color of the act of 1863; and that by force of section 3 of the act of 1863, and of section 3 of the act of 1868, the action was barred, and was exclusively within the jurisdiction of the court of claims, It appeared that the cotton had been taken, so far as the defendant was concerned, as being captured or abandoned property, under a claim made by him in good faith to that effect, in the administration of, and under color of, the act of 1863. Held, that without reference to the question whether the cotton was in fact abandoned or captured property within the act of 1863, the fact that it was taken as being such, under such claim made in good faith, was a bar to the action under the act of 1868 and section 1059, Revised Statutes. Lamar v. McCulloch. Opinion by Blatchford, J. [Decided Oct. 26, 1885.]

REMOVAL OF CAUSE-CASE ARISING UNDER CONSTITUTION AND LAWS OF UNITED STATES-FERRY PRIVILEGES CHARTER OF NEW YORK CITY-SEPARATE CONTROVERSY SEPARATE DEFENSE BY DEFENDANT IN JOINT ACTION.-The character of a case is determined by the questions involved. Osborn v. Bank of U. S., 9 Wheat. 824. If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the act of 1875; otherwise not. Such is the effect of the decisions on this subject. Cohens v. Virginia, 6 Wheat. 379; Osborn v. Bank of U. S., supra; Mayor v. Cooper, 6 Wall. 252; Gold Washing & Water Co. v. Keyes, 96 U. S. 201; Tennessee v. Davis, 100 id. 264; Railroad Co. v. Mississippi, 102 id. 140; Ames v. Kansas, 111 id. 462; Kansas Pac. R. Co. v. Atchison, etc., R. Co, 112 id. 416; Provident Sav. L. Assur. Soc. v. Ford, 114 id. 641; Pacific R. Removal Cases, 115 id. 11. The questions in this case, as shown by the pleadings are, (1) whether the city of New York has, under its charter, the exclusive right to establish ferries between Manhattan Island and the shore of Staten Island on the Kill von Kull; and if it has, then (2) whether the defendants have, in law and in fact, interfered with that right by setting up and operating such a ferry. The determination of these questions depends (1) on the construction of the grant in the charter of the city; and (2) on the character of the business in which the defendants are engaged. It is not contended that there is any thing either in the Constitution or the laws of the United States which takes away the right from the city, if it was in fact granted by the original charter before the Revolution, or which defines what a ferry is or shall be, or provides that enrolled and licensed steamboats, managed by licensed officers, may be run on the public waters as ferry-boats, without regard to grants that may have been made by competent authority of exclusive ferry privileges; and that is not the defense set up in the answers in this case. The question here is as to the extent of the ancient grant made to the city, not as to the rights of the defendants in the navigation of the waters of the United States irrespective of this grant. It is not pretended that the United States have in any manner attempted to interfere with the power of a State to grant exclusive ferry privileges across public waters between places within its own jurisdiction. No attempt is made by the city to control the use of the licensed and enrolled vessels of the defendants, or their licensed officers, in any other way than by preventing them from running as a ferry between the points named. They may run as they please, and engage in any business that may be desirable, not in

