 1875, or prevent such insufficient amount from garded as an action by the plaintiffs against the defend- | becoming an adequate amount under that act by the ant to recover the $195. The plaintiffs may fail to re- operation of the statute of New York and the lawful cover any part of that, or they may recover a part of acts of the parties to the suit thereunder. it, or they may recover the whole of it. The answer, The motion to remand the suit and for other relief and the counter-claim in it, may have the effect, if is denied. proved, to diminish or defeat the plaintiffs' recovery (section 501). If the plaintiffs' recovery is wholly de- REMOVAL OF CRIMINAL CAUSEON GROUND feated, then the defendant becomes actor, and may

OF ALIENAGE. recover judgment for the whole or a part of the $750. Still both proceedings are in one suit, as the word

U.S. CIRCUIT COURT, NEW HAMPSHIRE, OCTOBER 8, "suit" is used in the act of 1875. The first section of

1880. the act of 1875 uses the expressions “suits of a civil nature," "civil action” and “civil suit" as synonyThe second section of that act uses the ex

STATE OF NEW HAMPSHIRE V. GRAND TRUNK RAIL pressions “suits of a civil nature" and "said suit" in

WAY. tbe same sense. The third section of that act uses the The doctrine that the Federal courts will in the construcexpressions “suit,” and “such suit," and

the cause,

tion of the statute law of a State follow the decision of and " action," in the same sense. The same is true of the highest State courts, reaffirmed. the same words, and also of the word “case,” when

The act of Congress of March 3, 1875, relating to the reused in the subsequent sections of that act. In the

inoval of cases from State to Federal courts, does not sense of sections 2 and 6 of the old Code of Civil

provide for the removal of a criminal action on the

ground of alienage. Procedure of New York (unrepealed), the proceeding by the defendant against the plaintiffs to recover the

OTION to remand to State court. The opinion $750 is an action, and a civil action, the defendant be

states the case. ing permitted to become actor in the given case. The

Mr. Ladd, for plaintiff. statutes of New York now use the word “action," and discard all other terms. The proceeding by the de

Ray, Drew & Jordan, for defendant. fendant against the plaintiffs being a civil action, in a CLARK, D. J. At the Supreme Court of the State of suit of a civil nature, and the matter in dispute in it | New Hampshire, holden at Lancaster, in the county of exceeding, exclusive of costs, the sum or value of $500, Coos, on the fourth Tuesday of April, 1877, the Grand it is brought in the State court, under the authority of Trunk Railway, a corporation established under the the statute of New York, in the form in which it is laws of Canada, was indicted by the grand jury for brought, although the defendant is turned into a that county for carelessly aud negligently injuring one


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John E. Willis, at West Milan, in said county, so that

State court. This court had no jurisdiction of the he died of his injuries.

subject-matter of it when commenced. It has not The statute of New Hampshire, under which the in- now. The statute of 1875 ($ 2, ch. 137, vol. 18, p. 470, dictment was found, is as follows (Gen. Laws N. H. U. S. Stat. at Large), under which it is claimed the re635, $ 14): “If the life of any person not in their em- moval of this cause is authorized, provides only for ployment shall be lost by reason of the negligence or the removal of causes of a civil nature. This is crimicarelessness of the proprietors of any railroad, or by pal. There is no doubt that when there is proper the unfitness or gross negligence or carelessness of their authority for it, a criminal case may be removed from servants or agents in this State, such proprietors shall a State court to the Federal courts. It was so held in be tined not exceeding $5,000, nor less than $500, and Tennessee v. Davis, 100 U. S. 357. But there is no one-half of such fine shall go to the widow, and the provision for the removal of a cause like this under other half to the children of the deceased. If there is the act of March 3, 1875, on wbich the removal depends. no child, the whole sball go to the widow, and if no The removal of the case of Tennessee v. Davis was widow, to his heirs, according to the law regulating the under an entirely different statute and for an entirely distribution of intestate estates."

different reason. In that case arose the question or Upon the finding of this iudictment the railway was right of the Federal authorities to protect their officers summoned to appear; and it did appear at the next in the discharge of their duty. Here is only a claim November term of the court, and by its attorneys of citizenship or alienage, and it cannot be pretended, petitioned that the cause might be removed to this successfully, that the statute makes provision for the court, for the reason that the Grand Trunk Railway removal of a criminal cause on that account. was a foreign corporation, established by the laws of Canada, an alien corporation, and because the penalty or fine to be imposed exceeded $500, exclusive of costs,

MARITIME LAW DUTY OF SHIP-OWNER to wit, the sum of $5,000, which penalty or fine tho

TO RETURN MARINER TO PORT complainants - - the widow, administrator, and heirs of

OF SHIPMENT. John E. Willis — were seeking to recover in the suit, or by this indictment.

