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tion will lie in the name of the wife against her husband on a promissory note, executed by him to her in consideration of moneys, her separate property, loaned by her, after marriage, to her husband.

It follows from this case, and it is there in substance so stated, that if the wife can maintain a suit as any other creditor can, then she must also be entitled to all such writs and remedies against her husband that are allowed to other creditors.

So also it has been held in Alabama, that what any other creditor may do to enforce the collection of his debts, or to secure their final payment, the wife may also do as to her separate estate under the limitations of the law enacted for her protection. See Walker v. Ambercrombie, 3 Tex. Law Rev. 151; Rowland v. Plummer, 50 Ala. 193; Wells on Sep. Prop. of Married Women, § 374.

In Ohio it has been held that a wife may sue her husband on his note executed to her for money borrowed by him of her after marriage. Huber v. Huber, 10 Ohio Rep. 371 -2.

In Maine the husband, for value and bona fide indorsed and delivered a negotiable note to his wife; it was held she took the paper with the rights of any other indorsee. Motley v. Sawyer, 38 Me. 68; see herein post Tunks v. Grover, 57 id. 588.

In New York it has been held that the wife can maintain trover against her husband. Whitney v. Whitney, 3 Abb. Prac. Rep. (N. S.) 358; 49 Barb. (N.Y.) 319; also that she may bring an action of ejectment, Minier v. Minier, 4 Lans. (N. Y.) 422.

In Indiana it is held that the wife may sue her husband without a next friend to recover her separate property. Scott v. Scott, 13 Ind. 225.

In New Hampshire, in Clough v. Russell, 55 N. H. 281, it was said: "The logical result seems to be that the status of marriage interposes no obstacle in the way of either party maintaining against the other a suit at law in respect to those contracts which the wife is empowered to make."

In Iowa it has been held that the wife may bring replevin against her husband to recover her separate property. Kramer v. Conger, 15 Iowa, 434. It was also in the same State held that in a proper case she would be entitled to the benefit of a writ of injunction against her husband. Jones v. Jones, 19 Iowa,

242.

In Maine it has been held that the wife can garnish the husband as trustee for her debtor. In this connection, in this case, the court makes the following pertinent remarks: "We see no valid reason to debar her from it, even if it follows as a necessary result that she may array herself against her husband in an action at law to obtain it. Ubi jus ibi remedium; and when the Legislature has conferred rights of this description upon married women in such emphatic terms, it is not for us to delay the appropriate process to enforce them, although long-cherished and familiar doctrines of the common law are thereby overturned." Tunks v. Grover, 57 Me. 588.

Under the liberal provisions of our Constitution and laws for the protection and preservation of the separate property and rights of married women, we are of opinion that the wife can maintain in her own name her action in the case under consideration. We also believe that she would be entitled, in a proper case, to the benefit of writs of attachment, sequestration, injunction, or any like writ to which any other creditor would be entitled in order to protect and preserve his rights.

Of course, suits of this kind between husband and wife ought not to be eucouraged, and ought, in every instance, to be scrutinized very closely indeed by the courts, and every effort made to prevent fraud and

collusion between them to the prejudice of rights of creditors, or third parties.

Reference has been made above to the case of Price v. Cole, and its partial affirmance by this court in Hall v. Hall, above cited. It may be proper to say, in this connection, that in the head-notes of the case of Grace v. Wade, 45 Tex. 523, the case of Price v. Cole is said to be overruled by that case. The statement is not entirely accurate. The case was only overruled in Grace v. Wade, on the question raised in it under the registration laws, and as to an innocent purchaser without notice. In other respects it was not there questioned, and as we have seen in the later case of Hall v. Hall, above cited, it was expressly approved on the question as to whether a note aud mortgage, executed directly to the wife by her husband, without the intervention of a trustee, were valid instruments.

The judgment is reversed and the cause remanded.

NOTE.-See 43 Am. Rep. 589; 25 Alb. L. J. 302; 26 id. 361, 462; 27 id. 263.

In Schultz v. Schultz,27 Hun, 26, the Genl. Term First Dept., held, that under the act of 1860, ch. 90, § 7, the wife might maintain an action for assault and battery against the husband and procure au order of arrest therein. The Court of Appeals however on appeal from the order denying motion to vacate the order of arrest, with opinion, reversed the-order and dismissed the complaint. 89 N. Y. 644.

