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for the same cause of action. Upon the other side it driving and the injury to the plaintiff's person; that was said that the two injuries, although one part of is, the injury to the right to have his person unmo. the cause of action was common to both, were in real- lested. That is a distinct cause of action, and thereity two different causes of action, and no rule exists fore the plaintiff is entitled to maintain the second against bring separate actions for two separate and dis- | action. That in itself seems to me to be sufficient reatinct causes of action. It was admitted that it may be soning upon which to found a decision that the two oppressive to bring several actions, but it was said that causes of action are different. Biit different tests have if they were brought oppressively the court would have been applied by judges at different times. They are power to stop them, but that in this case, where there not grounds of judgments, but tests by which to dewas an undeveloped injury, an action is brought bona termine sometimes, but not always, whether the fide, and is not oppressive. Therefore the question is causes of action are the same or different. A very whether the causes of action are the same, because the good, though not always a very accurate, test is to see law is that a person cannot in different actions recover whether the same sort of evidence would prove both successive amounts of damages for the same cause of cases. It is plain that where damage to a vehicle is in action, but he must when he first brings the action re- question persons who know about vehicles should be cover all the damages to which he is entitled in re- called to show what the injury was, but in the case of spect of that cause of action. When this rule is ap- | injury to the person doctors are called to show what plied to damages which are or must be known to the was the external or internal damage to the person. plaintiff at the time of the first action, I have always The oases would be tried with two different sets of thought it a good rule; but when applied to cases witnesses. In my opinion that is only a test, and not where the damage is not known at the time of the always an accurate one, but here it is sufficient to show first action, but develops itself afterward, and when | that the causes of action are different. Therefore in the claim is made bona fide for ulterior damages, and my opinion we are not called upon in this case to could not in fact have been made at the time of the apply the maxim I have mentioned, which for my part first action, because the further damage was not I think the law ought never to apply except in cases known, I bave always been of opinion that it is a harsh where it has already been determined that it must aprule, and if it were tu be established now for the first ply. It ought not to be stretched, and it is not applitime it could not have my concurrence. It is based cable in this case. Therefore I am of opinion that the upon the maxim that it is for the benefit of the State plaintiff is entitled to recover the sum awarded to him that the litigation of individuals should come to an by the jury. Two different actions may be brought for end. To my mind that is one of those maxims which different causes of action, but not to recover damappear to be the less true the more one looks into ages for the same cause of action. It follows that the them. It cannot matter to the State, and the maxim judgment of the Divisional Court cannot be supported, is never vouched except in cases where the subsequent and this appeal ought to be allowed. litigation would be just if it were not for the maxim. BOWEN, L. J. The plaintiff in this case has recovered In these cases of undeveloped injury the maxim if not a verdict for 3501. damges for personal injuries susonly untrue, but also unjust as between individuals. tained by him through the negligence of the defendHowever the rule exists, and I have not the smallest ant's servants in driving a van, which had come into intention of cavilling at it. It must remain, although collision with the plaintiff's cab, thrown the plaintiff the subsequent injuries are unknown, and cannot be from his box, and seriously injured him in his legs. known. Nevertheless in cases where there has al- Previously to bringing the action the plaintiff had ready been a trial, one is to suppose that which is not sued the defendant in the County Court for damages the truth, viz., that the first jury tried the case, when done to his cab in the collision, and the particulars dethe subsequent damage or injury could not be known livered under this plaint had been confined to the to them, and that they have in contemplation of law | damages which the cab had sustained. The defendant given damages for the prospective injury. The ques- in the County Court action paid 41. 38. into court, totion is whether the cause of action in this case is the gether with 6s. costs, upon which the plaintiff had dissame as that in the former action. The cause of action continued the County Court plaint. The present ac. alleged is an injury to the plaintiff's person by reason tion was now brought in the High Court for personal of the negligent driving of the defendant's servant. injuries, of the importance and extent of which the The existence of that negligence and the collision plaintiff alleged that he had been ignorant at the time alone do not give any cause of action. Supposing that of the County Court proceedings. On a motion for a by negligent driving the wheel of a cart is run against new trial the court below have entered a verdict of the a carriage, and there is no injury caused, the owner of defendant, on the ground that the recovery in the the carriage could not succeed in an action for nomi- County Court of damages in respect of the cab is a bar nal damages; such an action would not lie. The cause to any further action for injury to the plaintiff's perof action in such a case is the negligence which causes The rule of the ancient common law is, that appreciable injury to the vehicle. There must be both where one is barred in any action, real or personal, by the negligence and the appreciable injury. Therefore judgment, demurrer, confession, or verdict, he is in the first action the cause of action was the negligent | barred as to that or the like action of the like nature driving and the appreciable injury to the plaintiff's for the same thing forever. “It has been well said," cab. Suppose that in the days of strict pleading he says Lord Coke in a note to Ferrer's case (6 Coke, 9 a), had relied upon that cause of action, and had pleaded “Interest reipublicæ ut sit finis litium, otherwise,' it, he could not have given evidence of the personal in- says Lord Coke, “ great oppression might be done unjury. The cause of action in such a case is injury to der color and pretense of law.” See also Sparry's property. That is the cause of action, and is in re- case, 5 Coke, 61; Eliggen's case, 6 id. 45 b, Year-book, spect of a right of property. Now the plaintiff brings 12 Edw. 4, p. 13, 9. Accordingly in Hudson v. Lee, 4 av action in which he says that he has been injured in Co. 43, it was held to be a good plea in bar to an appeal. his person. That is a different right. He has a perfect of mayhem that the appellant had recovered damages right by law to have his persou uijmolested by the in an actiou for trespass brought for the same assault, negligence of another man's servant. The mere fact battery and wounding. So in Bird v. Randall, 3 Burr. of the defendant's vehicle having touched or shaken 1346, it was decided to be an answer to an action for the person of the plaintiff would give no cause of ac- seducing a man's servant from his service that penal. tion if no appreciable damage had been caused. There- ties had previously been recovered by the master in fore it is clear that the cause of action is the pegligent satisfaction of the injury done him, "So too in Phil


