of different States *** either party may remove said suit." The defendant here contends that the matter in dispute, on 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 judgment 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 synonymous. 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 that 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

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.

REMOVAL OF CRIMINAL CAUSEON GROUND OF ALIENAGE.

U. S. CIRCUIT COURT, NEW HAMPSHIRE, OCTOBER 8, 1880.

STATE OF NEW HAMPSHIRE V. GRAND TRUNK RAIL

WAY.

The doctrine that the Federal courts will in the construction of the statute law of a State follow the decision of the highest State courts, reaffirmed.

The act of Congress of March 3, 1875, relating to the removal 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

John E. Willis, at West Milan, in said county, so that he died of his injuries.

The statute of New Hampshire, under which the indictment was found, is as follows (Gen. Laws N. H. 635, § 14): "If the life of any person not in their employment shall be lost by reason of the negligence or carelessness of the proprietors of any railroad, or by the unfitness or gross negligence or carelessness of their servants or agents in this State, such proprietors shall be fined not exceeding $5,000, nor less than $500, and one-half of such fine shall go to the widow, and the other half to the children of the deceased. If there is no child, the whole shall go to the widow, and if no widow, to his heirs, according to the law regulating the distribution of intestate estates."

Upon the finding of this indictment the railway was summoned to appear; and it did appear at the next November term of the court, and by its attorneys petitioned that the cause might be removed to this court, for the reason that the Grand Trunk Railway 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, to wit, the sum of $5,000, which penalty or fine the complainants- the widow, administrator, and heirs of John E. Willis were seeking to recover in the suit, or by this indictment.

Upon the filing of this petition and the requisite bond, objection was made by the State that this was not a civil proceeding or suit, but was a criminal prosecution, and that it did not appear that the amount in dispute exceeded the sum of $500. The cause was therefore ordered "continued," and the question thus raised transferred to the full bench of the Supreme Court of the State. At the March term of that court, 1879, the court gave its opinion that the proceeding was not of a civil nature, but was a criminal proceeding to enforce a penalty for the "infraction of a State law." In the meantime the cause was brought to this court, and entered here the May term, 1878. At the same term a motion was made to remand the cause to the State court, because, among other things, the cause was a criminal proceeding, and there is no sum in controversy exceeding the sum of $500. For the first of these reasons, if not for the other, we think the motion must be granted. It is well settled by numerous decisions that in construing local or State statutes the Federal courts will follow the construction given to such statutes by the highest courts of the respective States.

Such decisions are, in some of the cases, said to be as binding as the text of the statute. McKeen v. Delancy, 5 Cr. 22; Polk's Lessee v. Wendall, 9 id. 87; Thatcher v. Powell, 6 Wheat. 119; McDowell v. Peyton, 10 id. 454; Shelby v. Guy, 11 id. 361; McCheny v. Silliman, 3 Pet. 270; Harpending v. Dutch Church, 16 id. 455; Smith v. Kernocher, 7 How. 198; Nesmith v. Sheldon, id. 812; Van Ransaler v. Kearney, 11 id. 297; Webster v. Cooper, 14 id. 488, 504; Leffingwell v. Warren, 2 Blk. 599; Gelpcke v. City of Dubuque, 1 Wall. 175; Christy v. Pridgeon, 4 id. 196; Nichols v. Levy, 5 id. 433; City of Richmond v. Smith, 15 id. 429.

So closely and carefully has this rule been followed that if the highest court of a State adopts new views as to the proper construction of a State statute, and reverses its former decision, the Federal courts will follow the latest decision of the State court. Leffingwell v. Warren, 2 Black, 599; United States v. Morison, 4 Pet. 124; Green v. Neal's Lessee, 6 id. 291.

The Supreme Court of New Hampshire, the highest court of the State, having, in this case, given a construction to the statute that it is, in substance, a penal statute, and that a suit or proceeding upon it is a criminal proceeding, for an infraction of a law of the State, this court must adopt that construction. If so, it is quite clear this cause must be remanded to the

State court. This court had no jurisdiction of the subject-matter of it when commenced. It has not now. The statute of 1875 (§ 2, ch. 137, vol. 18, p. 470, U. S. Stat. at Large), under which it is claimed the removal of this cause is authorized, provides only for the removal of causes of a civil nature. This is criminal. There is no doubt that when there is proper authority for it, a criminal case may be removed from a State court to the Federal courts. It was so held in Tennessee v. Davis, 100 U. S. 257. But there is no provision for the removal of a cause like this under the act of March 3, 1875, on which the removal depends. The removal of the case of Tennessee v. Davis was under an entirely different statute and for an entirely different reason. In that case arose the question or right of the Federal authorities to protect their officers in the discharge of their duty. Here is only a claim of citizenship or alienage, and it cannot be pretended, successfully, that the statute makes provision for the removal of a criminal cause on that account.

