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tion will lie in the name of the wife against her husband on a promissory note, executed by him to her in consideration of moneys, her separate property, loaned by her, after marriage, to her husband.

It followy from this case, and it is there in substance 80 stated, that if the wife can maintain a suit as any other creditor can, then she must also be entitled to all such writs and remedies agaiust her husband that are allowed to other creditors.

So also it has been held in Alabama, that what any other creditor may do to evforce the collection of his debts, or to secure their final payment, the wife may also do as to her separate estate under the limitations of the law enacted for her protection. See Walker v. Ambercrombie, 3 Tex. Law Rev. 151; Rowland v. Plummer, 50 Ala. 193; Wells on Sep. Prop. of Married Women, $ 374.

In Ohio it has been held that a wife may sue her hus. band on his note executed to her for money borrowed by him of her after marriage. Huber v. Huber, 10 Ohio Rep. 371 -2.

Iu Maine the husband, for value and bona fide indorsed and delivered a negotiable note to his wife; it was held she took the paper with the rights of any other indorsee. Motley v. Sawyer, 38 Me. 68; see herein post Tunks v. Grover, 57 id. 588.

In New York it bas been held that the wife can maintain trover against her husband. Whitney V. Whitney, 3 Abb. Prac. Rep. (N. S.) 358; 49 Barb. (N.Y.) 319; also that she may bring an action of ejectment, Minier v. Minier, 4 Lans. (N. Y.) 422.

Iu Indiana it is held that the wife may sue her hus. band without a next friend to recover her separate property. Scott v. Scott, 13 Ind. 225.

In New Hampshire, in Clough v. Russell, 55 N. H. 281, it was said: “The logical result seems to be that the status of marriage interposes no obstacle in the way of either party maintaining against the other a suit at law in respect to those contracts which the wife is empowered to make."

In Iowa it has been held that the wife may bring replevin against her husband to recover her separate property. Kramer v. Conger, 15 Iowa, 434. It was also in the same State held that in a proper case she would be entitled to the benefit of a writ of injunction against her husband. Jones v. Jones, 19 Iowa, 242.

In Maine it has been held that the wife can garnish the husband as trustee for her debior. In this connection, in this case, the court makes the following pertinent remarks: “We see no valid reason to debar her from it, even if it follows as a necessary result that she may array herself against her husbaud in an action at law to obtain it. Ubi jus ibi remedium; and when the Legislature has conferred rights of this description upon married women in such emphatic terms, it is uot for us to delay the appropriate process to enforce them, although long-cherished and familiar doctrines of the common law are thereby overturned." Tunks v. Grover, 57 Me. 588.

Under the liberal provisions of our Constitution and laws for the protection and preservation of the separate property and rights of married women, we are of opinion that the wife can maintain in her own name her action in the case under consideration. We also believe that she would be entitled, in a proper case, to the benefit of writs of attachment, sequestration, injunotion, or any like writ to which any other creditor would be entitled in order to protect and preserve his rights.

Of course, suits of this kind between husband and wife ought not to be eucouraged, and ought, in every instance, to be scrutinized very closely indeed by the courts, and every effort made to prevent fraud aud

collusion between them to the prejudice of rights of creditors, or third parties.

Reference has been made above to the case of Price v. Cole, and its partial affirmance by this court in Hall v. Hall, above cited. It may be proper to say, in this conuection, that in the head-notes of the case of Grace v. Wade, 45 Tex. 523, the case of Price v. Cole is said to be overruled by that case. The statement is not entirely accurate. The case was only overruled in Grace v. Wade, on the question raised in it under the regis. tration laws, and as to an innocent purchaser without notice. In other respects it was uot there questioned, and as we have seen in the later case of Hall v. Hall, above oited, it was expressly approved on the question as to whether a note and mortgage, executed directly to the wife by her husband, without the intervention of a trustee, were valid instruments.

The judgment is reversed aud the cause munded.

