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dismiss the case; but considering that the question of on a writ of error at Sergeant's Inn. But I may bave authority in the mayor and council of the city to action in the case as well. Trin. Jac. I., Speere v. make the compromise, and of the alleged fraud in Stone, affirmed same time; S. C. Hobart, 180, sub nom. making it, required the power of a court of original Wheatley v. Stone. So in Myun v. Coughton, Cro. jurisdiction to investigate and decide thereon, con- Car. 109, cited in Bac. Abr. “Execution,” 0, it was tinued the case in this court until that was done in held that if a defendant be rescued after being taken the proper court. But when this was ascertained in on a capias ad satisfaciendum, the plaintiff may have favor of the action of the mayor and council, the suit an action for the misfeasance against the rescuers; for was dismissed here on the basis of that compromise he is the party who bath the loss, and to whom the inorder. County of Dakota v. Glidden. Opinion by Mil- jury is done, and he ought not to be compelled to sue ler, J.

the sheriff, who may be dead, and if he recover, the [Decided Jan. 26, 1885.]

rescuers may plead it if sued by the sheriff, so that

there is no danger of being double charged. 3 to 7., 8. WRIT OF ERROR-NEGLIGENCE-MAIL AGENT NOT

C. Hut. 98, sub nom. Congham's case. In May v. PASSENGER.--As the statutes of the United States,

Sheriff of Middlesex, Cro. Jao. 419, which was an acwhich authorize the employment and direct the ser

tion on the case for escape on mesne process, it was vice of mail route agents, do not make an agent so

held that rescue may be pleaded in bar, but not for carried by a railroad company a passenger, or deprive him of that character, in construing the Pennsylvania

escape on final process. On mesne process, the sheriff

was not bound to take posse comitatus, and on rescues statute giving a right of action for death caused by

returned by sheriff on mesne process, process may be negligence, a writ of error will not lie to review the

awarded against the rescuers, and an action on the case decision of the Supreme Court of Penusylvania hold

lies against them. S. C. 3 Bulst. 198-201, where a full iug that an ageut so killed was not a passenger within the meaning of the State statute. Price v. Penn. R.

argument by Coke and Doddridge is reported. The

latter refers to Fitz. N. B. 102, to show that the party Co. Opinion by Miller, J.

may sue rescuers. Hodges v. Marks, Cro. Jac. 485, (Decided Jan. 26, 1885.]

was an action on the case for rescuing plaintiff's debtor DEBTOR AND CREDITOR-SATISFACTION OF DEBT.- out of sheriff's possession after arrest on mesne proA creditor who receives from his debtor a certificate cess, whereby the debtor escaped and went to places in writing, not negotiable, of the amount of his debt, unknown. Held good, for the loss is the plaintiff's, as and sells the certificate to a third person for value less he cannot sue the sheriff; and therefore it is reason than its nominal amount, thereby authorizes the pur- that he should have action against those who did the chaser to receive the amount from the debtor, and injury to him whereby he lost his process and his cannot, after the debtor has paid it to the purcbaser, means to recover his debt. Kent v. Elwis, Cro. Jac. maintain any action against the debtor. A creditor 241; see also May v. Proby, 3 Bulst. 200; Bonham who receives from his debtor a negotiable instrument Strangewaie's case, 5 Mod. 217; Boothman v. Earl of of the debtor for the amount of his debt, and sells it Surry, 2 Term R. 5; Bonafous v. Walker, id. 126; for its market value to a third person, cannot sue the Bentley v. Donnelly, 8 id. 127; See also Yates v. Joyce, debtor on the original debt. See Cowdrey v. Vanden- 11 Johns. 136; Penrod v. Mitchell, 8 Serg. & R. 5:22; burgh, 101 U. S. 572; Foss v. Lowell Savings Bank, 111 Mott v. Danforth, 6 Watts, 308; Kelsey v. Murphy, 26 Mass. 285; Harris v. Johnston, 3 Cranch, 311; Emblin Penn. St. 78; Meredith v. Johns, 1 Hen. & M. 584; v. Dartnell, 1 Dowl. & L. 591. Looney v. Dist. of Col- Adler v. Fenton, 24 How. 408, distinguished. Findley umbia. Opinion by Gray, J.

v. McAllister. Opinion by Woods, J. [Decided Jan. 26, 1885.]

