DIGEST OF Cases. [No. 8. Vol. III.] ment against J. Bondurant, et al. Thereupon Watson sued out from the state court issuing the execution a preliminary injunction. Before answering to the merits of the suit for an injunction, the executrix, alleging herself to be a citizen of Mississippi (where the testator had resided), applied for a removal of the case into the circuit court of the United States. The state court denied her right and refused to make the order of removal. The executrix, disregarding the order of the state court, filed a transcript of the proceedings in the suit for an injunction in the circuit court of the United States, and served a rule on Watson's counsel to show cause why the injunction should not be dissolved with damages. Held, that the case was covered by the Act of March 3, 1875, and that it was properly removed. Watson v. Bondurant, C. C. U. S. La., Cent. L. J., June 23, 1876. 2. EFFECT OF FILING PETITION.- - JURISDICTION. AMENDMENT. — In an action commenced in a circuit court of the State of Missouri, the defendant in due time filed its petition and bond in due form, asking for the removal of the cause from the state to a federal court, on the ground of prejudice and local influence. Pending the application for a change of forum, the plaintiff was permitted to amend his petition by reducing his claim to a sum less than five hundred dollars, and therefore the defendant's application for change of forum was refused. The parties went to trial and plaintiff had judgment. Held, (1.) That the circuit court erred in permitting plaintiff to amend his petition after an application for a removal of the cause had been regularly made. (2.) That after the making of such application, the circuit court had no jurisdiction to proceed further in the cause. (3.) That the defendant did not waive the question of jurisdiction by participating in the subsequent trial. Stanley v. Chicago, Rock Island, & Pac. R. R. Co., S. C. Mo., Cent. L. J., July 7, 1876. RESPONDEAT SUPERIOR. By agree INJURY CAUSED BY NEGLIGENCE OF SUB-CONTRACTOR. ment between the Pittsburg Gas Co. and Wray, the latter undertook to dig a trench, in which to lay certain gas pipes of said company. The work was to be done under the supervision of the company's engineer. It was also part of the contract, that should Wray, at any time, neglect or refuse to supply a sufficiency of material or workmen to properly execute the work, the company might furnish the same, and charge Wray. By a sub-contract similar in its terms, except that if the work was not done to the satisfaction of the gas company's engineer, the contract was to be forfeited on two days' notice, Wray passed the job to Davis. Each of the contracts contained a covenant that the contractor should be responsible for all losses that might happen by reason of the carrying on of the work arising through negligence, mistake, or otherwise. In execution of his contract with Wray, Davis proceeded to dig the trench along Second Avenue, into which, on the night of October 9, 1873, the plaintiff fell and broke his leg, whereupon he sued Wray. Held, that the doctrine of respondeat superior had no application and that defendant was not liable. Wray v. Evans, S. C. Pa., Leg. Int., July 7, 1876. Vol. III.] DIGEST OF CASES. [No. 8. TAXATION. WHEN TAXES BECOME A LIEN ON REAL ESTATE. - Defendant on the 27th of October, 1868, conveyed lands to plaintiff by deed, containing a covenant that such lands "are free and clear from all incumbrances whatsoever." The assessors of the town in the previous June had assessed the lands to the occupant, and had in August completed their assessment roll and delivered it to the supervisor of the town. The board of supervisors of the county at a meeting, commencing November 9th, extended the tax upon the roll pursuant to law and delivered the roll with their warrant to the town-collector to whom plaintiff paid the tax assessed against such lands. Held (CHURCH, C. J., dissenting), that the assessment was not a lien at the time of making the conveyance, and that there was no breach in the covenant against incumbrances. Barlow v. St. Nicholas National Bank, Ct. App. N. Y., Albany L. J., July 1, 1876. TRUST DEED. TRUSTEE NOT ENTITLED TO RENTS AND PROFITS. Where a trust deed makes no stipulation in regard to the rents and profits, and contains no waiver of the right of redemption in the event of sale by the trustee, and the maker remains in possession; the maker not the trustee is entitled to the rents and profits until foreclosure. Easley v. Tarkington, S. C. Tenn., Chicago L. N., June 24, 1876. TRUSTS. • A TRUST IS AN ACTIVE TRUST where by grantor's deed the corpus of her estate is vested in the trustees who were to take possession, receive, hold, invest in their own names, and control the estate, to enable them to carry out the trusts declared, the chief one of which is, to hold the estate for her natural life, and to pay over to her, whether covert or sole, the net interest, income and dividends thereof, and in such way that the estate should not be answerable for, or liable to, any charge, incumbrance, assignment, or anticipation by her, whether sole or covert, and that the trust should continue, whether she is sole or covert, and should not fail at the death of any future husband, with remainder to the use of her living child or children, as tenants in common. Ash v. Bowen, S. C. Pa., Leg. Int., June 2, 1876. WILL. DESTRUCTION OF CODICIL. ANIMO REVOCANDI. The testator made a will, and afterwards married. Immediately after the marriage he executed a codicil to the will, making provisions for his wife, and in all other respects reviving, ratifying and confirming the will. Upon his wife's death he destroyed the codicil, being under the belief that the will would still remain operative. The court held that the codicil was not destroyed animo revocandi, and granted probate of both will and codicil. James v. Shrimpton, Eng. Pr. Ct., Chicago L. N., July 1, 1876. See EVIDENCE, 1; INSURANCE, 3. It is error for a judge to say to a jury that if he was in the jury box he would find certain facts, even if he afterwards qualifies the expression by charging that his views may be disregarded. PAXSON, J.