NOTE.-See 43 Am. Rep. 589; 25 Alb. L. J. 302; 36 id. 361, 462; 27 id. 263.

In Schultz v. Schultz,27 Hun, 26, the Genl. Term First Dept., held, that under the act of 1860, ch. 90, 87, the wife might maintain an action for assault and battery against tbe husband and procure an order of arrest tberein. The Court of Appeals however on appeal from the order denying motion to vacate the order of arrest, with opinion, reversed tho-order and dismissed the complaint. 89 N. Y. 644.

In Fitch v. Rathbun, 61 N. Y. 579, it was held, that "Where household furniture belonging to a married woman is, with her consent taken to the house of her husband, mingled with his furniture and used therewith for the household purposes, it does not thereby become the property of her husband, but the title remains in her; and her assignee can maintain an action against the husband for a conversion thereof, or to re. cover the proceeds received by him on its sale.” The court (p. 581), said: “The simple appropriation of any portion of her personal property to household use by the husband and wife, or the husband alone, by her consent, does not render it the property of the husband and liable for his debts; but her assigument of it carries with it a right of action against whoever concerts it. Sherman v. Elder, 24 N. Y. 381, 384, 385."

Where a married woman living with her husband buys furniture with her owu money and places it in the room occupied by them, in which the husband has also some furniture, a public cartman, who in her absence, under the employment and by the direction of her husband, takes the furniture from the room, including that belonging to the wife and delivers it to the husband, is liable to the wife for its conversion. Mead v. Jack, 16 N. Y. W. Dig. 402; Gen. T. N. Y. Com. Pleas.-[ED. ALB. L. J.]

RAILROADS-OBSTRUCTING STREET-INJURY

PROXIMATE CAUSE-DAMAGES.

OHIO SUPREME COURT, JUNE 3, 1884.*

PITTSBURGH, CINCINNATI AND ST. LOUIS Ry. Co. v.

STALEY. A railway company by its train unlawfully obstructed a vil

lage street. s. therefore walked around the rear of the train, entered another street, and there having selected one of the many routes to her home, slipped on some ice, fell, and sustained serious injury. The same railway company had placed the ice there in the process of clearing its track, which occupied part of the street. The street was

laid out after the railway was in use, and the rights of the *8. O., 1 Am. L. J. 136, to appear in 41 Ohio State Reports.

ERROR to the District Court of Warren connty.

public in said street were subject to the rights of the rail- person or persons, and does actually result iv injury way company.

through the intervention of other causes wbich were Held, 1. The proximate cause of injury was the placing of

not wrongful, the injury shall be referred to the the ice in the street. 2. If the railway company way not in fault in so placing the

wrougful cause, passing by those which are innocent.' ice, it was not liable for the injury caused by the fall.

And an illustration of this doctrine given in the law books is the wrongful throwing of the lighted squib, which being innocently warded off by several persons,

at last struck and put out the eye of anotber person. On the 17th day of January, A. D. 1877, a freight The original thrower was held liable. train of the Pittsburgh, Cincinnati aud St. Louis Ry. Now it seems to me that the question whether the Co., bound east, went upon a side track at Morrow, injury in this case to Mrs. Staley was the proximate Warren county, Ohio, at eight o'clock P. M., and re- result of the original blocking of the street is one not mained there until five minutes after nine o'clock. Al. to be settled by the court, but by the jury under apthough the train crossed Center street in the village, propriate instructions from the court. And I say to no cars were uncoupled, and that street was com- you that if the evidence shows that prior to the time pletely blocked. The only reason for this was the ex- in question the agents and servants of the company pectation of the conductor that he would be ordered to were in the babit frequently of blocking this same more bis train eastward at any moment. Mrs. Emily street by its cars unlawfully and negligently, and for E. Staley and others, resident in the village at points more than five minutes, and persons thus prevented north of the railway, were in church ou Center street, from crossing the street were accustomed to pass one square south of the railway, when the train ar- around the end of the train west of Center street, rived. When the service ended they found the train down Railroad street, and there cross the tracks and blocking the street, and after waiting ten or fifteen highway substantially as was done by the plaintiff, and minutes they went to the west end (the rear) of the these facts were known to the officers and agents of train, passed around the rear car, walked eastward be- the company, that in such case the jury should tween the tracks the length of three or four cars,

