NATIONAL BANK.

1. An attachment on warrant issued by a state court to affect the funds of a national bank is illegal and void, being in violation of section 57 of the Act of Congress, approved June 3, 1864, as amended by section 2 of the Act of Congress, approved March 3, 1873, the latter section providing, "That no attachment, injunction, or execution shall be issued against such (banking) association or its property, before final judg ment in any such suit, action, or proceeding in any state, county, or municipal court." Chesapeake Bank v. First National Bank, 224.

2. The second section of the Act of Congress, approved March 3, 1873, amending section 57 of the Act of Congress, approved June 3, 1864, is constitutional and valid, being a provision to promote the efficiency of the national banks in performing the functions by which they were designed to serve the government, and to protect them not only against interfering state legislation, but also against suits or proceedings in state courts by which their efficiency would be impaired. Ib.

3. The property of a national bank organized under the Act of Congress of June 3, 1864, attached at the suit of an individual creditor, after the bank has become insolvent, cannot be subjected to sale for the payment of his demand, against the claim for the property by a receiver of the bank subsequently appointed. First Nat. Bank v. Colby, 283.

4. A suit against a national bank to enforce the collection of a demand is abated by a decree of a district court of the United States dissolving the corporation and forfeiting its rights and franchises, rendered upon an information against the bank filed by the comptroller of the currency. lb.

5. It is within the constitutional power of Congress to fix the rate of interest which a national bank may take upon a loan of money and to determine the penalty to be imposed for taking a greater rate, and such power, when exercised by Congress is exclusive of state legislation. Central Nat. Bank v. Pratt, 1.

6. The provision of the U. S. St. of 1864, c. 106, § 30, limiting the forfeiture for the making usurious charges by national banks to the interest, applies as well to banks established in states where a rate of interest is fixed by law, as to banks in states where no rate is fixed. Ib.

7. The laws of New York imposing penalties for taking usury do not apply to national banks established within the limits of that state. Ib.

NEGLIGENCE.

1. Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed. C. C. & C. R. R. Co. v. Crawford, 211.

2. But the omission to use such precautions by a person injured, will not defeat his action, if, by due diligence in their use, the consequence of the defendant's negligence would not have been avoided. Ib.

3. Nor will the failure to use such precautions be regarded as negligence on the part of the plaintiff, if, under all the circumstances of the case, a person of ordinary care and prudence would be justified in omitting to use them. Ib.

4. In an action for damages for alleged negligence, the question of negligence on the part of the defendant, or of contributory negligence on the part of the plaintiff, is a mixed question of law and fact, to be decided by the jury, under proper instructions from the court. Ib.

5. But if all the material facts touching the alleged negligence be undisputed, or be found by the jury, and admit of no rational inference but that of negligence, in such case the question of negligence becomes a matter of law merely, and the court should so charge the jury. Ib.

6. If, however, the testimony be conflicting, the facts uncertain, or the proper inferences to be drawn therefrom doubtful, in such case it would be error for the court to withdraw the case from the jury, or direct them to return a particular verdict. Ib.

7. A party is not entitled to have the jury instructed to render a verdict in his favor upon a hypothetical statement of the facts of a case, if the statement omits material facts upon which testimony has been offered, and where the finding of the omitted facts against the party would change the result of the case. Ib.

8. In an action under the act of March 25, 1851 (S. & C. 1139), by the personal representative, for damages resulting from the death of his intestate, caused by the wrongful act or neglect of the defendant, it is not competent for the defendant, in order to defeat the action, to prove that some of the next of kin of the intestate for whose benefit the action is prosecuted, were guilty of negligence which contributed to the injury that resulted in the death. lb.

9. The deceased was killed while rightfully engaged in unloading wood from a car standing upon the main side track of the defendant's road. South of the car distant several feet were two flat cars and several box cars. While he was so engaged, a freight train, coming from the north, passed near by on the main track, so that deceased could readily have been seen by the employees of the company thereon. The servants of the company at the station either knew that he was so engaged at the time, or had reason to know the fact. The train passed on until it passed the south end of the switch, when it commenced backing slowly on the side track for the purpose of leaving certain cars, and thus pushed the detached car next to that where the deceased was, so that he was crushed between the bumpers and killed. The only diligence on the part of the company was the ringing of its bell some forty rods south of the deceased, and on the main track. No other warning was given to the deceased, who was not acquainted with the mode of switching cars, or aware that he was in danger. He could not see the train on the south, on account of the box cars: Held, that the company was liable in an action for causing his death, and that the deceased was not guilty of such negligence as to prevent a recovery. I. C. R. R. Co. v. Hoffman, 461.

