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Adoption by United States courts of practice of state courts, see "Courts," $ 2.
In patent office, see “Patents," $ 2.

In particular civil actions or proceedings.
See "Contempt," $ 1; "Divorce," $ 1; "Ejectment."

Particular proceedings in actions.
See “Damages," § 1; “Evidence"; "Judgment”; “Limitation of Actions”;

"Pleading"; "Removal of Causes”; “Trial.”

Particular remedies in or incident to actions.
See “Injunction"; "Receivers"; "Tender."

Procedure in criminal prosccutions.

See "Criminal Law."

Procedure in exercise of special or limited jurisdiction.
In bankruptcy, see "Bankruptcy," $ 1.
In equity, see "Equity."

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Procedure in or by particular courts or tribunals.
See "Courts."

Procedure on review.
See "Appeal and Error”; “New Trial.”


Effect of proceedings in bankruptcy, see "Bankruptcy," 88 2, 7.


Ground for reversal in civil actions, see "Appeal and Error," $ 9.

See “Injunction," $ 1.


On appeal or error, see "Appeal and Error," $ 6.


See "Attorney and Client"; "Brokers."
Burden of proof in action by corporation against agent, see “Evidence," $ 1.
Deposits in bank by agent, see “Banks and Banking," 1.


Subrogation of surety to rights of creditor, see "Subrogation."


Disclosure by witness, see “Witnesses," 8 2.


Particular forms of writs, see “Injunction"; "Mandamus."

Accounting as to, in suit to restrain unfair competition, see “Trade-Marks and

Trade-Names," § 2.
Recovery in suit for infringement of patents, see “Patents,” $ 3.


Community property, see "Husband and Wife,” $ 1.

Particular species of property.
See "Copyrights"; "Literary Property"; "Logs and Logging"; "Mines and
Minerals”; “Shipping"; "Trade-Marks and Trade-Names."

Transfers and other matters affecting title.
See “Adverse Possession.”
Taking for public use, see "Eminent Domain."


See “Disorderly House."


In criminal prosecutions, see "Criminal Law," § 10.


See “Counties," § 2; "Municipal Corporations," $ 2.


Mineral lands, see "Mines and Minerals." $ 1.
Regulations of land office as documentary evidence, see “Criminal Law," $ S.

§ 1. Disposal of lands of the states.

The provision of Acts Tenn. 1821, c. 22, $ 6, making unlawful an entry
of state land on which another resided or which was occupied by him,
unless he was given 30 days' notice, was intended solely for the protec-
tion of the occupier, by enabling him to exercise his prior right to enter
the land ; and an entry made without giving such notice to an occupier
of part of the land is void only as to such part. The notice might, more-
over, be waived by an occupier, and was so waived in a case where for a
valuable consideration he agreed to attorn to the entryman and hold pos-
session for him until the grant was secured.
-Bell v. North American Coal & Coke Co., 135 Fed. 712.

81 C. C. A. 60


See "Carriers"; "Railroads."


Taking property for public use, see "Eminent Domain.”


Violation of injunction, see “Injunction," $ 2.


In criminal prosecutions, see “Criminal Law," § 10.


§ 1. Right of action and defenses.

A suit in equity cannot be maintained by one out of possession to de
termine title or right of possession to lands, or to remove a cloud from
complainant's title against a claimant in possession.

-Johnston v. Corson Gold Min. Co., 157 Fed. 145.....84 C. C. A. 593


As employers, see “Master and Servant."
Carriage of goods and passengers, see “Carriers."
Duplicity in pleading in action for tort committed by railroad receivers, see

“Pleading," $ 2.
Exercise of power of eminent domain, see “Eminent Domain," § 1.
Liability on county bonds issued in aid of railroad, see "Counties," $ 2.
Sale of stock of railroad company, see “Corporations," $ 1.
$ 1. Operation-Accidents to trains.

Act Pa. April 4, 1868 (P. L. 58), which provides that, when any person
shall sustain personal injury or loss of life while lawfully engaged or
employed "on or about the road, work, depots and premises of a railroad
company” of which company such person is not an employé or passenger,
the right of action and recovery shall be the same as would exist if such
person were an employé, does not prevent a recovery from a railroad com-
pany for the death of an engineer in the employ of another company, who,
while running a train of such company over a track of defendant, under an
agreement which gave it the right of way, was killed in a collision with a
train of defendant negligently being run upon the same track, since the
track was not at the time the premises of defendant, whose train was
there without right, but of the lessee.

- Philadelphia & R. R. Co. v. Baker, 155 Fed. 407.....84 C. C. A. 80
The charge of the court, in an action to recover for the death of a rail-
road engineer, killed in a collision between his train and a train of de-
fendant company, hold to have fairly submitted to the jury the question
of contributory negligence.

-Philadelphia & R. R. Co. v. Baker, 155 Fed, 107....S4 C. C. A. 86
$ 2. Accidents at crossings.