determine under such circumstances whether the returned nortbward to cross anotber track of the rail- sult which followed to Mrs. Staley might reasonably way, and as she was "just stepping off the last track have been anticipated by the company, the defendant, she slipped upon some ice piled there, fell and sus- and if you find that it might, and there was no fault tained serious injury to her limb from the "hip on the part of the plaintiff, the company in that would down." She suffered much pain, was confined to her be liable. But if there was no such reason to apprebed for a time; to her room for a longer time, and hend the result, I say to you that it would not be the claimed that her health was permanently impaired. A proximate result of the original act." bumber of other women pursued the same route-some The verdict was for the sum of $1,625 in favor of the before, some behind, and some with Mrs. Staley. plaintiff. A motion for a new trial was overruled, and None of them fell. The evidence showed that it was a bill of exceptions, containing-all the eridence, duly umuecessary for her to step upon the pile of ice upon made part of the record. which she slipped and fell. The village of Morrow was Nineteen errors were counted on in the petition in laid out after the railway was in use, and one street,

The seventeenth complained of this charge. called Railroad street," included the railway tracks The District Court affirmed the judgment of the Comand ran in the same direction with them. Snow fell mon Pleas, and we are asked to reverse the judgments and formed on the tracks in the streets.

The com

of both courts. Other parts of the charge, and sevpany, to clear its tracks for the passage of trains, re- eral refusals to charge as requested by the demoved the ice and snow, and cast it in the street on fendant, were also duly accepted and assigned for either side of the tracks. Mrs. Staley sued the com- error. pany. Evidence as to the manner in which the ice had

Charles Darlington, for plaintiff in error. been placed there was before the jury at the trial. The charge to the jury contained the following in

J. D. Wallace and J. E. Smith, for defeudant in erstruction :

" But suppose the jury should find that there was GRANGER, C. J. We are satisfied that the railway negligence in the blocking of the street by the com- company violated section thirty-one (31) of the act re. paly, not in the placing of the piles of dirt, ice or snow lating to roads and highways, passed March 9, 1868 (S. ou or over which it is olaimed the plaintiff fell, with- & S. 669), and thereby became “liable for all damages out fault on her part in going that way, or in the mode arising to any person from such obstruction." of going-what then is the law?

Counsel upon both sides have aided the court by able ** Here comes the difficulty in the application of the and carefully prepared arguments, citing and com. rule as to proximate or remote consequences.

menting upon the numerous cases in which the ques"Undoubtedly injuries might have been received by tion “What was the proximate cause of the injury?" her as sbe passed around the train, for which the com- has been discussed by American and English courts. pany would not be liable. For instance, suppose as she Cooley, J., at page 69 of his work on Torts, thus passed along, attempting to cross the road, she had briefly states the test: “If the wrong and the resultbeen struck by a stone thrown by some ruffian. Clearly ing damages are vot known by common experience to she would not thus have been injured il she had not be paturally and usually in sequence, and the damage goue by that route, but it is equally clear thatjthis in- does not, according to the ordinary course of events, jury would not be ove for which the company was lia- follow from the wrong, then the wrong and the damble.

age are not sufficieu tly conjoined or concatenated, as “But suppose the injury results while so prudently cause aud effect, to support an action." and carefully passing around by some other instru- Apply this to the noted "Squib" case, Scott v. Shepmentality placed or maintained there by the defeud. herd, 2 W. Bl. 892. As soon as the fire reaches the exant. I confess that I have great diffioulty in arriving plosive material in the equib au explosion naturally at a conclusion on this point.

