UNITED STATES SUPREME COURT AB- ADMINISTRATOR-WASTE BY-ADMINISTRATOR DE BONIS NON CANNOT RECOVER AGAINST.-The fact that an administratrix has improperly paid out money of the estate, the proceeds of assets administered by her, or that they have been paid to her agent, does not invest the administrator de bonis non with title and enable him to sue therefor. United States v. Walker, 109 U. S. 258. The administrator is responsible therefor to the creditors, legatees and distributees of the estate, and they only were entitled to sue therefor. United States v. Walker, ubi supra; Beall v. New Mexico, 16 Wall. 535; Eunis v. Smith, 14 How. 416. If the cases cited by counsel for appellant (Catherwood v. Chabaud, 1 Barn. & C. 150, and Blydenburg v. Lowry, 4 Cranch C. C. 368) sustain his contention, they are inconsistent with the law as heretofore laid down by this court, and cannot avail him. Wilson v. Arrick. Opinion by Woods, J. [See 1 Keyes, 18; 84 N. Y. 320.1 [Decided Oct. 27, 1884.] -- FRAUD-SALE OF LAND BY ONE JOINT OWNER-ASKING MORE FOR HIS SHARE-ERROR IN CHARGE. A party selling a piece of land of which one-half only is his, commits no fraud on the other owners by taking from the purchaser for his part a price higher than what he requires for the rest, if previously to the execution to him of a power to sell procured without fraud, he stated bona fide to such owners his intention so to ask a higher price for his part, and received their consent to his doing so. It was the duty of the court to submit to the consideration of the jury the testimony adduced by the defendant to sustain the defenses set up in his answer, and the charge should be based on the hypothesis that the defenses which the testimony tended to prove were proven. Adams v. Roberts, 2 How. 486; Reese v. Beck, 24 Ala. 651; Grube v. Nichols, 36 Ill. 92; Chappell v. Allen, 38 Mo. 213, 220. The charge having assumed that there was no fraud in the procuring of the power of attorney, and the defendant having submitted testimony tending to show that there was no fraud in his doings after the power of attorney was procured, but that whatever was subsequently done by him in making the sale was done with the consent of the plaintiffs given in advance, it was error to charge the jury that the plaintiffs were entitled to recover, unless the defendant informed the plaintiffs at what price he could sell or had sold his share, and they renewed their consent that he might retain it. Ranney v. Barlow. Opinion by Woods, J. [Decided Nov. 3, 1884.] HABEAS CORPUS-INNOCENCE OF CHARGE-ISSUING WRIT IN ANOTHER JURISDICTION.-A prisoner in the custody of a State court of competent jurisdiction, not illegally asserted, cannot be taken from that jurisdiction and discharged on habeas corpus issued by a court of the United States, simply because he is not guilty of the offense for which he is held. The right of the pris. oner to a discharge depends alone upon the sufficiency of his defense to the information under which he is held, and whether this is sufficient or not is for the court which tries him to determine. If in this determination errors are committed, they can only be corrected in an appropriate form of proceeding for that purpose. The office of a writ of habeas corpus is neither to correct such errors nor to take the prisoner away from the court which holds him for trial, for fear if he remains they may be committed. Authorities to this Ex parte effect in our own reports are numerous. Watkins, 3 Pet. 202; Ex parte Lange, 18 Wall. 166; Ex parte Parks, 93 U. S. 23; Ex parte Siebold, 100 id. 374; Ex parte Virginia, id. 343; Ex parte Rowland, 104 id. CONSTITUTIONAL LAW-LIQUOR TRAFFIC-REMOVAL FROM OFFICE-QUO WARRANTO IS CIVIL PROCEEDING.(1) A State law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to the Consti tion of the United States. Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U. S. 25. (2) A State statute regulating proceedings for the removal of a person from a State office is not repugnant to the Constitution of the United States if it provides for bringing the party against whom proceedings are had into court, and notifying him of the case he has to meet; for giving him an opportunity to be heard in his defense; and for the deliberation and judgment of the court. Kennard v. Louisiana, 92 U. S. 480. (3) The remedy by information in the nature of a quo warranto in Kansas is a civil proceeding. Ames v. Kansas, 111 U. S. 449. Foster v. Kansas. Opinion by Waite, C. J. [Decided Nov. 10, 1884.] MUNICIPAL BOND-BONA FIDE PURCHASER-NOTICE - PRACTICE-OFFER OF TESTIMONY-REJECTION-PRESUMPTION.