10. Weber, driving a horse and light wagon over a railroad on the crossing of a country road, was killed by a locomotive moving on the railroad. There was no express testimony as to whether he stopped and looked and listened before going on the railroad. Held, that the question of his negligence was for the jury. Penn. R. R. Co. v. Weber, 364.

11. It is the duty of a traveller to stop and look and listen before crossing a railroad; not so doing is negligence in itself. Ib.

12. The presumption, in the absence of other evidence, is, that the traveller stops and looks and listens before crossing a railroad.

Ib.

13. In an action against a railroad company for injuring such traveller, the burden is on the defendants to disprove care, unless the plaintiff's own evidence shows contributory negligence. Ib.

14. Although from the uncontradicted evidence in this case it might have been inferred that, if the traveller had stopped and looked and listened, he would have seen the approaching train, it was for the jury to determine the fact. lb.

See ADMIRALTY, 1, 2, 3, 4, 7.

NEGOTIABLE INSTRUMENTS.

1. In May, 1863, the Milwaukee and Saint Paul Railway Company issued coupon bonds, by each of which the company acknowledged its indebtedness to certain persons named, or bearer, in the sum of $1,000, and promised to pay the amount to the bearer on the 1st day of January, 1893, at the office of the company in the city of New York, with semi-annual interest at the rate of seven per cent. per annum, on the presentation and surrender of the coupons annexed as they severally become due. Immediately following this acknowledgment of indebtedness and promise of payment, there was in each of the instruments a further agreement of the company to make what was termed "the scrip preferred stock," attached to the bond, full-paid stock at any time within ten days after any dividend should have been declared and become payable on such preferred stock, upon surrender, in the city of New York, of the bond and the unmatured interest warrants. To each of the bonds there was originally attached by a pin the certificate of scrip preferred stock thus referred to, which stated that the complainant was entitled to ten shares of the capital stock of the company, designated as "scrip preferred stock;" and that upon the surrender of the certificate and accompanying bond, and all unmatured coupons thereon, as provided in the agreement, he should be entitled to receive ten shares of full-paid preferred stock. Three of these bonds with certificates attached were stolen from the plaintiff, and were taken by the defendants as collateral security for notes discounted by them, without actual notice of any defect in the title of the holder; but the certificates were at the time detached from the bonds. Held, (1), that the bonds were negotiable instruments, notwithstanding the agreement respecting the scrip preferred stock con

tained in them, that agreement being independent of the pecuniary obligation of the
company; and, (2), that the absence of the certificates originally attached to the
bonds, when the latter were taken by the defendants, was not of itself a circumstance
sufficient to put the defendants upon inquiry as to the title of the holder. Hotchkiss
v. Nat. Shoe & Leather Bank, 304.

2. The title of a person who takes negotiable paper before due for a valuable consid-
eration can only be defeated by showing bad faith in him, which implies guilty knowl-
edge or wilful ignorance of facts impairing the title of the party from whom he re-
ceived it; and the burden of proof lies on the assailant of the taker's title. Ib.

PATENT.

1. The use of all the parts of a combination except one, and, instead of that, what was
known at the date of the patent to be a proper substitute for the omitted part, is in-
fringement. But there is no infringement in the use of any other substitute which
performs a new function. Gill v. Wells, 101.

2. A combination of four parts is not the same invention as a combination of three of
them without the fourth. Ib.

3. A patent for a combination of four parts cannot be reissued for a combination of
three with a substitute for the fourth, unless it was known at the date of the patent
to be a proper substitute. Ib.

4. A patent for a combination of four parts, which does not suggest any other improve-
ment, cannot be reissued with a claim for a combination of three of the parts, omit-
ting all reference to the fourth.

Ib.

PLEADING AND PRACTICE.

1. Where in an equity case a demurrer is filed to the complaint and the record does not
disclose what disposition was made of it, and an answer is subsequently filed, upon
which the parties proceed to a hearing, it will be presumed on appeal that the demur-
rer was abandoned. Basey v. Gallagher, 141.