and usually follows. It when thrown it falls so uear a "The law seems to me to be this: That if the origi- persou that to piok it up and cast it hurriedly elsedal act (in this case the blocking of the street) was where is the obvious means of escape from harm, such wrongful and would naturally, aooording to the ordi. action naturally, and we may add usually, follows. If Dary course of events, prove injurious to some other this thus uccurs in a crowded market space the natu

error.

ror.

ral and usual result would be injury to some one pile of ice without neoesbity. She could at will have other than the person at whom it was first thrown. So gone to the other side of it; she might have walked long as the act of the second thrower is the result of between the rails of the unoccupied track, from which mere impulso to avert danger to himself by removing the snow and ice had been removed, until she arrived the dangerous thiug to a distance, the first thrower's at the usual crossing of Center street, from which the act is in progress. But if the second thrower deliber- train (before she had passed around it) had excluded ates, even for a mere instant, and with intent to in- ber. The turning to cross the track in order to there jure a third person, casts the squib at him, such delib- cross the street was a voluntary act on her part. It eration and intent puts an end to tbe act of the first was a selection of one of several convenient routes to thrower, and the thing done by the second throw is her home. We are unable to see any chain of cause not his fault.

and effect leading back from it to the obstructing train. So also if a wholesale druggist prepares a jar of bel. True, if the train had not blocked the way, she would ladonna, labels it "extract of dandelion,” and sells it not probably have been at the time in Railroad street as such to a retail dealer, who uses it as “extract of at the point where she decided to cross that street. dandelion" in filling a prescription. The great suffer- But so long as the obstruoting train did not compel ing of the patient who takes the medicine so prepared her to take that precise route and step on that pile of is plainly the natural and usual result of the act of the ice in order to reach her home without undue delay, wholesale dealer. In the case referred to the defende her decision to attempt to cross that street was in no ant prepared the jar to be sold to a retailer, whose sense-in no particular-foroed by that train; hence it regular business it was to incorporate it in prescrip- did not cause her fall. tions to be swallowed by patients. The "concatena- The charge attempted to trace a possible “concation" of Cooley, J., is particularly complete in the tenation" of cause and effect by stating “ that if the case of Thomas v. Winchester, 6 N. Y. 397.

evidence shows that prior to the time in question the In Clark v. Chambers, 7 C. L. J. 11, the defendant

agents and servants of the company were in the habit wrongfully placed a dangerous spiked hurdle in a pri- frequently of blocking this same street by its cars unvate way, along which the plaintiff had a right to pass, lawfully and negligently, and for more than five min. Some person, without the defendant's knowledge, utes, and persous thus prevented from crossing the moved it a short distance, but left it still in the same street were accustomed to pass around the end of the private way. The plaintiff passing on a dark night, train west of Ceuter street, down Railroad street, and with knowledge of the original position of the hurdle, there cross the tracks and highway substantially as thinking to avoid it,came into collision with it and was

was done by the plaintiff, and these facts were kuown injured. Having unlawfully placed the dangerous mov. to the officers and agents of the company, that in able thing in a passage way, so long as it remained in that

such case the jury should determine under such cirway, it was there by the defendant's act. That such a

cumstances whether the result which followed to Mrs. movable thing in such a place would be moved by a Staley might reasonably have been anticipated by the passer-by is, it seems to us, natural and not unusual; company, the defendant, and if you find that it might and he who originally placed it there should be held to and there was no fault on the part of the plaintiff, the contemplate such a possibility and be responsible for company in that would be liable." results so long as he suffers it to remain in that way.