[Decided Jan. 12, 1885.] CREDITOR'S ACTION-RESCUERS OF DEBTOR'S GOODS. MUNICIPAL BONDS–KANSAS STATUTE-ELECTION-A judgment creditor has a right of action against NOTICE--RECITALS - INTEREST - ESTOPPEL-BILL OF the rescuers of the person or goods of the debtor EXCEPTIONS.—Bonds issued by Anderson county, in seized by the sheriff to satisfy the judgment, or Kansas under legislative authority, and in payment of against one who prevents the seizure of the debtor's its subscription to the stock of a railroad company, goods on execution. In Comyus' Digest, under the after the majority of the voters of the county had at head of "Action on the Case for Malfeasance," A 5, it an election voted in favor of subscribing for the stock is stated that an action will lie for rescue of a person and issuing the bouds, recited on their face the wrong arrested upon mesne or judicial process, citing May v. statute, but also stated that they were issued “in purProbs, 2 Cro. 419; Hodges v. Marks, id. 486; Mynn v. suance to the vote of the electors of Anderson county, Coughton, Cro. Car. 109; or of goods taken in execu- of September 13, 1869.” The statute in force required tion, citing Fitzherbert's Natura Brevium, 101, 102, that at least thirty days' notice of the ele ion should Reg. 117. And the action lies by the party to the suit be given, and made it the duty of the board of county in wbich the arrest was, citing Hodges v. Marks, 2 commissioners to subscribe for the stock and issue the Cro. 486; Mynn v. Coughton, Cro, Car. 109; 2 Rolle, bonds, after such assent of the majority of the voters Abr. 556, pl. 14, 15. Under the head of “Rescous," D had been given. In a suit against the board on cou2, the same author says: “So if a person arrested pons due on the bonds, brought by a bona fide holder upon mesne process be rescued, an action upon the of them, it appeared by record evidence that the board case lies against the rescuers by the plaintiff in the made an order for the election thirty-three days besuit, for he has the loss and no remedy against the fore it was to be held, and had canvassed the returns sheriff,” referring to cases above cited, and also to and certified that there was a majority of votes in faKent v. Elwis, 2 Cro. 242; May v. Proby, 3 Bulst. 200; vor of the proposition, and had made such vote the Congham's case, Hut. 98. In 2 Rolle Abr. 556, pl. 14, basis of their action in subscribing for the stock and 15, it is said: “If a sergeant of London or bailiff of issuing the bonds to the company; and the court dithe counter take a man on a capias in process at my rected the jury to find a verdict for the plaintiff. Held, suit, and J. S. rescues bim out of his possession, I may (1) the statement in the bonds, as to the vote, was have a general writ of trespass against him, because equivalent to a statement that the vote was one lawthe sergeant is, for this purpose, my servant as well as ful and regular in form, and such as the law theu in the king's, and because the taking out of the sergeant's force required, as to prior notice; (2) as respected the possession, he being my servant, is a taking out of plaintiff, evidence by the defendant to show less than mine. Trin. 15, Jac. I., Wheatley v. Stone, adjudged thirty days' notice of the election could not avail; (3) the case was within the decision in Town of Coloma v. State of New Jersey by citizens of that State,stockholdEaves, 92 U. S. 484; (4) the rights of the plaiutiff were ers in a New Jersey railroad corporation, against that not affected by any dealing by the board with the corporation, and a Peunsylvania railroad corporation, stock subscribed for; (5) the issue or use of the bonds and several individuals, citizens respectively of New not having been enjoined for two years and a half be- Jersey aud Pennsylvania, and directors in one or both tween the day of election and the time the company corporations, alleged that without authority of law, parted with the bonds for value, and the county bar- and in fraud of the rights of the plaintiffs, and with ing for ten years paid the interest annually on the the concurrence of the individual defendants, the bonds, it was estopped, as against the plaintiff, from New Jersey corporation, pursuant to votes of a madefending, on the ground of a want of proper notice jority of its stockholders made, and the Pennsylvania of the election;(6) as the bill of exceptions contained corporation took a lease of the railroad and propall the evidence, and the defendant did not ask to go erty of the New Jersey corporation; and prayed that to the jury on any question of fact, aud the questions the lease might be set aside, the Pennsylvania corpor. were wholly questions of law, and a verdict for the de- ation ordered to account with the New Jersey corpofendant would have been set aside, it was proper to ration for all profits received, the amount found due direct a verdict for the plaintiff. In Pleasants v. ordered to be paid to the New Jersey corporation by Fant, 22 Wall. 116, 120, this court said, by Mr. Justico the Pennsylvania corporation, or upon its failure to do Miller, citing Improvement Co. v. Munson, 14 Wall. so, by the individual defendants, and the New Jersey 448, that “in every case, before the evidence is left to corporation ordered to administer