-Purchasers of negotiable securities are not charged with constructive notice of the pendency of a suit affecting the title or value of the securities. County of Warren v. Marcy, 97 U. S. 96. But in defense of an action brought by such a purchaser against a county to recover upon bonds alleged to have been issued by it, it is proper to introduce evidence going to show that the plaintiff or his assignor had actual notice of a suit pending, affecting such bonds, before their purchase by him. It is claimed however that error cannot be assigned here on the exception to the ex clusion of the oral proof, because the record does not show that any witness was actually called to the stand to give the evidence, or that any one was present who could be called for that purpose, if the court had decided in favor of admitting it, and we are referred to the cases of Robinson v. State, 1 Lea (Tenn.). 673, and Eschbach v. Hurtt, 47 Md. 66, in support of that proposition. Those cases do undoubtedly hold that error cannot be assigned on such a ruling unless it appears that the offer was made in good faith, and this is in reality all they do decide. If the trial court has doubts about the good faith of an offer of testimony, it can insist upon the production of the witness, and upon some attempt to make the proof before it rejects the offer; but if it does reject, and allows a bill of exceptions, which shows that the offer was actually made and refused, and there is nothing else in the record to indicate bad faith, an appellate court must assume that the proof could have been made, and govern itself accordingly. Scotland Co. v. Hill. Opinion by Waite, C. J. [Decided Nov. 10, 1884.] REMOVAL OF CAUSE-JOINT DEBTORS IN A MORTGAGE-NON-RESIDENT MORTGAGOR.-The foreclosure of a mortgage against several mortgagors, some of whom reside outside of the State, the mortgage debt being a unit, and all the mortgagors, resident and nonresident, being similarly bound, is not such a suit as may be removed to a Federal court under the act of March 3, 1875. Citing Fraser Jennison, 106 V. U. S. 194; Removal Cases, 100 id. 457: Pacific R. v. chester v. Loud, 108 id. 130; Shainwald v. Lewis, id. UNITED STATES CIRCUIT AND DISTRICT JURISDICTION-CIRCUIT COURT-TRANSFER OF INTEREST PENDING HEARING-CITIZENSHIP-PLEADING-SUPPLEMENTAL BILL.-G., a citizen of Wisconsin, brought a suit in the Circuit Court of the United States for the Western District of Wisconsin, against S.,a citizen of Minnesota,and W., a citizen of Ohio, to set aside a tax deed upon his land, situated in Wisconsin, as a cloud on his title, and after the case was ready for trial and set down for hearing, transferred his entire interest in the land to C., a citizen of Minnesota. Held, that although C. could not originally have brought the suit, the jurisdiction of the court, having once attached, was not divested by the transfer in such a manner that the assignee could not, by a supplemental bill, or an original bill in the nature of a supplemental bill, filed in the Circuit Court, continue the jurisdiction of the court, and retain and preserve the benefit of the former proceedings in the suit of G. against the same defendants. Clarke v. Mathewson, Morgan's Heirs Howe, 24 How. 12 Pet. 164; Dunn v. Clarke, 8 Pet. 1: CONSTITUTIONAL LAW-UNCONSTITUTIONAL AMENDMENT TO VALID ACT-EFFECT OF.-The validity of a constitutional act is not affected by an amendment which is unconstitutional, because it discriminates between citizens of different States, and which does not in terms repeal the original act. The amendment is void, and does not by implication repeal the original Cir. Ct., Dist. Ky., Aug. 8, 1884. Matter of Davis. Opinion by Barr, J. act. PRESUMPTION FROM ACCIDENT. NEGLIGENCE Where a stevedore, engaged in his usual occupation, falls through an ordinary coal-bunker hatch that is used for stowing cargo, the presumption is of his negligence rather than that of the officers of the vessel. The leaving open a common between-deck hatchway while the vessel is lying in port, under ordinary circumstances