In Fitch v. Rathbun, 61 N. Y. 579, it was held, that "Where household furniture belonging to a married woman is, with her consent taken to the house of her husband, mingled with his furniture and used therewith for the household purposes, it does not thereby become the property of her husband, but the title remains in her; and her assignee can maintain an action against the husband for a conversion thereof, or to recover the proceeds received by him on its sale." The court (p. 581), said: "The simple appropriation of any portion of her personal property to household use by the husband and wife, or the husband alone, by her consent, does not render it the property of the husband and liable for his debts; but her assigument of it carries with it a right of action against whoever converts it. Sherman v. Elder, 24 N. Y. 381, 384, 385."

Where a married woman living with her husband buys furniture with her own money and places it in the room occupied by them, in which the husband has also some furniture, a public cartman, who in her absence, under the employment and by the direction of her husband, takes the furniture from the room, including that belonging to the wife and delivers it to the husband, is liable to the wife for its conversion. Mead v. Jack, 16 N. Y. W. Dig. 402; Gen. T. N. Y. Com. Pleas.-[ED. ALB. L. J.]

RAILROADS-OBSTRUCTING STREET-INJURYPROXIMATE CAUSE-DAMAGES.

OHIO SUPREME COURT, JUNE 3, 1884.*

PITTSBURGH, CINCINNATI AND ST. LOUIS RY. Co. v. STALEY.

A railway company by its train unlawfully obstructed a village street. S. therefore walked around the rear of the train, entered another street, and there having selected one of the many routes to her home, slipped on some ice, fell, and sustained serious injury. The same railway company had placed the ice there in the process of clearing its track, which occupied part of the street. The street was laid out after the railway was in use, and the rights of the *8. C., 1 Am. L. J. 136, to appear in 41 Ohio State Reports.

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On the 17th day of January, A. D. 1877, a freight train of the Pittsburgh, Cincinnati and St. Louis Ry. Co., bound east, went upon a side track at Morrow, Warren county, Ohio, at eight o'clock P. M., and remained there until five minutes after nine o'clock. Although the train crossed Center street in the village, no cars were uncoupled, and that street was completely blocked. The only reason for this was the expectation of the conductor that he would be ordered to move his train eastward at any moment. Mrs. Emily E. Staley and others, resident in the village at points north of the railway, were in church on Center street, one square south of the railway, when the train arrived. When the service ended they found the train blocking the street, and after waiting ten or fifteen minutes they went to the west end (the rear) of the train, passed around the rear car, walked eastward between the tracks the length of three or four cars, turned northward to cross another track of the railway, and as she was "just stepping off the last track" she slipped upon some ice piled there, fell and sustained serious injury to her limb from the "hip down." She suffered much pain, was confined to her bed for a time; to her room for a longer time, and claimed that her health was permanently impaired. A number of other women pursued the same route-some before, some behind, and some with Mrs. Staley. None of them fell. The evidence showed that it was unnecessary for her to step upon the pile of ice upon which she slipped and fell. The village of Morrow was laid out after the railway was in use, and one street, called Railroad street," included the railway tracks and ran in the same direction with them. Snow fell and formed on the tracks in the streets. The com

pany, to clear its tracks for the passage of trains, removed the ice and snow, and cast it in the street on either side of the tracks. Mrs. Staley sued the company. Evidence as to the manner in which the ice had been placed there was before the jury at the trial. The charge to the jury contained the following instruction:

"But suppose the jury should find that there was negligence in the blocking of the street by the company, not in the placing of the piles of dirt, ice or snow ou or over which it is claimed the plaintiff fell, without fault on her part in going that way, or in the mode of going what then is the law?

"Here comes the difficulty in the application of the rule as to proximate or remote consequences. "Undoubtedly injuries might have been received by her as she passed around the train, for which the company would not be liable. For instance, suppose as she passed along, attempting to cross the road, she had been struck by a stone thrown by some ruffian. Clearly she would not thus have been injured if she had not gone by that route, but it is equally clear that this injury would not be one for which the company was liable.

"But suppose the injury results while so prudently and carefully passing around by some other instrumentality placed or maintained there by the defeudant. I confess that I have great difficulty in arriving at a conclusion on this point.