consistent with the exclusive, ferry rights of the city. The claim of the city is based entirely on its charter, and it seeks in its complaint to control only that part of the navigation of the public waters in question which is connected with the establishment and operation of ferries between New York and the specified landing places on Staten Island. Although the prayer for judgment when taken by itself may appear to go further, it must be construed in connection with the cause of action as stated in the complaint, and limited accordingly. The defense is that the defendants are not operating a ferry within the meaning of the charter, or if they are, that is not such a ferry as comes within the monopoly of the city. If they are not operating such a ferry, or if they are, and it appears that the monopoly granted to the city does not include ferries between New York and Staten Island on the Kill von Kull, they must prevail in the final determination of the suit. The decision of these questions does not depend on the Constitution or laws of the United States. There is nothing in the Constitution or laws of the United States entering into the determination of the cause, which if construed one way, will defeat the defendants, or in another, sustain them. It remains to consider the removal on the application of the Independent Steamboat Company alone. The suit is against all the defendants jointly on the allegation, that acting in common, they are all engaged in violating the rights of the city by keeping up and maintaining the ferry in question. The averment in the complaint is that the defendant Starin is in reality the person actually operating the ferry, and that he uses the other defendants as his instruments for that purpose. It is conceded that the Independent Steamboat Company does not own the boats running on the route. They all belong to Starin, or to companies in which he is the person chiefly interested. The Independent Company was not organized until a few days before this suit was begun. It has a capital of only $5,000, and while it claims to have chartered the boats in question from their respective owners, and to be engaged in ruuning them on the route, it does not deny that the other defendants are directly interested in the establishment and maintenance of the ferry, if it be one which is being operated by and in the name of the company. The only controversy in the case, as stated in the complaint, is as to the right of the defendants to keep up and maintain a ferry on the route in question. Upon one side of that controversy is the plaintiff, and upon the other all of the defendants. There cannot be a full determination of this one controversy unless all the defend. ants are parties. The case as stated in the complaint makes Starin the principal defendant, and the Independent Company only an instrument of his. The object is to prevent him, as well as the others, from using these boats, or any others they may own or control, in the way these are being used. There is, according to the complaint, but a single cause of action, and that is the violation of the exclusive ferry rights of the plaintiff by the united efforts of all the defendants. The case is therefore within the rule established in Louisville & N. R. Co. v. Ide, 114 U. S. 52; Putnam v. Ingraham, id. 57; Pirie v. Tvedt, 115 id. 41; that a separate defense by one defendant in a joint suit against him and others upon a joint or a joint and several cause of action does not create a separate controversy 80 as to entitle that defendant, if the necessary citizenship exists as to him, to a removal of the cause under the second clause of section 2 in the act of 1875. Starin v. City of New York. Opinion by Waite, C. J.

[Decided Oct. 13, 1885.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

FRAUD ASSIGNMENT OF LIFE INSURANCE POLICY-BILL BY CREDITORS OF DECEASED DEBTOR TO SET ASIDE-INJUNCTION.-A bill in equity may be maintained by creditors of a deceased debtor to set aside a fraudulent assignment of a life insurance policy originally payable to the debtor, his executors, administrators, and assigns, but fraudulently assigned by him to his wife while he was insolvent, and without valuable consideration, notwithstanding such creditors have not obtained judgments at law against the debtor in his life-time, or against his representatives after his decease; it appearing that the complainants had, prior to the death of the debtor, obobtained a decree in equity against him and his wife in the Circuit Court of the United States for the Northern District of Florida, in which the amount of the complainants' debts was adjusted, and in which the said debtor was adjudged to be absolutely insolvent. (2) It appearing that the fund would be liable to be placed out of the jurisdiction of the court, and beyond the reach of creditors in case they should be ultimately found to be entitled, if the injunction should be refused, held that an injunction pendente lite should be granted to restrain the insurance company from paying over the money under the policies until the rights of the parties should be determined. Cir. Ct., S. D. N. Y., Aug. 3, 1885. Etna Nat. Bank v. Manhattan Life Ins. Co. Opinion by Wheeler, J.

FORECLOSURE

REMOVAL OF CAUSE - - CITIZENSHIP OF MORTGAGE CONNECTICUT STATUTE. - W., the mortgagee, a citizen of Connecticut, brought suit in the State court of Connecticut to foreclose a mortgage on land situated in that State, and to obtain possession of the land, making C. the mortgagor and maker of the note, a citizen of Connecticut, and D., a citizen of New York, to whom C. had conveyed the equity of redemption, parties defendant. C. and D. were in possession of the land, and under the statute in force in Connecticut, D. was a necessary party to the suit. Held, that the suit was not removable into the United States court; following Ayres v. Wiswall, 112 U. S. 187. Cir. Ct., D. Conn., Sept. 17, 1885. Winchell v. Carll. Opinion by Shipman, J.