the property in conthe jury, there is a preliminary question for the judge, formity with its charter, and to pay over to the plaintnot whether there is literally no evidence, but whether iffs their share of that amount. The defendants there is any upon which a jury can properly proceed answered jointly, denying the illegality of the lease, to find a verdict for the party producing it, upon and removed the case into the Circuit Court of the whom the onus of proof is imposed." Those cases United States, under the act of March 3, 1875, ch. 137, were cited in Herbert v. Butler, 97 U. S. 319, 3:20, and as involving a controversy between citizens of differthis court there said, by Mr. Justice Bradley : ent States, and a controversy arising under the Con“Although there may be some evidence in favor of a stitution and laws of the United States. The Circuit party, yet if it is insufficient to sustain a verdict, so Court, upon the plaintiffs' motion, remanded the case that one based thereon would be set aside, the court is to the State court. Held, that the case was rigbtly renot bound to submit the case to the jury, but may di- manded. The New Jersey corporation is in no sense a rect them what verdict to render." It is true that in a merely formal party to the suit, or a party in the the above cases the verdict was directed for the de- same interest with the plaintiffs; but is rightly and feudant. But where the question, after all the evi- necessarily made a defendant. Hawes v. Oakland, dence is in, is one entirely of law, a verdict may at the 104 U. S. 450, 460; Atwool v. Merry weather, L. R., 5 trial, be directed for the plaintiff, and where the bill Eq. 464, note; Menier v. Hooper's Tel. Co., L. R., 9 (h. of exceptions, as here, sets forth all the evidence in the App. Cas. 350; Mason v. Harris, L. R., 11 Ch. Div. 97. case, this court, if concurring with the court below in There is no separate controversy between the plaintits views on the questions of law presented by the bill iffs and those directors who are citizens of Pennsy). of exceptions and the record will affirm the judgment.vania. The bill seeks affirmative relief against the diIn Bevans v. United States, 13 Wall. 56, a verdict was rectors, as well as against the two corporations, for directed for the United States, in a suit by them on one and the same illegal and fraudulent act. The sinthe official bond of a public officer, and the ruling was gle matter in controversy between the plaintiffs and sustained, the evidence for the plaintiff being all of it all the defendants is the validity of that act; and undocumentary; this court saying, by Mr. Justice less it is determined that the action of the New Jersey Strong: “The instruction was therefore in accord- corporation was invalid as against the plaintiffs, there ance with the legal effect of the evidence, and there can be no decree against any of the other defendants. were no disputed facts upon which the jury could All the parties on one side of this controversy not bepass. The same rule was applied in Walbrun v. ing citizens of different States from all those upon the Babbitt, 16 Wall. 577, to the direction of a verdict for other side, the citizenship of the parties did not bring the plaintiff, after oral evidence which this court the case within the jurisdiction of the Circuit Court. states "was received without objection, and about Ayres v. Wiswall, 112 U. S. 187; S. C., ante, 90. No which there is no controversy," and on which it says controversy has arisen under the Constituteon and it bases its decision. That was a suit to recover the laws of the United States. Neither the bill nor the value of goods transferred in fraud of the bankrupt answer, in terms or in effect, claims any right or inlaw. Iu Hendrick v. Lindsay, 93 U. S. 143, the Circuit volves any question under that Constitution or those Court directed the jury to find for the plaintiffs, in an laws. The question whether a party claims a right action on a bond of indemnity, the plaintiff's evidence under the Constitution or laws of the United States is being all of it documentary, and the defendant giving to be ascertained by the legal construction of its own no evidence. This court said, by Mr. Justice Davis: allegations, and not by the effect attributed to those “There were no disputed facts in this case for the allegations by the adverse party. The bill, while aljury to pass upon. After the plaintiffs had rested leging the lease made by the New York corporation to their case, the counsel for the defendant announced be inconsistent with its charter, illegal and void, dves that he had no evidence to offer; and thereupon the not assert or imply an intention to impugn the valicourt, considering that the legal effect of the evidence dity of any statute of the State for repugnancy to the warranted a verdict for the plaintiffs, told the jury in Constitution or laws of the United States. And the an absolute form, to find for them. This was correct counsel for the plaintiffs, at the hearing in the Circuit practice where there was no evidence at all to contra- Court, as well as in this court, disclaimed the intendict or vary the case made by the plaintiffs; and the tion to do so. Should any such question arise in the only question for review here is whether or not the

