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of different States

either party may remove said suit." The defendant here contends that the matter in dispute, ou the issue raised by the counterclaim in the answer, and the reply thereto, exceeds $500, exclusive of costs; that there is a controversy in regard to such matter, made a controversy conclusively by the plaintiff, by his reply to the counter-claim; and that on this ground the defendant can remove the whole suit into this court.

Under the New York Code of Civil Procedure (section 500) an auswer may contain a counter-claim, that is, a statement of new matter constituting a counterclaim. Such counter-claim (section 501) must tend in some way to diminish or defeat the plaintiff's recovery, and must be one of certain specified causes of action. A plaintiff may (sections 494, 495, 496) demur to a counter-claim, distinctly specifying the objections, one of which may be that the counter-claim is not of the character specified in section 501. Where a counter-claim is established which equals the plaintiff's demand, judgment goes for the defendant. Where it is less than the plaintiff's demand the plaintiff has judgment for the residue. Where it exceeds the plaintiff's demand the defendant has judgmeut for the excess, or so much thereof as is due from the plaintiff (section 503). The plaintiff, if he does not demur, may reply to the counter-claim denying what he controverts (section 514).

A counter-claim is held to be an affirmation of a cause of action against the plaintiff, in the nature of a cross action, and upon which the defendant may have an affirmative judgment against the plaintiff. As a cross action, setting forth a cause of action by the defendant against the plaintiffs, and demanding a judgment thereon for $750 (in addition to the dismissal of the plaintiffs' complaint and the defeat of the plaintiffs' claim), the claim in which cross action is disputed by the plaintiffs by the reply, the counter-claim clearly brings into the suit a matter in dispute which exceeds $500 in value. Even if the defendant should have judgment only for the difference between $195 and $750, that would be more than $500; but he claims $750, and that the plaintiffs shall have no judgment. There may be two actions in one point of view. One may be regarded as an action by the plaintiffs against the defendant to recover the $195. The plaintiffs may fail to recover any part of that, or they may recover a part of it, or they may recover the whole of it, The answer, and the counter-claim in it, may have the effect, if proved, to diminish or defeat the plaintiffs' recovery (section 501). If the plaintiffs' recovery is wholly defeated, then the defendant becomes actor, and may recover judgment for the whole or a part of the $750. Still both proceedings are in one suit, as the word “suit" is used in the act of 1875. The first section of the act of 1875 uses the expressions "suits of a civil nature," "civil action” and “civil suit" as synony

The second section of that act uses the expressions “suits of a civil nature" and " said suit" in the same sense. The third section of tbat act uses the expressions “suit,” and “such suit," and “the cause,' and “action," in the same sense. The same is true of the same words, and also of the word "case,” when used in the subsequent sections of that act. In the sense of sections 2 and 6 of the old Code of Civil Procedure of New York (unrepealed), the proceeding by the defendant against the plaintiffs to recover the $750 is an action, and a civil action, the defendant being permitted to become actor in the given case. The statutes of New York now use the word “action," and discard all other terms. The proceeding by the defendant against the plaintiffs being a civil action, in a suit of a civil nature, and the matter in dispute in it exceeding, exclusive of costs, the sum or value of $500, it is brought in the State court, under the authority of the statute of New York, in the form in which it is brought, although the defendant is turned into a

plaintiff and the plaintiff into a defendant, and jurisdiction of the person of the plaintiff is obtained by the fact that plaintiff came into court and brought the defendant in first, in the action brought by the plaintiff. It clearly makes a case for removal. But what is to be removed? The act of 1875 says that "said suit" is to be removed! Is the proceeding or action by the defendant, his affirmative claim, the only thing that is to be removed, leaving the claim of the plaintiffs to be litigated in the State court, the former claim being $750 and the latter $195? In view of the facts, that the suit is in form one brought by the plaintiffs against the defendant, and includes the plaintiffs' claim, by the voluntary act of the plaintiffs, and is made to include the defendant's claim by the operation of the statute of New York; and that thus there is but one suit, though there are two controversies in it, and that the whole suit is to be removed, and that either party may remove it, and that the counter-claim necessarily “must tend in some way to diminish or defeat the plaintiffs' recovery,” it follows that the whole suit is removed, including all the issues, by the complaint, the answer and counter-claim and the reply.

The case of West v. Aurora City, 6 Wall. 139, is not in point. The facts there were not at all like the facts in this case, and it arose under a different statute.

In McLean v. St. Paul, etc., Railway Co., 16 Blatchf. C. C. 309, a construction was given to section 2 of the act of 1875, to the effect that a suit where the requisite citizenship for removal did not exist when the suit was brought, might become removable by the occurrence of the requisite citizenship during the pendency of the suit. Under that ruling it must be held that it is not necessary that the requisite amount in dispute should appear to have existed when the suit was brought. After proceedings for removal are completed, a party cannot be deprived of his right, by any action of the State court or of the other party, in reducing the amount appearing to be in dispute. Kanouse v. Martin, 15 How. 198. But there is nothing to prevent a State court from allowing an insufficient amount in dispute to become an adequate amount, under the act of 1875, or prevent such insufficient amount from becoming an adequate amount under that act by the operation of the statute of New York and the lawful acts of the parties to the suit thereunder.

