transports and delivers to their competitors; and the performance of this duty may be compelled by injunction at the suit of the proprietor of the stock-yards discriminated against. McCoy v. C., I., St. C. & C. R. Co., U. S. C. C., S. D. Ohio, 13 Fed. Rep. 3.

Where, after the commencement of an action, a third party becomes interested in the litigation by assuming the liabilities of the defendant in respect to the claim plaintiff is seeking to enforce, it is proper to allow a supplemental complaint bringing in such third party as a co-defendant.

Where, therefore, after the commencement of an action against a railroad company upon a contract, it appeared that it and other companies were merged in a new company, the latter having assumed all of the contracts, liabilities and obligations of the original companies, held, that an order allowing defendant to file a supplemental complaint bringing in the new company as defendant was properly granted.

Milner v. Milner, 2 Edw. Ch. 114; Buchanan v. Comstock, 57 Barb. 583; Tiffany v. Bowerman, 2 Hun, 643; Wattson v. Thibou, 17 Abb. Pr. 184; Pinch v. Anthony, 10 Allen, 470, distinguished. Prouty v. Lake Shore, etc., R. R. Co., 85 N. Y. 270.

On a bill for relief against a decree obtained by fraud, no relief will be granted if complainant had knowledge of the facts constituting the fraud, and in the exercise of due diligence might have made them known to the court pending the original suit; nor if complainant might, by the use of due diligence, have ascertained the facts and pleaded them in the original suit.

A bill seeking relief from a decree obtained by fraud must allege that complainant had no knowledge of the fraud now alleged, and no notice thereof at the time of the original suit.

Upon the question of notice there is no distinction between the corporation and its officers or stockholders; so, if stockholders were advised of the foreclosure suit, and of the facts now charged as constituting fraud in the execution of the bonds and mortgages sued on in the original suit, and had an opportunity to intervene and defend, and did not do so, the corporation is concluded by their laches.

Where the stockholders having full knowledge of all the facts and an opportunity to move in the original suit before decree, or to file a bill immediately upon the rendition of the decree, failed to do either for a period of four years, and in the mean time the decree had been fully executed, the property sold thereunder to a new company and the sale confirmed, and the stock and bonds of the new company gone into the market, it is too late for them to obtain relief from a decree alleged to have been obtained by fraud. Pacific Railroad (of Missouri) v. Missouri Pacific R. R. Co., U. S. C. C., E. D. Missouri, 12 Fed. Rep. 641.

A complaint by an administrator, who is also a child of the intestate, for injuries to his intestate causing his death, which alleges that, by means of such wrong, the plaintiff has sustained damages in a certain sum, but states no facts to show pecuniary loss, present or prospective, resulting from the death, to the widow or relatives of the deceased, does not state a cause of action under the statute. Regan, Adm., v. Chicago R. R. Co., 51 Wis. 599.

A petition for a mandamus was filed in one of her courts by the State of Mississippi to compel a railroad company, a corporation existing under the laws of that State, to remove a stationary bridge which it had erected over Pearl River, a navigable stream on the line between Louisiana and Mississippi. Thereupon the company presented its petition, duly verified, praying for the removal of the suit into the Circuit Court of the United States, and alleging that the right to erect, use, and maintain the bridge was vested by the company's charter; that its maintenance over said river was authorized by the act of Congress approved March 2, 1868, 15 Stat. 38; that thereunder it became a part of a post-road over which for several years the mails of the United States have been carried, and that therefore the suit impugns the rights, privileges, and franchises granted by said act. The petition was accompanied by a bond with good and sufficient security, conditioned as required by the act of March 3, 1875. 18 Stat. part 3, p. 471. Held, that under the latter act the company was entitled to the removal prayed for.

The decisions of this court affirming the jurisdiction of the courts of the United States in cases arising under the laws of the United States, or where a State is a party, cited and commented on.