MARITIME LAW-DUTY OF SHIP-OWNER
TO RETURN MARINER TO PORT
OF SHIPMENT.

UNITED STATES DISTRICT COURT, E. D. MISSOURI, JUNE 15, 1880.

WORTH V. STEAMBOAT LIONESS.

Where there are no shipping articles and no prescribed voyage stated, the implied contract or legal presumption when a mariner is shipped is that he is to be returned to the port of shipment. This applies to internal as well as to ocean navigation. Accordingly where mariners were shipped at a port on the Ohio river on a vessel engaged in towing on that river and on the Mississippi, and the voyage was broken up at a point on the Mississippi by reason of obstruction by ice, held, that they were entitled to recover from the owner of the vessel the expense of returning home by railroad from that point and wages until their arrival at the port of shipment.

N admiralty. Libel upon steamboat Lioness No. 2, to recover wages claimed to be due libellants as mariners and expenses incurred by them in returning from the port where they were discharged to their port of shipment. The opinion states the case.

II. E. Mills and J. P. Dawson, for libellants.
H. A. & A. C. Clover, for claimants.

TREAT, D. J. The demands are by mariners, under shipping contracts. The libellants shipped respectively at Pittsburg and Louisville, without shipping articles or any express statement as to the proposed voyage. All parties knew that the vessel was engaged in towing claimant's barges from one point on the Ohio river to another point on the same river, and also to different points on the Mississippi river. The vessel, in the course of her voyaging, encountered ice in the Mississippi and laid up at Bushburg,about twenty miles below St. Louis. As it was uncertain how long she might be detained, the voyage was broken up and the libellants were discharged, receiving the wages earned to that time. They insisted upon a sum additional, sufficient to return them to their respective ports of shipment, which request was refused. The libels are to recover the necessary expenses of their return, and for the additional sum of $30 each.

It is obvious that the detention of the crew on full pay until the winter season ended, or the river was clear of ice, might have been very expensive to the vessel; yet their right to be transported to their port of shipment is well settled. A mariner who ships for a voyage cannot be discharged without cause in a foreign port without the known legal results. When

there are no shipping articles, and no prescribed voyage stated, the implied contract or legal presumption is that he is to be returned to the port of shipment. Were this otherwise, most disastrous consequences might often result. The doctrines as to seagoing vessels are well settled, and the principles on which they have been asserted apply to internal navigation, in the absence of any congressional legislation upon the subject. If a mariner shipped on a vessel bound to Fort Benton, Montana, it could not be fairly urged, that in the absence of an express agreement, he could quit the vessel at Fort Benton, and with impunity disable her from returning; nor on the other hand, that he 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. ported cases seem not to be fully in accord; yet when carefully considered, are not different in principle. A mariner wrongfully discharged may work his passage home in the same capacity as that for which he was originally engaged, and thus save the cost of transportation to the owners of the vessel. In the absence of such an opportunity he may return as a passenger. In seagoing voyages, where the destination is to a foreign port specified, and a direct return to the port of shipment, it has been decided that his wages should be paid up to the time of the vessel's return, and it has also been decided that his wages should run to the date of his return in another vessel. Circumstances may make one or the other of these rulings applicable as to foreign voyages.

In the internal navigation of this country it is evident that no arbitrary rule can obtain, in justice to the interests involved, for, as in the case under consideration, the return could not be made in a reasonable time on a vessel, because navigation was closed by ice. The mariners, being discharged at a port whence by railroad they could return home in a few days, would not have been justified in waiting until spring for a vessel to take them to their port of shipment. Hence, the rule for their compensation is the amount of their necessary transportation and expenses, together with their rate of wages from date of discharge to their arrival at the port of shipment; for the contracts were not for a specified time of employment.

It might have been that their term of service would have ended sooner than it did; for the voyage might have been made only to Cincinnati or Louisville and back to Pittsburg. It must however be always considered that mariners stand in the relation of wards of court, and that inasmuch as it is in the power of the master and owners to make their contracts definite by shipping articles or otherwise, the legal presumption arises, if they do not specify in their agreements to the contrary. The differences in river navigation from seagoing voyages have been often considered in this court, and this case furnishes an apt illustration of what maritime principles require. From various causes a steamboat may have to procure additional mariners in different stages of her route, instead of an entire crew for the whole voyage; yet the same rule must apply to each.