is not presumptive evidence of negligence on the part of the ship. This is not only shown to be the custom by the testimony in this case, but it has been so frequently commented upon in decisions as to be too well settled to be questioned. The Victoria, 13 Fed Rep.43; Dwyer v. Nat. Steamship Co., 4 id. 493; the Carl, 18 id. 655; The Germania, 9 Ben. 356; The Helios, 12 Fed. Rep. 732. While the falling through an open hatchway by a stranger, a landsman, visitor, or passenger on board a vessel might not be presumptive of negligence on his part, where such accident occurs to a seaman or stevedore, who is accustomed to hatches, their presence, necessity, uses, character, and location, the case is different, and unless the circumstances of the particular case are such as to rebut it, the first presumption is of his negligence. Dist. Ct., S. D. Ga., June 9, 1884. The Gladiolus. Opinion by Locke, J. SHIP AND SHIPPING-MARITIME LIEN-SUPPLIESSHIP'S AGENTS-SECRET AGREEMENT WITH STEVEDORE. -A supply of rope necessary for use in unloading a ship, furnished to the ship by request of the ship's agents, binds the ship to pay for it. The ship's agents have presumptive authority to procure it on *Appearing in 21 Federal Reporter. account of the ship. A secret agreement with a stevedore that he shall provide and pay for all such rope does not prevent a lien therefor in favor of one who furnishes such rope to the ship on her account, at the request of the ship's agents, when he has no knowledge or notice of such an agreement. Dist. Ct., S. D. New York, June 30, 1884. The Ludgate Hill. Opiniou by Brown, J. SHIP AND SHIPPING-PILOTS-DUTY OF-UNKNOWN OBSTRUCTIONS-COSTS.-A pilot is not an insurer. He is only chargeable for negligence when he fails in due knowledge, care, or skill, or to avoid all obstructions which were known or ought to have been known to him. The schooner J. B. O., drawing 17% feet of water, while in tow of the tug J. A. G., ran upon the edge of an obstruction in the East river, 400 to 500 feet easterly from the Nineteenth street buoy (Nes Rock), near mid-channel. Shortly before the trial, the existence of a pinnacle rock four yards square on the upper surface, and 12% feet below low-water mark, was for the first time discovered and located in the precise region where the schooner struck. Held, that the schooner had struck upon the edge of the newlydiscovered rock, previous ignorance of which was not a fault, and that the pilot having pursued the customary course, the tug was not liable for the damage; but as the facts seemed to warrant the suit, the libel was dismissed without costs. Dist. Ct., S. D. New York, June 30, 1884. The James A. Garfield. Opinion by Brown, J. PAYMENT-IN MONEY OR EQUIVALENT-ELECTION- -(1)Where a promise is in the alternative, to pay in ! ment of interest in money, if earned, or if it was not earned, to the scrip, on the day at which, by the terms of the bonds, the company was to pay the interest, or exercise its alternative; and that after that day had elapsed, without an election by the company, they were entitled to be paid in money, and could maintain an action to recover the same, although no presentment of the bonds or demand of payment had been made. There is no distinction in this respect between notes and negotiable bonds. Savannah & M. R. Co. v. Lancaster, 62 Ala. 555; Philadelphia & B. R. Co. v. Johuson, 54 Penn. St. 127. And the rule applies also to notes payable in specific articles. Elkins 7. Parkhurst, 17 Vt. 105; Wiley v. Shoerak, 2 G. Greene (Iowa), 205. If the defendant had been prepared to deliver the scrip when the interest matured, it would have complied with its agreement, and been absolved from liability. The law does not usually require the doing of a vain thing, and after the defendant had announced that it could not pay the interest, aud was not prepared to issue the scrip, it would have been a nugatory and perfunctory act on the part of the plaintiff, when he was entitled absolutely to his money, to make a formal presentment of his bonds and a formal demand of payment. Cir. Ct., S. D. New York, Aug. 26, 1884. Marlor v. Texas & Pac. R. Co. Opinion by Wallace, J. Court of the United States; as in Hipp v. Babin, 19 How. 271; Parker v. Winnipiseogee Co., 2 Black, 545; Watson v. Sutherland, 5 Wall. 74, and many other cases. Cir. Ct., Dist. Cal., Aug. 25, 1884. Hausmeister v. Porter. Opinion by Sawyer, J. MAINE SUPREME JUDICIAL COURT ABSTRACT.