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lips v. Berryman, 3 Doug. 286, a recovery in replevin been combined in one suit, could it have been said was held to be a good bar to ai action on the Statute that the subject-matter of each grievance was the of Marlbridge for an excessive distress, on the ground same? Applying the test of identity furnished by De that the plaintits had already had his remedy, and that Grey, C. J., in Hitchin v. Campbell, the first matter a recovery in one personal action is a bar to all other that is obvious is, that the same evidence would not personal actions on the same subject. The priuciple have supported an action for trespass to the person is frequently stated in the form of avother legal prov- and an action for trespass to the goods. In the one erb: Nemo debet bis vexari pro eâdem causâ. It is a case the identity of the man injured and the character well-settled rule of law that damages resulting from of bis injuries would be in issue, and justifications one and the same cause of action must be assessed and might conceivably be pleaded as to the assault, which recovered once for all. The difficulty in ench instance would have nothing to do with the damage dove to the arises upon the application of this rule. How far is goods and chattels. In the other case the plaintiff's the cause which is being litigated afresh the same title to the goods might have been in issue, in addition cause in substance with that which has been the sub- to the question of the damage done to them. Difterject of the previous suit? “ The principal considera- ent provisions of the statute of limitations might postion," says De Gray, C. J., in Hitehin y. Campbell, 2 sibly have applied in each case. And finally the damWm. Bl. 827,"js whether it be precisely the same age in one case might have been directly due to the cause of action in both, appearing by proper averments wrongful act complained of; in the other case it might in a plea, or by proper facts stated in a special ver- not. There is no authority, so far as I know, in the diot, or a special case; and one great criterion,” he books for the proposition that the recovery in an acadds, "of this identity is that the same evidence will tion for a trespass to the person would be a bar to the maintain both actions." See per Lord Eldon in Mar- maintenance of an action for any trespass to goods tin v. Kennedy, 2 Bos. & Pull. 71. "The question, committed at the same time. In the present instance, says Grose, J., in Seddon v. Tutop, 6 T. R. 607, “is not as the defendant himself was not driving, but his serwhether the sum demanded might have been recop. vant, trespass would not have lain under the old law, ered in the former action; the only inquiry is whether and the plaintiff's remedy would have been in an acthe same cause of action has been litigated and con- tion on the case for negligence, based on the negligent sidered in the former action." Accordingly, though management by the servant of his master's horses, a a declaration contain counts under which the plaint- negligence for which in the eye of the law the master iff's whole claim might have been recovered, yet if no or employer is responsible. Now what is the gist of attempt was made to give evidence upon some of the such an action on the case for negligence? If the claims, they might be recovered in another action. whole of the plaintiff's case were to be stated, and the Thorpe v. Cooper, 5 Bing. 129. It is evident therefore entire story told, it seems to me that it would have that the application of the rule depends not upon any comprised two separate or distinct grievances, parratechnical considerations of identity of cause of action, ted, it is true, in one statement or case. Actions for but upon matters of substance. I have now to con- the Begligent management of any animal, or any persider the application of the above doctrine to the pres- sonal or movable chattel, such as a ship or machine or ent action; and the question to be decided is, whether instrument, are all based upon the same principle, viz., the damage done by the negligent driving of the de- | that a person who contrary to his duty conducts himfendant's servant to the plaintiff's cab is in substance self negligently in the management of that which conthe same cause of action as the damage caused by such tains in itself an element of danger to others, is liable negligence to the plaintiff's person. Nobody can doubt for all injury caused by his want of care or skill. Such that if the plaintiff bad recovered any damages for an action is based upon the union of the negligence injuries to his person, he could not have maintained a and the injuries caused thereby, which in such an infurther action for fresh bodily injuries caused by the