UNITED STATES DISTRICT COURT, E. D. MISSOURI, Upon the filing of this petition and the requisite

JUNE 15, 1880. bond, objection was made by the State that this was not a civil proceeding or suit, but was a criminal prose

WORTH V, STEAMBOAT LIONESS. cution, and that it did not appear that the amount in dispute exceeded the sum of $500. The cause was

Where there are no shipping articles and no prescribed therefore ordered "continued,” and the question thus

voyage stated, the implied contract or legal presumption

when a mariner is shipped is that he is to be returned raised transferred to the full bench of the Supreme

to the port of shipment. This applies to internal as Court of the State. At the March term of that court,

well as to ocean navigation. Accordingly where mari. 1879, the court gave its opinion that the proceeding was ners were shipped at a port on the Ohio river on a res. not of a civil nature, but was a criminal proceeding to sel engaged in towing on that river and on the Missisenforce a penalty for the “infraction of a State law." sippi, and the voyage was broken up at a point on the In the meantime the cause was brought to this court,

Mississippi by reason of obstruction by ice, held, that and entered here the May term, 1878. At the same

they were entitled to recover from the owner of the term a motion was made to remand the cause to the

vessel the expense of returning home by railroad from

that point and wages until their arrival at the port of State court, because, among other things, the cause

shipment. was a criminal proceeding, and there is no sum in controversy exceeding the sum of $500. For the first of N admiralty. Libel upon steamboat Lioness No.2, to these reasons, if not for the other, we think the motion recover wages claimed to be due libellants as mari. must be granted. It is well settled by numerous de- ners and expenses incurred by them in returning from cisions that in construing local or State statutes the the port where they were discharged to their port of Federal courts will follow the construction given to shipment. The opinion states the case, such statutes by the highest courts of the respective II. E. Mills and J. P. Dauson, for libellants. States. Such decisions are, in some of the cases, said to be

H. A. & A. C. Clover, for claimants. as binding as the text of the statute. McKeen v. TREAT, D. J. The demands are by mariners, under Delancy, 5 Cr. 22; Polk's Lessee v. Wendall, 9 id. 87; shipping contracts. The libellants shipped respectively Thatcher v. Powell, 6 Wheat. 119; McDowell v. Peyton, at Pittsburg and Louisville, without shipping articles 10 id. 454; Shelby v. Guy, 11 id. 361; McCheny v. Silli- or any express statement as to the proposed voyage. man, 3 Pet. 270; Harpending v. Dutch Church, 16 id. All parties knew that the vessel was engaged in towing 455; Smith v. Kernocher, 7 How. 198; Nesmith v. claimant's barges from one point on the Ohio river to Sheldon, id. 812; Van Ransaler v. Kearney, 11 id. 297 ; another point on the same river, and also to different Webster v. Cooper, 14 id. 488, 504; Leffingwell v. War- points on tbe Mississippi river. The vessel, in the ren, 2 Blk. 599; Gelpcke v. City of Dubuque, 1 Wall. course of her voyaging, encountered ice in the Missis175; Christy v. Pridgeon, 4 id. 196; Nichols v. Levy, 5 sippi and laid up at Bushburg, about twenty miles below id. 433; City of Richmond v. Smith, 15 id, 4:29.

St. Louis, As it was uncertain how long she might be So closely and carefully has this rule been followed detained, the voyage was broken up and the libellants that if the highest court of a State adopts new views were discharged, receiving the wages earned to that as to the proper construction of a State statute, and time. They insisted upon a sum additional, sufficient reverses its former decision, the Federal courts will to return them to their respective ports of shipment, follow the latest decision of the State court. Leffing- which request was refused. The libels are to recover well v. Warren, 2 Black, 599; United States v. Morison, the necessary expenses of their return, and for the ad4 Pet. 1:24; Green v. Neal's Lessee, 6 id. 291.

