PRACTICE.

1. On judgment for plaintiff on demurrer, defendant has no right to have damages assessed by jury. Hanley v. Sutherland, 286.

2. Rule of court provided that execution of writing, the foundation of claim of set off, need not be proved, unless affidavit is filed denying the same. Held, that want of such affidavit does not prevent plaintiff from showing that instrument, dated January 2d, was executed January 1st, and that his duplicate differed from defendant's. Ames v. Quimby, 150.

3. Charge that plaintiff was not bound by mistake in carrying out price in bill of particulars, it not appearing by record what were contents of the bill, held, not erroneous.

Id.

4. Supreme Court of United States cannot review, on second writ of error, its own judgment on first. Id.

PRESUMPTION. See BILLS AND NOTES, 4. DOMICILE, 3.

WIFE, 12. INSURANCE, 27. PARTNERSHIP, 7.

HUSBAND AND

None in law that man who disappeared at unknown date in 1809, was dead on 29th of April 1816. Dean v. Bittner, 691.

PROCESS. See CORPORATION, 18.

1. Service of summons on non-resident while going to, attending or returning from trial, as witness or party, is not a nullity, but court will set it aside or change venue, or otherwise remedy any special disadvantage such service entails upon defendant. Massey v. Colville, 550.

2. Citizen of Pennsylvania was extradited to Ohio, upon application of C. A. & Co., in criminal prosecution. Held, that service of summons and order of arrest in civil action by said C. A. & Co., directly after he had entered into recognisance to appear at next term and before conviction, and before opportunity to return home, was rightfully set aside. Compton v. Wilder, 692. PROHIBITION.

1. Writ of prohibition lies only to inferior judicial tribunal, and not to bodies exercising ministerial and administrative powers only. Dougan v. District Court, 528, and note.

2. Where statute authorizes administrative or ministerial body (as council of city), to appoint an officer to hold during its pleasure, such body can remove in its discretion, and exercise of such discretion cannot be controlled or restrained by the courts. Id.

3. To justify disregard of order of court it should appear upon face of pleading that court had no jurisdiction. Id.

4. Where court is proceeding to punish disregard of illegal order, as for contempt, it is proper case for preventive relief by prohibition. Id.

PUBLIC POLICY. See CONTRACT, 5, 6, 10. CORPORATION, 23. PILOTAGE, 4. RAILROAD. See CORPORATION, 17. EVIDENCE, 1. INFANT, 6, 7. MASTER AND SERVANT, 1, 2. MUNICIPAL CORPORATION, 12. NEGLIGENCE, 3, 12, 15, 17.

1. When company has right of constructing particular line, with general power to purchase property, it may purchase road constructed on that line. Branch v. Jesup, 222.

2. Are quasi public corporations, and can be controlled by courts to extent of interest of public therein. McCoy v. Railroad Co., 725, and note.

3. Railroad company cannot bind itself to deliver to particular stock-yard all live stock coming over its line to certain point, and may be compelled to treat all equally by injunction at suit of proprietor of stock-yards discriminated against. Id.

4. A passenger injured in a sleeping-car may, in absence of notice, assume the whole train to be under one management, and sue the railroad company. Railroad v. Wolrath, 78.

5. Is liable for proper transportation of passenger to point of destination on through ticket, as for baggage on through check; and this, notwithstanding notice on ticket that company shall not be liable except as to its own line. Railroad Co. v. Coombs, 756.

RAILROAD.

6. Owner of ox which was upon railroad track through his negligence, and by collision with which cars and engine are thrown off track and damaged, is liable therefor. Railroad Co. v. Baldwin, 756.

7. If animal escaped from enclosure without owner's knowledge or fault, he would not be liable for consequential damages in action on the case by railroad company. Id.

8. If railroad constructing its road under grant of right of way, fails to build necessary culverts, by reason whereof surface water is turned upon lands of grantor, it will be liable for damages, and cannot set off incidental benefits to grantor from construction of road. Gilbert v. Railroad, 150.

9. Contract between two connecting roads for division of earnings according to respective distances of carriage, is within discretionary powers of directors, and its execution cannot be enjoined at instance of stockholder, who does not show dishonest or fraudulent purpose in making contract, and that he will be injured thereby. Elkins v. Railroad Co., 286.