stance will as a rule involve, and have been accompansame act of negligence, merely because they had been ied by specific damage. Without remounting to the discovered or developed subsequently. See Fetler v. Roman law, or discussing the refinements of scholastic Beal, 1 Lord Raymond, 339.“ The jury,” says the jurisprudence, and the various uses that have been court in tbat case, “have in the former action con- made either by judges or juridical writers of the terms sidered the nature of the wound and given damages “injuria ” and “damnum,” it is sufficient to say that for all the damage that it had done to the plaintiff.” the gist of an action for negligence seems to me to be This authority however leaves still open the point we the harm to person or property negligently perpetranow have to determine, whether the cause of action

ted. In a certain class of cases the mere violation of a arising from damage to the plaintiff's cab is in sub- legal right imports a damage. “Actual perceptible stance identical with that which accrues in conse- damage," says Parke, B., in Embrey v. Owen, 6 Ex. quence of the damage caused to his person. In order 353, “is not indispensable as the foundation of an acclearly to elucidate this question, let me assume for tion; it is sufficient to show the violation of a right, in the sake of argument that the damage had been

which case the law will presume damage." But this caused by some act of the defendant himself, and not principle is not as a rule applicable to actions for negmerely an act of his servant. According to the old ligence which are not brought to establish a bare right, distinctions of forms of actions, which still have a his- but to recover compensation for substantial injury. torical value as throwing light upon the priuciples and Generally speaking,” says Littledale, J., in Williams definitions of the common law, the form of action

v. Morland, 2 B. & C. $16, “there must be temporal loss upon such a hypothesis would have been trespass to or damage acuruing from the wrongful act of another, the person for the personal injury-trespass to goods in order to entitle a party to maintain an action on the for the damage to the vehicle. Iujury would have been case." See Fay v. Prentice, 1 C. B. 835, per Maule, J. done to the plaintiff in respect of two absolute and in- This leads me to consider whether in the case of an dependent rights, the distinction between which is in- accident caused by negligent driving, in which both veterate both in the English and the Roman law. the goods and the person of the plaintiff are injured, Every one in this country has an absolute right to se- there is one cause of action only, or two causes of accurity for his person. Everybody has further an abso- tion which are severable and distinct. This is a very lute right to have the enjoyment of his goods and chat. difficult question to auswer, and I feel great doubt and tels unmeddled with by others. In the hypothetical hesitation in differing from the judgment of the court case I am assuming both these rights would have below, and from the great authority of the present been injured, and though the two injuries might have chief justice of England. According to the popular