* ADMINISTRATOR DEMAND EXECUTOR AND WAIVER.-An action cannot be maintained against an administratrix for default by her in the performance after the death of her intestate of the condition of a bond given by her intestate, unless the claim was presented in writing and payment demanded thirty days before the date of the writ, or this requirement was waived. Eaton v. Buswell, 69 Me.552; Me. Cent. Institute v. Haskell, 71 id. 487: Stevens v. Haskell, 72 id. 244. Boothy v. Boothy. Opinion by Symonds, J. TRUST AND TRUSTEE-STATUTE OF LIMITATION.-At the death of a trustee who had given no bond as such, if the identity of the trust fund or property is lost, the cestui que trust stands in the position of a general creditor of the estate; or if the trust is not terminated the estate becomes at once liable to a new trustee who may be appointed, and the special statute of limitations applies to the demands for the trust funds as it does to other claims against the estate, though a new trustee is not appointed. This is not a proceeding in equity to hold a particular fund or property as charged with a trust, either originally, or by tracing the use of trust funds or the proceeds of trust property in the purchase or procurement of it. The distinct statement of the case is, that the trust fund cannot now be traced. The proceeding is by action at law, of assumpsit, against the trustee personally, through his devisee; not against a trust fund or property. Such an action stands upon the same plane, subject to the same limitation, as an ordinary action of assumpsit against the estate of a deceased person. The statute of limitations applies to any trust which is the ground of an action at law. The rule that the statute does not apply to cases where the technical relation of trustee and cestui que trust exists, only holds in cases over which courts of equity have exclusive jurisdiction. Wood Lim. 42; Godden v. Kimmell, 99 U. S. 201; Pratt v. Northam, 5 Mason, 95. "Executors are If at MANDAMUS-TREASURER TO PAY COUPONS-IF IT LIES the administration of the assets of the testator. *Appearing in 76 Maine Reports. WILL-UNDUE INFLUENCE-DECLARATIONS OF TESTATOR.-At a trial before the jury upon the questions arising upon the probate of a contested will, the proponent requested the following instruction: "That if the jury find that the testator was of sound mind at the time of excuting the will, they are at liberty to consider his declarations to the attesting witnesses at the time of the execution of the will as evidence of the facts stated, though his declarations at all other times are not to be considered by them as evidence of the facts stated." Held, the ruling requested was correctly and legally refused. In Shailer v. Bumstead, 99 Mass. 120, it is said: "The declarations of the testator accompanying the act must always be resorted to as the most satisfactory evidence to sustain or defend the will whenever this issue is presented. So it is uniformly held that the previous declarations of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental peculiarity and condition, are mainly ascertainable through the medium afforded by the power of language. Statements and declarations, when the state of the mind is the fact to be shown, are therefore received as mental acts or conduct. The truth or falsity of the statement is of no consequence. As a narration, it is not received as evidence of the fact stated. It is only to be used as showing what manner of man he is who makes it." This case is cited in 1 Greenl. Ev., § 108, as authority for the statement that " upon an inquiry as to the state of mind, sentiments or, disposition of a person at any particular period, his declarations and conversations are admissible. They are parts of the res destæ." "It should at the same time be remembered that as primary proof that a testator was influenced in making the will by fraud or compulsion, his declarations are inadmissible. In such relation they are to be regarded as hearsay. But while such declarations are not admissible to prove the actual fact of fraud or improper infiuence by another, they may be competent to establish the influence and effect of the external acts upon the testator himself." Whart. Ev., § 