As no evidence tended to show that prior to that And we see Judge Cooley's concatenation" in

night any one fell while passing there, we do not perGriggs v. Fechenstein, 14 Minn. 81, and Weick v. Lan

ceive how knowledge by the company that people were der, 75 Ill. 93. The injury complained of in each of in the habit of following the route taken by her, withthese cases, by a plain, clear and simple chain of cause

out any fault or injury, would make her fall a “usual and effect, was conjoined "to the wrongful act of the

avd natural” result of the obstruction of Center street defendant, and was the result of its continuing force.

by a train; or that such fall "might reasonably be anIn the Minnesota case the action of the defendant's ticipated by the company." team frightened other horses, and we may well say

It seems to us that unless the company was at fault forced them against the horse and sleigh of the plaint- in placing the ice where she trod upon it and fell no ifr. In the Illinois case the stoppage of the foremost

verdict ought to have assessed upon the defendant any wagon by defendant's fault forced the stoppage of the

damages for that fall. second wagon, ex necessitate passed into the second

While we thus hold that the pile of ice was the wagon and did the injury complained of. The like continuing force of the wrongful act is apparent in

proximate cause of Mr. Staley's fall, we agree with the Brown v. Railway, 54 Wis. 342; 8. C., 41 Am. Rep. 41;

cases cited by her counsel, that in such cases “the and Drake v. Kiely, 93 Penn. St. 492.

questiou as to whether the cause was remote or proxi. In the Wisconsin case the wrongful act caused a

mate is for the jury under the instruction of the

court.” But we think that the charge as given mispregnant woman to leave the train three miles short of her destination on a cloudy night. This act forced her

Jed the jury, and that the evidence, as set out in the to walk to the station. This effort caused the in

bill of exceptions, clearly proves that the act of stepjury.

ping on the ice where she fell was not forced by the In the Pennsylvania case the • lad of tender age"

train, but was the result of her own choice of route was wrongfully and forcibly put upon a train, carried

after the train had ceased to be an obstruction to her. five miles and then put off. This act forced him to go

The court should apply the law to those facts; and, as over the five miles. The doing this caused the injury.

we understand it, such application determines that the lu each case the precise thing that did the harm was

position of the train was not the proximate cause of forced upon the injured person by the wrongful act of

the fall. the defendant.

A demurrer to the petition raised the question But the fact that she walked around the train was whether the latter charged the company with any not the cause of Mrs. Staley's injury. Other persons fault in the matter of the ice. Perhaps it may be conthat night walked around the same train without strued as averring in substance that the blocking of harm. In the full possession of her faculties she passed the street compelled her to step upon the ice placed by safely around the obstruction and beyond its influ- the defendant, and that while so stepping, under such ence; she was walking in a street in which others compulsion, she, without her own fault, fell. If this were then safely walkiug; she stepped upon a small be so the demurred was rightly overruled.

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We deem it unnecessary to considered the other al- was laid down by Grover, J., that “to constitute a leged errors.

conversiou of real estate iuto personal, in the absence Judgment below reversed and cause remanded for a of an actual sale, it must be made the duty of, and obnew trial.

ligatory upon the trustees to sell it in any event. Such [See note, 41 Am. Rep. 53; 34 id. 92 ; 36 id. 382.-ED.] conversion rests upon the principle that equity con

siders that as done which cught to have been done." In that case the testator was a resident of the State of

Connecticut, and by his will authorized the sale of NEW YORK COURT OF APPEALS ABSTRACT.