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use of language the defendant's servant has done one lengths which would involve practical injustice. The
act and one only-the driving of the one vehicle neg- present case is one in which lam conscious that lawyers
ligently against the other. But the rule of law which of great authority do differ and will differ. But on the
I am discussing is not framed with reference to loose whole, in my opinion, the judgment of the Court of
popular expressions of the sort, but for the sake of Queen's Bench ought to be reversed, and the judg-
preventing an abuse of substantial justice. Two sep- ment entered at the trial for the plaintiff be restored,
arate kinds of injury were in fact ivflicted, and two with costs to the plaintiff, including the costs below
wrongs done. The mere negligent driving in itself, if and of this appeal.
accompanied by no injury to the plaintiff, was not ao- Lord COLERIDGE, C. J., dissenting. In this case I
tionable at all, for it was not a wrongful act at all till am, with much regret, unable to concur in the judg.
a wrong arose out of the damage which it caused. ment of my brother Bowen, to which I understand the
One wrong was done as soon as the plaintiff's enjoy- master of the rolls to assent. I should have been glad in
ment of his property was substantially interfered the face of this difference of opinion, to have given reas-
with. A further wrong arose as soon as the driving ons at length for my inability to agree in the judgment.
also caused injury to the plaintiff's person. Both But the plaintiff very naturally presses for judgment,
causes of action, in one sense, may be said to be and I am unable to do more than shortly to express my
founded upon oue act of the defendant's servant, but dissent. It appears to me that whether the negligence
they are not on that account identical causes of action. of the servant or the impact of the vehicle which the
The wrong consists in the damage done without law- servant drove be the technical cause of action, equally
ful excuse, not the act of driving, which is no damage the cause is one and the same. That the injury done
had ensued, would have been legally unimportant. It to the plaintiff is injury done to him, at one and the
certainly would appear unsatisfactory to hold that the same moment, by one and the same act, in respect of
damage done in a carriage accident to a man's port- different rights--i. e., his person and his goods—I do
manteau was the same injury as the damage done to not in the least deny; but it seems to me a subtlety
his spine, or that an action under Lord Campbell's not warranted by law to hold that a mau cannot bring
act by the widow and children of a person who had two actions if he is injured in his arm and in
been killed in a railway collision is barred by proof his leg, but can bring two if besides his arm and leg
that the plaintiff recovered in his life-time for the being injured, his trousers, which contaiu his leg, and
damage done to his luggage. It may be said that it his coat-sleeve, which contains his arm, have been
would be convenient to force persons to sue for all torn. The consequences of holding this are so serious,
their grievances at once, and not to split their de- and may be very probably so oppressive, that I at least
mands; but there is no positive law (except so far must respectfully dissent from a judgment which es-
as the County Court acts have from a very early date tablishes it. I think that the court below was right,
dealt with the matter) against splitting demands and that this appeal should be dismissed.
which are essentially separable (see Seddon v. Tutop, 6

Judgmeni reversed.
T. R. 607), although the High Court has inherent
power to prevent vexation or oppression, and by stay-
ing proceedings, or by apportioning the costs, would UNITED STATES SUPREME COURT AB-
have always ample means of preventing any injustice

STRACT. arising out of the reckless use of legal procedure. In the present case the plaintiff's particulars in the County

SURETY-ACTION ON BOND-NOTICE OF DEFAULT.Court were confined to the damage done to his cab; the injury to his person therefore was neither litigated

A bond by a principal and a surety was conditioned

that the principal should pay to V. all indebtedness nor considered in the County Court. The real test is not, I think, whether the plaintiff had the oppor

existing or to exist from the principal to V. under ex

isting or future contracts between him and V., and tunity of recovering in the first action what he claims to recover in the second. See Seddon v. Tutop,

waived notice of non-payment on all notes executed,

indorsed or guaranteed by the principal to V. In a 6 T. R. 607 With all respect, I do not see how it can

suit on the bond against the obligors to recover the be said that Nelson v.Couch, 15 Com. Bench (N. S.) 99,

amount of the notes executed by the principal to V., so decides. That case establishes only the converse rule, viz., that the maxim nemo debet bis vexari cannot

and other notes indorsed and guaranteed by him to V., apply where in the first action the plaintiff had no

held, that it was not necessary to allege or show any

notice to the surety of a default by the principal in such opportunity of satisfying his claim. The language of Coleridge, J., and the other members of the

paying V. Murphy v. Victor Sewing Machine Co. court in Hodsoll v.Stellebrass, 11 Adol. & El. 301, must,