ditional sum of $30 each. The Supreme Court of New Hampshire, the highest It is obvious that the detention of the crew on full court of the State, having, in this case, given a con- pay until the winter season ended, or the river was struction to the statute that it is, in substance, a penal clear of ice, might have been very expensive to the statute, and that a suit or proceeding upon it is a vessel; yet their right to be trausported to their port criminal proceeding, for an infraction of a law of the of shipment is well settled. A mariner who ships for State, this court must adopt that construction. If so, a voyage cannot be discharged without cause in a for it is quite clear this cause must be remanded to the eign port without the knowu legal results. Wheu


- OF

there are no shipping articles, and no prescribed voy- 43; Brunent v. Taber, 1 id. 243; Hutchinson v. Coombs, 1 age stated, the implied contract or legal presumption Ware, 65; Sheffield v. Page, 1 Sprague, 285, 288; Sheffield is that he is to be returned to the port of shipment. r. Page, 2 Curt. C. C. 377; Hunt v. Colburn, 1 Sprague, Were this otherwise, most disastrous consequences 215; Nimrod, 1 Ware, 9; Anderson v. Solon, Crabbe's might often result. The doctrines as to seagoing ves- Adm. 17; The Gazelle, 1 Sprague, 378; Burke v. Buttsels are well settled, and the principles on which they mann, 1 Lowell, 191; The Elizabeth, 2 Dodson, 402, 412; have been asserted apply to internal navigation, in the Brooks v. Dorr, 2 Mass. 39; The John Martin, 2 Abb. absence of any congressional legislation upon the sub- (U. S.) 172, 181; The B. F. Bruce, Newberry, 539; ject. If a mariner shipped on a vessel bound to Fort The Crusader, 1 Ware, 437; White v. Atkins, 8 Cush. Benton, Montana, it could not be fairly urged, that 367; Rossiter v. Cooper, 23 Vt. 5:22; Heim v. Wolf, 1 E. in the absence of an express agreement, he could quit D. Smith, 70. the vessel at Fort Benton, and with impunity disable her from returning; nor on the other hand, that he

NEW YORK COURT OF APPEALS ABSTRACT. could be left in that distant region without means of returning. The duties are reciprocal. This court had occasion years ago to pass upon a like

ASSUMPTION DEBT BY ONE ACQUIRING CONquestion, occurring upon the upper Missouri. Re- TRACT TO SELL REAL ESTATE FROM VENDEE AS SECURported cases seem not to be fully in accord; yet when

ITY — STATUTE OF FRAUDS.-(1) Plaintiff executed to carefully considered, are not different in principle. A

H. a contract in which he agreed to convey to H., mariner wrongfully discharged may work his passage

upon the payment of $1,350, $300 upon the execution home in the same capacity as that for which he was

of the contract and the balance in five equal annual originally engaged, and thus save the cost of transpor

payments, a lot of land. The $300 was paid and intation to the owners of the vessel. In the absence of terest at the end of the first year on the balance. such an opportunity he may return as a passenger. In

Thereafter H. conveyed the contract to defendant to seagoing voyages, where the destination is to a foreigu

whom he was indebted, in consideration of the cancelport specified, and a direct return to the port of ship

ling of the debt, and of an agreement on the part of ment, it has been decided that his wages should be

defendant to let him have in trade sufficient to amount paid up to the time of the vessel's return, and it has

with the debt to $300. There was also an agreement also been decided that his wages should run to the date

that upon repaying the amount advanced H. might of his return in another vessel. Circumstances may

redeem the contract. Plaintiff brought action agaiust make one or the other of these rulings applicable as to

defendant for the amount due on the contract, on the foreign voyages.

ground that defendant had promised H. to pay what In the internal navigation of this country it is evi

should fall due upon the contract, and that this promise dent that no arbitrary rule can obtain, in justice to the

inured to the benefit of plaintiff. The only evidence interests involved, for, as in the case under considera

of such an agreement was in the testimony of H. tion, the returu could not be made in a reasonable

which did not show any express promise to that effect. time on a vessel, because navigation was closed by ice.

