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UNITED STATES SUPREME COURT AB

Ex parte Virginia, id. 313; Ex parte Rowland, 104 id. LUYENTSTRACT.

612; Ex parte Curtis, 106 id. 375; Ex parte Yarbrough,

110 id. 653. Of course what is here said has no applicaADMINISTRATOR--WASTE BY - ADMINISTRATOR DE tion to writs of habeas corpus cum causa, issued by the

BONIS NON CANNOT RECOVER AGAINST.-The fact that courts of the United States in aid of their jurisdiction uirls my an administratrix has improperly paid out money of upon the removal of suits or prosecutions from Stato and de the estate, the proceeds of assets administered by her, courts for trial under the authority of an act of Con

or that they have been paid to her agent, does not in- gress. Matter of Crouch. Opinion by Waite, C. J.
vest the administrator de bonis non with title and ena- [Decided Nov. 10, 1884.]
ble him to sue therefor. United States v. Walker, 109
1. 8. 258. The administrator is responsible therefor

CONSTITUTIONAL LAW-LIQUOR TRAFFIC-REMOVAL to the creditors, legatees and distributees of the estate,

FROM OFFICE-QUO WARRANTO IS CIVIL PROCEEDING. Ladi list and they only were entitled to sue therefor. Uuited (1) A State law prohibiting the manufacture and sale Vess States v. Walker, ubi supra; Beall v. New Mexico, 16

of intoxicating liquors is not repugnant to the Cousti. Wall. 535; Evuis v. Smith, 14 How. 416. If the cases

tion of the United States. Bartemeyer v. Iowa, 18

Wall. 129; Beer Co. v. Massachusetts, 97 U. S. 25. (2) te bez

cited by counsel for appellaut (Catherwood v. Cha, baud, 1 Barn. & C. 150, and Blydenburg v. Lowry, 4

A State statute regulating proceedings for the removal enr Crauch C. C. 368) sustain his contention, they are in

of a person from a State office is not repugnant to the cousistent with the law as heretofore laid down by

Constitution of the United States if it provides for this court, and cannot avail him. Wilson v. Arrick. briuging the party against whom proceedings are had Opinion by Woods, J. (See 1 Keyes, 18; 84 N. Y.

into court, and notifying him of the case he has to 320.]

meet; for giving bim an opportunity to be heard in his

defense; and for the deliberation and judgment of the (Decided Oct. 27, 1884.)

court. Keupard y. Louisiana, 92 U. S. 480. (3) The d t:

FRAUD-SALE OF LAND BY ONE JOINT OWNER-ASK- remedy by information in the nature of a quo warranto
ING MORE FOR HIS SHARE--ERROR IN CHARGE. A

in Kansas is a civil proceeding. Ames v. Kansas, 111 party selling a piece of land of which one-balf only is

U. S. 449. Foster V. Kansas. Opinion by Waite, his, commits no fraud on the otber owners by taking | C. J. from the purchaser for his part a price bigher than [Decided Nov. 10, 1884.] what he requires for the rest, if previously to the execation to him of a power to sell procured without MUNICIPAL BOND-BONA FIDE PURCHASER-NOTICE fraud, he stated bona fide to such owners his intention

- PRACTICE-OFFER OF TESTIMONY-REJECTION-PRE80 to ask a higher price for his part, and received their

SUMPTION.--Purchasers of negotiable securities are not consent to his doiug so. It was the duty of the court charged with constructive notice of the pendency to submit to the consideration of the jury the testi- of a suit affecting the title or value of the securities. mony adduced by the defendant to sustain the de- County of Warren v. Marcy, 97 U. S. 96. But in defeuses set up iu his answer, and the charge should be fense of an action brought by such a purchaser against based on the hypothesis that the defenses which the

a county to recover upon bonds alleged to bave been testimony tended to prove were proven.