Opinion by Blatchford, J. I think, be read by the light of the special circum

[Decided Jan. 5, 1885.] stances of that case, and so read is not inconsistent AGENCY--SALE OF SEWING MACHINES AND ATTACHwith the view at which I have here arrived. I am in no MENTS-PLEADING-BOND OF AGENT- LIABILITY OF way departing from the language of this authority in SURETY-STATUTE OF LIMITATIONS.— (1) A written holding, as I do in the present instance, that the dam- agreement between a company making sewing maage for which the plaintiff is wow suing accrues from a chines and a consignee to receive and sell them on different injury, and therefore a different wrong, from commission, provided that the commission should be that for which he recovered damages in the County calculated on the retail prices for which the machines Court. The view at which I have arrived is in con- should be sold, as reported by the consignee, and that formity with the reasoning of the judgment recently attachments should be sold to the consignee at the lowpronounced by this court in the case of Mitchell v. est wholesale rates. The proceeds of sales of machines Durley Main Colliery Co., where it was held (reversing beyond the commission belonged to the company. In Lamb v. Wulker, 3 Q. B. Div. 389; 28 Moak Eng. Rep. a suit by it against the consignee, and a person liable 332) that each fresh subsidence of soil in the case of with him on a bund for his indebtedness, to recover withdrawal of support gave rise to a fresh cause of ac- such proceeds, and the sale price of attachments, the tion. Nor do I feel called upon to extend the appli- complaint set forth schedules showing the retail price cation of the sound and valuable principle of law that of each machine as so reported, and the excess of none shall be vexed twice for the same cause of action money, beyond commission, retained by the consignee, to a case to which it has uever yet been applied, and and the price of each attachment sold to the consignee. to which it can ouly be applied by pursuing analogy to Held, that the complaint was sufficient. (2) The con

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signee and another person united in a bond to the laration, a specific tract of land is confirmed to any company, conditioned that the former should pay to one, his title is not strengthened by a subsequent patit all moneys which should become due under or arise eut from the government. Such a patent would be an from the writteu agreement, and waiving notice of instrument of quiet and security to the patentee, but non-payment. Held, that the liability of the surety it would not add to the validity and completeness of arose on the bond, and that of the consignee on the the title confirmed by the act of Cougress. Langdeau bond or the written agreement, and that the statute v. Hanes, 21 Wall. 521; Ryan v. Carter, 93 U. S. 78; of limitations in regard to written instruments govern- Tripp v. Spring, 5 Sawy. 209, 216. If there was any ed the case. Dixon v. Holdroyd, 7 El. & B. 903. Stree- difference in the grade of the two conveyances of tbe per v. Victor Sewing Machine Co. Opinion by Blatch-government, that by a direct legislative act, and that ford, J.

by officers acting under provisions of the statute, it [Decided Jan. 5, 1885.)

would seem that there ghould be greater weight and INSURANCE-FIRE-CHANGE OF INTEREST ADMIS

dignity attached to the legislative grant as proceeding

more immediately from the source of title than the SION OF PARTNER.-A fire policy, covering merchandise belonging to a firm, provided that it should be

patent. No impeachment can be bad of the motives void if the property “be sold or transferred, or any

of the Legislature, whereas the motives of officers emchange takes place in title or possession (except by suc

ployed to supervise the alienation of public lands may cession by reason of the death of the insured), whether

sometimes be questioned, as in proceedings to set

aside their action. Still if the law be complied with, by legal process, or judicial decree, or voluntary insfer or conveyance." Subsequently, and before loss,

the title passes as completely in the one case as in the the firm owning this property in certain

other. Montgomery v. Bevans, 1 Sawy. 677. Whitney v. pro

Morrow. Opinion by Field, J.
portions made an agreement in writing with A., by
which they agreed to receive him into their busines