ATTORNEY-DISBARMENT--ABDUCTING INSANE PERSON FRAUDULENTLY OBTAINING MONEY.-A weakminded man, laboring under the hallucination that he had committed a crime, fled to Tennessee, and there concealed himself, but was discovered by certain detectives and officers, who supposing he was in fact a criminal, had him arrested and committed to jail in the hope of obtaining a reward. They took an attorney at law into their confidence, and acting with him, and under his advice, after learning that the supposed criminal was in fact innocent, procured his release fraudulently, and by preparing false and illegal papers, and after receiving and dividing large sums of money sent to their prisoner by relatives, carried him in disguise to New York and shipped him to Liverpool, where he was found by his relatives and brought home. Held, that this conduct on the part of the attorney was sufficient to justifying striking his name from the roll of attorneys, and disbarring him from practice. Cir. Ct., E. D. Tenn., 1885. In re Snyder. Opinion by Baxter, J.

IOWA SUPREME COURT ABSTRACT.

VENDOR AND PURCHASER--DEED RECITING MORTGAGE -ORAL PROMISE TO PAY MORTGAGE-FORECLOSURE.— *Appearing in 24 Federal Reporter.

M.and K.purchased land subject to two mortgages, and sold and conveyed a part of the land to F. by deed, which excepted from the operation of the covenant of warranty the two mortgages, and recited that the land was sold subject to the mortgages. F. orally agreed to pay the mortgages, and the amount due thereon was recited as a part of the consideration of the land. The deed and mortgages were duly recorded. A creditor of F. had the land sold in attachment proceedings, and obtained sheriff's deeds therefor, having no notice of the oral agreement of F. to pay the mortgages. Action was brought to foreclose the mortgages. Held, that the land conveyed to F. should first be charged with the whole mortgage debt, and the land not conveyed by M. and K. should not be sold, except to discharge whatever part of the mortgage debt remained unpaid after the application thereon of the amount realized from the sale of the other land. Iowa Loan & Trust Co. v. Mowery. Opinion by Beck, C. J. [Decided Oct. 7, 1885.]

WILL-MARRIAGE OF LEGATEES WITH CONSENT OF EXECUTORS-CONDITION PRECEDENT TERMINATION OF TRUST-PAYMENT OF DEBTS SECURED BY MORTGAGE. The bequests in a will were made to the executors in trust for the testator's children, and it was provided that the executors should have the management and control of the property devised to them until the children should marry, and that when any child should marry with the consent of the executors the portion of property devised for the benefit of such child, or the proceeds thereof, should become his or her property, and the executors were required to make such conveyances as might be necessary to vest the absolute title in the legatee. One of the children died unmarried at the age of twenty-two, without ever having asked the consent of the executors to marry, and left a will, whereby she bequeathed all of her property, real and personal, and all of her interest and right in her father's estate, whether as heir or devisee, to B. Held, construing the will as a whole, that the provision in the will with reference to marriage did not create a condition precedent to the vesting of an estate in the legatees, but was a condition for the termination of the trust created by the will; and that B. was entitled to the estate devised and bequeathed to him; and that the executors could be compelled to execute the conveyances necessary to vest the title in him. Where debts legally created by an executor and trustee are secured by mortgages, while the creditors have a right to subject the property to the payment of the debts, as between legatees there is no such right, and such debts are to be paid out of the general assets of the estate. Toner v. Collins. Opinion by Reed, J. [Decided Oct. 23, 1885.]

NOTICE.-T. H. borrowed of S. on May 29, 1860, $1,400, and gave him a mortgage for $1,500, payable in five years, with interest at ten per cent per annum, payable semi-annually. In 1870 S. began a foreclosure proceeding, and the matter was arranged by T. H. giving a new mortgage for $3,700, which was greatly in excess of the amount actually or legally due. This mortgage was by mistake discharged of record by S., and T. H. discovered the mistake about a year afterward, but continued to pay the interest. Subsequently he sold the land, which was worth about $10,000, to his son, A. H., for $6,000, receiving $1, 500 in cash, and prior indebtedness, and taking back a mortgage of $4,500. A. H. had no actual knowledge, as he claimed, of the

mistake made in discharging the $3,700 mortgage, which appeared as discharged on the abstract of title which he obtained before purchasing the land from his father, but he knew of the existence of the former mortgage of $1,500, and that his father was financially embarrassed. Held, in a suit in equity to vacate the discharge and foreclose the mortgage, that the knowledge of A. H., or his intent to defraud S., could not be inferred from the relation of the parties, or the low price paid for the land, and that in any event S. was not entitled to foreclose his mortgage, because of the illegal amount claimed, but that as to any sums still owing by A. HI. at the time when he was notified of S.'s equities, he was not entitled to protection, and that to that extent S. was entitled to foreclose his mortgage. Sheldon v. Holmes. Opinion by Cooley, C. J.