Held, that the action could not be sustained. There The mariners, being discharged at a port whence by

was no absolute promise on the part of defendant to railroad they could return home in a few days, would

pay the debt, no assumption so as to make it the debt not have been justified in waiting until spring for a

of defeudant. The case falls within Garnsey v. Rogers, vessel to take them to their port of shipment. Hence,

47 N. Y. 237, and the transaction between H. and dethe rule for their compensatiou is the amount of their

fendant gave no right of action to plaintiff. In the necessary transportation and expenses, together with

case cited the right of redemption had been exercised; their rate of wages from date of discharge to their ar

in this it had not, but the difference is immaterial. rival at the port of shipment; for the contracts were

The rule depends upon the existence of the right and not for a specified time of employment.

not upon its exercise. The cases Ricard v. Sanderson, It might have been that their term of service would

41 N. Y. 179; Cooley v. Ilowe Machine Co., 53 id. have ended sooner than it did; for the voyage might 620; Campbell v. Smith, 71 id. 26, do not conflict with have been made only to Cincinnati or Louisville and

this rule. In all of them the covenant to pay was abback to Pittsburg. It must however be always con

solute and the liability fixed. (2) It was claimed that sidered that mariners stand in the relation of wards

defendant had obtained from plaintiff an extension of of court, and that inasmuch as it is in the power of

time for the payment of some of the installments due, the master and owners to make their contracts definite

and had promised to pay them in consideration of by shipping articles or otherwise, the legal presump

which an extension was given. llell, that no such tion arises, if they do not specify in their agreements

cause of action was set up. The action was on deto the contrary. The differences in river navigation

fendant's promise to H. (3) Held, also, that the promise from seagoing voyages have been often considered in

claimed being to pay the debt of another, was invalid this court, and this case furnishes an apt illustration

under the statute of frauds, not being in writing, even of what maritime principles require. From various

though supported by a sufficient consideration. Watcauses a steamboat may have to procure additional

son v. Randall, 20 Wend. 201; Mallory v. Gillett, 21 id. mariners in different stages of her route, instead of an

411; Burtis v. Thompson, 42 id. 246. Judgment affirmed. entire crew for the whole voyage; yet the same rule

Roe, appellant, v. Barker. Opinion by Finch, J. must apply to each.

[Decided Nov. 9, 1880.] It is very easy for officers to state to a mariner defi- NEGLIGENCE -- OMISSION TO RING BELL AND KEEP nitely what his employment is to be, whether to be FLAGMAN AT STREET CROSSING IF NOT CONTRIBUTING discharged at the port of arrival or otherwise, if they TO INJURY FROM RAILROAD TRAIN NOT NEGLIGENCE. wish to limit his term of service or reserve a right to In an action against a railroad company for injury to discharge him before his return to the port of shipment. plaintiff, a boy ten years old, caused by being run over Brown v. Lull, 2 Sum. 443, 449; In re Glocester, 2 early in the evening by defendant's engine at a street Pet. Adm. 403, 405; In re Rovena, 1 Ware, 309; The crossing, it was claimed that no bell was rung when Exeter, 2 Rob. Adm. 261; Beaver, 3 id. 92; Sullivan y. the engine approached the crossing. It appeared, Morgan, 11 Johns. (66) 67; Hoyt v. Wildfire, 3 id. 518, however, that plaintiff saw the engine, which was 520; 28 Mo. 280; id. 338; Rice v. Polly & Kitty, 2 Pet. backing, approaching and tried to run across in front Adm. 420, 423; The Union, Blatchf. & H. 568; Farrell of it, but his foot caught between a rail and the plaukv. French, id. 275; Emerson v. Hlowlund, 1 Mason, 45; ing and he fell down and was run over. Held, that as Nevitt v. Clarke, Olc. 316; Jones v. Sears, 2 Sprague, the object of ringing a bell upon an engine is to warn

business or the trade-mark. There was nothing in the bill of sale about the trade-mark, and there was no agreement oirthe part of defendants that they would not engage in manufacturing the same kind of goods, or that plaintiff should have the exclusive right to carry on the business in the city of Brooklyn. There was no fraud or mistake. Held, that plaintiff did not have the exclusive right to use the word "silex" as a trade-mark, but that defendants had an equal right with him to its use. The deed and bill of sale must be held to embody the contract between the parties. Pickering v. Dawson, 4 Taunt. 779; Mumford y McPherson, 1 Johns. 414; Durgin v. Ireland, 14 N. Y. 322; Pollen v. Leroy, 30 id. 549. A trade-mark is a species of property which may be sold or transmitted by deed, with the business in which it has been used. Leather Cloth Co. v. American Leather Cloth Co., 4 De Gex, J. & S. 137 ; S. C., 11 H. L. Cas. 523; G. & H. Manufact. (o. v. Hall, 61 N. Y. 226. The trade-mark did not pass as included in what was sold. It was no necessary part of what was sold. It did not import that the goods upon which it was placed were manufactured or produced in any particular locality. In this respect the case was unlike Congress, etc., Spring Co. v. High Rock, etc., Spring Co., 45 N. Y. 291. Under the circumstances it was incumbent upon plaintiff to show that the exclusive right to use the trade-mark was actually, by agreemeut, vested in him. This he failed to do. Order affirmed and judgment absolute for defendants. Huwer, appellant, v. Dannenhoffer. Opinion by Earl, J. [Decided Nov. 9, 1880.]