1010; Robinson v. Adams, 62 Me. 369. In regard to another class of declarations by the testator, those received as evidence of his intention, Lord Denman said in Doe v. Allen, 12 Ad. & El. 451: "Cases are referred to in the books to show that declarations contemporaneous with the will are alone to be received, but on examination none of them establish such a distinction. Neither has any argument been adduced which convinces us that those subsequent to the will ought to be excluded, wherever any evidence of declaration can be received. They may have more or less weight according to the time and circumstances under which they were made, but their admissibility depends entirely on other considerations." Jones v. McLellan. Opinion by Symonds, J. REMOVAL OF CAUSE-ENJOINING STATE COURT.Suits in equity, not related in any way to the provisions of the bankrupt law, in which the only effective relief sought is an injunction to stay proceedings in an action pending in the State court and prevent the levying of an execution issuing therefrom, are not removable to the Circuit Court of the United States on petition of the plaintiff in the action at law before injunction issued. In Gaines v. Fuentes, 92 U. S. 10, the opinion denies that that suit, which it was held should have been removed into the Federal court upon the application of the original defendant, was one that must have been brought originally in the State Court, and declares that it was, on the contrary, a suit for equitable relief such that if by the law obtaining in the State, customary or statutory, it could be maintained in one of its courts, whatever designation that court might bear, it could be brought by original pro cess in the Federal court, the legal conditions as to citizenship of the parties being fulfilled; manifestly distinguishing the suit then before the court from one to enjoin the proceedings or process of a State court, for in the later case of Dial v. Reynolds, 96 U. S. 340, it is again said: "The gravamen of what is desired as to Reynolds is an injunctiou to prevent his proceeding at law in the State court. Without this, all else is of no account. Any other remedy would be unavailing. Such an injunction, except under the bankrupt act, no court of the United States can grant. With this exception, it is expressly forbidden by law;" citing the United States statutes already referred to, and Diggs v. Wolcott, 4 Cranch, 179; Peck v. Jenness, 7 How. 612; Watson v. Jones, 13 Wall. 679. See also Randall v. Howard, 2 Black, 589; Nougue v. Clapp, 101 U. S. 554; Watson v. Jones, 13 Wall. 719; Bank v. Turnbul, 16 id. 190; Dunn v. Clarke, 8 Pet. 1; Jackson v. Gould, 74 Me. 564; Stone v. Sargent, 129 Mass. 507. There is nothing in the ruling which requires us to consider that class of cases, of which Boudurant v. Watson, 103 U. S. 281, is one, in which the State Court had already issued the injunction before the right of removal was claimed, and the party applying for the removal sought also a dissolution of the injunction." It is to be observed that the injunction had already been granted by the State court before the application for removal was made. Edwards Manfg. Co. v. Sprague. Opinion by Symonds, J. MARYLAND COURT OF APPEALS ABSTRACT.* WILL GIFT TO A CLASS-DISTRIBUTION PER CAPITA. -W. E. died in the year 1828, leaving a will, by which he gave to his two daughters, Mary and Elizabeth, life estates in all his property, real, personal and mixed, with a remainder over in favor of Mary after the death of Elizabeth. The will then proceeded as follows: "Upon the decease of both of my daughters, Mary and Elizabeth, it is my will and desire that the property hereby bequeathed to them for their use and benefit shall be equally divided among the lawful issue of my son John, lately deceased, and the lawful issue of my two daughters, Mary and Elizabeth, aforesaid, or the survivors of their issue; but in case the property hereby bequeathed cannot be equally divided, then and in that case I hereby direct my executors hereafter named to sell the same and distribute the proceeds thereof, share and share alike, among the lawful issue of my above-named son and daughters, or the survi vors of them, the said issue." Both of the daughters died. Mary left surviving her three children and four grandchildren, the children