The motion to remand the suit and for other relief is denied.







WAY. The doctrine that the Federal courts will in the construc

tion of the statute law of a Stato follow the decision of

the highest State courts, reaffirmed. The act of Congress of March 3, 1875, relating to the re

moval of cases from State to Federal courts, does not provide for the removal of a criminal action on the ground of alienage. OTION to remand to State court. The opinion

states the case. Mr. Ladd, for plaintiff. Ray, Drew & Jordan, for defendant.

CLARK, D. J. At the Supreme Court of the State of New Hampshire, holden at Lancaster, in the county of Coos, on the fourth Tuesday of April, 1877, the Grand Trunk Railway, a corporation established under the laws of Canada, was indicted by the grand jury for that county for carelessly and 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 remoral of causes of a civil nature. This is crimicarelessness of the proprietors of any railroad, or by nal. 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 fined not exceeding $5,000, nor less than $500, and Tennessee v. Davis, 100 U. S. 257. 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 which 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 indictment 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 attorney's 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 mari1879, the court gave its opinion that the proceeding was ners were shipped at a port on the Ohio river on a vesnot 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 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. Dawson, 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 marivers, 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, ✓ 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 the 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 y. Pridgeon, 4 id. 196; Nichols v. Levy, 5 sippi and laid up at Bushburg, about twenty miles below id. 453; City of Richmond v. Smith, 15 id. 429.

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, avd for the ad4 Pet. 124; 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 seasou 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 transported 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 forit is quite clear this cause must be remanded to the eign port without the kuowu legal results. When

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. v. 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


Requestion, occurring upon the upper Missouri.

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 against 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 defendant. The case falls within Garnsey v. Rogers, vessel to take them to their port of sbipment. Hence,

47 N. Y. 237, and the transaction between H, and dethe rule for their compensation 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. Howe 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. Ileld, 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.

[Decided Nov. 9, 1880.] must apply to each.

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 Adin. 420, 423; The Union, Blatchf. & H. 568; Farrell of it, but his foot caught between a rail and the plankv. French, id. 275; Emerson v. Howlund, 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


Co. v.

people of its approach, it was not negligence contribut- business or the trade-mark. There was nothing in the ing to the accident to omit to ring it, as plaintiff had bill of sale about the trade-mark, and there was no all the notice that ringing would have given. A flag- agreement oirthe part of defendants that they would man was usually kept at this crossing, but he was ab- not engage in manufacturing the same kind of goods, sent on this occasion. It was not the duty of defend- or that plaintiff should have the exclusive right to ant to keep a flagman at that crossing and plaintiff did carry on the business in the city of Brooklyn. There not know that one had been usually kept. Held, that was no fraud or mistake. Held, that plaintiff did not there was no negligence on the part of the defendant have the exclusive right to use the word "silex" as a in this particular. McGrath v. New York Central, etc., trade-mark, but that defendants had an equal right R. Co., 59 N. Y. 468; S. C., 63 id. 522. The regular with him to its use. The deed and bill of sale must be fireman was not on the engine at the time, and there held to embody the contract between the parties. was no light on the rear of the engine and it was dark. Pickering v. Dawson, 4 Taunt. 779; Mumford v. MoHeld, as it appeared that plaintiff plainly saw the en- Pherson, 1 Johns. 414; Durgin v. Ireland, 14 N. Y. gine approaching, there was no negligence. Judgment 322; Pollen v. Leroy, 30 id. 549. A trade-mark is a reversed and new trial granted. Pakalinskey v. New species of property which may be sold or transmitted York Central & Hudson River Railroad Co., appellant. by deed, with the business in which it has been used. Opinion by Earl, J., Folger, C. J., and Rapallo and Leather Cloth Co. v. American Leather Cloth Co., 4 Miller, JJ., concurred; Andrews, Danforth and Finch, De Gex, J. & S. 137 ; S. C., 11 H. L. Cas. 523; G. & H. JJ., dissented.

Manufact. (o. v. Hall, 61 N. Y. 226. The trade-mark [Decided Nov. 9, 1880.]

did not pass as included in what was sold. It was no TENDER — PLEADING, ADMITS THE SAME TO BE DUE

necessary part of what was sold. It did not import - OF DEBT WITHOUT COSTS AFTER SUIT BROUGHT, NO

that the goods upon which it was placed were manu

factured or produced in any particular locality. In AVAIL-PRACTICE - DECISION WRITING UNDER CODE, SECTION 1010. — (1) In an action to foreclose a

this respect the case was uulike Congress, etc., Spring mortgage for $2,500, defendant averred a tender of

High Rock, etc., Spring Co., 45 N. Y. 201. Un$2,568, which was made after suit brought, in payment

der the circumstances it was incumbeut upon plaintiff of the mortgage debt. Held, that there was no issue

to show that the exclusive right to use the trade-mark of fact as to whether there was any thing due on the

was actually, by agreement, vested in him. This he mortgage at the commencement of the suit. A tender

failed to do. Order affirmed and judgment absolute admits the cause of action stated in the complaint to

for defendants. Huwer, appellant, v. Dannenhoffer. the amount tendered. Johnson v. Ins. Co., 7 Johns.