Adams v. issued by it, it is proper to introduce evidence going to Roberts, 2 How. 486; Reese v. Beck, 24 Ala. 651;

show that the plaintiff or his assignor had actuul noGrube v. Nichols, 30 III. 92; Chappell v. Allen, 38 Mo. tice of a suit pending, affecting such bonds, before 213, 220. The charge having assumed that there was

their purchase by him. It is claimed however that erno fraud in the procuring of the power of attorney, ror cannot be assigned here on the exception to the ex. and the defeudant having submitted testimony tend- clusion of the oral proof, because the record does not ing to show that there was no fraud in his doings after show that any witness was actually called to the stand the power of attorney was procured, but that whatever

to give the evidence, or that any one was present who Fas subsequently done by him in making the sale was could be called for that purpose, if the court bad dedone with the consent of the plaintiffs given in ad- cided in favor of admitting it, and we are referred to Fance, it was error to cbarge the jury that i be plaintiffs the cases of Robinson v. State, 1 Lea (Tenn.). 673, and were eutitled to recover, unless the defendant in- Eschbach v. Hurtt, 47 Md. 66, iu support of that propo. formed the plaintiffs at what price he could sell or had sition. Those cases do undoubtedly hold that error cansold his share, and they renewed their consent that he not be assigned on such a ruling unless it appears that might retain it. Runney v. Barlow. Opinion by the offer was made in good faith, and this is in reality all Woods, J.

they do decide. If the trial court has doubts about [Decided Nov. 3, 1884.)

the good faith of an offer of testimony, it can insist HABEAS CORPUS-INNOCENCE OF CHARGE-ISSUING upon the production of the witness, and upon some atWRIT IN ANOTHER JURISDICTION.- A prisoner in the

tempt to make the proof before it rejects the offer; custody of a State court of competent jurisdiction, not

but if it does reject. and allows a bill of exceptions, illegally asserted, cannot be taken from that jurisdic- which shows that the offer was actually made and retion and discharged on habeas corpus issued by a court

fused, and there is nothing else in the record to indiof the United States, simply because he is not guilty of

cate bad faith, an appellate court must assume that the the offense for which he is held. The right of the pris. proof could have been made, and govern itself accordoder to a discharge depends alone upon the sufficiency ingly. Scotland Co. v. Hill. Opinion by Waite, C. J. of his defense to the information under which he is [Decided Nov. 10, 1884.] held, and whether this is sufficient or not is for the court which tries him to determine. If in this deter

REMOVAL OF CAUSE-JOINT DEBTORS IN A MORTmination errors are committed, they can only be cor

GAGE-NON-RESIDENT MORTGAGOR, -The foreclosure rected in an appropriate form of proceeding for that of a mortgage against several mortgagors, some of purpose. The office of a writ of habeas corpus is neither

whom reside outside of the State, the mortgage debt to correct such errors nor to take the prisoner away

being a unit, and all the mortgagors, resident and nonfrom the court which holds him for trial, for fear if he resident, being similarly bound, is not such a suit as remains they may be committed. Authorities to this may be removed to a Federal court under the act of effect in our own reports are numerous. Ex parte, March 3, 1875. Citing Fraser

Jennison, 106 Watkins, 3 Pet. 202; Ex parte Lange, 18 Wall. 166; E.«

U. S. 194; Removal Cases, 100 id. 457: Pacific R. v. purte Parks, 93 U. 8. 23; Ex parte Siebold, 100 id. 374 ;

Ketchum, 101 id. 298; Hyde v. Ruble, 104 id. 407; Win

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chester v. Loud, 108 id. 130; Shainwald v. Lewis, id. account of the ship. A secret agreement with a steve158. Ayres v. Wiswall. Opinion by Waite, C. J. dore that he shall provide and pay for all such rope [Decided Nov. 10, 1884.]

does not prevent a lieu therefor in favor of one who furnishes such rope to the ship on her account, at the

request of the sbip's agents, when he has no kuowlUNITED STATES CIRCUIT AND DISTRICT edge or notice of such an agreement. Dist. Ct., S. D. COURT ABSTRACT.*

New York, Juue 30, 1884. The Ludgate Hill. Opiniou

by Brown, J. JURISDICTION-CIRCUIT COURT-TRANSFER OF IN- SHIP AND SHIPPING-PILOTS-DUTY OF-UNKNOWN TEREST PENDING HEARING--CITIZENSHIP-PLEADING