people of its approach, it was not negligence contributing to the accident to omit to ring it, as plaintiff had all the notice that ringing would have given. A flagman was usually kept at this crossing, but he was absent on this occasion. It was not the duty of defendant to keep a flagman at that crossing and plaintiff did not know that one had been usually kept. Held, that there was no negligence on the part of the defendant in this particular. McGrath v. New York Central, etc., R. Co., 59 N. Y. 468; S. C., 63 id. 5:22. The regular fireman was not on the engine at the time, and there was no light on the rear of the engine and it was dark. Held, as it appeared that plaintiff plainly saw the engine approaching, there was no negligence. Judgment reversed and new trial granted. Pakalinskey v. New York Central & Hudson River Railroad Co., appellant. Opinion by Earl, J., Folger, C. J., and Rapallo and Miller, JJ., concurred; Andrews, Danforth and Finch, JJ., dissented. [Decided Nov. 9, 1880.]


WRITING UNDER CODE, SECTION 1010. — (1) In an action to foreclose a mortgage for $2,500, defendant averred a tender of $2,568, which was made after suit brought, in payment of the mortgage debt. Held, that there was no issue of fact as to whether there was any thing due on the mortgage at the commencement of the suit. A tender admits the cause of action stated in the complaint to the amount tendered. Johnson v. Ins. Co., 7 Johns. 315; Spalding v. Vandercook, 2 Wend. 431; Roosevelt v. New York, etc., R. Co., 45 Barb. 554. Here the amount claimed in the complaint was $2,500 and interest from May 1. The tender was made September 19, and was for a few cents more than the amount claimed and interest, but no tender was made for costs, and there was no order for the tender of the debt without a tender of the costs. Held, that the defendant failed to satisfy the suit by the tender be made and plaintiff was entitled to a judgment against him. There was no need of proof of the amount of the debt before it could be known that the amount tendered was not enough to cover costs, as the allegation of the answer was that it was in payment of the debt, and costs, though incidental to the debt, are not a part of it. There was no trial of an issue of fact and no findings of fact were needed to sustain a judgment. The pleadings contained them. It was like a demurrer ore tenus, though not one in technical form. (2) It was claimed that there was no decision in writing filed, as required by Code, section 1010. Held, that the order for judgment would constitute a sufficient decision in writing in this case. Even conceding that it was not, it could not be taken advantage of by an order at Special Term, to set aside the judgment, but only by a motion for a new trial. Order affirmed. Eaton v. Wells, appellant. Opinion by Folger, C. J. [Decided Nov. 16, 1880.]


INCLUDE TRADEMARK. -- For more than three years prior to 1877, plaintiff and defendants carried ou business in the city of Brooklyn, manufacturing glass. They had adopted the word • silex" as a trade-mark for the designation of their goods. In 1877 the firm was dissolved, and defendants sold to plaintiff their interest in the real estate where the business was conducted, and in certain personal property used in conducting it, and thereafter the plaintiff coutinued the same business at the same place, using the same trade-mark. There was a deed of the real estate to plaintiff and a bill of sale of the personal property. Nothing was said at the time of the sale about the good will of the

CONSTITUTIONAL LAW - IMPAIRING CONTRACT STATUTE IMPEDING COLLECTION OF JUDGMENT. - A State statute requiring that judgments against a city before they should be paid should be registered with the comptroller of the city, held, not unconstitutional as impairing the obligation of a contract. The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tend to post pone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened. The Latin proverb, qui cito dat bis dat — he who gives quickly gives twice — has its counterpart in a maxim equally sound, qui serius solvit, minus solvit — he who pays too late pays less. Any authorization of the postponement of payment, or of means by which such postponement may be effected, is in conflict with the constitutional inhibition. There is, however, nothing in the statute referred to which impeded the collection of judgments or prevented resort to other remedies if their payment was not obtained. The registry was a convenient means of informing the city authorities of the extent of the judgments, and that they had become executory, to the end that proper steps might be taken for their payment. It did not impair existing remedies. Decree of Supreme Court of Louisiana affirmed. State of Louisiana ex rel. Ranger, plaintiff in error, v. City of New Orleans. Opinion by Field, J. [Decided Nov. 22, 1880.)