progress of the cause, and be decided by the State court mistook the legal effect of the evidence." County court against a right claimed under the National Couof Anderson v. Beal. Opinion by Blatchford, J. stitution and laws, relief may be had by writ of error [Decided Jan. 26, 1885.]

from this court. But in the present condition of the REMOVAL OF CAUSE-CITIZENSHIP--CORPORATIONS.

case, the Circuit Court rightly held that it did not in- A bill in equity, filed in the Court of Chancery of the

volve a controversy properly within its jurisdiction. Gold Washing Co. v. Keyes, 96 U. S. 199; Smith v. settled principle, which cannot now be successfully Greenhow, 109 id. 669. Central, etc., R. Co. v. Mills. | controverted, that a void proceeding is so entirely Opinion by Gray, J.

vitiated as to be incapable of amendment. It has no [Decided Jan. 19, 1885.]

effect whatever. Being absolutely null and void no person can justify under it. Kentworthy v. Peppiatt, 4 B. & Ald. 288; Parsons v. Lloyd, 2 W. Bla. 845;

Grant v. Bagge, 3 East, 128; Carratt v. Morley, 1 Ad. MARYLAND COURT OF APPEALS ABSTRACT.*

& E. (N. S.) 18 (41 Eng. Com. Law); Mitchell v. Fos

ter, 12 Ad. & E. 472; Brook v. Jenney, 1 Gale & D. INJUNCTION-RESTRAINING COLLECTION OF ASSESS- 567. That when the city commissioner entered upon YENT-STATUTE MUST BE FOLLOWED-AMENDMENT- the property of the appellees and proceeded to impose SOT AS TO VOID PROCEEDING.–The appropriation upon them the burden of these assessments before the of private property to public use has been held by city had acquired any right or title by condemnation, this court not to be “complete until the proprietor he was a trespasser, there can be no doubt; and that is paid or tendered the value of his property, as ascer- his proceedings were not merely voidable but absotained by the inquest or assessment. No preliminary | lutely null avd void, seems to be a proposition so clear step prior to actual payment or tender so fixes the cor- as to be beyond the scope of controversy. It has been poration as to prevent an abandonment of the condem- decided that a void proceeding is so entirely vitiated nation or of the enterprise." State v. Graves, 9 Md. as to be incapable of amendment. It is therefore diffi370; Graff v. Mayor, etc., 10 id. 551. In the case of cult to perceive how parties, who in legal contemplaNorris v. Mayor, etc, 44 Md. 604, the court said: “Ittion occupy the attitude of intruders and tort feasors, has long been the settled law of Maryland that both can reuder valid proceedings which were null and private and municipal corporations, when authorized void in their inception, by simply putting an offer on to exercise the power of eminent domain, have the the record to pay damages which should have been right to renounce the inquisition and select a more paid anterior to an entry on the land. The offer eligible route, or wholly to abandon the improvement itself is not even a tender, for it is an offer to pay the or enterprise, at any time before actual payment of money when called for. Tenders are stricti juris and the amount assessed, either by commissioners or jury, nothing is presumed in their favor. They must be unand until that time no title to the property condemned qualified and without condition. Brady v. Jones, 2 vests in the corporation. But when this sum is paid Dow. & Ry. 305; Glasscott v. Day, 5 Esp. 48;'Huxham or tendered the title vests and the constitutional re- v. Smith, 2 Camp. 21; Thomas v. Evans, 10 East, 101 ; quirement is gratified." There is a provision in art. Jennings v. Major, 8 C. & P. 61.' But no subsequent 4, $ 837, of the Code of Local Laws, and also in the act act of a wrong-doer can render valid proceedings which of 1878, ch. 143, which makes it the duty of the mayor were absolutely null and void ab initio. The appellees and city council “ to provide for collecting and paying had these assessments imposed upon them by tresover the amount of compensation adjudged to each passers on their property. They wish to be relieved person entitled, or investing it in the stuck of the said from the burdens thus imposed, and have properly incorporation, bearing an interest of five per centum per voked the aid of a court of equity. Iu Steuart v. annum, for the use of any such persons, who because Mayor, etc., 7 Md. 515, this court has said: “If the of their infancy, absence from the city or any other proceedings were illegal no sale could have been made cause, may be prevented from receiving it before any under them for benefits, if proper steps had been street, square, lane or alley, in whole or in part, shall taken to prevent it.” Mayor, etc., v. Hook. Opinion be opened, extended, widened, straightened or closed by Yellott, J. up.” The meaning of this statutory provision is so