OBSTRUCTIONS-costs:-A pilot is not an insurer. He SUPPLEMENTAL BILL.--G., a citizen of Wisconsin,

is only chargeable for negligence when he fails in due brought a suit in the Circuit Court of the United States knowledge, care, or skill, or to avoid all obstructions for the Western District of Wisconsin, against S., a citi

which were known or ought to have been kuown to zen of Minnesota,and W., a citizen of Ohio, to set aside a

him. The schooner J. B. O., drawing 1744 feet of tax deed upon his land, situated in Wisconsin, as a water, while in tow of the tug J. A. G., ran upon the cloud on his title, and after the case was ready for

edge of an obstruction in the East river, 400 to 500 feet trial and set down for hearing, transferred his entire

easterly from the Nineteenth street buoy (Nes Rock), interest in the land to C., a citizen of Minnesota. Held,

near mid-channel. Shortly before the trial, the ex• that although C. could not originally have brouglit the

istence of a pinnacle rock four yards square on the suit, the jurisdiction of the court, having once at

upper surface, and 12% feet below low-water mark, tached, was not divested by the transfer in such a

was for the first time discovered and located in the manner that the assignee could not, by a supplemen

precise region where the schooner struck. Held, that tal bill, or an original bill in the nature of a supple. the schooner had struck upon the edge of the newly. mental bill, filed in the Circuit Court, continue the

discovered rock, previous ignorance of which was not jurisdiction of the court, and retain and preserve the

a fault, and that the pilot having pursued the custom. benefit of the former proceedings in the suit of G.

ary course, the tug was not liable for the damage; but against the same defendants. Clarke v. Mathewson,

as the facts seemed to warrant the suit, the libel was 12 Pet. 164; Dunn v. Clarke, 8 Pet. 1: Morgan's Heirs

dismissed without costs. Dist. Ct., S. D. New York, v. Morgan, 2 Wheat. 296; Freeman v. Howe, 24 How.

June 30, 1884. The James A. Garfield. Opinion by 450; Huff v. Hutchinson, 14 id. 586. Cir. Ct., W. D.

Brown, J.
Wis., Aug., 1884. Glover v. Shepperd. Opinion by
Burne, J.

PAYMENT--IN MONEY OR EQUIVALENT-ELECTION

RAILROAD BONDS-RECOVERY OF INTEREST-DEMAND. CONSTITUTIONAL LAW-UNCONSTITUTIONAL AMEND- -(1)Where a promise is in the alternative, to pay in MENT TO VALID ACT-EFFECT OF.--The validity of a money or isi some other medium of payment, the constitutional act is not affected by an amendment promisor has an election either to pay in money or the which is unconstitutional, because it discriminates be- equivalent, and after the day of payment has elapsed tween citizens of different States, and which does sot

without payment, the right of election on the part of in terms repeal the origiual act. The amendment is the promisor is gone, and the promisee is envoid, and does not by implication repeal the original titled to payment in money. For various illusact. Cir. Ct., Dist. Ky., Aug. 8, 1884. Matter of Davis. trations of the rule, see McNitt v. Clark, 7 Johns. Opinion by Barr, J.

465; Gilbert v. Danforth, 6 N. Y. 585; Stephens NEGLIGENCE PRESUMPTION FROM ACCIDENT.

v. Howe, 2 Jones & Sp. 133; Stewart v. Donelly, 4 Where a stevedore, engaged in his usual occupation, Yerg. 177 ; Choice v. Moseley, 1 Bailey, 136; Butcher falls through an ordinary coal-bunker hatch that is v. Carlile, 12 Grat. 520; Church v. Feterow, 2 Pen. & used for stowing cargo, the presumption is of his weg- W. 301 ; Trowbridge v. Holcomb, 4 Ohio St. 38; Perry ligence rather than that of the officers of the vessel. v. Smith, 22 Vt. 301; Mettler v. Moore, 1 Blackf. 342. The leaving open a common between-deck hatch- (2) By the terms of bonds issued in 1875, by the Texas way while the vessel is lying in port, under ordi- & Pacific Railroad Company, the company ackuowlnary circumstances is not presumptive evidence of edged itself to be indebted to the holder in the sum negligence on the part of the ship. This is not only