10. In application for such an injunction by stockholder of one road, the other is necessary party. Id.

11. Directors, without authority by statute or charter, passed resolution (subject to approval of stockholders at special meeting provided for therein), to assume certain debts and buy majority of stock and bonds and the equipment of rival road. Held, that proposed purchase was ultra vires and against public policy. Id. 287.

12. Clerk in railroad was entrusted with refunding certificates in blank to be filled up and delivered to holders of coupons. He fraudulently filled up some of certificates and disposed of them. Held, that company was responsible to innocent purchaser, and that facts that certificates happened to be in hands of party who was an agent of company, or that they happened to represent on their face that coupons had been deposited by such person, were insufficient to discredit certificates. Railroad Co. v. Bank, 816.

13. Before entering train, plaintiff asked engineer if it would stop at Tilton, who replied that he did not know, but that they would stop at Beardsley's. Thereupon plaintiff entered car orderly and decently, with money to pay his passage, and thereby became passenger. Afterwards, on asking conductor same question, conductor without provocation cursed, abused and ill-treated plaintiff, striking him with lantern and finally knocking him out of car door. Held, that declaration setting out these facts was not for breach of contract, but in trespass on the case. Turner v. Railroad, 551.

14. Evidence of above facts sufficient to carry case to jury. Id.

RATIFICATION. See MORTGage, 2.

RECEIVER. See ASSIGNMENT, 11.

1. Creditors without judgment or lien, title or interest attaching to debtor's property, have no right, as a general rule, to injunction and receiver, and even after judgment there must be some special circumstances to authorize equitable interference. Dodge v. Man. Co., 151.

2. Receiver of railroad was appointed at instance of bondholders, under order of court" to pay running expenses and expenses of receivership, and to pay debts due by said company for labor and supplies that may have accrued in maintenance of such property within six months preceding the rendition of this decree." Road was sold under decree of foreclosure and did not realize enough to pay bonds. While in receiver's hands, excess above running expenses was devoted to improvement of property. Held, that income of receivership having been so applied with consent of bondholders, fund in court could be appropriated as far as necessary to supply claims especially provided for when receiver was appointed. Union Trust v. Souther, 551.

3. EXTRA-TERRITORIAL JURISDICTION OF RECEIVERS, 289.

RELEASE. See ACCORD, 2. CONTRACT, 1. PAYMENT, 2.

RELIGIOUS SOCIETY. See INJUNCTION, 7.

REMOVAL OF CAUSES. See UNITED STATES, 5. UNITED STATES COURTS, 5.

VOL. XXXI.-109

REMOVAL OF CAUSES.

1. Appeal lies from order of Superior Court, granting petition for removal to U. S. Circuit Court. Ellis v. Railroad Co., 816.

2. Bond filed with petition for removal contained condition that petitioner "shall enter in such Circuit Court, on the first day of its session next after the granting of said petition, a copy of the record." That next session was the next after the filing of the petition. Held, that the variation in form of bond from words of sect. 689, Rev. Stat., was immaterial. Id.

3. Company incorporated by two states cannot remove into United States Court suits brought against it in either by citizen thereof. Railroad Co. v. Alabama, 624.

4. Individual members of corporation created by a foreign state are conclusively presumed to be citizens of that state. Steamship Co. v.

Tugman, 78.

5. Sufficient if citizenship appear affirmatively, by record. Id.

6. Upon filing petition and bond, jurisdiction of state court absolutely ceases, and it is not restored by failure to file the transcript within the time prescribed. Id.

7. Petition and bond were duly filed, and state court ruled suit not removable; party seeking to remove consented to reference, and contested suit to final judgment in state courts; held, that jurisdiction of state court was not thereby restored. Id.

8. Person acting as guard in aid of U. S. marshal officially engaged in enforcing revenue law, is acting under authority of that law, and entitled to have prosecution against him for act done in performance of his duty, removed into United States Circuit Court under sect. 643 of Rev. Stat. Davis v. South Carolina, 624.