NOT. – This action, which was tried in the United States ('ircuit Court for the Southern District of Illinois, was between a bank and an executor. One W. w.s called and testified as a witness for the bank, to a conversation between him and the testator touching some of the matters involved in the controversy.



W. was interested in the issues to be tried, and was, curred if the Newell had had a sufficient watch on under the laws of Illinois, incompetent to testify to deck at the time, held, that the Clara was not liable for the conversation, and was objected to for that reason the damage done to the Newell by the collision. Deby the counsel for the executor. Held, that W. was cree of U. S. Circuit Court, E. D. New York, affirmed. competent to testify under the provision of United Shepherd et al., appellants, v. Schooner Clara et al. States Revised Statutes, section 858, which declares Opinion by Swayne, J. that “in the courts of the United States no witness [Decided Nov. 29, 1880. ] shall be excluded in any action on account of color, or in any civil action because he is a party to or interested

UNITED STATES CIRCUIT AND DISTRICT in the issue tried. Provided, that in actions by or

COURT ABSTRACT.* against executors, administrators or guardians, in · which judgment may be rendered for or against them, neither party shall be allowed to testify against the

JUDICIAL SALE — WHEN ADVANCE BID AFTER SALE other as to ang transaction with or statement by the

GROUND FOR OPENING-INTERVENTION OF THIRD PERtestator, intestate, or ward, unless called to testify

SON. – In an application to set aside a judicial salo thereto by the opposite party, or required to testify essential that the amount of the advance bid should

upon the ground of gross inadequacy of price, it is not thereto by the court. In all other respects the laws of the Slate in which the court is held shall be the rules

be actually paid into court. It is essential, however, of decision as to the competency of witnesses in the

that such advance bid should be absolute and unconcourts of the United States in trials at common law

ditional. Under equity rule 19, adopting the practice and in equity and admiralty.” It is quite true that

of England so far as it is consistent with “our local the 34th section of the Judiciary Act of 1789 — pre

circumstances and conveniences," a third person can served, totidem verbis, in section 7:21 of the present

intervene and have a sale set aside, upon offering a suffirevision of the statutes - has been construed as requir- cient advance in price and paying all the expenses ining the Federal courts, in all civil cases at common

curred by the previous purchaser. Cases referred to: law, not within the exceptions named, to observe, as

Lucas v. Moore, 2 Lea, 1; Delves v. Delves, L. R., 20 rules of decision, the rules of evidence' prescribed by Eq.77; Railroad Co. v. Soutter, 5 Wall. 660; Lawrence the laws of the States in which such courts respectively

v. Dale, 3 Johns. Ch. 39; Duncan v. Dodd, 2 Paige, 99; sit. Vance v. Campbell, 1 Black, 430; McNeal v. Hol

Am. Ins. Co. v. Oakley, 9 id. 259; Click v. Burris, 6 brook, 13 Peters, 84; Wright v. Bales, 2 Bl. 537; Sims

Heisk. 539; Glenn v. Glenn, 7 id. 367; Atkison v. Murv. Hundley, 6 How. 6; Byan v. Brindley, 1 Wall. 68.

free, 1 Tenn. Ch. 51; Ins. Co. v. Hamilton, 3 id. 228; But that section of the act of 1789, as does section 721

Vaughni v. Smith, id. 368; Atchison v. Murfree, id. of the Revised Statutes, expressly excepts from its 728; Barlow v. Osborne, 6 H. L. Cas. 556; Garstono operations cases “where the Constitution, treaties, or

v. Edwards, 1 Sim. & S. 20; Brookfield v. Bradley, id. statutes of the United States otherwise provide.” The 23; Watson v. Birch, 2 Ves. 51; S. C., 4 Bro. (h. 178; existing statutes of the United States do "otherwise Upton v. Lord Fenus, id. 700; Andrews v. Emerson, 7 provide,” in that they forbid the exclusion of a witness

id. 420; Morice v. Bishop of Dunham, 11 id. 65; Whito upon the ground that he is a party to, or interested in,

v. Wilson, 14 id. 151; Farlow v. Weildon, 4 Madd. 460; the issue, in any civil action whatever pending in a