[Decided Sept. 29, 1885.]

TRADE-MARK

UNPATENTED - PROTECTION OFPARTNERSHIP-RETIRING PARTNER'S GOOD-WILL-A manufacturer or vendor may by a priority of appropriation and adoption of names, marks, letters or other proper and appropriate symbols, so distinguish his manufactures from others as to acquire a property therein as a trade-mark; but not however until he has given it out and published it to the community as his, and that he has adopted it as an original thing, or has in some way become the lawful owner thereof. Stokes v. Landgraff, 17 Barb. 608; Williams v. Johnson, 2 Bosw. 6; Amoskeag Manuf'g Co. v. Spear, 2 Sandf. (S. C.) 599. Chief Justice Cooley, in his work on Torts, says: "In general a man may adopt for a trade-mark whatever he chooses; but when he asserts and seeks to enforce exclusive right therein, it becomes necessary to ascertain whether it is just to others that this be permitted. If the name, device or designation is purely arbitrary and fanciful, and has first been brought into use by him, his right to the exclusive use of it is unquestionable." Cooley Torts, 361, and see cases cited. But the mere designation of a quality cannot be appropriated as a trade-mark." Caswell v. Davis, 58 N. Y. 223; S. C., 17 Am. Rep. 233; Candee v. Deere, 54 Ill. 439; Burke v. Cassin, 45 Cal. 467; Taylor v. Gillies, 59 N. Y. 331. "Neither can any general description by words in common use of a kind of article, or of its nature or qualities, *** neither can the name of a place be appropriated as a trade-mark as against others who may see fit to engage in the same business at the same place." A trade-mark, when adopted, may be lost by being suffered without objection to come into common use in the trade, and rights under it may be waived as against those using it with the knowledge of the owners, and without objection, though such use has not become general, and it can only be sold with the business to which it was intended to apply. Cooley Torts, 363, 364, and cases cited; Van Beil v. Prescott, 82 N. Y. 630. (2) When on the dissolution of a copartnership the partners divide the manufactured articles and materials on hand, and the retiring partner sells his interest in buildings and machinery, there is no presumption that he has disposed of his good-will in the business also, and he will not be enjoined from continuing the business. Smith v. Imus. Opinion by Sherwood, J. [Decided Sept. 29, 1885.]

nished the other party on the firm credit, that a partnership in fact existed, although as between the parties no such relation did exist. Kritzer v. Sweet. Opinion by Sherwood, J. [Decided Sept. 25, 1885.]

NOVATION AGENCY ORDER FOR PAYMENT OF MONEY.-Defendants were indebted to H., and H. was indebted to F., and he procured the agent of defendants to issue an order payable to the order of F.,which was accepted by F., and H. credited on defendants' books with the amount thereof. Held, that the authority of the agent to issue such order being shown, defendants were liable to F. on such order. Mulcrone v. Am. Lumber Co., 22 N. W. Rep. 67. Finan v. Babcock. Opinion by Champlin, J. [Decided Oct. 28, 1885.]

NEBRASKA SUPREME COURT ABSTRACT.