It is very easy for officers to state to a mariner definitely what his employment is to be, whether to be discharged at the port of arrival or otherwise, if they wish to limit his term of service or reserve a right to discharge him before his return to the port of shipment. Brown v. Lull, 2 Sum. 443, 449; In re Glocester, 2 Pet. Adm. 403, 405; In re Rovena, 1 Ware, 309; The Exeter, 2 Rob. Adm. 261; Beaver, 3 id. 92; Sullivan v. Morgan, 11 Johns. (66) 67; Hoyt v. Wildfire, 3 id. 518, 520; 28 Mo. 280; id. 338; Rice v. Polly & Kitty, 2 Pet. Adm. 420, 423; The Union, Blatchf. & H. 568; Farrell v. French, id. 275; Emerson v. Howland, 1 Mason, 45; Nevitt v. Clarke, Olc. 316; Jones v. Sears, 2 Sprague,

43; Brunent v. Taber, 1 id. 243; Hutchinson v. Coombs, 1 Ware, 65; Sheffield v. Page, 1 Sprague, 285, 288; Sheffield v. Page, 2 Curt. C. C. 377; Hunt v. Colburn, 1 Sprague, 215; Nimrod, 1 Ware, 9; Anderson v. Solon, Crabbe's Adm. 17; The Gazelle, 1 Sprague, 378; Burke v. Buttmann, 1 Lowell, 191; The Elizabeth, 2 Dodson, 402, 412; Brooks v. Dorr, 2 Mass. 39; The John Martin, 2 Abb. (U. S.) 172, 181; The B. F. Bruce, Newberry, 539; The Crusader, 1 Ware, 437; White v. Atkins, 8 Cush. 367; Rossiter v. Cooper, 23 Vt. 522; Heim v. Wolf, 1 E. D. Smith, 70.

NEW YORK COURT OF APPEALS ABSTRACT.

ASSUMPTION OF DEBT BY ONE ACQUIRING CONTRACT TO SELL REAL ESTATE FROM VENDEE as SECUR

ITY STATUTE OF FRAUDS.-(1) Plaintiff executed to H. a contract in which he agreed to convey to H., upon the payment of $1,350, $300 upon the execution of the contract and the balance in five equal annual payments, a lot of land. The $300 was paid and interest at the end of the first year on the balance. Thereafter H. conveyed the contract to defendant to whom he was indebted, in consideration of the cancelling of the debt, and of an agreement on the part of defendant to let him have in trade sufficient to amount with the debt to $300. There was also an agreement that upon repaying the amount advanced H. might redeem the contract. Plaintiff brought action against defendant for the amount due on the contract, on the ground that defendant had promised H. to pay what should fall due upon the contract, and that this promise inured to the benefit of plaintiff. The only evidence of such an agreement was in the testimony of H. which did not show any express promise to that effect. Held, that the action could not be sustained. There was no absolute promise on the part of defendant to pay the debt, no assumption so as to make it the debt of defendant. The case falls within Garnsey v. Rogers, 47 N. Y. 237, and the transaction between H. and defendant gave no right of action to plaintiff. In the case cited the right of redemption had been exercised; in this it had not, but the difference is immaterial. The rule depends upon the existence of the right and not upon its exercise. The cases Ricard v. Sanderson, 41 N. Y. 179; Cooley v. Howe Machine Co., 53 id. 620; Campbell v. Smith, 71 id. 26, do not conflict with this rule. In all of them the covenant to pay was absolute and the liability fixed. (2) It was claimed that defendant had obtained from plaintiff an extension of time for the payment of some of the installments due, and had promised to pay them in consideration of which an extension was given. Held, that no such cause of action was set up. The action was on defendant's promise to H. (3) Held, also, that the promise claimed being to pay the debt of another, was invalid under the statute of frauds, not being in writing, even though supported by a sufficient consideration. Watson v. Randall, 20 Wend. 201; Mallory v. Gillett, 21 id. 411; Burtis v. Thompson, 42 id. 246. Judgment affirmed. Roe, appellant, v. Barker. Opinion by Finch, J. [Decided Nov. 9, 1880.]