Blossom v. Railroad Co., 3 Wall. 196; Smith v. Arnold, Federal court, except in a certain class of actions,

5 Mason, 414; S. C., 1 Wall. 655; Savery v. Sypher, 6 id. which do not embrace the one now before us. “In all

157; Anson v. Twogood, 1 Jac. & W. 637; Vesey v. Elother respects,” that is, in all cases not provided for by wood, 3 Dr. & W. 74: Lathrop v. Nelson, 4 Dinl. 194; the statutes of the United States, the laws of the

Twigg v. Fifield, 13 Ves. 517; Ex parte Minor, 11 id. State, in which the Federal court sits, constitute rules

559; Wren v. Kirton, 8 id. 602; Moore v. Watson, 4 of decision as to competency of uitnesses in all actions

Cold. 64; Owen v. Owen, 5 Humph. 352; The Sparkle at common law, in equity or in admiralty. It is clear, 7 Ben. 528; Ottey v. Pensam, 1 Hare, 322; Gray v. therefore, that the law of Illinois could have no bear

Brignardello, 1 Wall. 627; Freeman v. Freeman, 2 C. ing upon a case which is embraced, or has been pro

E. Green, 49; Wilson v. Brannan, 27 Cal. 258. U. S. vided for, by the Federal statute. Judgment of U.S.

Circ. Ct., W. D. Tennessee, July, 1880. Blackburn v. Circuit Court, S. D. Illinois, affirmed. Potter, plaint- Selma Railroad Co. Opinion by Hammoud, D. J. iff in error, v. Third National Bank of Chicago. Opin- JURISDICTION SERVICE OF PROCESS RAILROAD ion by Harland, J.


OTHER, NOT CITIZEN OF LATTER STATE. — Section 118, MARITIME LAW - RULE IN CASE OF COLLISION. – In vided that the lessee of a railroad within the State,

chapter 28, of the General Statutes of Vermont, procases of collision the rule is well settled that when the residing out of the State, should appoint one person fault is wholly on one side the party in fault must bear

resident in the State, upon whom service of every kind his owu loss and compensate the other party, if such

of process known to the laws of the State might at party have sustained any damage. If neither be in

any time be made, and that all such service upon tho fault neither is entitled to compensation from the

person so appointed should be a legal service upon tho other. If both are in fault the damages will be divided.

lessee. Held, that service upon the agent of the non1 Parsous on Shipp. & Adm. 525, 526: The Morning resident lessee of a railroad within the State, appointed Light, 2 Wall. 556; Union S. S. Co. v. N. Y. & Va. S.

in accordance with the terms of this section, and s. Co., 24 How. 313. The want of a proper watch is a

served in the manner provided by the laws of the State fault of great weight. 1 Parsons on Shipp, & Adm.

for the service of such process, would suffice to vest 576, 577; The Sapphire, 11 Wall. 170; The Mary T.

the Circuit Court for the district of Vermont with Wilde, Taney's Decis. 567; The Lydia, 4 Benedict, 523.

jurisdiction of an action against such non-resident In a case of collision the plaintiff, in order to recover entire damages, must prove both care on his own part road v. Harris, 12 Wall. 65. The case, Baltimore & Ohio

lessee. Ex parte Schollenberger, 96 U. S. 369: Railand want of it on the part of the defendant. 1 Par

R. Co. v. Noels (Va.), 21 Alb. L. J. 477, holding that a sous, supra, 529 and note 2. Accordingly, where a ves

corporation of Maryland leasing and operating a railsel named the Newell, which was anchored at night road in Virginia was so a citizen of Virginia that a and in a severe snowstorm, without a sufficient watch

suit against it by a citizen of Virginia was not removon deck, was run into by a vessel named the Clara,

able to the Federal courts, dissented from. In Knapp v. which was well manned and had proper lights and a proper look-out, and the collision would not have oc

* Appearing in 3d Federal Reporter.

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