"The law seems to me to be this: 'That if the original act (in this case the blocking of the street) was wrongful and would naturally, according to the ordinary course of events, prove injurious to some other

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person or persons, and does actually result in injury through the intervention of other causes which were not wrongful, the injury shall be referred to the wrongful cause, passing by those which are innocent.' And an illustration of this doctrine given in the law books is the wrongful throwing of the lighted squib, which being innocently warded off by several persons, at last struck and put out the eye of another person. The original thrower was held liable.

Now it seems to me that the question whether the injury in this case to Mrs. Staley was the proximate result of the original blocking of the street is one not to be settled by the court, but by the jury under appropriate instructions from the court. And I say to you that if the evidence shows that prior to the time in question the agents and servants of the company were in the habit frequently of blocking this same street by its cars unlawfully and negligently, and for more than five minutes, and persons thus prevented from crossing the street were accustomed to pass around the end of the train west of Center street, down Railroad street, and there cross the tracks and highway substantially as was done by the plaintiff, and these facts were known to the officers and agents of the company, that in such case the jury should determine under such circumstances whether the result which followed to Mrs. Staley might reasonably have been anticipated by the company, the defendant, and if you find that it might, and there was no fault on the part of the plaintiff, the company in that would be liable. But if there was no such reason to apprehend the result, I say to you that it would not be the proximate result of the original act."

The verdict was for the sum of $1,625 in favor of the plaintiff. A motion for a new trial was overruled, and a bill of exceptions, containing-all the evidence, duly made part of the record.

Nineteen errors were counted on in the petition in error. The seventeenth complained of this charge. The District Court affirmed the judgment of the Common Pleas, and we are asked to reverse the judgments of both courts. Other parts of the charge, and several refusals to charge as requested by the defendant, were also duly accepted and assigned for

error.

Charles Darlington, for plaintiff in error.

J. D. Wallace and J. E. Smith, for defendant in er

ror.

GRANGER, C. J. We are satisfied that the railway company violated section thirty-one (31) of the act relating to roads and highways, passed March 9, 1868 (S. & S. 669), and thereby became "liable for all damages arising to any person from such obstruction."

Counsel upon both sides have aided the court by able and carefully prepared arguments, citing and commenting upon the numerous cases in which the question "What was the proximate cause of the injury?" has been discussed by American and English courts.

Cooley, J., at page 69 of his work on Torts, thus briefly states the test: "If the wrong and the resulting damages are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and the damage are not sufficiently conjoined or concatenated, as cause and effect, to support an action."

Apply this to the noted "Squib " case, Scott v. Shepherd, 2 W. Bl. 892. As soon as the fire reaches the explosive material in the squib an explosion naturally and usually follows. If when thrown it falls so near a person that to pick it up and cast it hurriedly else. where is the obvious means of escape from harm, such action naturally, and we may add usually, follows. If this thus occurs in a crowded market space the natu

ral and usual result would be injury to some one other than the person at whom it was first thrown. So long as the act of the second thrower is the result of mere impulse to avert danger to himself by removing the dangerous thing to a distance, the first thrower's act is in progress. But if the second thrower deliberates, even for a mere instant, and with intent to injure a third person, casts the squib at him, such deliberation and intent puts an end to the act of the first thrower, and the thing done by the second throw is not his fault.

So also if a wholesale druggist prepares a jar of belladonna, labels it "extract of dandelion," and sells it as such to a retail dealer, who uses it as "extract of dandelion" in filling a prescription. The great suffering of the patient who takes the medicine so prepared is plainly the natural and usual result of the act of the wholesale dealer. In the case referred to the defendant prepared the jar to be sold to a retailer, whose regular business it was to incorporate it in prescriptions to be swallowed by patients. The concatenation" of Cooley, J., is particularly complete in the case of Thomas v. Winchester, 6 N. Y. 397.

66

In Clark v. Chambers, 7 C. L. J. 11, the defendant wrongfully placed a dangerous spiked hurdle in a private way, along which the plaintiff had a right to pass, Some person, without the defendant's knowledge, moved it a short distance, but left it still in the same private way. The plaintiff passing on a dark night, with knowledge of the original position of the hurdle, thinking to avoid it,came into collision with it and was injured. Having unlawfully placed the dangerous movable thing in a passage way, so long as it remained in that way, it was there by the defendant's act. That such a movable thing in such a place would be moved by a passer-by is, it seems to us, natural and not unusual; and he who originally placed it there should be held to contemplate such a possibility and be responsible for results so long as he suffers it to remain in that way.