his real estate in Connecticut, and the investment of

the proceeds of the same in bonds and stocks and real ASSIGNMENT FOR CREDITORS-PARTNERSHIP-TITLE estate located in the New England States or in the OF ASSIGNEE-RELEASE.-(1) The firm of L.& Co., exe- State of New York. A trust was created of the rest cuted to plaintiff, who was a creditor, a general assign- and residue for certain purposes therein named, and ment of all its property for the benefit of creditors. it was held that the will gave the trustee no power to By it the assignee after paying partuership debts, if a sell the real estate of which the testator died seised, surplus remained, was directed to pay the individual situate in New York, but that the same was to be redebts of the copartners, and to return to them any garded as realty, and that the validity of the testa. residue. At the time of the assignment the firm held mentary disposition thereof, and the rights of those a clain against the United States government, which claiming by descent, must be determined by the laws was in the hauds of a broker for collection. There- of this state. It is held in some of the reported cases after plaintiff under an agreement with the members that a positive direction to convert is required in order of the firm, returned to them a portion of the assigued to authorize the application of the doctrine of the property, and released his claim against the firm, upon equitable conversion of real estate into personalty. receipt of a bond of indemnity, conditioned for the Fowler v. Depau, 26 Barb. 224; Harris v. Clark, 7 N. payment by tbem of the other firm debts,and an assign- | Y. 242; Neely v. Grantham, 58 Penn. St. 433; 1 Jarm. went to himself of all their rights and interest in the on Wills (5th ed.), *584. The general tendency of the assigned property, except that so returned to them. decisions is against an out-and-out conversion. Wright The government claim was allowed and paid by draft v. Trustees of M. E. Church, Hoff. Ch. *202, *208. to the order of the firm, which was delivered to de- When the question is, under the will, whether the defendant L., one of the copartners; he transferred it to visee or the heir failing the devisee takes an interest the other defendants who had knowledge of the as- in land as land or as money, the true inquiry is signment; they collected the same. Plaintiff had not whether the devisor has expressed a purpose that in been discharged as assignee, some of the firm debts re- the events which have happened the land shall be conmained unpaid, and it did not appear that the indi- verted into money. Smith v. Claxton, 4 Mad. Ch. 484. vidual debts of the copartners had been paid. Held, While the rule laid down requires express direction that an action was properly brought by plaintiff, as as- for the conversion of real estate into personalty, yet siguee, to recover the proceeds of the collection; that cases may arise where the conversion may be implied title to the claim passed to him as such assignee by from an express authority to sell, contained in the virtue of the assignment, and the trust was not dis- will, and where such a conversion is absolutely necescharged, nor was the title affected by the subsequent sary to carry out the purpose or scheme of the testaagreement, as it did not transfer to him, individually, tor. See Power v. Cassidy, 79 N. Y. 602; 35 Am. Rep. the assets held by him as trustee, but only the inter- 550; Lent v. Howard, 89 N. Y. 169; Gourley v. Campest of the firm in any surplus. Brennan v. Willson, 71 bell, 66 id. 169. Hobson v. Hale. Opinion by MilN. Y. 502; Em. Ind. Sav. Bank 7. Roche, 93 id. 380.

ler, J. (2) A portion of the money restored by the govern- [Decided April 29, 1884.] ment was paid by the old firm of L.& Co.,and as to that it is claimed the plaintiff cannot recover. Such prior

MORTGAGE-FORECLOSURE — POSSESSION ACQUIRED firm was dissolved by the death of one of its members, BY FRAUD NO DEFENSE IN EJECTMENT-LIMITATION. but all its assets passed to the survivors who consti- (1) R. conveyed certain premises, subject to a morttuted the new 'firm. They became the legal owners. gage thereon to T., who executed to R. a mortgage The referee finds that they took possession of the as- for part of the purchase-price; T. conveyed to H.; R. sets and assumed the liabilities of the old firm and foreclosed his mortgage, making H. and wife parties coutinued the business in the same partnership name;

defendant. The former however had died prior that before the death of the deceased partner he had to the commencement of the foreclosure suit, withdrawn all his share of capital and assets and was summons was served upon the latter, judgment of still a debtor to the firm. The new firın having legal foreclosure was rendered and the premises sold title to the assets could transfer them (Egberts v. thereon to R., who by the aid of a writ of assistance Wood, 3 Paige, 525; Nehrboss v. Bliss, 88 N. Y. 600; put T. out and got into possession; he then paid the Hoyt v. Sprague, 13 Otto, 613; Palmer v. Myers, 43 prior mortgage and conveyed the premises to defendBarb. 513, and if the executrix of the decedent had any ants. In an action of ejectment brought by the heirs equity to require their application to debts of the old of H., held, that the possession of T., after his deed to firm as distinguished from those of the new, which H., must be assumed to have been as tenant under the ber action made doubtful, she released the assignee latter, and upon his death, as tenant of his heirs, so from all such claims by her general release, and so that the possession of I. was theirs, and when he was ratified, if that were needed, the transfer to the assig- expelled their possession was taken away; that as to nee and freed the assets in his hauds from any such them the judgment of foreclosure was a nullity, the claim. Stanford v. Lockwood. Opinion by Finch, J. possession so taken was unlawful and in all respects a [Decided April 22, 1884.]