The ruling in Insurance Company v. Dunn, 19 Wall. 214, and Removal Cases, 100 U. S. 457, that a party loses none of his rights who, after failing to obtain its removal, contests a suit on its merits in the State court, reaffirmed. Railroad Co. v. Mississippi, 102 U. S. Reports, 135.

A contract between a railroad company and individuals, that the company will construct a depot at a certain place, and that upon its construction the individuals will pay to the company a certain sum of money, is negotiable by endorsement so as to vest the title thereof in each endorsee successively.

Where such a contract has been signed by a receiver of a railroad company, and suit is brought thereon by the assignee, the authority of the receiver to make such assignment is involved in the question of the execution of the assignment, and can be put in issue only by a denial under oath.

When a party agrees to pay a railroad company a certain sum of money on the completion by the latter of a depot building at a certain place, he is entitled to notice of such completion before suit can be brought to enforce payment under the contract.

A special finding embraces only the facts proved upon a trial, and all issues not determined by the facts found must be regarded as not proven. Vannoy v. Duprez, 72 Ind. 26.

The Superior Court may, in its discretion, under the Gen. Sts. c. 43, § 40, set aside a verdict of a sheriff's jury on a petition for damages for land taken for a railroad, where questions of law are reserved at the trial, and fail to be certified to the court by reason of the death of the officer presiding at the trial, and without any fault of the party requesting such questions to be certified; and no exception lies to an order made in the exercise of this discretion. But where a judge does not exercise his discretion, and rules, as matter of law, upon the evidence, that a party is entitled to a new trial, his ruling may be revised by this court on a bill of exceptions. Wamesit Power Co. v. Lowell, etc., R. R. Co., 130 Mass. 445.

The city of New Orleans has no power under its charter and the laws of Louisiana to grant to a street railroad company the sole and exclusive right to the use of the public streets of the city for a street railroad.

When the city of New Orleans has made a contract granting to a street railroad company certain franchises to run and maintain a railroad, and binds herself not to grant similar franchises over the same streets to any other company or person during the period of said contract, she is not thereby estopped from granting to others the privilege of running lines across any of the streets mentioned in the contract, nor for such short distances along such streets necessary to make connections and turn-outs for other lines running mainly along other streets and between entirely different termini. New Orleans City R. Co. v. Crescent City R. Co., U. S. C. C., E. D. La., 12 Fed. Rep. 308.

An action to recover real property is not within the purview of the act of 1875 (chap. 49, Laws of 1875), authorizing actions to be brought by the people of the State to recover "money, funds, credits and property" held by public corporations, boards, officers or agents for public purposes, which have been wrongfully converted or disposed of; the word "property" associated with the preceding words of specific description in the act is to be construed as referring to property of the same general character.

The said act was not intended to confer jurisdiction to review by means of an action as therein prescribed the proceedings of towns in town meetings or to set them aside upon the allegation that the action of a town meeting was produced by corruption, intimidation, or violence.

Accordingly held, that an action by the people was not maintainable under said act to recover lands of a town, the title to which, it

was alleged, had been wrongfully acquired, through the wrongful interference of its servants and agents with the action of a town meeting; they procuring the passage of a vote authorizing the conveyance of the lands for a grossly inadequate sum, by the action of persons not legal or qualified voters. People v. New York, etc., R. R. Co., 84 N. Y. 565.

A statute, which obliged several railroad corporations having their tracks in a city to unite in one station, and provided for the discontinuance of some of the existing tracks, and the extension by the city of a street therein, enacted that the city should maintain a suitable track upon the extension of the street, or partly upon the extension and partly upon the discontinued railroad location, to be connected with the tracks of one or more of the railroads in the city, "for the accommodation of the business establishments on the line of said extension which were accommodated by the tracks of” a certain railroad when the act was passed. Held, that, after the city had in its discretion constructed a track for the purposes named, this court could not, on a petition for a writ of mandamus, exercise a supervisory power over the mode in which it was done, and determine whether a track in another place would better accommodate the petitioner. Rice, Barton and Fales Machine and Iron Co. v. City of Worcester, 130 Mass. 575.