named therein, which it promised to pay to shown to be the custom by the testimony in this case, or assigns, at the office of the company in New York, but it has been so frequently commented upon ic de- on the first day of January, 1915, with interest thereon cisions as to be too well settled to be questioned. The at seven per cent per annum, payable annually ou the Victoria, 13 Fed Rep. 43; Dwyer v. Nat. Steamship Co., first day of July of each year, as provided in the mort4 id. 493; the Carl, 18 id. 655; The Germania, 9 Ben. gage on the lands of the company, and upon the net 356; The Helios, 12 Fed. Rep. 732. While the falling income derived from operating its road east of Fort through an open hatchway by a stranger, a landsman, Worth, by which payment was secured. The bonds visitor, or passenger on board a vessel might not be further provided that in case such net earnings should presumptive of negligence on his part, where such ac- not, in any one year, be sufficient to enable the comcident occurs to a seaman or stevedore, who is accus- pany to pay seven per cent interest on the outstandtomed to batches, their presence, necessity, uses, char. ing bonds, then scrip might, at the option of the comacter, and location, the case is different, and unless pany, be issued for the interest, such scrip to be rothe circumstances of the particular case are such as to

ceived at par and interest, the same as money, in payrebut it, the first presumption is of his negligence. ment for any of the company's lands, at the ordinary Dist. Ct., S. D. Ga., June 9, 1884. The Gladiolus. Opin- schedule price, or it might be converted into capital ion by Locke, J.

stock of the company when presented in amounts of SHIP AND SHIPPING-MARITIME LIEN--SUPPLIES

$10 or its multiple. The mortgage was silent as to SHIP'S AGENTS-SECRET AGREEMENT WITH STEVEDORE.

payment of interest or principal, except that it au--A supply of rope necessary for use in unloading a

thorized the trustees to sell the lands if default was ship, furnished to the ship by request of the ship's and apply the proceeds to satisfy the amount due.

made in the principal sum at maturity of the bonds, agents, binds the ship to pay for it. The ship’s Held, that the mortgage did not qualify or control the agents have presumptive authority to procure it on

absolute promise in the bonds to pay interest in money * Appearing in 21 Federal Reporter.

or in scrip; that the bondholders_were entitled to pay.

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AND

DEMAND

B

ON

ment of interest in money, if earned, or if it was not Court of the United States; as in Hipp v. Babin, 19
earued, to the scrip, on the day at which, by the terms How. 271; Parker v. Winnipiseogee ('o., 2 Black, 545;
of the bonds, the company was to pay the interest, or Watson v. Sutherland, 5 Wall. 74, and many other
exercise its alternative; and that after that day had cases. Cir. Ct., Dist. Cal., Aug. 25, 1884. Hausmeister
elapsed, without an election by the company, they v. Porter. Opinion by Sawyer, J.
were entitled to be paid in money, and could main-
tain an action to recover the same, although no pre-
sentment of the bonds or demand of payment had MAINE SUPREME JUDICIAL COURT ABSTRACT.*
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.

EXECUTOR

ADMINISTRATOR
Co. v. Johusou, 54 Penn. St. 127. And the rule ap-

WAIVER.-An action cannot be maintained against an plies also to notes payable ju specific articles. Elkins administratrix for default by her in the performance 1. Parkburst, 17 Vt. 105; Wiley v. Shoemak, 2 G.

after the death of her intestate of the condition of a Greene (Iowa), 205. If the defendant had been pre

bond given by her intestate, unless the claim was prepared to deliver the scrip when the interest matured,

sented in writing and payment demauded thirty days it would have complied with its agreement, and been

before the date of the writ, or this requirement was absolved from liability. The law does not usually re

waived. Eaton v. Buswell, 69 Me.552; Me. Cent. Instiquire the doing of a vain thing, and after the defend

tute v. Haskell, 71 id. 487: Stevens v. Haskell, 72 ant had announced that it could not pay the interest,

id. 244. Boothy v. Boothy. Opinion by Symonds, J. and was not prepared to issue the scrip, it would have TRUST AND TRUSTEE-STATUTE OF LIMITATION.-At been a vugatory and perfunctory act on the part of the death of a trustee who had given no bond as such, the plaintiff, when he was entitled absolutely to his if the identity of the trust fund or property is lost, money, to make a formal presentmect of his bonds the cestui que trust stands in the position of a general and a formal demand of payment. Cir. Ct., S. D. creditor of the estate; or if the trust is not terminated New York, Aug. 26, 1881. Marlor y. Texas & Pac. R. the estate becomes at once liable to a new trustee who Co. Opiuion by Wallace, J.