of three deceased daughters. Elizabeth left one daughter, and John's descendants who were living at the decease of the last surviving daughter of the testator were five grandchildren, the children of a deceased daughter. Held, that the objects of the testator's bounty, after the death of his two daughters, were not divided into classes, with a share of the estate to each class; but they were all comprehended in one class, and were to receive separately equal interests with each other. In Brittain v. Carson, 46 Md. 186, this court construed a clause in a will which consisted of the following words: "It is my will that the rest, residue and remainder of my said estate shall be equally divided between my said daughter, Amelia J. Brittain, and the children of Virginia Carson." Mrs. Carson was a deceased daughter of the testator, who had left two children surviving her. It was held that the distribution was to be made per capita, Mrs. Brittain getting one-third, and each of the Carson children getting a third. The court in *To appear in 62 Maryland Reports. RAILROAD OCCUPYING their opinion refer to a number of cases where the same construction prevailed. See also Maddox v. State, 4 Har. & J. 539; Abrey v. Newman, 16 Beav. 431; Tyndale v. Wilkinson, 23 id. 74. Allender v. Keplinger. Opinion by Bryan, J. [See 29 Alb. L. J. 378.1 CARRIER-RAILROAD-EXCURSION TICKET-EXPULSION OF PASSENGER.-The appellant purchased of an agent of the appellee at a reduced rate of fare an excur sion ticket, to be used between the stations desig-pying a tract of land belonging to R. No objection nated within three days, including the day of sale. He made the journey in one direction, and after the expiration of the time limited he attempted to return on the ticket, which the conductor declined to receive for his passage, and upon his refusal to pay the fare demanded he was expelled from the train. In an action against the railroad company to recover damages for such expulsion, it was held, that the plaintiff's rights were limited by the ticket, and he was rightly required to leave the train upon refusing to pay the fare demanded; and after being expelled, he had no right to be readmitted except upon payment of full fare for the whole distance. Pennington v. Phila., etc., R. Co. Opinion by Bryan, J. [See 27 Am. Rep. 255; 28 Eng. Rep. 272; 30 id. 284; 27 Alb. L. J. 386.1 EJECTMENT LAND WITH OWNER'S CONSENT-SALE OF ROAD-GRANTEE TAKES TITLE.-R. was one of the original projectors of the O. & N. W. R., owned more than one-fifth part of its capital stock, was an active member of its board of directors during the whole life of said corporation. In 1869 the line of the road was laid out and established, and the first ten miles graded, passing over and occu REMOVAL NEBRASKA SUPREME COURT ABSTRACT. CONSTITUTIONAL LAW-TITLE OF ACT-“ NOT "TRANSFER."-That part of "An act to prevent the fraudulent transfer of personal property," approved February 13, 1877, which makes it criminal to remove mortgaged property out of the county within which such property was at the time of the execution of the mortgage, held, unconstitutional, as not being expressed in the title of the act. The word "transfer" is evidently used in its legal sense, and with reference to its legal meaning. In Bouv. Law Dict. the word is defined to be "the act by which the owner of a thing delivers it to another person, with the intent of passing the right he had in it to the latter." And this definition is approved in Robertson v. Wilcox, 36 Conn. 426. In Innerarity v. Mims, 1 Ala. 669, it is said: "The term 'transfer' means to convey or pass over the right of one person to another, unless the general meaning is restrained or limited by something accompanying it." See also Winfield Adjudged Words & Phrases. This being the meaning of the word, it is quite difficult to see how the title can be said to "clearly' express the subject of the act, for it cannot be successfully maintained that the removal of property from one county to another is a "transfer" of the property thus removed. Assuming that the title is sufficient to express the subject contained in that part of the act which refers to the sale, transfer or disposal of mortgaged property, it must then be conceded that it excludes all idea of removing property from one place to another, whatever the