REGISTRATION-NOTICE-MORTGAGOR NOT IN POSSESSION. A deed duly acknowledged and recorded is constructive notice to all persons claiming through or under the grantor. Doe v. Beardsley,2 McLean,412; Bates v. Norcross, 14 Pick. 231; Schutt v. Large, 6 Barb. 373; Flynt v. Arnold, 2 Metc. 619. But where the party executing the deed or mortgage is not in possession, and has no record title or apparent interest in the premises, a mortgage executed by him upon such premises is not constructive notice to creditors of or subsequent purchasers from the apparent owner. Chicago v. Witt, 75 Ill. 211; Fenno v. Sayre, 3 Ala. 458; Calder v. Chapman, 52 Penn. St. 359; Lightner v. Mooney, 10 Watts, 407; Losey v. Simpson, 11 N. J. Eq. 246; Cook v. Travis, 20 N. Y. 402; St. John v. Conger, 40 Ill. 535. The reason is, the record of a conveyance or mortgage is constructive notice to those alone who must trace their title through the grantor or mortgagor by whom the deed or mortgage was made. 2 Pom. Eq., § 761, and cases cited. Traphagen v. Irwin. Opinion by Maxwell, J.

USURY-INNOCENT PURCHASER-BURDEN OF PROOF. -Where usury in the original transaction for which negotiable promissory notes are given is proved, a party who claims to have purchased the notes before maturity must assume the burden of proof to show that he is the bona fide purchaser before maturity, and without notice. Wortendyke v. Meehan, 9 Neb. 228; Norris v. Langley, 19 N. H. 423; State Bank v. Thompson, 42 id. 369; Converse v. Foster, 32 Vt. 828; Sistermans v. Field, 9 Gray, 331; Smith v. Columbus State Bank, 9 Neb. 31; Paton v. Coit, 5 Mich. 505. Where however the illegal consideration is shown, the burden of proof is on the plaintiff to show that he is a bona fide holder for value before the maturity of the note, and without notice. Savings Bank v. Scott, 10 Neb. 86; Olmsted v. New England Mortg. Sec. Co., 11 id. 492; S. C., 9 N. W. Rep. 650; Cheney v. Cooper, 14 Neb. 416; Evans v. De Roe, 15 id. 631. In this case there is not a particle of proof that the plaintiff either purchased the notes before maturity, paid any sum whatever for them, or that he was ignorant of usury in the transaction, which the undisputed testimony clearly shows to have existed. This being the case, the notes are subject to the defense of usury. Darst v. Backus. Opinion by Maxwell, J. [Decided Sept. 29, 1885.]

INFANCY-SALE OF REAL ESTATE-DISAFFIRMANCE. -Where a minor conveys real estate to his father in possession, and the father soon afterward executes a mortgage thereon, and in a short time thereafter dies, the son being one of the heirs of his estate, the execution of a mortgage on the real estate by the son, four

years after he attains his majority, will not of itself amount to a disaffirmance of the deed made to his father, the mortgage not being inconsistent with the deed, as it conveys no title, and can have full force upon the interest of the mortgagor which he has in the estate by inheritance. First, before the simple execution of a deed made by a person after coming of age will amount to a disaffirmance of a conveyance made during minority, the second deed must be of as high a character as the first; that is, it must appear on its face to undo that which has been done by the former deed. If the first is an absolute conveyance, so must the second be, in order to work a disaffirmance of the first within itself. Jackson v. Burchin, 14 Johns. 124; Jackson v. Carpenter, 11 id. 539; Bool v. Mix, 17 Wend. 132; Eagle F. Ins. Co. v. Lent, 1 Edw. 301; Tucker v. Moreland, 10 Pet. 58. Again we think it is well established, both upon principle and authority, that the second deed must be so inconsistent with the first that both deeds cannot stand, in order of itself to work a disaffirmance of the first. Leitensdorfer v. Hempstead, 18 Mo. 269; McGan v. Marshall, 7 Humph. 121; Eagle F. Co. v. Lent, 6 Paige, 635; Schouler Dom. Rel. (2d ed.) 588. "In this State a mortgage of real estate is a mere pledge or collateral security creating a lien upon the mortgaged property, but conveying no title nor vesting any estate either before or after condition broken." Davidson v. Cox, 11 Neb. 250. Second, at the time of the execution of the mortgage to defendants, John Jones was one of the joint owners of the land with the other heirs of Samuel Jones (he being then deceased), subject only to the mortgage made by Samuel to Armstrong, the life estate of his mother, and the claims of the creditors of his father, if any existed, assuming that he did not desire to disaffirm the conveyance to Samuel. This interest was a mortgageable one, and was subject to the decree in the foreclosure suit. Jones Mortg., §§ 1314, 1411. There is nothing shown by way of declaration or recital in the mortgage which would indicate any intention of the mortgagor to disaffirm any prior act of his. It may also be noted, as a circumstance tending to throw some light on his intention at the time of the execution of the mortgage, that on the 16th day of May, 1876, he conveyed the real estate in question to one M. W. Thompson, and in the deed he expressly excepts from the covenant of warranty the mortgage executed by his father to John Armstrong, the exception being as follows: "Subject however to a mortgage executed by Samuel Jones to John Armstrong, dated January 5, 1871, and recorded in the records of Gage county, book B, page 161." The deed also excepts the mortgage executed to defendants. It is true that the date is referred to as "Jan. 5, 1871," while the mortgage to Armstrong was dated July 4, 1871; but it is proven that Samuel Jones never executed but the one mortgage to John Armstrong, and there can be no doubt but that it was the one referred to in the deed. It was clearly impossible for the mortgage to Armstrong to stand unsupported by any title in Samuel Jones. His title was derived from John