may be appointed, and the special statute of limita

tions applies to the demands for the trust funds as it MANDAMUS-TREASURER TO PAY COUPONS—IF IT LIES

does to other claims against the estate, though a new INJONCTION DENIED-U. S. REV. STAT., $ 723. --Where

trustee is not appointed. This is not a proceeding in a writ of mandamus will lie to compel a city treasurer

equity to hold a particular fund or property as charged to pay coupons due on bonds of the city out of the

with a trust, either originally, or by tracing the use of fund provided by statute, or to compel the proper

trust funds or the proceeds of trust property in the officers to set apart taxes collected as a sinking fund

purchase or procurement of it. The distinct statefor the payment thereof, the bondholder has an ade

ment of the case is, that the trust fund cannot now be quate remedy at law, and cannot proceed by bill in

traced. The proceeding is by action at law, of asequity, not ancillary to any pending proceeding at

sumpsit, against the trustee personally, through his law, to enjoin the application of the funds to other devisee; not against a trust fund or property. Such purposes. In a case relating to a part of these same

an action stands upon the same plane, subject to the bonds, the Supreme Court of California, in Meyer v.

same limitation, as an ordinary action of assumpsit Porter. 2 Pac. Rep. 884, held that a mandamus should against the estate of a deceased person. The statute issue to compel the treasurer of Sacramento to pay tha

of limitations applies to auy trust which is the ground overdue coupons, there beiug money in the treasury ap- of an action at law. The rule that the statute does not plicable to their payment. So also in the same case

apply to cases where tbe techvical relation of trustee the Supreme Court, sitting in banc in regard to this and cestui que trust exists, ouly holds in cases over same class of bonds, unanimously held the writ of

which courts of equity have exclusive jurisdiction. mandate to be a proper remedy to compel the city au- Wood (Lim. 42; Godden v. Kimmell, 99 U. S. 201; thorities to levy a tax to supply a fund to pay these Pratt v. Northam, 5 Mason, 95. “Executors are coupons. In this case the court followed the judg- charged with no more in virtue of their office, than ment of the Supreme Court of the United States in

the administration of the assets of the testator. If at Louisiana v. Pilsbury, 105 U. S. 302, which directed a the time of his death there is any specific personal writ of mandamus to issue to compel the city of New property in his hands belonging to others, which he Orleans to levy an annual tax to pay the interest on holds in trust, or otherwise, and it can be clearly the bonds then in question. See also Kennedy v. traced and distinguished from the testator's own, Sacramento, 19 Fed. Rep. 580. This is a remedy at

such property, whether it be goods, securities, stock law direct, speedy, and adequate, and as was stated in

or other things, is not assets to be applied in payment the last case cited, the only remedy in view of the of his debts or to be distributed among his heirs; but provisions of the statute under which the bonds were

is to be held by the executors as the testator himself issued and accepted. If it is the duty of the treasurer heid it. But if the testator has money or other propto pay these coupons out of the funds alleged to be in

erty in his hands belonging to others, whether in trust the treasury, the most direct, speedy, and effective

or otherwise, and it has no earmark, and is not disFay to obtain payment is by mandumus in a court of tinguishable from the mass of his own property, the law. This remedy is complete and adequate. It

party must come in as a general creditor; and it falls would not only prevent the money from being diverted

within the description of assets of the testator. This is to other purposes, all that this bill seeks, but would

the settled law in bankruptcy and in the administrasecure the payment of the overdue coupons held by tion of estates." Trecothick v. Austin, 4 Mason, 29. complainant, and be in itself a full and adequate rem

The present periods of limitation under the statutes edy, while that sought in this bill could only be aucil

are two years, from the executor's notice of aplary to some other remedy in a court of law, to wbich

pointment, for presenting claims in writing and complainant would be driven at last. Section 723,

demanding payment, and two years and six months Rev. Stat., provides that “suits in equity shall not be

for beginning the action. Whittier v. Woodward, 71 gustained in either of the courts of the United States,

Me. 161; Littlefield v. Eaton, 74 id. 516. Fowler v. True. in any case where a plain, adequate, and complete

Opinion by Symonds, J. Temedy may be bad at law.” And this provision has been often recognized and enforced by the Supreme

*Appearing in 16 Maine Reports.