Section 3 of the act of January 16th, 1860 (Acts 1860, p. 52), whereby it was enacted that no street railway should be constructed in the city of St. Louis nearer to a parallel railway than the third parallel street, was not repealed by the act of February 15th, 1864 (Acts 1864, p. 446), nor by the act of March 19th, 1866 (Acts 1865-6, p. 283, art. 4, § 1, clause 51), nor by the act of March 13, 1867 (Acts 1867, p. 62, art. 4, § 1), nor by the act of March 4, 1870 (Acts 1870, p. 463, art. 3, § 1, cl. 5, 9, 16, and art. 12, § 8), nor by article 10, section 1, of the present charter of the city of St. Louis (R. S. 1879, p. 1616). Neither has the municipal assembly of said city the power to repeal said section 3. St. Louis R. R. Co. v. South St. Louis R. R. Co., 72 Mo. 67.

The fund in the hands of a county treasurer, arising from a tax voted by a township to aid in the construction of a railroad, where the railroad company has forfeited all right to the same, under section 18 of the railroad aid act of May 12th, 1869, 1 R. S. 1876, p. 736, and sections 1 and 2 of the supplemental act of December 24th, 1872 (Acts 1872, p. 56), it not having been diverted into the township funds, belongs to the township, unless it has been demanded by the taxpayers of the township within two years after the passage of the act of 1872, or within two years after the forfeiture thereof by the railroad company; and such demand, being matter of defence, need not be negatived in the complaint in an

action by a township, against a county, to recover a tax voted by the township. Centre Township v. Board of Commissioners of Marion County, 70 Ind. 562.

Under the provision of the constitution, that the legislature cannot authorize a municipal corporation to tax for its own local purposes lands lying beyond the corporate limits, the legislature has power to attach outside territory to the territory of a town and erect the territory so attached, together with the territory of the town, into a district, and authorize the district so formed to vote a subscription to the stock of a street railroad, and issue bonds in payment thereof, and an act to this effect is constitutional. Henderson v. Jackson County, U. S. C. C., W. D. Mo., E. D., 12 Fed. Rep. 676.

Section 3, of the act of December 24th, 1872, Acts 1872, p. 56, releases a taxpayer from the payment of a tax voted and levied by a county, under the act of May 12th, 1869, 1 R. S. 1876, p. 736, to aid in the construction of a railroad, where the same had been forfeited by the railroad company.

Act of 1873-Sections 1 and 2 of said act of December 24th, 1872, were, perhaps, repealed by the act of January 30th, 1873, Acts 1873, p. 184.

Act of 1875-Forfeiture by Failure to Complete Road.-Enjoining. Where a railroad company, to which an appropriation to build its road had been duly voted by a county, and placed upon the duplicate more than three years prior to the passage of the act of March 11th, 1875, Acts 1875, Reg. Sess. p. 121, had failed during all that time either to complete its road, or to obtain further time, such appropriation became forfeited, and the collection of such tax could be enjoined at the suit of a taxpayer. Indianapolis, etc., R. R. Co. v. Commissioners of Tipton Co., 70 Ind. 385.

In an action to enjoin the collection of a tax levied as an appropriation to a railroad company, the complaint may set out the proceedings resulting in the levying of such tax, and then, in the same paragraph, state separately each cause of objection to the tax. And then the defendant may demur or plead to each specification of objections, as to separate paragraphs of complaint. Consequently, his motion to cause the complaint to be separated into as many paragraphs as there are such specifications should be overruled.

In such action, the answer set out a copy of a notice of said election, and alleged that legal notice had been duly given by publication and posting. It also set out a copy of the county auditor's certificate that publication had been made, and that he had delivered ten copies of such notice to the sheriff for posting. It also set out the sheriff's return that he had posted such notices at ten public places in the township, three weeks prior to the election.

6 A. & E. R. Cas. -40