intent of the person causing the removal may be. As to the propriety of the clause of the Constitution, and the necessity of a strict compliance with its terms, it is not now necessary to speak, as it has been often held by this court, as well as by the courts of all other States having a similar constitutional provision, that it is mandatory, and must be obeyed, and that it is a wise provision, calculated to prevent surreptitious legislation by incorporating into a bill obnoxious provisions of which the title gives no indication. It follows that that part of the act which makes the removal of mortgaged personal property a crime is not within the purview of the title, and is therefore void. Boggs v. Washington Co., 10 Neb. 297 ; S., 4 N. W. Rep. 984; City of Tecumseh v. Phillips, 5 Neb. 305; White v. City of Lincoln, id. 505; State ex rel. Lancaster Co., 6 id. 474. Matter of Thomason. Opinion by Reese, J. [Decided Aug. 20, 1884.1 was made by R. to the occupation of his land by said railroad track. In May, 1871, the first twenty-six miles of the railroad, including that part crossing the land of R., was conveyed by said railroad company by deed of trust to secure the payment of certain bonds therein described. In 1878 the said deed of trust was foreclosed in equity, and the said railroad sold to satisfy the principal and interest due on said bonds. Defendant holds its title to said railroad under such sale. Afterward R. brought ejectment against the defendant to eject it from said land. Held, that such action could not be sustained. The rights of property, however sacred, and guaranteed by the Constitution and the laws, yet must be held and enjoyed in relation to the rights of others. While property in the possession of the owner may be kept and joyg by him with little or no respect to the wants wishes of other people, yet when he once supers it to pass from his own possession and control into that of others, either ith or without consideration, the law limits him in he manner of reposeg himself of it, and this imitation can only be measured by th Oreach base as it arises. In the case of Fight Whis Ea 214 the law is stated the synabus as follows: "One who chase of land cannot be ousted by ejectment before is is put in possess or on an agreement for th lawful possessionis fermined by demand of posession or otherwise. It is also true that under the Constitution and laws of this State the assessment damages and payment or deposit of the amount is a condition precedent to the vesti of the title, or of any right in the company to construct their road. But these conditions are susceptible of being waived, and, as said by Chief Justice Redfield in the case of McAulay v. Western Vt. R. Co., 33 Vt. 811: "In these great public works the shortest period of clear acquiescence, so as fairly to lead the company to infer that the party intends to waive his claim for present payment, will be held to include the right to assert the claim in any such form as to stop the company in the progress of the work, and especially to stop the running of the road after it has been put in operation, whereby the public acquire important interests in its continuance." Whatever rights the plaintiff may have against the present plaintiff in error, growing out of this right-of way question, and whether he is estopped in pais to assert any or all of them, it seems clear to me that he is not entitled to a judgment that would enable him to sever a line of commerce which, by his assent, if not through his active agency in part, was constructed over the same property, and has enjoyed free passage over it for at least seven years. O. & N. R. W. R. Co. v. Redick. Opinion by Cobb, C. J. [Decided Aug. 20, 1884.] -- TITLE NECESSARY DAMAGES CONVERSION BREACH OF CONTRACT.-A. purchased of B.seventy tons of hay, which was standing in a stack in a field containing over 100 tons; the hay to be delivered by B. in the city of P. No part of the hay was set off, designated or delivered in the field. B. afterward delivered twenty tons to A. at P., after having it weighed as reHeld, that A. did not acquire title to or possession of the fifty-five tons not delivered, and that he could not maintain an action against C. for the conversion of the same. His remedy was by action against B. for damages resulting quired by the contract. |