9. To secure the benefit of separable controversy provision in Act of 1875, where suit was begun before act was passed, required an application to remove at or before the term at which case could first be tried after act went into operation. Myers v. Swan, 487.

10. Where legal title is in certain defendants whose presence is necessary to get equitable owner out of possession, they are not nominal but necessary parties, and being of same citizenship with plaintiffs, suit cannot be removed under local prejudice act.

Id.

11. In will case two contestants were citizens of other states, and remaining contestants and executors citizens of Michigan: each set of contestants took an appeal. Held, that there was but one contest, and that the appeal by citizens of other states was not removable. Fraser v. Jennison, 151.

12. Where upon removal of cause from state court, copy of record is not filed within time fixed by statute, it is within legal discretion of federal court to remand the cause, and order remanding it for that reason should not be disturbed unless it clearly appears that discretion has been improperly exercised. Railway Co. v. McLean, 423.

13. If upon first removal, federal court remands cause because of failure to file copy in time, party is not entitled to file second petition for removal on same ground. Id.

REPLEVIN. See ATTACHMENT, 2. SHERIFf, 3

1. Does not lie at common law by one out of possession of realty against one in adverse possession to recover chattels severed from the realty. Renick v. Boyd, 307, and note.

2. Where statute authorizes a recovery for timber, lumber, coal "or other property" severed from the realty, those words only include property ejusdem generis and not growing crops. Id.

3. Tannery owner, when removing hides omitted some. Tannery was sold, and many years after, plaintiff while laboring for defendant, in erecting factory on premises, discovered these hides. Held, that owner had not lost title, and that finder acquired none. Livermore v. White, 423.

4. A. exchanged horses with B., then B. exchanged with C., without notice to C. of any infirmity of title. B. did not own horse he let A. have, and A. had to give him up to true owner. Then A. sought to reclaim from C. his original horse. Held, that C.'s title was good. Tourtellott v. Pollard, 423. 5. One of principals to replevin bond was a married woman and a minor.

REPLEVIN.

Held, that only she and defendant in replevin could take advantage of her disability, not her co-obligors. Goodell v. Bates, 423.

6. Where ordinance of municipal corporation provides that owners of horses or mules should not permit same to run at large within city limits, and subjects one violating its terms to fine therefor, if city marshal impound mischievous horse running at large in streets, owner cannot proceed against him by possessory warrant. King v. Ford, 551.

7. By common law cattle wandering about, damage feasant, might be taken up and impounded. Id.

RES ADJUDICATA.

RECOVERY.

See EXECUTORS AND ADMINISTRATORS, 2. FORMER

Doctrine of, applies to judgments of courts of last resort. Gibson, 349.

RESCISSION. See CORPORATION, 13. VENDOr and Vendee, 4.

Must be in toto. Harzfeld v. Converse, 487.

BESIDENCE. See DOMICILE.

Choteau v.

SALE. See DAMAGES, 6. EVIDENCE, 19. TENDER. VENDOR AND VENdee. 1. A merchant warrants what he sells to be reasonably suited to the use for which it is bought. This applies to fertilizers. Barry v. Usry, 349.

2. Upon delivery of goods on executory contract, purchaser, with full opportunity for examination, waives defects unless he refuses to accept under contract, or accepts only on condition; mere objection that goods are defective, insufficient.. Olson v. Mayer, 287.

3. Delivery of bill of parcels to purchaser, who thereupon gives to seller lease of same chattel, without other delivery or change of possession, is not sufficient to pass title against subsequent purchaser in good faith from original seller. Harlow v. Hall, 78.

4. By conditional sale of wagon if vendee failed to pay note, he forfeited what he had paid, and vendor could take wagon. There was failure to fully pay; but vendor allowed wagon to remain with vendee, and accepted payments after last instalment was due. Without making demand he brought suit to recover balance of note, attaching wagon and holding it by virtue of attachment until trial commenced, when he entered nonsuit and claimed to hold it under contract. Held, if demand were necessary, bringing of suit was sufficient; that by making attachment, defendant did not waive his right under conditional sale, nor was he estopped from asserting it; and that he did not waive forfeiture by accepting payments after note was due. Matthews v. Lucia,

692.