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WILL-UNDUE INFLUENCE-DECLARATIONS OF TES- cess in the Federal court, the legal conditions as to TATOR.–At a trial before the jury upon the questions citizeuship of the parties being fulfilled; mauifestly arising upou the probate of a contested will, the pro- distinguishing the suit then before the court from one ponent requested the following instruction: "That if to enjoin the proceedings or process of a State court, the jury find that the testator was of sound mind at for in the later case of Dial v. Reynolds, 96 U. S. 340, the time of excuting the will, they are at liberty to it is again said: “The gravamen of what is desired as consider his declarations to the attesting witnesses at to Reynolds is an injunctiou to prevent his proceeding the time of the exeoution of the will as erideuce of the at law in the State court. Without this, all else is of facts stated, though his declaratious at all other times no account. Any other remedy would be unavailing. are not to be considered by them as evideuce of the Such an injunction, except under the bankrupt act, no facts stated.” Held, the ruling requested was cor- court of the United States can grant. With this exrectly and legally refused. In Shailer v. Bumstead, 99 ception, it is expressly forbidden by law;" citing the Mass. 120, it is said : " The declarations of the testa- Uuited States statutes already referred to, and Diggs tor accompanying the act must always be resorted to v. Wolcott, 4 Cranch, 179; Peck v. Jenness, 7 How. as the most satisfactory evidence to sustain or defend 612; Watson v. Jones, 13 Wall. 679. See also Randall the will whenever this issue is presented. So it is uni. v. Howard, 2 Black, 589; Nougue v. Clapp, 101 U. S. formly held that the previous declarations of the tes- 554; Watson v. Joues, 13 Wall. 719; Bank v. Turubuil, tator, offered to prove the mental facts involved, are 16 id. 190; Dunn v. Clarke, 8 Pet. 1; Jackson v. Gould, competent. Intention, purpose, mental peculiarity 74 Me. 564; Stone v. Sargent, 129 Mass. 507. There is and condition, are mainly ascertainable through the notbing in the ruling which requires us to consider medium afforded by the power of language. State- that class of cases, of which Boudurant v. Watson, 103 ments and declarations, when the state of the mind is U. S. 281, is one, in which the State Court had already the faot to be shown, are therefore received as mental issued the injunction before the right of removal was acts or conduct. The truth or falsity of the state- claimed, and the party applying for the removal meut is of no consequence. As a narration, it is not sought also a dissolution of the injunction." It is to received as evidence of the fact stated. It is only to

be observed that the injunction had already been be used as showing what manner of man he is who granted by the State court before the application for makes it." This case is cited in 1 Greenl. Ev., $ 108, as removal was made. Edwards Manfg. Co. v. Spragile. authority for the statement that “upou an inquiry as Opiuion by Symonds, J. 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 MARYLAND COURT OF APPEALS ABSTRACT. res gestae." "It should at the same time be remembered that as primary proof that'a testator was iuflu

WILL-GIFT TO A CLASS-DISTRIBUTION PER CAPITA. enced in making the will by fraud or compulsion, his

-W. E. died in the year 1828, leaving a will, by wbich declarations are inadmissible. In such relation they

he gave to his two daughters, Mary and Elizabeth, life are to be regarded as hearsay. But while such declara

estates in all his property, real, personal and mixed, tions are not admissible to prove the actual fact of

with a remainder over in favor of Mary after the death fraud or improper intiuence by another, they may be

of Elizabeth. The will then proceeded as follows: competent to establish the influence and effect of the

' l'pon the decease of both of my daughters, Mary and external acts upon the testator himself." Whart. Ev.,

Elizabeth, it is my will and desire that the property $ 1010; Robinsou v. Adams, 62 Me. 369. In regard to

hereby bequeatbed to them for their use and benefit another class of declarations by the testator, those re

shall be equally divided among the lawful issue of my ceived as evidence of his intention, Lord Denman

son John, lately deceased, and the lawful issue of my said iu Doe v. Allen, 12 Ad. & El. 451:

“ Cases are re

two daughters, Mary and Elizabeth, aforesaid, or the ferred to in the books to show that declarations con

survivors of their issue; but in case the property temporaneous with the will are alone to be received,

hereby bequeathed cannot be equally divided, theu but on examination none of them establish such a dis

and in that case I hereby direct my executors hereaftinction. Neither has any argument been adduced

ter named to sell the same and distribute the proceeds which convinces us that those subsequent to the will

thereof, share and share alike, among the lawful issue ought to be excluded, wherever any evidence of dec

of my above-named sun and daughters, or the survilaration can be received. They may have more or less vors of them, the said issue." Both of the daughters weight according to the time and circumstances under

died. Mary left surviving her three children and four which they were made, but their admissibility de

grandchildren, the children of three deceased daughpends entirely on other considerations." Jones v. Mc

ters. Elizabeth left one daughter, and John's descendLellan. Opiniou by Symonds, J.