[Decided Jan.5, 1885.)
upon the following terms and condition: Said com- SHIP AND SHIPPING
pany is to become incorporated. A. is to pay into the TION AS TO SAILING.-A stipulation in the charter-
firm for its use $5,000 forthwith, and $5,000 in two party of a steamer, that she is "now sailed, or about
years, with interest semi-annually until paid. The to sail from Benizaf with cargo for Philadelphia,” is a
name of the new company shall be determined here- stipulation that she has her cargo on board and is
after. The property of the existing firm shall be put ready to sail. It is a substantive part of the contract,
into the corporation to be formed as aforesaid, adding and not a mere representation, and is not an independ-
to it the $10,000 to be paid by A. The interest and ent agreement, serving only as a foundation for an ac-
shares of the several parties in the new company shall tion for compensation in damages. A breach of it by
be in proportion to the amount so contributed by each one party justifies a repudiation of the contract by the
to the capital stock. When a charter shall be pro- other party, if it has not been partially executed in his
cured as aforesaid, half of A.'s stock shall be held by favor. The case falls within the class of which Gla-
said company till said second sum of $5,000, with in- holm v. Hays, 2 Man. & G. 257; Ollive v. Booker, 1
terest, shall be paid. No change in the name or char-

Exch. 416; Oliver v. Fielden, 4 id. 135; Gorrissen v. acter of the existing firm shall be made until said cor- Perrin, 2 C. B. (N. S.) 681; Croockewit v. Fletcher, 1 poration shall be formed. Held, that A. did not be- Hurl. & N. 893; Seeger v. Duthie, 8 C. B. (N. S.) 45; come a partner, or acquire any interest in the property

Behn v. Burness, 3 Best & S. 751; Corkling v. Massey, of the partnership, before it was made a corporation.

L. R., 8 C. P. 395; and Lowber y. Bangs, 2 Wall. 728, Drennen v. London Assur. Corp. Opinion by Har- are examples; and not within the class illustrated by lau, J.

Tarrabochia v. Hickie, 1 Hurl. & N. 183; Dimech v. [Decided Jan. 5, 1885.)

Corlett, 12 Moore P. C. 199; and Clipsham v. Vertue, 5

Q. B. 265. It is apparent, from the averments in the PLEADING MONEY ILLEGALLY EXACTED -- New

pleadings of the charterers, of facts which are estabYORK CODE-ANSWER-EVIDENCE.-(1) In an action lished by the findings, that time and the situation of of indebitatus assumpsit, to recover money alleged to the vessel were material and essential parts of have been illegally exacted, a declaration which avers the contract. Construing the contract by the aid the fact of indebtedness, and a promise in considera- of and in the light of the circumstances existing tion thereof, is sufficient on general demurrer, unless at the time it was made, averred in the pleadings and

appears that the alleged indebtedness was impossi- found as facts, we have no difficulty in holding the
ble in law. (2) To such a declaration, treated as a stipulation in question to be a warranty. See Abb.
complaint according to the New York Code, an an- Shipp. (11th ed.) by Shee, 227, 228. But the instrument
swer was filed, setting up as a defense an act of Con- must be construed with reference to the intention of
gress to legalize the collection of head-moneys already the parties when it was made, irrespective of any
paid, approved June 19, 1878. The Circuit Court re- events afterward occurring; and we place our decision
fused to hear evidence in support of the plaintiff's on the ground that the stipulation was originally in-
case, and gave judgment on the pleadings in favor of tended to be, and by its terms imports a condition
the defendant. Held, that this was error, because it precedent. The Whickham. Opinion by Blatok-
did not appear from the record that the money sued ford, J.
for was within the description of the act of Congress. [Decided Jan. 5, 1885.]
Liverpool, New York, etc., Steamship Co. 7. Commis-
sioners of Emigration. Opinion by Matthews, J.
[Decided Jan.5, 1885.)




FELLOW PASSENGER-DUTY OF EMPLOYEES.-A com(1) A party who contests the title of another to land

mon carrier of passengers for hire is bound to see that held under an act of Congress, in which an exception

no harm comes to a passenger from a fellow passenger, was reserved saving from its operation land occupied

whose conduct and condition clearly show that he is a by the United States for military purposes, must es

dangerous person and likely to injure his fellow pastablish the exception, when his right to the premises depends upon its existence. (2) If by a legislative dec.

*Appearing in 22 Federal Reporter.