Jones. By the reservation in the deed to Thompson, John Jones clearly recognized the validity of his deed to his father. The deed to Thompson was executed more than four years after John's majority. Had it been the intention of John Jones to disaffirm the deed executed by him to his father, it would be quite reasonable and in accord with ordinary human action for him to have done some act which would unequivocally demonstrate that intent. No such demonstration has been made. The foreclosure of the Armstrong mortgage was persistently fought in the courts, being finally decided in Jones v. Null, 9 Neb. 57, but not upon the ground that Samuel Jones had no title to the land at the time of the execu

tion of the mortgage, or that John had disaffirmed his deed to him. If he had such a defense, and desired to avail himself of it, he was called upon to do it in that action. It is very evident such was not his intention. Such being the case, it is clear that Griggs and Ashby, having received the mortgage during the pendency of that action, could stand in no better or more advantageous position than did their grantor. Jones Mortg., § 1411; Metcalfe v. Pulvertoft,2 Ves. & B. 205; McPherson v. Housel, 13 N. J. Eq. 301; Jackson v. Losee, 4 Sandf. Ch. 381; Zeiter v. Bowman, 6 Barb. 133; Griswold v. Miller, 15 id. 520; Cleveland v. Boerum, 3 Abb. Pr. 294; Ostrom v. McCann, 21 How. Pr. 431. The foreclosure of the Armstrong mortgage forever barred the rights of John Jones in the land, and with his the rights of Griggs and Ashby, and of Thompson. The execution of the sheriff's deed conveyed to the purchaser all the title of all the parties to the action. Jones Mortg., § 1654; Young v. Brand, 15 Neb. 601. See also § 853 of the Civ. Code. Prior to the time the contract between Ashby and Armstrong was made, Griggs and Ashby virtually had no standing in court in their foreclosure proceeding, and the defense pleaded by Armstrong was a complete bar to this recovery. The testimony is contradictory as to what the real agreement between them was. Griggs insists he gave no person any authority to make it for him. As all contracts must be mutual to be binding, if he was not bound, Armstrong was not, and has therefore been deprived of his defense unjustly. Buchanan v. Griggs. Opinion by Reese, J.

[Decided Sept. 17, 1885.]

KANSAS SUPREME COURT ABSTRACT.*

MALICIOUS

PROSECUTION

-CORPORATION MALICIOUS ATTACHMENT-EVIDENCE-EXEMPLARY DAM

AGES. An action may be maintained against a corporation to recover damages for wrongfully, maliciously and without just or probable cause obtaining and levying an order of attachment upon personal property. Where it is alleged in a petition brought to recover damages therefor, that an order of attachment was wrongfully, maliciously and without just or probable cause sued out; that a stock of goods was levied thereon and withheld from the owner for about two months, and that thereby his business was completely broken up, it is not error on the part of the court trying the case without a jury, to receive evidence showing the value of the stock on hand at the time of the attachment; that the owner was doing a business of from $6,000 to $7,000 per annum, with a net profit of $1,500 to $1,600 a year, and that on account of the attachmeut proceedings his business was broken up, as in such a case vindictive or exemplary damages are allowable. Western News Co. v. Wilmarth. Opinion by Horton, C. J.