ants who were living at the decease of the last survivREMOVAL OF CAUSE-ENJOINING STATE COURT.

ing daughter of the testator were five grandchildren, Suits in equity, not related in any way to the provis

the children of a deceased daughter. Held, that the ions of the bankrupt law, in wbich the only effective objects of the testator's bounty, after the death of his relief sought is an injunction to stay proceedings in

two daughters, were not divided into classes, with a an action pending in the State court and prevent the

share of the estate to each class; but they were Jovying of an execution issuing therefrom, are not re- all comprehended in one class, and were to receive movable to the Circuit Court of the United States separately equal interests with each other. In Briton petition of the plaintiff in the action at law before tain v. Carson, 46 Md. 186, this court construed a clause injunction issued. In Gaines v.Fuentes, 92 U. 8. 10, the

in a will which consisted of the following words: " It opinion denies that that suit, which it was held should is my will that the rest, residue and remainder of my have been removed into the Federal court upon the

said estate shall be equally divided between my said application of the original defendant, was one that daughter, Amelia J. Brittain, and the children of Virmust have been brought originally in the State Court, ginia Carson.” Mrs. Carson was a deceased daughter and declares that it was, on the contrary, a suit for

of the testator, who had left two children surviving equitable relief such that if by the law obtaining in

her. It was held that the distribution was to be made the State, customary or statutory, it could be main- per capita, Mrs. Brittain getting one-third, and each tained in one of its courts, whatever designation that

of the Carson children getting a third. The court in court might bear, it could be brought by original pro

*To appear in 62 Maryland Reports.

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their opinion refer to a number of cases where the EJECTMENT RAILROAD OCCUPYING LAND
same construction prevailed. See also Maddox y. OWNER'S CONSENT-SALE OF ROAD-GRANTEE TAKES
State, 4 Har. & J. 539; Abrey v. Newman, 16 Beav. 431 ; TITLE.-R. was one of the original projectors of the
Tyndale v. Wilkinson, 23 id. 74. Allender v. Kepline 0. & N. W. R., owned more than one-fifth part of its
ger. Opinion by Bryan, J. [See 29 Alb. L. J. 378.) capital stock, was an active member of its board of di-
CARRIER-RAILROAD-EXCURSION TICKET--EXPUL-

rectors during the whole life of said corporation. In SION OF PASSENGER. - The pellant purchased of an

1869 the line of the road was laid out and established, agent of the appellee at a reduced rate of fare an excur

and the first ten miles graded, passing over and occule ULATE siou ticket, to be used between the stations desig- pying a tract of land belonging to R. No objection akrus m. vated within three days, including the day of sale. He

was made by R. to the occupation of his land by said With this

made the journey in one direction, and after the expi. railroad track. In May, 1871, the first twenty-six miles

ration of the time limited he attempted to return on of the railroad, including that part crossing the land of , and the ticket, which the conductor declined to receive for R., was conveyed by said railroad company by deed of

his passage, and upon his refusal to pay the fare de- trust to secure the payment of certain bonds therein manded he was expelled from the train. In an action described. In 1878 the said deed of trust was foreagainst the railroad company to recover damages for closed in equity, and the said railroad sold to satisfy such expulsion, it was held, that the plaintiff's rights the principal and interest due on said bonds. Defendwere limited by the ticket, and he was rightly required

ant holds its title to said railroad under such sale. to leave the train upon refusing to pay the fare de- Afterward R. brought ejectment against the defendmanded; and after being expelled, he bad no right to

ant to eject it from said laud. Held, that such action be readmitted except upon payment of full fare for could not be sustained. The rights of property, howthe whole distance. Pennington v. Phila., etc., R. Co.

ever sacred, and guaranteed by the Constitution and Opinion by Bryan, J. (See 27 Am. Rep. 255; 28 Eng. the laws, yet must be beld and in relation to Rep. 272; 30 id. 284; 27 Alb. L. J. 386.7

the rights of others. While prop the possession of the owner may be kept and pujoyg by him with lit

tle or no respect to me wants wishes of other peoNEBRASKA SUPREME COURT ABSTRACT.