trespass, and so was no defense to the action. In most

of the cases which have upheld the right of the mort. WILL-EQUITABLE CONVERSION-WHAT NECESSARY gagee, his possession was obtained with the consent, TO CONSTITUTE.—The provisions of a will must at least express or implied, of the owner of the land, although be of such a character as to leave no doubt of the tes. in some of them the mode of acquiring possession did tator's intent to have his real estate converted into not distinctly appear, and in many the rule is stated personalty, in order to sustain the theory of equitable quite broadly and with little of restriction or limitaconversion. In White v. Howard, 46 N. Y. 144, 162, it tion. Van Duyne v. Thayre, 14 Wend. 233; Phyfe v

WILL

Riley, 15 id. 248; Fox v. Lipe, 24 id. 164; Olmsted v the case sent back for another trial. The trustees Elder, 5 N. Y. 144; Mickles v. Dillaye, 17 id. 80; Mick- were not brought in as parties until all this had been les v. Townsend, 18 id. 575; Chase v. Peck, 21 id. 581; done. It follows that the necessary citizenship did Waring v. Smyth, 2 Barb. Ch. 135; Pell v. Ulmar, 18 not exist at the commencement of the suit, and that N. Y. 139; Robinson v. Ryan, 25 id. 320; Winslow v. the petition for removal was filled too late. Without Cla 47 id. 261; Madison Are. Bapt. Cb. v. Ol. St. considering any of the other questions in the case, we Bapt. Ch., 73 id. 82; Gross v. Welwood, 90 id. 638. It affirm the order to remand. Houston & Teras R. F. is scarcely necessary to review the authorities and con- Shirley. Opinion by Waite, C. J. sider them in detail, for none of them have ever gone [Decided April 14, 1884.) so far as to hold that a possession of the mortgagee acquired by either force or fraud, against the will and JURISDICTION COURT

EXAMINE RECORDconsent of the rightful owner, and without even color CITIZENSHIP-REVERSAL CARRIES COSTS.- (1) It is the of lawful authority as it respects such owner, and duty of the Supreme Court, of its own motion, to uote amounting only to a pure trespass, was sufficient to critically the record upon which a case comes before defend an action of ejectment. The possession re- it, in order to test the jurisdiction of the court below. quisite for such a defense must have about it, at least, This rule was adopted in Capron v. Van Noorden, 2 some basis of right as against the owner evicted. Often Cranch, 126, decided in 1804, where a judgmeut was his assent or acquiescence may be inferred from slight reversed on the application of the party against whom circumstances, but the right cannot be founded upon it had been rendered in the Circuit Court, for want of an absolute wrong. (2) Defendant's grantor, took the allegation of his own citizenship, which he ought possession, claiming title in March, 1858; plaintiff L. to have made to establish the jurisdiction which be became of age in December, 1864, and an action was had invoked. This case was cited with approval by commenced in November, 1878. Held, that it was not

Chief Justice Marshall in Brown v. Keene, 8 Pet. 112 barred as against L. by the statute; that she had See also Jackson v. Ashton, id. 148; Bors v. Preston, twenty years from the time when she became of age in 30 Alb. L. J. 111 U.S. The course of the court, is which to bring the action. Acker v. Acker, 16 Hun,

when no motion made by either party, on its own 174; 81 N. Y. 143. Howell v. Leavitt. Opinion by motion, to reverse such a judgment for want of jurisFinch, J.

diction, not only in cases where it is shown, nega[Decided April 29, 1884.)