NEGLIGENCE-RAILWAY CROSSING — CONTRIBUTORY plain and apparent as to need no construction. The

NEGLIGENCE-MUST LOOK AND LISTEN-FLAGMAN AT appellants admit, in their answer, that they have

CROSSING-PRESUMPTION OF SELF PRESERVATION.--(1) neither paid nor tendered the amount of compensa

The general principle is, that where both parties by tion, nor invested it for the benefit of the owners of their negligence directly contribute to the production the property in conformity with the mode prescribed of the accident, neither has a right to recover of the by the statute. Having therefore acquired no title nor

other for injuries sustained thereby. But there are right of entry for the purpose of appropriating the exceptions to this general rule; and in cases like the property for public uses, when they thus went upon present, the exception is, that if the defendant, or the lands of the appellees without legal authority, they those acting for it, had become aware of the perilous were intruders and trespassers; and when they con

situation of the plaintiff, though that peril had been stituted themselves a tribunal to determine what

incurred by the negligent or even reckless conduct of amount of assessments should be paid by the rightful the plaintiff, yet the defendant or its agents would be owners of the soil, their proceedings were ultra vires

bound to use all reasonable diligence to avoid the acand absolutely null and void. In Williamson v. Berry, cident. But in order that this qualification of or ex8 How. 543, the Supreme Court of the United States, ception to the general rule may be successfully inafter referring to Att.-Gen. v. Lord Hotham, Turn. & Russ. 219, said: “The rule is that when a limited tri- | the part of the defendant, or its agents, of the peril in

voked by the plaintiff, he must show knowledge on bunal takes upou itself to exercise a jurisdiction which

which he, the plaintiff, was placed, and that there was does not belong to it, its decision amounts to nothing, time after such knowledge, within which to make the and does not create a necessity for an appeal.” And

effort to save him from the impending danger. (2) In in another paragraph of the same opinion it is further

the absence of statutory requirement, it is now well said: “If it acts without authority its judgments settled, at least by a great preponderance of authority, and orders are nullities; they are not voidable, but that there is no legal obligation on a railroad company simply void, and form no bar to a recovery sought,

to keep at the crossings of the public country roads even prior to a reversal, in opposition to them; they flagmen to give warning to travellers on such roads of constitute no justification, and all persons concerned

the passing of trains. It has been so held by this in executing such judgments, or sentences, are con

court, in the recent case of State, use of Foy v. Phil. sidered in law as trespassers.” In the English courts

Wil. & Balto. R. Co., 47 Md. 76, 86; and many decis. it has been so frequently decided, as to have become a

ions in the highest courts of the country might be *Appearing in 62 Maryland Reports.

cited in support of that ruling. The track of the rail

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road itself is a signal of danger to all those about to Pittsburg R. Co. v. Rowan and Wife, 66 id. 393. But cross it; and travellers crossing the rails are bound to au indiscriminate use of the instruction given in this exercise reasonable care, having regard to the nature case canuot be otherwise than misleading in many of the crossing, for their own safety and protection. cases; and we think the present not a case where it They should, in all cases, before proceeding to cross, was proper to be given. Maryland Central R. Co. v. carefully look and listen, to ascertain whether a train Neubeur. Opinion by Alvey, C. J. is approaching; and the failure on the part of those in [Decided June 9, 1884.) charge of the train to give the usual or required signals, such as the blowing of the whistle or the ringing of the bell, will not excuse or justify the traveller on NEW JERSEY COURT OF CHANCERY AB. the country roads in attempting to cross a railroad