2. Although by the organic act of the Territory of Montana common law and chancery
jurisdiction is exercised by the same court, and by legislation of the territory the dis-
tinctions between the pleadings and modes of procedure in common law actions and
those in equity suits are abolished, the essential distinction between law and equity is
not changed. The relief which the law affords must be administered through the in-
tervention of a jury, unless a jury be waived; the relief which equity affords must be
applied by the court itself, and all information presented to guide its action, whether
obtained through masters' reports or findings of a jury, is merely advisory. Ib.
3. The provision in the statute of Montana of 1867 regulating proceedings in civil cases
declaring that an issue of fact shall be tried by a jury, unless a jury trial is waived,"
does not require the court in an equity case to regard the findings of a jury called in
the case as conclusive, though no application to vacate the findings be made by the
parties, if in its judgment they are not supported by the evidence. Ib.

66

4. The statute (of Michigan) for the referring of cases at law having made no provis-
ion for preserving the testimony before the referee otherwise than by exceptions taken
before the referee to its admissibility or to the finding of facts by the referee, testi-
mony returned by the referee and filed with his report otherwise than in a bill of ex-
ceptions settled before and certified by him, will not be regarded or looked into by
the court in deciding exceptions taken to the referee's conclusions of fact or law as
contained in his report. McDonald v. S. V. & St. L. R. R. Co. 29.

5. The referee having reported as findings of facts by him that the time of completion
of the contract in question was waived by mutual consent, and that no new or other
time was agreed on, and that the work agreed to be done was abandoned before com-
pletion by direction of the defendant, it not appearing by the report that such direc-
tion was on account of any fault on the part of the plaintiff, and the report being si-
lent as to the quality of the work done, no damages by way of recoupment can be
claimed for any of those causes. Ib.

See REMOVAL OF CAUSES; RIPARIAN RIGHTS, 3 et seq.

PUBLIC POLICY.

Where a party purchased cotton of an agent of the government of the Confederate
States, without knowing to whom the cotton belonged, it was held that the sale was

void on the ground of public policy, being, in contemplation of law, an act in aid of
rebellion. Sprott v. U. S. 26.

1. A railroad company has the clear right to make a rule that no one shall be carried as
a passenger on its freight trains. But when it is in the habit of carrying passengers
on such a train, and had its regular hour for departure posted in its office at the sta-
tion, it will not be justified in refusing to carry a passenger from such station, or in
putting him off such train. I. C. R. R. Co. v. Johnson, 433.

2. Where a railroad company adopts a rule prohibiting passengers from being carried on
its trains, or on its freight trains, without the purchase of tickets, it must furnish con-
venient facilities to the public by keeping open the ticket office a reasonable time in
advance of the hour fixed by its time-table for the departure of the train. Should it
fail to do so, a person desiring to take passage will have the right to enter the car and
be carried to his place of destination, on payment of the regular fare to the con-
ductor. Ib.

3. Where a person, desiring to take passage upon a freight train which carried passen-
gers, applied several times to procure a ticket, but could not get one for the reason
that the office was closed, and he then got upon the train and tendered the conductor
the regular fare, explaining to him his inability to procure a ticket, but the conductor
stopped the train and put him off, not at any station or regular place for passengers to
get off: Held, that the company was liable to such passenger in an action on the case
for damages. Ib.

4. Where a passenger was put off the cars of a railroad company by the conductor, for
the reason that he had not procured a ticket at the station before getting aboard, and
it appeared that the office at the station was closed, so that no ticket could be had;
that the passenger so informed the conductor, and offered to pay the regular fare;
that the place where the passenger was put off was not at any station or usual place
for putting passengers off the train, and that this was done in the night-time, whereby
the passenger was compelled to walk back: Held, that $200 damages was not ex-
cessive. Ib.

See COMMON CARRIER, 1, 2; Contract, 6, 7; Negligence.

REFEREE.

See PLEADING AND PRACTICE, 4, 5.

REMOVAL OF CAUSES.

1. The Act of March 3, 1875, providing for the removal of causes, permits a removal in
any suit mentioned where the controversy is wholly between citizens of different
states, and which can be fully determined as between them. And any one or more
of the parties, either plaintiff or defendant, may make the removal. The fact that
the res has been seized by the state court does not affect the right of removal. The
removal of the cause transfers the res as a necessary part of the proceedings. The
petition for removal may be filed in vacation. The bond must be good and sufficient
security, but need not be approved by the state court. It is not essential (at least in
the State of Illinois) that the record be certified other than by the clerk of the state
court, under the seal of the court. Nor is it necessary that the petition be verified by
affidavit. Osgood v. C. D. & V. R. R. Co. 242.