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sengers. Where the conduct of a passenger is such as Ex’rs of Smith, 20 Johns. 33; Leonard v. Pitney, 5
to clearly show that he is dangerous, it becomes the Wend. 30; Demarest v. Wynkoop, 3 Johns. Ch. 129;
duty of the employees of the company in charge of the Sacia v. De Graaf, 1 Cow. 356; Bucklin v. Ford, 5
train to keep him in close custody and disarm him, or Barb. 393; Woodbury v. Shackleford, 19 Wis, 55;
remove him from the train. By the common law, and Lindsay v. Fay, 28 id. 177; Encking v. Simmons, id.
especially by the statutes of this State, ample powers 272. Cir. Ct. W. D. Wis., Aug., 1884. Amy v. City of
in these respects are conferred upon conductors and Watertown. Opinion by Bunn, J.
other railroad employees. Vinton v. Middlesex R.
Co., 11 Allen, 304; Railroad Co. v. Anthony, 43 Ind. CHATTEL MORTGAGE-MORTGAGOR IN POSSESSION
183; Railroad Co. v. Van Houten, 48 id. 90; Railroad WITH POWER TO SELL-QUESTION OF FRAUD ONE OF
Co. v. Vandyne, 57 id. 576; Railroad Co. v. Griffin, 68 FACT. -Provisions in a chattel mortgage that the mort-
Ill. 506; Ind. Rev. Stat., 1881, 88 1702, 2091, 3922-3924. gagor shall continue in possession of the property and
These powers, whether conferred by statute or de- dispose of it in the ordinary course of his business,
duced from the principles of law, are given for the keeping the stock replenished as nearly as might be,
safety of those who travel by railroad, and any failure and that the mortgage shall cover subsequently-ac-
iu a proper case to exercise them, contributing to the quired property, and secure present and future indebt-
injury of a passenger, is a breach of the carrier's con- edness for goods bought of the mortgagee on credit,
tract, for which damages may be allowed. This con- do not render the mortgage executed to a creditor in
clusion is strongly supported by decisions made in an- Michigan void on its face as to other creditors of the
alogous cases, cited in argument of which see the fol- mortgagee. Gay v. Bidwell, 7 Mich. 519; Wingler v.
lowing: Railroad Co. v. Hinds, 53 Peun. St. 512; S.C., Sibley, 35 id. 231; Fry v. Russell, id. 229. The rule in
7 Am. Law Reg. (N. S.) 14; Railroad Co. v. Pillow, 76 this State is that the question of fraud is one to be de-
Penn. St. 510; S. C., 18 Am. Rep. 424; Flint v. Trans- termined from all the facts and circumstances bearing
portation Co., 34 Conn. 551; S. C., 6 Blatchf. 158; Rail- upon the good faith of the transaction. Robinson v.
road Co. v. Burke, 53 Miss. 200; S. C., 24 Am. Rep. Elliott was decided under the statute of Indiana,
689; Britton v. Railroad Co., 88 N. C., 536; S. C., 43 where the point had not been passed upon by the State
Am. Rep. 749; Railroad Co. v. Flexman, 103 Ill. 546; court, so that the Supreme Court of the United States
Stewart v. Railroad Co., 90 N. Y. 588; S. C., 43 Am. say it was at liberty to consider the question for itself
Rep. 185. Cir. Ct., Dist. Iud., Dec. 1884. King v. Ohio, as to what the Legislature intended. Argall v. Sey-
etc., R. Co. Opinion by Woods, J.

mour, 4 McCrary, 56, asserts the rule laid down in STATUTE OF LIMITATIONS-PROPER INQUIRY UNDER

Robinson v. Elliott, but the case is not disposed of unPLEA OF.--The inquiry under a plea of the statute of

der the doctrine of that case, I think. Mr. Judge Lowlimitations is always properly limited to a few simple

ell, in Brett v. Carter, 2 Low. 458, in a well considered topics; as (1) when did the cause of action arise ?

case, expresses different views. But independently of Manifestly in a case like this, wher the bond or cou

these cases, we think the Supreme Court of the United pou fell due and was not paid, though it is claimed by