STRACT.* track without the exercise of that reasonable precaution of looking and listening for the approach of a

RECEIVER-CONTRACT WITH-SUCCESSOR NOT LIAtrain. And if the experiment is made without such


FUND.-- The complainant precaution, the party acts at his peril; and in default

made a contract with the receiver of a railroad (the of this precaution, if an accident occurs by a collision

defendant's predecessor) to remove the coal, ashes with a passing train, the traveller must be held to have

and cinders from a specified ash-pit on the railroad, so far contributed to his own misfortune as to pre

and to have therefor the coal, ashes and cinders so reclude him the right to recover against the railroad

moved. He alleges that the former receiver refused company. This is the established doctrine by the

to allow him to perform the contract, and that he great weight of authority; and a large number of the

thereby sustained great damage. Held, on demurrer, decisions go to the extent of holding that it is incum

that this court would entertain jurisdiction of the bent upon the traveller, at ordinary road crossings, to

suit on the ground that the contract having been made stop, look, and listen, before attempting to cross the

with a former receiver, the present receiver, the derails; and if he fail to observe this precaution, he for

fendant, cannot be sued thereon at law, and the claim feits all right to recover for injuries received by col

is against the trust funds of the railroad company, lision. This precaution is not only reasonable and

which are still under the control of this court. When proper to be observed on the part of the traveller on

damages are sustained by reason of the negligence of a the public roads, crossing railroad tracks, for his own

receiver's employees, without personal fault on his safety, but it is equally necessary for the safety of the

part, in matters necessarily or properly committed to multitude of the people riding in the railroad trains, liable to be killed by collision of the train with obsta

them in the management of the trust property, as, for cles on the track. Hence courts have been strict and

example, in operating railroads, the damages which

may arise from the negligence or misconduct of such rigid in maintaining the rule, requiring care on the

employees, without his participation therein, are, as part of those crossing railroad tracks. Of the many

between the receiver and the trust estate, to be paid, decisions made upon the subject we may refer to the

not by him out of his own money, but out of the trust following: Ernst v. Hudson R. R. Co., 39 N. Y. 61;

property. If this is the rule as to torts, it must be Wilcox v. Rome, etc., R. Co., id. 358; Beisiegel v. N.

equally so also in regard to contracts. Where the reY. C. R. Co., 40 id. 3; Havens v. Erie R. Co., 41 id. 296; Baxter v. Troy & Boston R. Co., id. 502; Butter

ceiver's subordinates enter into a contract in the field v. West. R. Corp., 10 Allen, 532; Penn. R. Co. v.

course of their management of the business intrusted

by him to them, and damages arise from their breach Beale, 73 Penn. St. 504; Penn. R. Co. v. Weber, 76 id.

thereof, those damages, as between the receiver and 157; Telfer v. N R. Co., 30 N. J. 188; Bellefon

the trust estate are to be paid out of the latter. Suits taine R. Co. v. Hunter, 33 Ind. 335; Railroad Co. v.

for damages in either of the cases named are to be reHouston, 95 U. 8. 697, 702. But without going the extent of many of the authorities and laying it down as

garded as in the nature of proceedings in rem against

the trust estate. In Davis v. Duncan, receiver (U. S. an unqualified rule, applicable to all cases, that the

C. C.), 23 Law Reg. (N. S.) 582, it was held that the traveller must actually stop before attempting to cross

discharge of a receiver of a corporation by the court, the rails, to look and listen, we hold, with the concur

and the restoration of the property to the corporation, rence of all the authorities, that he must, at least, exercise the reasonable precaution of looking and listen

without any reservation of jurisdiction as to existing ing before venturing over the rails; and his failure to

rights of action, discharges the receiver and the prop

erty from liability to suit for injuries inflicted through observe that prebaution is negligence per se; and if he

the negligence of agents or employees of the receiver. attempts to drive a vehicle across the tracks in view