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And we see Judge Cooley's "concatenation' in Griggs v. Fechenstein, 14 Minn. 81, and Weick v. Lander, 75 Ill. 93. The injury complained of in each of these cases, by a plain, clear and simple chain of cause and effect, was conjoined" to the wrongful act of the defendant, and was the result of its continuing force. In the Minnesota case the action of the defendant's team frightened other horses, and we may well say forced them against the horse and sleigh of the plaintiff. In the Illinois case the stoppage of the foremost wagon by defendant's fault forced the stoppage of the second wagon, ex necessitate passed into the second wagon and did the injury complained of. The like continuing force of the wrongful act is apparent in Brown v. Railway, 54 Wis. 342; S. C., 41 Am. Rep. 41; and Drake v. Kiely, 93 Penn. St. 492.

In the Wisconsin case the wrongful act caused a pregnant woman to leave the train three miles short of her destination on a cloudy night. This act forced her to walk to the station. This effort caused the injury.

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In the Pennsylvania case the lad of tender age was wrongfully and forcibly put upon a train, carried five miles and then put off. This act forced him to go over the five miles. The doing this caused the injury. In each case the precise thing that did the harm was forced upon the injured person by the wrongful act of the defendant.

But the fact that she walked around the train was not the cause of Mrs. Staley's injury. Other persons that night walked around the same train without harm. In the full possession of her faculties she passed safely around the obstruction and beyond its influence; she was walking in a street in which others were then safely walking; she stepped upon a small

pile of ice without necessity. She could at will have gone to the other side of it; she might have walked between the rails of the unoccupied track, from which the snow and ice had been removed, until she arrived at the usual crossing of Center street, from which the train (before she had passed around it) had excluded her. The turning to cross the track in order to there cross the street was a voluntary act on her part. It was a selection of one of several convenient routes to her home. We are unable to see any chain of cause and effect leading back from it to the obstructing train. True, if the train had not blocked the way, she would not probably have been at the time in Railroad street at the point where she decided to cross that street. But so long as the obstructing train did not compel her to take that precise route and step on that pile of ice in order to reach her home without undue delay, her decision to attempt to cross that street was in no sense-in no particular-forced by that train; hence it did not cause her fall.

The charge attempted to trace a possible "concatenation" of cause and effect by stating "that if the evidence shows that prior to the time in question the agents and servants of the company were in the habit frequently of blocking this same street by its cars unlawfully and negligently, and for more than five minutes, and persons thus prevented from crossing the street were accustomed to pass around the end of the train west of Center street, down Railroad street, and there cross the tracks and highway substantially as was done by the plaintiff, and these facts were known to the officers and agents of the company, that in such case the jury should determine under such circumstances whether the result which followed to Mrs. Staley might reasonably have been anticipated by the company, the defendant, and if you find that it might and there was no fault on the part of the plaintiff, the company in that would be liable."

As no evidence tended to show that prior to that night any one fell while passing there, we do not perceive how knowledge by the company that people were in the habit of following the route taken by her, without any fault or injury, would make her fall a "usual and natural" result of the obstruction of Center street by a train; or that such fall "might reasonably be anticipated by the company."

It seems to us that unless the company was at fault in placing the ice where she trod upon it and fell no verdict ought to have assessed upon the defendant any damages for that fall.

While we thus hold that the pile of ice was the proximate cause of Mr. Staley's fall, we agree with the cases cited by her counsel, that in such cases "the question as to whether the cause was remote or proximate is for the jury under the instruction of the court." But we think that the charge as given misled the jury, and that the evidence, as set out in the bill of exceptions, clearly proves that the act of stepping on the ice where she fell was not forced by the train, but was the result of her own choice of route after the train had ceased to be an obstruction to her. The court should apply the law to those facts; and, as we understand it, such application determines that the position of the train was not the proximate cause of the fall.

A demurrer to the petition raised the question whether the latter charged the company with any fault in the matter of the ice. Perhaps it may be construed as averring in substance that the blocking of the street compelled her to step upon the ice placed by the defendant, and that while so stepping, under such compulsion, she, without her own fault, fell. If this be so the demurred was rightly overruled.