ple, yet when he opte supers it to pass from his own CONSTITUTIONAL LAW-TITLE OF ACT_"REMOVAL"

possession and contol into that of others, either with NOT “TRANSFER.”—That part of “An act to prevent

or without consideration, the law limits hin in po the fraudulent transfer of personal property," ap

manner of repofsef g himself of it, and this Mimita prored February 13, 1877, which makes it criminal to

tion can only by measured by the fart. Dog each bases remove mortgaged property out of the county within

it arises. In the case of Fishbh 18 Eat. 219 which such property was at the time of the execution is put in possessours pon an agreement for te

the law is state if the synous as follows: “Ohoho of the mortgage, held, unconstitutional, as not being chase of land cannot be ousted by ejectment before this expressed in the title of the act. The word “transfer” is evidently used in its legal sense, and with ref. lawful possessionis termined by demand of posteserence to its legal meaning. In Bouv. Law Dict. the sion or otherwise. It is also true that under the conword is defined to be “the act by which the owner of stítution and laws of this state the assessment

ti dama thing delivers it to another person, with the intent / ages and payment or a nosit of the amount is

a condiof passing the right he had in it to the latter." And

tion precedent to the vesting of the site, or of any this definition is approved in Robertson v. Wilcox, 36 right in the company to construct their road. But Conn. 426. In Innerarity v. Mims, 1 Ala. 669, it is

these conditions are susceptible of being waived, and, said: "The term 'transfer' means to convey or pass

as said hy Chief Justice Redfield in the case of McAuover the right of one person to another, unless the

lay v. Western Vt. R. Co., 33 Vt. 311: “In these great accompanying it." See also Winfield Adjudged Words & iutends to waive his claim for present payment, will general aneaning is restrained or limited by something public works the shortest period of clear acquiescence,

so as fairly to lead the company to infer that the party Phrases. This being the meaning of the word, it is quite difficult to see how the title can be said to "clearly" be held to include the right to assert the claim in any express the subject of the act, for it cannot be success

such form as to stop the company in the progress of fully maintained that the removal of property from

the work, and especially to stop the running of the one county to another is a “transfer" of the property road after it has been put in operation, whereby the thus removed. Assuming that the title is sufficient to

public acquire important interests in its continuance." express the subject contained in that part of the act

Whatever rights the plaintiff may have against the #bich refers to the sale, transfer or disposal of mort

present plaintiff in error, growing out of this right-of gaged property, it must then be conceded that it ex.

way question, and whether he is estopped in pais to ascludes all idea of removing property from one place to

sert any or all of them, it seems clear to me that he is another, whatever the intent of the person causing the

not entitled to a judgment that would enable him to removal may be. As to the propriety of the clause of

sever a line of commerce which, by his assent, if not the Constitution, and the necessity of a strict com

through his active agency in part, was constructed pliance with its terms, it is not now necessary to speak,

over the same property, and has enjoyed free passage

over it for at least seven years. 0. & N. R. W. R, Co. as it has been often held by this court, as well as by

v. Redick. Opinion by Cobb, C. J. the courts of all other States having a similar constitutional provision, that it is mandatory, and must be

[Decided Aug. 20, 1884.] obeyed, and that it is a wise provision,calculated to pre

CONVERSION

NECESSARY venit surreptitious legislation by incorporating into a BREACH OF CONTRACT.--A. purchased of B.seventy tong hill obnoxious provisions of which the title gives no of hay, which was standing in a stack in a field conindication. It follows that that part of the act which taining over 100 tons; the hay to be delivered by B. in makes the removal of mortgaged personal property a

the city of P. No part of the hay was set off, desigcrime is not within the purview of the title, and is

nated or delivered in the field. B. afterward delivered therefore void. Boggs v. Washington Co., 10 Neb. 297; | twenty tons to A. at P., after having it weighed as re

Held, that A. did not acS.C., 4 N. W. Rep. 984; City of Tecumseh v. Phillips, quired by the contract. 5 Neb. 305: White v. City of Lincoli, id. 505; State ex quire title to or possession of the fifty-five tons not derel

, Lancaster Co., 6 id. 474. Matter of Thomason. livered, and that he could not maintain an action Opinion by Reese, J.

against C. for the conversion of the same. His remDecided Aug. 20, 1884.1

edy was by action against B. for damages resulting

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TITLE

DAMAGES

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