SEAL. See BILLS AND NOTES, 5.

SET OFF.

See HUSBAND AND WIFE, 8.

RAILROAD, 8.

SHERIFF. See EQUITY, 10. OFFICER, 3, 4.

1. Sheriff who suffers arrested debtor to escape is liable in his official character and not as bail; and has no remedy over against debtor. Carpenter v. Fifield, 552.

2. Officer who allows one lawfully arrested to go at large without taking bail, suffers escape of such person. Id.

3. Where property levied on has been replevied, replevin bond is substituted for levy; and if the officer deprives plaintiff of advantages to be derived from bond, action will lie against him for breach of duty in not making money under his process; and in such cases a liberal protection will be extended over the rights of parties equitably interested against acts of mere nominal parties. Harrison v. Maxwell, 151.

SHERIFF'S SALE

1. Plaintiff purchasing at execution sale is presumed to have notice of all

SHERIFF'S SALE.

defects in record and proceedings, and will not be protected as bona fide purchaser if notice was insufficient. Collins v. Smith, 552.

2. Title of party in possession, to standing crops, is not divested until execution of sheriff's deed; and if fully matured at that time they will not pass by conveyance. Everingham v. Braden, 151.

SHIPPING.

1. Collision between vessels through negligence of either, without waves or wind or difficulty of navigation contributing to accident, is not "a peril of the sea" within that exception in a bill of lading. Woodley v. Michell, 757.

2. Where under charter-party or contract of affreightment, duty of discharging vessel rests upon affreighters and they neglect to perform same seasonably they will not be relieved from payment of damages by omission of express provision for payment of demurrage, or express agreement as to number of lay days. Hayden v. Whitmore, 287.

3. Where through negligence of those managing steam tug in towing schooner in navigable waters of Chicago river, schooner is run into elevator on land, breaking same and causing loss of quantity of grain, tort is not within exclusive jurisdiction of court of admiralty; state courts may afford remedy. Johnson v. Elevator Co., 487.

SLANDER.

No defence that words are spoken, when no one else is present, to person who knows them to be false and does not repeat them until after action brought. Marble v. Chapin, 78.

SPECIFIC PERFORMANCE.

1. Purchaser of land has right to good and marketable title; one about which there is no doubt that would produce a bona fide hesitation in the mind of the judge passing upon it. Gill v. Wells, 487.

2. SPECIFIC ENFORCEMENT OF CONTRACTS TO TRANSFER STOCK, 489. STATUTE. See JURY, 1. LIMITATIONS, Statute of, 3. MUNICIPAL CORPORATION, 12. ORDINANCE. REPLEVIN, 2.

1. Statute of one state or country re-enacted in another, will there be given same construction. Skrainka v. Allen, 487.

2. Statute revising whole subject-matter of former statute and evidently intended as substitute for it, repeals it without express words. State v. Roller, 692. 3. An affirmative statute to repeal a prior law must express such purpose, or be in irreconcilable conflict with it, or cover the whole ground occupied by it. Red Rock v. Henry, 349.

4. Where act is made punishable by fine and imprisonment, words in which offence is defined and punishment prescribed must be strictly construed. Shultz v. Cambridge, 222.

5. General words following particular and specific words, must generally be confined to things of same kind. Id.

66

6. In ordinance prohibiting saloon-keepers from permitting at, in or about doors, windows, openings, or in interior of saloons, any blind, screen, painted or frosted glass, shade, curtain or other device," words "other device" do not embrace board partition between different rooms, extending from floor to ceiling, fastened in usual manner, and intended, when made, as permanent accession to realty. Id.

STOCK.

See ESTOPPEL, 3. SPECIFIC PERFORMANCE, 2.

STOPPAGE IN TRANSITU. See COMMON Carrier, 5.

SUBROGATION. See INSURANCE, 24.

SUNDAY.

See CRIMINAL LAW, 29. NEGLIGENCE, 20.

SURETY. See ADMIRALTY, 2. BAIL. BILLS AND NOTES, 24, 25. GUARDIAN AND WARD. MORTGAGE, 7-9.

1. Verbal notice to creditor to proceed against debtor insufficient to release surety. Petty v. Douglass, 488.