We deem it unnecessary to considered the other alleged errors.

Judgment below reversed and cause remanded for a new trial.

[See note, 41 Am. Rep. 53; 34 id. 92; 36 id. 382.—ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

ASSIGNMENT FOR CREDITORS-PARTNERSHIP-TITLE OF ASSIGNEE-RELEASE.-(1) The firm of L.& Co., executed to plaintiff, who was a creditor, a general assignment of all its property for the benefit of creditors. By it the assignee after paying partnership debts, if a surplus remained, was directed to pay the individual debts of the copartners, and to return to them any residue.

was laid down by Grover, J., that "to constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of, and obligatory upon the trustees to sell it in any event. Such conversion rests upon the principle that equity considers that as done which cught to have been done." In that case the testator was a resident of the State of Connecticut, and by his will authorized the sale of his real estate in Connecticut, and the investment of the proceeds of the same in bonds and stocks and real estate located in the New England States or in the State of New York. A trust was created of the rest and residue for certain purposes therein named, and it was held that the will gave the trustee no power to sell the real estate of which the testator died seised, situate in New York, but that the same was to be regarded as realty, and that the validity of the testamentary disposition thereof, and the rights of those claiming by descent, must be determined by the laws of this State. It is held in some of the reported cases that a positive direction to convert is required in order to authorize the application of the doctrine of the equitable conversion of real estate into personalty. Fowler v. Depau, 26 Barb. 224; Harris v. Clark, 7 N.

on Wills (5th ed.), *584. The general tendency of the decisions is against au out-and-out conversion. Wright v. Trustees of M. E. Church, Hoff. Ch. *202, *208. When the question is, under the will, whether the devisee or the heir failing the devisee takes an interest in land as land or as money, the true inquiry is whether the devisor has expressed a purpose that in the events which have happened the land shall be converted into money. Smith v. Claxton, 4 Mad. Ch. 484. While the rule laid down requires express direction for the conversion of real estate into personalty, yet cases may arise where the conversion may be implied from an express authority to sell, contained in the will, and where such a conversion is absolutely necessary to carry out the purpose or scheme of the testator. See Power v. Cassidy, 79 N. Y. 602; 35 Am. Rep. 550; Lent v. Howard, 89 N. Y. 169; Gourley v. Campbell, 66 id. 169. Hobson v. Hale. Opinion by Mil

At the time of the assignment the firm held a claim against the United States government, which was in the hands of a broker for collection. Thereafter plaintiff under an agreement with the members of the firm, returned to them a portion of the assigned property, and released his claim against the firm, upon receipt of a bond of indemnity, conditioned for the payment by them of the other firm debts, and an assign-Y. 242; Neely v. Grantham, 58 Penn. St. 433; 1 Jarm. ment to himself of all their rights and interest in the assigned property, except that so returned to them. The government claim was allowed and paid by draft to the order of the firm, which was delivered to defendant L., one of the copartners; he transferred it to the other defendants who had knowledge of the assignment; they collected the same. Plaintiff had not been discharged as assignee, some of the firm debts remained unpaid, and it did not appear that the individual debts of the copartners had been paid. Held, that an action was properly brought by plaintiff, as assignee, to recover the proceeds of the collection; that title to the claim passed to him as such assignee by virtue of the assignment, and the trust was not discharged, nor was the title affected by the subsequent agreement, as it did not transfer to him, individually, the assets held by him as trustee, but only the interest of the firm in any surplus. Brennan v. Willson, 71 N. Y. 502; Em. Ind. Sav. Bank v. Roche, 93 id. 380. (2) A portion of the money restored by the government was paid by the old firm of L.& Co.,and as to that it is claimed the plaintiff cannot recover. Such prior firm was dissolved by the death of one of its members, but all its assets passed to the survivors who constituted the new firm. They became the legal owners. The referee finds that they took possession of the assets and assumed the liabilities of the old firm and continued the business in the same partnership name; that before the death of the deceased partner he had withdrawn all his share of capital and assets and was still a debtor to the firm. The new firm having legal title to the assets could transfer them (Egberts v. Wood, 3 Paige, 525; Nehrboss v. Bliss, 88 N. Y. 600; Hoyt v. Sprague, 13 Otto, 613; Palmer v. Myers, 43 Barb. 513, and if the executrix of the decedent had any equity to require their application to debts of the old firm as distinguished from those of the new, which her action made doubtful, she released the assignee from all such claims by her general release, and so ratified, if that were needed, the transfer to the assignee and freed the assets in his hands from any such claim. Stanford v. Lockwood. Opinion by Finch, J. [Decided April 22, 1884.]