Opinion by Earl, J. 315; Spalding v. Vandercook, 2 Wend. 431; Roosevelt

[Decided Nov. 9, 1880. ] v. New York, etc., R. Co., 45 Barb. 554. Here the amount claimed in the complaint was $2,500 and inter- UNITED STATES SUPREME COURT ABest from May 1. The tender was made September 19,

STRACT. and was for a few cents more than the amount claimed and interest, but no tender was made for costs, and CONSTITUTIONAL LAW – IMPAIRING CONTRACT — there was no order for the tender of the debt without

STATUTE IMPEDING COLLECTION OF JUDGMENT. -A a tender of the costs. Held, that the defendant failed State statute requiring that judgments against a city to satisfy the suit by the tender be made and plaintiff before they should be paid should be registered with was entitled to a judgment against him. There was the comptroller of the city, held, not unconstitutional no need of proof of the amount of the debt before it

as impairing the obligation of a contract. The obligacould be known that the amount tendered was not tion of a contract, in the constitutional sense, is the enough to cover costs, as the allegation of the answer means provided by law by which it can be enforced was that it was in payment of the debt, and costs, by which the parties can be obliged to perform it. though incidental to the debt, are not a part of it. Whatever legislation lessens the efficacy of these means There was no trial of an issue of fact and no findings impairs the obligation. If it tend to post pone or reof fact were needed to sustain a judgment. The tard the enforcement of the contract, the obligation pleadings contained them. It was like a demurrer ore of the latter is to that extent weakened. The Latin tenus, though not one in technical form. (2) It was proverb, qui cito dat bis dat — he who gives quickly claimed that there was no decision in writing filed, as gives twice-has its counterpart in a maxim equally required by Code, section 1010. Held, that the order sound, qui serius solvit, minus solvit - he who pays too for judgment would constitute a sufficient decision in late pays less. Any authorization of the postponement writing in this case. Even conceding that it was not, of payment, or of means by which such postponeit could not be taken advantage of by an order at ment may be effected, is in conflict with the constituSpecial Term, to set aside the judgment, but only by tional inhibition. There is, however, nothing in the a motion for a new trial. Order affirmed. Eaton v.

statute referred to which impeded the collection of Wells, appellant. Opinion by Folger, C. J.

judgments or prevented resort to other remedies if [Decided Nov. 16, 1880.]

their payment was not obtained. The registry was a TRADE-MARK-BELONGING TO FIRM-SALE TO PART

convenient means of informing the city authorities of

the extent of the judgments, and that they had beNER OF PERSONAL PROPERTY AND PREMISES WHERE

come executory, to the end that proper steps might be BUSINESS CONDUCTED DOES NOT INCLUDE TRADEMARK. — For more than three years prior to 1877,

taken for their payment. It did not impair existing plaintiff and defendants carried ou business in the

remedies. Decree of Supreme Court of Louisiapa city of Brooklyn, manufacturing glass. They had

affirmed. State of Louisiana ex rel. Ranger, plaintif adopted the word "silex" as a trade-mark for the

in error, v. City of New Orleans. Opinion by Field, J. designation of their goods. In 1877 the firm was dis

[Decided Nov. 22, 1880.] solved, and defendants sold to plaintiff their interest EVIDENCE

:- COMPETENCY OF WITNESS IN FEDERAL in the real estate where the business was conducted,

WHEN DETERMINED BY STATE LAW AND and in certain personal property used in conductivg it, WHEN NOT. – This action, which was tried in the and thereafter the plaintiff continued the same busi- United States ('ircuit Court for the Southern District ness at the same place, using the same trade-mark. of Illinois, was between a bank and an executor. One There was a deed of the real estate to plaintiff and a W. wus called and testified as a witness for the bank, bill of sale of the personal property. Nothing was to a conversation between him and the testator touchsaid at the time of the sale about the good will of the ing some of the matters involved in the controrersy,


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 any 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 upon the ground of gross inadequacy of price, it is not thereto by the court. In all other respects the laws of

essential that the amount of the advance bid should 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 72 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

Vaughn 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. Ch. 178; existing statutes of the United States do "otherwise Upton v. Lord Fenus, id. 700; Andrews v. Emerson, ✓ 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 Dill. 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 witnesses 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, 8. D. Illinois, affirmed. Potter, plaint-Selma Railroad Co. Opinion by Hammond, 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 chapter 28, of the General Statutes of Vermont, pro

vided that the lessee of a railroad within the State, cases 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 own 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

lessee. Ex parte Schollenberger, 96 U. S. 369: Railentire damages, must prove both care on his own part road v. Harris, 12 Wall. 65. The case, Baltimore & Ohio and want of it on the part of the defendant. 1 Par

R. Co. v. Noels (Va.), 21 Alb. L. J. 477, holding that a sons, supra, 529 aud note2. Accordingly, where a vessel named the Newell, which was anchored at night road in Virginia was so a citizen of Virginia that a

corporation of Maryland leasing and operating a railand in a severe suowstorm, 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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