NEGLIGENCE -- OMISSION TO RING BELL AND KEEP FLAGMAN AT STREET CROSSING IF NOT CONTRIBUTING TO INJURY FROM RAILROAD TRAIN NOT NEGLIGENCE.

In an action against a railroad company for injury to plaintiff, a boy ten years old, caused by being run over early in the evening by defendant's engine at a street crossing, it was claimed that no bell was rung when the engine approached the crossing. It appeared, however, that plaintiff saw the engine, which was backing, approaching and tried to run across in front of it, but his foot caught between a rail and the planking and he fell down and was run over. Held, that as the object of ringing a bell upon an engine is to warn

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. 522. 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.]

TENDER-PLEADING, ADMITS THE SAME TO BE DUE — OF DEBT WITHOUT COSTS AFTER SUIT BROUGHT, NO AVAIL-PRACTICE DECISION IN 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 he 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. Wells, appellant. Opinion by Folger, C. J. [Decided Nov. 16, 1880.]

Eaton v.

TRADE-MARK-BELONGING TO FIRM-SALE TO PARTNER OF PERSONAL PROPERTY AND PREMISES WHERE BUSINESS CONDUCTED DOES NOT INCLUDE TRADEMARK. For more than three years prior to 1877, plaintiff and defendants carried on 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 continued 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

business or the trade-mark. There was nothing in the bill of sale about the trade-mark, and there was no agreement or the 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. 79; Mumford v. 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. Co. 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. 201. Under the circumstances it was incumbent upon plaintiff to show that the exclusive right to use the trade-mark was actually, by agreement, 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.]

UNITED STATES SUPREME COURT ABSTRACT.

CONTRACT

CONSTITUTIONAL LAW IMPAIRING 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 enforcedby 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.]

W. was interested in the issues to be tried, and was, under the laws of Illinois, incompetent to testify to the conversation, and was objected to for that reason by the counsel for the executor. Held, that W. was competent to testify under the provision of United States Revised Statutes, section 858, which declares that "in the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried. Provided, that in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of

the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law and in equity and admiralty." It is quite true that the 34th section of the Judiciary Act of 1789-preserved, totidem verbis, in section 721 of the present revision of the statutes-has been construed as requiring the Federal courts, in all civil cases at common law, not within the exceptions named, to observe, as rules of decision, the rules of evidence prescribed by the laws of the States in which such courts respectively sit. Vance v. Campbell, 1 Black, 430; McNeal v. Holbrook, 13 Peters, 84; Wright v. Bales, 2 Bl. 537; Sims v. Hundley, 6 How. 6; Byan v. Brindley, 1 Wall. 68. But that section of the act of 1789, as does section 721 of the Revised Statutes, expressly excepts from its operations cases "where the Constitution, treaties, or statutes of the United States otherwise provide." The existing statutes of the United States do "otherwise provide," in that they forbid the exclusion of a witness upon the ground that he is a party to, or interested in, the issue, in any civil action whatever pending in a Federal court, except in a certain class of actions, which do not embrace the one now before us. "In all

other respects," that is, in all cases not provided for by the statutes of the United States, the laws of the State, in which the Federal court sits, constitute rules of decision as to competency of witnesses in all actions at common law, in equity or in admiralty. It is clear, therefore, that the law of Illinois could have no bearing upon a case which is embraced, or has been provided for, by the Federal statute. Judgment of U. S. Circuit Court, S. D. Illinois, affirmed. Potter, plaintiff in error, v. Third National Bank of Chicago. Opinion by Harland, J.

[Decided Nov. 8, 1880.]

MARITIME LAW-RULE IN CASE OF COLLISION.-In cases of collision the rule is well settled that when the fault is wholly on one side the party in fault must bear his own loss and compensate the other party, if such party have sustained any damage. If neither be in fault neither is entitled to compensation from the other. If both are in fault the damages will be divided. 1 Parsons on Shipp. & Adm. 525, 526: The Morning Light, 2 Wall. 556; Union S. S. Co. v. N. Y. & Va. S. S. Co., 24 How. 313. The want of a proper watch is a fault of great weight. 1 Parsons on Shipp, & Adm. 576, 577; The Sapphire, 11 Wall. 170; The Mary T. Wilde, Taney's Decis. 567; The Lydia, 4 Benedict, 523. In a case of collision the plaintiff, in order to recover entire damages, must prove both care on his own part and want of it on the part of the defendant. 1 Parsons, supra, 529 and note 2. Accordingly, where a vessel named the Newell, which was anchored at night and in a severe snowstorm, without a sufficient watch on deck, was run into by a vessel named the Clara, which was well manned and had proper lights and a proper look-out, and the collision would not have oc

curred if the Newell had had a sufficient watch on deck at the time, held, that the Clara was not liable for the damage done to the Newell by the collision. Decree of U. S. Circuit Court, E. D. New York, affirmed. Shepherd et al., appellants, v. Schooner Clara et al. Opinion by Swayne, J.