WILL-EQUITABLE CONVERSION-WHAT NECESSARY TO CONSTITUTE.-The provisions of a will must at least be of such a character as to leave no doubt of the testator's intent to have his real estate converted into personalty, in order to sustain the theory of equitable conversion. In White v. Howard, 46 N. Y. 144, 162, it

ler, J.

[Decided April 29, 1884.]

MORTGAGE-FORECLOSURE

POSSESSION ACQUIRED

BY FRAUD NO DEFENSE IN EJECTMENT-LIMITATION.

(1) R. conveyed certain premises, subject to a mortgage thereon to T., who executed to R. a mortgage for part of the purchase-price; T. conveyed to H.; R. foreclosed his mortgage, making H. and wife parties defendant. The former however had died prior to the commencement of the foreclosure suit, summons was served upon the latter, judgment of foreclosure was rendered and the premises sold thereon to R., who by the aid of a writ of assistance put T. out and got into possession; he then paid the prior mortgage and conveyed the premises to defendants. In an action of ejectment brought by the heirs of H., held, that the possession of T., after his deed to H., must be assumed to have been as tenant under the latter, and upon his death, as tenant of his heirs, so that the possession of I. was theirs, and when he was expelled their possession was taken away; that as to them the judgment of foreclosure was a nullity, the possession so taken was unlawful and in all respects a trespass, and so was no defense to the action. In most of the cases which have upheld the right of the mortgagee, his possession was obtained with the consent, express or implied, of the owner of the land, although in some of them the mode of acquiring possession did not distinctly appear, and in many the rule is stated quite broadly and with little of restriction or limitation. Van Duyne v. Thayre, 14 Wend. 233; Phyfe v

Riley, 15 id. 248; Fox v. Lipe, 24 id. 164; Olmsted v Elder, 5 N. Y. 144; Mickles v. Dillaye, 17 id. 80; Mickles v. Townsend, 18 id. 575; Chase v. Peck, 21 id. 581; Waring v. Smyth, 2 Barb. Ch. 135; Pell v. Ulmar, 18 N. Y. 139; Robinson v. Ryan, 25 id. 320; Winslow v. Clark, 47 id. 261; Madison Ave. Bapt. Ch. v. Ol. St. Bapt. Ch., 73 id. 82; Gross v. Welwood, 90 id. 638. It is scarcely necessary to review the authorities and con- | sider them in detail, for none of them have ever gone so far as to hold that a possession of the mortgagee acquired by either force or fraud, against the will and consent of the rightful owner, and without even color of lawful authority as it respects such owner, and amounting only to a pure trespass, was sufficient to defend an action of ejectment. The possession requisite for such a defense must have about it, at least, some basis of right as against the owner evicted. Often his assent or acquiescence may be inferred from slight circumstances, but the right cannot be founded upon an absolute wrong. (2) Defendant's grantor, took possession, claiming title in March, 1858; plaintiff L. became of age in December, 1864, and an action was commenced in November, 1878. Held, that it was not barred as against L. by the statute; that she had twenty years from the time when she became of age in which to bring the action. Acker v. Acker, 16 Hun, 174; 81 N. Y. 143. Howell v. Leavitt. Opinion by Finch, J.

[Decided April 29, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.

TRIAL ERROR IN CHARGE.-When a case turns upon the question which of two witnesses whose testimony is antagonistic is to be credited, is is error for the court to instruct the jury as to which one is to be bebelieved rather than the other. Corn Exchange Bank v. Scheppas. Opinion by Miller, J. (See 55 N. Y. 579.-ED.)

[Decided April 21, 1884.]