FRAUD KNOWLEDGE OF VENDEE.-Where the valid

ity of a sale of property is challenged on the ground that it was made to defraud the creditors of the vendor, a "knowledge of facts sufficient to excite the suspicions of a prudent man and put him upon inquiry is, as a general proposition, equivalent to a knowledge of the ultimate fact" (Phillips v. Reitz, 16 Kas. 396); and this principle of law the trial court in its charge to the jury clearly recognized and stated. But the mere knowledge of the purchaser that the seller is in debt, without regard to the amount, or his ability to pay the same, will not make void a sale, although the purpose of the vendor was to defraud his creditors,

* Appearing in 33 Kansas Reports.

unless the vendee was a participant in the fraud. Hughes v. Monty, 24 Iowa, 499; Atwood v. Impson, 20 N. J. Eq. 151; Beals v. Gurnsey, 8 Johns. 446; Durkee v. Chambers, 57 Mo. 575; Sisson v. Roath, 30 Conn. 15; Loeschigk v. Bridge, 42 N. Y. 421; Taylor v. Eubanks, 3 A. K. Marsh. 239; Bump Fraud. Convey. 201, 278, and cases there cited. Barigham v. Penn. Opinion by Johnston, J.

NEGLIGENCE-CAUSING DEATH-DAMAGES-DUTY OF RAILROAD TO PASSENGER.-A right of action is expressly given by the statute in behalf of the next of kin where the death of one is caused by the wrongful act or omission of another; provided the deceased, if he had lived, might have maintained an action for the injury caused by the same wrongful act or omission. The law infers an injury whenever a legal right has been violated, and every injury imports a damage. As a general rule, where the law gives an action for a wrongful act, the doing of the act itself imports a damage, and even if no actual pecuniary damage may have been shown or suffered, still the legal implicatiou of damage follows the wrongful act, and nominal damages at least may be recovered. Some of the English courts have held that if no actual loss is shown, nominal damages are not recoverable; but the American courts, so far as our observation goes, uniformly hold, under statutes similar to our own, that where a person has met with death caused by the wrongful act, neglect or default of another, whenever there are next of kin, nominal damages at least may be recovered. Lehman v. City of Brooklyn, 29 Barb. 234; Dickens v. R. Co., 1 Abb. Ct. App. 504; Quin v. Moore, 15 N. Y. 432; Ihl v. Forty-second Street, etc., R. Co., 47 id. 317; Chicago & Alton R. Co. v. Shannon, 43 Ill. 338; C. & N. W. R. Co. v. Swett, 45 id. 197; City of Chicago v. Scholten, 75 id. 468; Thomp. Neg. 1293. (2) It is the duty of a railway company carrying passengers, to provide for their quiet and comfort, and secure them against the annoying and offensive conduct of other passengers; and where the conduct of a passenger is such as to render his presence dangerous to fellow-passengers, and such as will occasion them serious annoyance and discomfort, it is not only the right but the duty of a railroad company to exclude such passenger from its train. Vinton v. Middlesex R. Co., 11 Allen, 304; Commonwealth v. Power, 7 Metc. 596; Jencks v. Coleman, 2 Sumn. 221; Lemont v. Washington & Georgetown R. Co., 1 Am. & Eng. R. Cas. 263: Brown v. Memphis & Charlestown R. Co., 5 Fed. Rep. 499; Brown v. Memphis & Charlestown R. Co., 1 Am. & Eng. R. Cas. 247; Railroad Co. v. Statham, 42 Miss. 607. And under the authorities, it seems that it is equally the duty of the railroad company to remove from the train and leave an unattended passenger, who after entering upon a journey, becomes sick and unconscious or insane, until he is in a fit condition to resume his journey, or until he shall obtain the proper assistance to take care of him to the end of his journey. Railroad Co. v. Weber. Opinion by Johnston, J.