[Decided Nov. 29, 1880.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

JUDICIAL SALE-WHEN ADVANCE BID AFTER SALE GROUND FOR OPENING-INTERVENTION OF THIRD PERSON.

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In an application to set aside a judicial salo upon the ground of gross inadequacy of price, it is not essential that the amount of the advance bid should be actually paid into court. It is essential, however, that such advance bid should be absolute and unconditional. Under equity rule 19, adopting the practice of England so far as it is consistent with "our local circumstances and conveniences," a third person can intervene and have a sale set aside, upon offering a sufficient advance in price and paying all the expenses incurred by the previous purchaser. Cases referred to: Lucas v. Moore, 2 Lea, 1; Delves v. Delves, L. R., 20 Eq. 77; Railroad Co. v. Soutter, 5 Wall. 660; Lawrence v. Dale, 3 Johns. Ch. 39; Duncan v. Dodd, 2 Paige, 99; Am. Ins. Co. v. Oakley, 9 id. 259; Click v. Burris, 6 Heisk. 539; Glenn v. Glenn, 7 id. 367; Atkison v. Murfree, 1 Tenn. Ch. 51; Ins. Co. v. Hamilton, 3 id. 228; Vaughn v. Smith, id. 368; Atchison v. Murfree, id. 728; Barlow v. Osborne, 6 H. L. Cas. 556; Garstone v. Edwards, 1 Sim. & S. 20; Brookfield v. Bradley, id. 23; Watson v. Birch, 2 Ves. 51; S. C., 4 Bro. Ch. 178; Upton v. Lord Fenus, id. 700; Andrews v. Emerson, 7 id. 420; Morice v. Bishop of Dunham, 11 id. 65; Whito v. Wilson, 14 id. 151; Farlow v. Weildon, 4 Madd. 460; Blossom v. Railroad Co., 3 Wall. 196; Smith v. Arnold, 5 Mason, 414; S. C., 1 Wall. 655; Savery v. Sypher, 6 id. 157; Anson v. Twogood, 1 Jac. & W. 637; Vesey v. ElTwigg v. Fifield, 13 Ves. 517; Ex parte Minor, 11 id. wood, 3 Dr. & W. 74; Lathrop v. Nelson, 4 Dill. 194; 559; Wren v. Kirton, 8 id. 502; Moore v. Watson, 4 Cold. 64; Owen v. Owen, 5 Humph. 352; The Sparkle, 7 Ben. 528; Ottey v. Pensam, 1 Hare, 322; Gray v. Brignardello, 1 Wall. 627; Freeman v. Freeman, 2 C. E. Green, 49; Wilson v. Brannan, 27 Cal. 258. U. S. Circ. Ct., W. D. Tennessee, July, 1880. Blackburn v. Selma Railroad Co. Opinion by Hammoud, D. J.

JURISDICTION

- SERVICE OF PROCESS — RAILROAD COMPANY OF ONE STATE LEASING RAILROAD IN ANOTHER, NOT CITIZEN OF LATTER STATE. -Section 118, chapter 28, of the General Statutes of Vermont, provided that the lessee of a railroad within the State, residing out of the State, should appoint one person resident in the State, upon whom service of every kind of process known to the laws of the State might at any time be made, and that all such service upon tho person so appointed should be a legal service upon the lessee. Held, that service upon the agent of the nonresident lessee of a railroad within the State, appointed in accordance with the terms of this section, and served in the manner provided by the laws of the State for the service of such process, would suffice to vest the Circuit Court for the district of Vermont with jurisdiction of an action against such non-resident lessee. Ex parte Schollenberger, 96 U. S. 369; Railroad v. Harris, 12 Wall. 65. The case, Baltimore & Ohio R. Co. v. Noels (Va.), 21 Alb. L. J. 477, holding that a corporation of Maryland leasing and operating a railroad in Virginia was so a citizen of Virginia that a suit against it by a citizen of Virginia was not removable to the Federal courts, dissented from. In Knapp v.

* Appearing in 3d Federal Reporter.