REMOVAL OF CAUSE-SEPARATE RESIDENCE MUST EXIST WHEN SUIT BEGUN AND PETITION FILED.-We think the Circuit Court was clearly right in sending the case back to the State court. The suit was begun in 1870. At that time Shirley was a citizen of Texas. The proceeding to bring in the trustees of the sold-out company was not the commencement of a new suit, but the continuation of the old one. The trustees were nothing more than the legal representatives of the company that had been sold out, and took its place on the record as a party. The suit remained the same, but with the name of one of the parties changed. In Gibson v. Bruce, 108 U. S. 561, it was decided that under the act of March 3, 1875, ch. 137, a suit could not be removed on the ground of citizenship, unless the requisite citizenship existed both when the suit was begun and when the petition for removal was filed; and in Cable v. Ellis, 110 U. S. 389, that a substituted party comes into a suit subject to all the disabilities of him whose place he takes, so far as the right of removal is concerned. The record shows that Shirley was a citizen of Texas when the suit was begun, and the right of the railroad company to remove the suit, even if the necessary citizenship had existed, expired with the first term of the State court after the act of 1875 went into effect at which the case could have been tried. Long after this time had elapsed, the railroad company filed an answer to an amended petition and actually went to trial in the State court. This trial resulted in another judgment against the company, which was also reversed by the Supreme Court, and

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the case sent back for another trial. The trustees were not brought in as parties until all this had been done. It follows that the necessary citizenship did not exist at the commencement of the suit, and that the petition for removal was filled too late. Without considering any of the other questions in the case, we affirm the order to remand. Houston & Texas R. v. Shirley. Opinion by Waite, C. J.

[Decided April 14, 1884.]

JURISDICTION - COURT WILL EXAMINE RECORD CITIZENSHIP-REVERSAL CARRIES COSTS.- (1) It is the duty of the Supreme Court, of its own motion, to note critically the record upon which a case comes before it, in order to test the jurisdiction of the court below. This rule was adopted in Capron v. Van Noorden, 2 Cranch, 126, decided in 1804, where a judgment was reversed on the application of the party against whom it had been rendered in the Circuit Court, for want of the allegation of his own citizenship, which he ought to have made to establish the jurisdiction which be had invoked. This case was cited with approval by Chief Justice Marshall in Brown v. Keene, 8 Pet. 112. See also Jackson v. Ashton, id. 148; Bors v. Preston, 30 Alb. L. J. 111 U. S. The course of the court, is when no motion is made by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even when it does not appear, affirmatively, that it does exist. Pequignot v. Pennsylvania R. Co., 16 How. 104. It acts upon the principle that the judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted. Cutler v. Rae, 7 How. 729. I consider therefore that when there was a plea to the jurisdiction of the Circuit Court in a case brought here by a writ of error, the first duty of this court is sua sponte, if not moved to it by either party, to examine the sufficiency of that plea, and thus to take care that neither the Circuit Court nor this court shall use the judicial power of the United States in a case to which the Constitution and laws of the United States have not extended that power. United States v. Huckabee, 16 Wall. 414; Barney v. Baltimore, 6 id. 280; Thompson v. Railroad Co., id. 134; Hurst v. Hollingsworth, 100 U. S. 100; Williams v. Nortawa, 104 id. 209. In Grace v. American Central Ins. Co., 109 U. S. 278, it is true that this court passed upon all the questions in the case affecting its merits, although it reversed the judgment because the jurisdiction of the Circuit Court was not apparent; but it was thought convenient and proper to do so, in that case, because the record itself made it probable that its omission of the statements necessary to show jurisdiction was inadvertent, and might be supplied for a future trial in the same court. In the present case however the want of jurisdiction appears affirmatively from the record. (2) To entitle a party to a removal of a cause to a Federal court, it must appear affirmatively from the record, that at the time of the bringing of the suit in the State court, and at the time of the petition for removal, the parties, plaintiff and defendant, were citizens of separate States. Grace v. American Central Ins. Co., 109 U. S. 278-283; Robertson v. Cease, 97 id. 646. (3) A party having wrong. fully removed a case to a Federal court, and upon adverse judgment, then prosecuted an appeal to the Supreme Court, where the judgment below is reversed on account of want of jurisdiction, is responsible for all costs, since to him is attributable the error upon which his success is based. Winchester v. Jackson, 3 Cranch, 514; Assessors v. Osbornes, 9 Wall. 567--575; Montalet v. Murray, 4 Cranch, 46. The whole subject was very much discussed by Mr. Justice Woodbury in

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