A street car in Chicago was stopped at a railroad crossing, and the
conductor went forward, as required by the rules, to give the signal to

the motorman when the crossing was clear. There were six railroad
tracks; the first being a side track on which some freight cars were
standing near the crossing, and the second the outbound passenger track.
There were two inbound trains approaching on the further tracks, so that
the crossing could not then be made, and while waiting the conductor
was struck and killed by the engine of an outbound passenger train on
the second track. The tracks were eight feet apart, and, by standing
next to the side track in a place of safety, he could have seen approach-
ing trains on any of the other tracks; outbound trains being visible for
600 feet before reaching the crossing. He was familiar with the crossing,
and knew that the outbound train was due, and usually waited for it to
pass at that time each day. Held, that in unnecessarily going upon the
track while waiting he was guilty of negligence which at least contributed
to his death, and precluded a recovery therefor as matter of law, regard-
less of the question of the negligence of the railroad company.

-Casey v. Chicago, M. & St. P. Ry. Co., 157 Fed. 66...81 C. C. A. 570
The placing of gates or the stationing of flagmen at railroad crossings
in a city are not duties imposed by statute or municipal ordinance on
railroad companies, or voluntarily assumed by them, for the purpose of
relieving the traveler on the street from taking those precautions for his
own safety required by the long-settled rule of law, but as additional
precautions to meet the increased peril resulting from local conditions
in cities; and open gates, or a signal from a flagman to cross, do not re-
lieve a traveler from the duty to look and listen before entering upon the

-Union Pac. R. Co. v. Rosewater, 157 Fed. 168......84 C. C. A. 616
Where plaintiff, who was driving upon a city street in the evening, on
approaching a railroad crossing having four tracks, siopped on signal
of the flagman before reaching the first track, and waited until some en-
gines had passed, and then in obedience to a signal of the flagman started
on after first looking and listening, and was struck by a train on the sec-
ond track, the question whether or not he was guilty of contributory neg.
ligence in failing to continue to look and listen after starting across was
not one of law but of fact, to be determined by the jury, in view of the cir-
cumstances of the particular case.

-Union Pac. R. Co. y. Rosewater, 157 Fed. 168.....81 C. C. d. 616

§ 3. Injuries to persons on or near tracks.

A child five years old was struck by a railroad engine, so as to break
in his skull, exposing and crushing parts of the brain. He breathed for
three-quarters of an hour after, and at times moaned. Held, that in a
common-law action by his administrator to recover damages for his
suffering resulting from his injury, which right of action survived to
plaintiff by statute, evidence of such facts was insufficient to show that the
child in fact suffered or to authorize a recovery.
--Grand Trunk Ry. Co. of Canada v. Flagg, 156 Fed, 339...

84 C. C. A. 263
A railroad company owes no duty of care to a trespasser on its track,
except to refrain from his willful or wanton injury, and cannot be held
liable for the injury of a child so trespassing, where the engineer of the
train which struck him testified that he came upon the track so short a
distance ahead of the engine that it was impossible to stop the train be-
fore striking him, and where the engineer's testimony was uncontradicted,
except by evidence which at most could no more than raise a probability
that the child had walked for some distance on the track.
-Grand Trunk Ry. Co. of Canada v. Flags, 156 Fed. 339.

84 C. C. A. 263


of tender, see "Tender."


See “Ejectment.”


By carrier, see “Carriers," § 1.


Duplicity in pleading in action for tort committed by railroad receivers, see

“Pleading," $ 2.
Of corporations in general, see "Corporations," $ 2.

§ 1. Management and disposition of property.

Where by the local law the obligation assumed by a successor or pur-
chaser who takes over property or a fund from a receivership, with as-
sumption of liabilities, is one of direct liability, and not merely equitable,
for the payment of claims chargeable against the property or fund, such
local law fixes the nature of the cause of action for the enforcement of
such liability in a federal court, and an action at law may be maintain-
ed in such court against the purchaser alone to recover for a personal in-
jury for which the property in the hands of the receiver was chargeable.
-Gray v. Grand Trunk Western Ry. Co., 156 Fed. 736..

S4 C. C. A. 392
§ 2. Actions.

It is the settled doctrine of the federal courts that a receiver is not
personally liable for injuries arising through negligent operation of the
property not due to his personal negligence, but an action against him
for such injuries is in law one against the receivership in which the judg-
ment recovered can be enforced only against the property or funds in bis
hands, and which cannot be maintained after the receivership has been
closed and the receiver discharged.
-Gray v. Grand Trunk Western Ry. Co., 156 Fed. 736...

84 C. C. A. 392


See “Cancellation of Instruments."


See “New Trial.”


Pleading in suit against corporation to cancel release, see "Equity," $ 3.

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§ 1. Requisites and validity.

The only fraud which may be availed of in an action at law in a fed-
eral court to avoid a formally executed release of the claim sued on is
misrepresentation, deceit or trickery practiced to induce the execution of
a release which the signer never intended to execute and upon which the
minds of the contracting parties never met, and does not include any
of those misrepresentations of fact which may have been resorted to in
order to persuade the claimant to agree to the release as actually made.
In such respect it is immaterial whether the release is or is not under seal.
-Pacific Mut. Life Ins. Co. of California v. Webb, 157 Fed. 155....

84 C. C. A, 603
84 C.C.A.-48

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