Were the complainant in this suit to bring suit at law of an approaching train, his conduct is worse than

against the late receiver's executors to recover the negligent, it is simply reckless. Railroad Co. v. Houston, supra; Telfer v. Northern R. Co., supra; Dascomb

damages which he claims, it is most manifest that they

would, if the action could be maintained against them, v. Buffalo, etc., R. Co., 27 Barb. 227. (3) While it is

have recourse to equity to protect his estate against natural, and as a general rule rational, to presume that

being compelled to pay the damages, and that equity a party acts from incentives of self-preservation, this

would protect it accordingly. Unless this be so, who presumption can only be indulged in the absence of

would accept an appointment to the office of receiver of proof to the contrary. To instruct the jury that they

a great business corporation, especially a railroad commay, in considering the whold case, “infer the ab

pany, and be liable in his own estate for the consesence of fault on the part of the plaintiff, from the known disposition of persons to avoid injuries to

quences of the neglect and misconduct of his numer

ous employees, in whom he must necessarily confide in themselves,” in the presence of testimony that tends

the discharge of duties and the transaction of business strongly to show the existence of fault, is tantamount

of the trust, which it is impossible for him to do himto instructing them that they may conclude as they self, or even to superintend? In Palys v. Jewett, 32 please; that they may find upon presumption and put the evidence aside. There are cases where this pre- jurisdiction for equity in the fact that it is necessary

N. J. Eq. 302, the appellate court found a scintilla of sumption may be invoked, and the reports show many instances where it has been done. North. Cent. R.

to ask its leave to bring an action at law against the

receiver, and that such permission had been sought Co. v. Geis, 31 Md. 357; Railroad Co. v. Gladmon, 15

and denied, and the parties had thereupon submitted Wall. 407; Oldfield v. N. Y. & H. R. Co., 14 N. Y, 310; Penn. R. Co. v. Weber, 76 Penn. St. 157; Cleveland &

* To appear in 39 N. J. Eq. Reports.

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themselves to the jurisdiction of this court. In this 1 Leach, 1103;1 Chit. Crim. Law, 253; Baker v. State, case, where there is no remedy at law, and the com. 4 Ark. 56; Com. v. Tuck, 20 Pick. 356; State v. Brady, plainant prays relief from this court in view of the 14 Vt. 353; State v. Cocker, 3 Har. (Del.) 554; State v. fact, and on the ground that it has control over the Grisham, 1 Hayw. 12; Josslyn v. Com., 6 Metc. 236; trust fund, and can pay him his damages therefrom, I State v. Flye, 26 Me. 312; People v. Austin, 1 Park. cannot but conclude that this court has jurisdiction. Crim. R. 154; United States v. Peterson, 1 Wood. & Of course it will be its duty in every such case to see M. 305; Com. v. Manson, 2 Ashm. 31 ; McGregg v. State, whether the contract was such a one as this court, 4 Blackf. 101; State v. Coleman, 5 Port. 32; Wash v. having regard to the interest of the trust, and the ex- State, 14 Smedes & M. 120; People v. Baker, 3 Hill, tent of the power of the receiver to bind it, would 159; State v. Hogan, R. M. Charlt. 474; Kane v. Peohave enforced had the complainant applied for the ple, 8 Wend. 203; Carlton v.Com., 5 Metc. 532; United purpose when it was broken, and if it finds it to have States v. O'Callahan, 6 McLean, 596; Stepheu v. State, been such, and that the breach was without adequate 11 Ga. 225; Burk v. State, 2 Har. & J. 426. Neither excuse, it will do in the premises what equity and does the fact that the prescribed penalties are differgood conscience require. Lewin Trusts, 415. Kerr v. ent. King v. Darley, 4 East, 179; 1 East, P. C. 408Little. Opinion by Chancellor.

410; Kightly v. Birch, 2 Maule & S. 533 ; King v. DarWILL REMAINDER-LIFE ESTATE.-A non-resident | ley, supra, 174. Nor was the defendant prejudiced in testatrix gave all her estate to her husband for life, any manner by the joinder upon the trial. By the " and in the event of his decease, and not till then, to

joinder of the counts he became entitled to the greatbe divided between my step-children,” John, William,

est number of challenges allowed by law, and a greater Julia and James, “or their heirs." William died in

number than he would have been had the information the testatrix's life-time, intestate, and having never

contained a single count for the crime of which he was been married. The property of the testatrix was all

convicted. Neither does the information present a personal. By the statute of distributions of William's case in which the people could be required to elect bedomicile, his father was entitled to his personal es

tween the counts. (2) When distinct offenses are tate. Held, that at testatrix's death William's father charged in different counts, but are committed by the became absolutely entitled to the estate in remainder same acts, at the same time, and the same testimony given to William, notwithstanding the fact that he was

must necessarily be relied upon for conviction, the by the will also entitled to a life estate therein. Bul- prisoner cannot be confounded in making his defense, lock v. Downes, 1 Hawk. Wills, 92, 94, 99. Hard v. Tur

and the people ought not to be compelled to elect. nure. Opinion by Chancellor.