tively, by a plea to the jurisdiction, that jurisdiction does not exist, but even when it does not appear, affirmatively, that it does exist. Pequignot v. Penn

sylvania R. Co., 16 How. 104. It acts upon the prinUNITED STATES SUPREME COURT AB

ciple that the judicial power of the United States must STRACT.

not be exerted in a case to which it does not extend,

even if both parties desire to have it exerted. Cutler TRIAL-ERROR IN CHARGE.- When a case turns upon v. Rae, 7 How. 729. I consider therefore that when the question which of two witnesses whose testimony there was a plea to the jurisdiction of the Circuit is antagonistic is to be credited, is is error for the Court in a case brought here by a writ of error, the court to instruct the jury as to which one is to be be- first duty of this court is sua sponte, if not moved to it believed rather than the other. Corn Exchange Bank by either party, to examine the sufficiency of that plea, V. Scheppas. Opinion by Miller, J. (See 55 N. Y. and thus to take care that neither the Circuit Court 579.-ED.)

nor this court shall use the judicial power of the [Decided April 21, 1884.]

United States in a case to which the Constitution and

laws of the United States have not extended that REMOVAL OF CAUSE-SEPARATE RESIDENCE MUST EX- power. United States v. Huckabee, 16 Wall. 414;

PETITION FILED.

5.-We Barney v. Baltimore, 6 id. 280; Thompson v. Railroad think the Circuit Court was clearly right in sending Co., id. 134; Hurst v. Hollingsworth, 100 U. S. 100; the case back to the State court. The suit was begun Williams v. Nortawa, 104 id. 209. In Grace v. Ameriin 1870. At that time Shirley was a citizen of Texas. can Central Ins. Co., 109 U. S. 278, it is true that this The proceediug to bring in the trustees of the sold-out court passed upon all the questions in the case affectcompany was not the commencement of a new suit, / ing its merits, although it reversed the judgment bebut the continuation of the old one. The trustees cause the jurisdiction of the Circuit Court was not were nothing more than the legal representatives of apparent; but it was thought convenient and proper the company that had been sold out, and took its place to do so, in that case, because the record itself made it on the record as a party. The suit remained the same, probable that its omission of the statements necessary but with the name of one of the parties changed. In to show jurisdiction was inadvertent, and might be Gibson v. Bruce, 108 U. S. 561, it was decided that supplied for a future trial in the same court. In the under the act of March 3, 1875, ch. 137, a suit could not present case however the want of jurisdiction appears be removed on the ground of citizenship, unless the affirmatively from the record. (2) To entitle a party requisite citizenship existed both when the suit was to a removal of a cause to a Federal court, it must apbegun aud when the petition for removal was filed; pear affirmatively from the record, that at the time of and in Cable v. Ellis, 110 U. $. 389, that a substituted the bringing of the suit in the State court, and at the party comes into a suit subject to all the disabilities time of the petition for removal, the parties, plaintiff of him whose place he takes, so far as the right of re- and defendant, were citizens of separate States. Grace moval is concerned. The record shows that Shirley v. American Central Ins. Co., 109 U. S. 278-283; Robwas a citizen of Texas when the suit was begun, and ertson v. Cease, 97 id. 646. (3) A party having wrong. the right the railroad company to remove the suit, fully removed a case to a Federal court, aud upon adeven if the necessary citizenship had existed, expired verse judgment, then prosecuted an appeal to the Suwith the first term of the State court after the act of preme Court, where the judgment below is reversed 1875 went into effect at which the case could have been on account of want of jurisdiction, is responsible for tried. Long after this time had elapsed, the railroad all costs, since to him is attributable the error upon company filed an answer to an amended petition and which his success is based. Winchester v. Jackson, 3 actually went to trial in the State court. This trial Cranch, 514; Assessors v. Osbornes, 9 Wall. 567--575; resulted in another judgment against the company,

Montalet v. Murray, 4 (ranch, 46. The whole subject which was also reversed by the Supreme Court, and was very much discussed by Mr. Justice Woodbury in

IST WHEN SUIT

BEGUN AND

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