CONVERSION SAND SEVERED IN MISSOURI AND TAKEN TO KANSAS.-Where a mere wrong-doer enters upon land in the State of Missouri and severs sand therefrom and transports it to Kansas, and there converts it to his own use, the sand remains the property of the owner of the land up to the time of the conversion, and he may afterward recover from the wrongdoer the value of the sand in an action brought in Kansas-such action being transitory. When the sand was severed from the real estate it became personal property, but the title to the same was not changed or transferred. It still remained in the plaintiff. He still owned the sand, and had the right to follow it and reclaim it, into whatever jurisdiction it might be

taken. He could recover it in an action of replevin (Richardson v. York, 14 Me. 216; Harlan v. Harlan, 15 Penn. St. 507; Halleck v. Mixer, 16 Cal. 574), or he could maintain an action in the nature of trespass de bonis asportatis, for damages for its unlawful removal (Wadleigh v. Janvrin, 41 N. H. 503, 520; Bulkley v. Dolbeare, 7 Conn. 232), or he could maintain an action in the nature of trover, for damages for its conversion, if it were in fact converted (Tyson v. McGuineas, 25 Wis. 656; Whidden v. Seelye, 40 Me. 247, 255, 256; Riley v. Boston W. P. Co.,11 Cush. 11; Nelson v. Burt, 15 id. 204; Forsyth v. Wells, 41 Penu. St. 291; Wright v. Guier, 9 Watts, 172; Mooers v. Wait, 3 Wend. 104), or he could maintain an action in the nature of assumpsit, for damages for money had and received, if the trespasser sold the property and received money therefor. Powell v. Rees, 7 Ad. & El. 426; Whidden v. Seelye, 40 Me. 255; Halleck v. Mixer, 16 Cal. 574. See also in this connection the case of Fanson v. Linsley, 20 Kas. 235. In all cases of wrong, the tort or a portion thereof may be waived by the party injured, and he may recover on the remaining portion of the tort, or on an implied contract, provided the remaining facts will authorize such a recovery. McGonigle v. Atchison. Opinion by Valentine, J.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

NEGOTIABLE INSTRUMENT-ACTION AGAINST ACCEPTOR OF BILL-WANT OF CONSIDERATION.-The payee of an accepted bill holds the same relation to the acceptor, that an indorsee of a note holds to the maker. In an action against the acceptor by the payee of a bill who takes it before acceptance, want of consideration between the drawer and acceptor is not a defeuse. There is a very close resemblance between an accepted bill and an indorsed note. The indorsed note is evidence of a debt originally due from the maker to the payee, and assigned and made due to the indorsee. The bill is evidence of a debt originally due from the drawee to the drawer, assigned and made due to the payee; and the rule that the title of the assignee cannot be impeached by showing want of consideration for the original debt is applicable equally to the indorser of a note and to the payee and to the indorser of an accepted bill. The reason, applicable alike to payee and indorser, is tersely stated by Vaughan, J., in Low v. Chifney, 1 Bing. N. C. 267. "How was he to know what had passed between the drawer and acceptor?" See Davis v. Randall, 115 Mass. 547. It is held in this State that upon the question whether a promise to accept made by the drawee to the drawer is an acceptance as to other parties, the knowledge of the promise and presumed reliance upon it in becoming parties is material. Exchange Bank of St. Louis v. Rice, 98 Mass. 288. But where fas in the case at bar, there is an acceptance upon the bill, it makes no difference in the rights of payees or indorsees whether they become such before or after the acceptance. Grant v. Hunt, 1 C. B. 44; Wynne v. Raikes, 5 East, 514; Powell v. Monnier, 1 Atk. 611. The instrument is negotiable before acceptance, and the acceptance is an acknowledgment of the debt it represents, and an absolute promise to pay it to the person who is or shall become the holder of the bill, and to allow a want of consideration for the acceptance to defeat the right of a bona fide holder, whether he becomes such before or after the acceptance, would be contrary to the nature and purpose of bills of exchange, and to the uniform usage in regard to them. Arpin v. Owens. Opinion by W. Allen, J.

[Decided Oct. 23, 1885.]