2. On the 22d of February, 1875, plaintiff, a bondholder of the railroad company de-
fendant, filed a bill in a state court against defendant and others (trustees of mort-
gages given by it, including the president, treasurer, and directors), to foreclose the
mortgages, and
an injunction was issued and receivers appointed. On the 23d of Feb-
ruary, a petition for removal was filed by certain non-resident defendants. February
24th the bill was amended by making divers judgment creditors defendants, one of
whom, on the same day, filed a cross-bill. February 26th other creditors were made
defendants with leave to file cross-bills. March 1st other persons petitioned to be
made co-plaintiffs. No action was taken on the petition last mentioned, nor had
more than the one cross-bill been filed; but a demurrer had been argued and taken
under advisement, and the court had adjourned for the term. On March 22d, during
vacation, a petition for removal under the Act of March 3, 1875, was filed by the
company, a corporation of the state in which the bill had been filed, in which the pres-

ident, treasurer, and trustees joined. A bond, which had not been approved by the state court, was also filed, and a copy of the record without the certificate of the judge, bearing, however, the signature of the clerk and seal of the court. Held: (1.) It appearing that the rights of the judgment creditors were subject to the prior liens of the bondholders, that their interposition could not affect the power of removal. (2.) That the fact that a cross-bill had been filed by a judgment creditor was equally ineffectual to prevent the removal. (3.) That the cause was removable under the statute. (4.) That the petition for removal was seasonably filed. (5.) That the facts constituted a legal removal of the cause. The court discusses the statute in divers aspects, defining its scope and operation, the relations of the federal and state courts thereunder, and other points. Ib.

See JURISDICTION, 3 et seq.

RIPARIAN RIGHTS.

1. In the Pacific States and territories a right to running waters on the public lands of the United States for purposes of irrigation may be acquired by prior appropriation, as against parties not having the title of the government. The right, exercised within reasonable limits, having reference to the condition of the country, and the necessities of the community, is entitled to protection. This rule obtains in the Territory of Montana, and is sanctioned by its legislation. Basey v. Gallagher, 141. 2. By the act of Congress of July 26, 1866, which provides "that whenever by priority of possession rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same," the customary law with respect to the use of water which had grown up among occupants of the public land under the peculiar necessities of their condition is recognized as valid. That law may be shown by evidence of the local customs, or by the legislation of the state or territory, or the decisions of the courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, will control. Ib.

3. In an action to recover damages for fouling a stream which flowed through the farm of the plaintiff, the last three counts of the declaration alleged substantially that the stream had long flowed through the plaintiff's farm in a pure state, but that some months prior to the institution of the suit, the defendant had fouled and was daily continuing to foul the same, by throwing into it certain poisonous substances. The second plea of the defendant stated that at and long before the time of the committing of the grievances alleged there was, and still is, an ancient paper-mill erected upon said stream, and near the plaintiff's land, to which mill was, and still is, annexed the right to use the water of the stream for all purposes belonging to the manufacture of paper, and that said mill was from its erection used for such manufacture with the knowledge and acquiescence of the plaintiff; that the defendant purchased the mill and the right appurtenant thereto, to use the water of the stream for all the purposes of paper manufacture, and that down to the time of such purchase no objection was made by the plaintiff; that the defendant made use of the water reasonably and properly according to the customary methods of manufacturing paper, using only such chemicals and other substances, and employing only such methods and processes as were fit to be used about the manufacture of paper, and conducted the business of manufacturing paper in the said mill, in all respects, in a reasonable and proper manner. Held, that this plea was bad, in that having averred that there was a right appurtenant to the mill to use the water in the manufacture of paper, and that the plaintiff had acquiesced in this right up to the time of the purchase of the mill by the defendant, it failed to aver a user, and acquiescence by the plaintiff for a period twenty years. Gladfelter v. Walker, 323.

4. A plea, which averred that other mill owners than the defendant had acquired a prescriptive right to foul the stream which flowed through the plaintiff's farm, was also bad, for such prescriptive right acquired by others was no bar to the plaintiff's right to recover as against the defendant for fouling the stream. Ib.

5. Where the declaration expressly charges the defendant with fouling the stream which flowed through the plaintiff's farm by throwing into it certain poisonous substances, a plea that there was annexed to the defendant's mill a prescriptive right to use the water for all reasonable purposes in the manufacture of paper, and that the defend