People v. Costello, 1 Denio, 83; People v. Ryuders, 12

Wend. 425; Kane v. People, 8 id. 203; State v. Smith, ARBITRATION AND AWARD-LIMITED TO MATTERS

8 Blackf. 489; Wash v. State, 14 Smedes & M. 120 (3) SUBMITTED - PARTNERSHIP SURVIVING PARTNER

That the injury was committed by shooting was adRESISTING LAWSUIT.- An award cannot be

mitted upon the trial; the extent of the injury and tended beyond the things submitted. Caldw. Arb.

the intent with which it was doue being the main 321. And even if the language of the submission is

questions litigated before the jury. “Every sane man broad enough to cover a claim subsequently sought to

must be presumed to contemplate and intend the necbe enforced, yet if it is clearly made to appear that the

essary, natural, and probable consequences of his own claim was not before the arbitrators, and that they

acts did not consider it, It has been held repeatedly that the

(3 Greenl. Ev., $S 13, 14; Rex v. Farrington,

Russ. & R. 207; Com. v. Webster, 5 Cush. 305); but award will not bar it. King v. Savory, 8 Cush. 309;

when the intent is the gist of the crime, as in this Webster v. Lee, 5 Mass. 334; Hodges v. Hodges, 9 id. 3:20; Smith v. Whiting, 11 id. 445; Bixby v. Whitney,

case, the presumption, though a very important cir5 Me. 192; Buck v. Buck, 2 Vt. 417. (2) A surviving point to convict, is not conclusive, nor alone sufficient,

cumstance in making the proof necessary upon this partner who, in good faith and under an honest belief

and should be supplemented by other testimony to that he has a good defense, resists by litigation, but

avoid a reasonable doubt. Sup. Ct. Mich., Jan., 1885. unsuccessfully, the collection of a claim against the

People v. Sweeney. Opinion by Sherwood, J. (22 N.W. partnership estate, will be entitled to contribution for

Rep. 50.) the reasonable expenses of the litigation as part of the expenses of winding up the partnership affairs. Lee v.

WITNESS-CREDIBILITY OF, FOR JURY-DEFENDANT Dolan. Opinion by Van Fleet, V. C. (See 87 N. Y.


DENCE OF.-(1) It is the peculiar province of the jury

to determine whether any particular witness or witCRIMINAT, LAW.

nesses are not worthy of belief, even though they are

accomplices; and in passing upon a motion for a new JOINDER OF OFFENSES-WHEN ELECTION NOT COM- trial, the court will not substitute its own opinion as PELLED-INTENT-PRESUMPTION.-An “assault with to the credibility of witnesses for that of the jury intent to murder,” and an “assault with intent to do how to determino as to the weight or credibility to be great bodily harm, less than the crime of murder," given to testimony. In determining the weight or may be joined in the same information in different credibility to be given to any statement of fact made counts. It is difficult to give a satisfactory reason why by a witness in the course of his testimony, it is the these two offenses may not be joined in the same in- duty of the jury to take into consideration all the eviformation in different counts. Under the first count dence, whether circumstantial or otherwise, tending the defendant is charged with an intent to do the to disprove such statement of fact, and which would greatest bodily harm possible, and in the second with also include coutradictory statements made by other the intent to do bodily harm, amounting to an offense witnesses. Hirschman v. People, 101 Ill. 568. On the greater than a misdemeanor, and less than murder. In trial of three defendants for larceny, the court inboth cases the offenses charged are of the same char. structed the jury "that in this State the accused is acter, were committed at the same time, by the same permitted to testify in his own behalf; that when he force, and only differ in the degree of injury inflicted. does so testify he at at once becomes the same as any While only one exists at common law, both are de- other witness, and his credibility is to be tested by fined by our statute, and the penalties regulated and subjected to the same tests as are legally applied thereby. The one being statutory only, furnishes no to any other witness; and in determining the degree ground in the case stated for misjoinder. 2 Hale, 173; of credibility that shall be accorded to his testimony,

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