States would promptly hold, in a case arising under a the plaintiffs that it did not arise so long as the plaint

chattel mortgage executed in this State, that the rule iffs were prevented by the action of the defendant's

of interpretation, as held by the Supreme Court of Michofficers from getting service on the mayor. By the

igan, must control as a rule of property. Robinson v. same contention, if the maker of a note should conceal

Elliott, 22 Wall. 513; Argall v. Seymour, 4 McCrary, 56, bimself for a week after his note fell due, so that sum

distinguished. Cir. Ct. W. D. Mich., Nov., 1884. mons could not be served upon him, the cause of ac

Morse v. Riblet. Opinion by Withey, J. tion would not arise until he should come out from his MONEY HAD AND RECEIVED--BREACH OF CONTRACT. hiding place so that service could be had. Nobody is -In May, 1883, the Mexican National Construction capable of maintaining such a proposition. (2) How Company sought subscriptions to a loan of $2,000,000 to long a period has elapsed from the time the cause of

aid in constructing the Mexican National Railway, action arose to the time when suit was commenced ? and plaintiff subscribed $20,000 upon the terms of a By limiting the inquiry to these simple questions which contract, whereby the construction company agreed to was no doubt the intention of the Legislature, the ap- deposit in trust securities of the nominal value of plication and operation of the statute is made certain

$20,000,000 as collateral for the repayment of the $2,and uniform, and its effect salutary. See the follow- 000,000 loan on or before September 15, 1884.

Ocing cases: Dupleix v. De Roven, 2 Vern. 540; Hall v.

tober 1, 1883, plaintiff paid the installments of his subWybourn, 2 Salk. 420; Beckford v. Wade, 17 Ves. 87;

scription as called by the company, and received reHunter v. Gibbons, 1 Hurl. & N. 459; Brown v. How

ceipts therefor, which, under the contract, were not ard, 4 Moore, 508; Imp. Gaslight & Coke Co. v. London

transferable without consent of the company, but Gaslight Co., 18 Jur. 497; 8. C., 2C. L. Rep. 1230; Mc

could be exchanged for formal certificates of interest Iver v. Ragan, 2 Wheat. 25; Bank of the State of Ala

in the loan, authenticated by the trustee. Before pay. bama v. Dalton, 9 How. 522; Bowman v. Wathen, 1

ment of the last installment the company transferred id. 189; Kendall v. U. S., 107 U. S. 123; Wood v. to the trustee the securities by indenture, prescribing Carpenter, 101 id. 135; National Bank v. Carpenter, id.

the powers and duties of the trustee, and providing 567; Andreae v. Redfield, 98 id. 2:25; Leflingwell v. that he should execute, as requested by the company, Warren, 2 Black, 599; Gaines v. Miller, 111 U. S. 395;

certificates of interest entitling the registered holders Fisher v. Harnden, 1 Paine, C. C. 61; U. S. V. Mail

to an interest in the securities, or the proceeds of the lard, 4 Ben. 459; U.S. v. Muhlenbrink, 1 Woods, 569;

sale thereof, bearing the same proportion to the whole Cocke v. McGinnis, Mart. & Y. 361; York v. Bright, 4 as the amount of each certificate bore to the $2,000,000; Humph. (Tenn.) 312; Miles v. Berry, 1 Hill (S. C.), but that he should not sell the securities to satisfy the 206; Howell y. Hair, 15 Ala. 191; Arrowsmith v.Durell, loan unless the holders of certificates representing 35 21 La. Ann. 295; Yale v. Randle, 23 id. 579; Somerset

per cent of the whole amount requested, and that the C). v. Vegite, 44 N. J. L. 500; Coleman v. Willi, 40

holders of a majority in interest might waive default Mo. 236; Callis v. Waddy, 2 Muf. 511; Conner v. in payment of the loan,or extend the time of payment, Goodman, 104 111. 365; State Bank v. Morris, 13 Ark.

or suspend or postpone the sale of the collaterals at 291; Foe v. Fee, 10 Ohio, 469; Favorite v. Booher's their discretion. Plaintiff, had no knowledge of the Adm'r, 17 Ohio St. 548; Smith v. Bishop, 9 Vt. 110;

terms of this indenture, and demanded a certificate, as Peoria M. & F. Ins. Co. v. IIall, 12 Mich. 202; Troup v.

provided in the contract, and ou a refusal to deliver

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