-The right of a judge to express an opinion upon the evidence, has been recognized in a number of cases. In Ditman v. Commonwealth, 11 Wright, 335, it was said by Thompson, J.: "It is not error upon the part of the court to express an opinion merely upon the facts of the case, if they are properly referred to the jury. It is often very proper to do so. It aids the jury and subserves the ends of justice. Care must always be taken, however, not to infringe the province of the jury, so as to relieve them from the full responsibility of pronouncing an intelligent judgment upon them for themselves." The judge has a right to aid the jury by an expression of his opinion upon the effect of the evidence, but not so as to mislead them, or control their deliberations; Mahoney v. Evans, 2 P. F. S. 80; and it must be done in such a manner as not to be one-sided or unfair; Ralston v. Groff, 5 P. F. S. 276. The learned judge who tried this case in the court below went far beyond any recognized rule in his discussion of the evidence. It may very well be that he regarded it as a case which, to some extent, justified him in influencing the jury. But even if such were his view, he went too far. There can hardly be a doubt but that his charge controlled the jury. It is true that near its close he told them that they were not bound by his views, and might disregard them, yet almost in the same breath he informed them that if he were in the jury box he would find against the plaintiff. This, taken into consideration with the whole tone and tenor of the charge, bore so heavily upon the plaintiff as to leave him scarce a chance, this way practically controlling the verdict. When there is sufficient evidence upon a given point to go to the jury, it is the duty of the judge to submit it calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty by the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him; deductions and theories not warranted by the evidence should be studiously avoided; they can hardly fail to mislead the jury and work injustice. Tested by the principles I have indicated there was error in the portions of the charge referred to in the first, fourth, fifth, sixth, seventh, eighth, ninth and tenth assignments. We have no doubt the learned Vol. III.] NOTES OF NEW BOOKS. [No. 8. judge intended to do exact justice, but he unwittingly stepped over the line. So far from the charge being a calm, impartial presentation of the evidence, some portions of it, at least, went far beyond the evidence; deductions and theories are drawn, which, if not wholly unsupported, should have been left for the jury. I have looked in vain through the testimony for anything to justify such expressions as these: "Again, we may naturally assume that he knew well of these transactions with Maxwell, and was a helper with him. . . . . You may assume he made considerable efforts to induce them to subscribe to 2,250 shares. . . . . We may naturally suspect he was paid in oil stock, and would have taken his chances, whether this stock would be worth $7 per share." And again: "Burke admits as to the guarantee part of it; this paper is a sham." Mr. Burke was not examined, and the record utterly fails to disclose any such admission. It is needless to particularize further, similar errors run all through the charge. Judgment reversed. NOTES OF NEW BOOKS. THE SOUTHERN LAW REVIEW, July, 1876, St. Louis : G. I. Jones & Co. The last issue of this publication merits most cordial recognition. It is surprisingly good from first to last, and if it does not prove too brilliant will place the work at the head of our legal periodicals. The most noteworthy articles are the following: The removal of causes from State to Federal Courts, Hon. John F. Dillon; Stock Brokerage, Francis Wharton, LL. D; Nolle Prosequi, Joel Prentiss Bishop; Incidental Injuries from the exercise of lawful rights, Thomas M. Cooley, LL. D. WOOD'S REPORTS, VOL. II. (Reports of Cases determined in the Circuit Courts of the fifth circuit. By Wm. B. Woods, Circuit Judge) will be issued by Messrs. Callaghan & Co. during the coming fall or winter. This series promises to be one of exceptional value and interest. MESSRS. COCKROFT & Co. of Chicago, have ready a new edition of Dicey's Parties to Actions, with American notes. MESSRS. SUMNER WHITNEY & Co. announce Wrongs and Rights of a Traveller, by R. V. Rogers, and The Philosophy of Law, by Herbert Broom. THE AMERICAN LAW TIMES. NEW SERIES. SEPTEMBER, 1876.- VOL. III., No. 9. DIGEST OF CASES PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERIODICALS. ABBREVIATIONS. Albany L. J. Albany Law Journal, Albany, N. Y., WEED, PARSONS & Co. Am. Law Reg.- American Law Register, Philadelphia, Pa., D. B. CANFIELD & Co. Ins. L. J.-Insurance Law Journal, New York, C. C. HINE, 176 Broadway. - Leg. Chron. Legal Chronicle, Pottsville, Pa., SOL. FOSTER, JR. Leg. Int.-Legal Intelligencer, Philadelphia, Pa., J. M. POWER Wallace. ADMINISTRATOR. See ESTOPPEL. ADMIRALTY. SALVAGE. FIREMEN EMPLOYED AND PAID UNDER A CITY ORDINANCE are not entitled to salvage for vessels saved while lying at the wharves of the city by which they are employed. Davey v. The Mary Frost, D. C. U. S. E. D. Texas, Cent. L. J., June 30, 1876. ARBITRATION. The de AGREEMENT TO ARBITRATE. CONDITION PRECEDENT. fendant covenanted with the plaintiffs, his landlords, to keep so much ground-game only as would do no injury to the landlords, and in case he should keep such a number as to do injury, to pay a fair and reasonable compensation, the amount of such compensation to be referred to arbitration. Held, reversing the judgment of the court of exchequer, that ref VOL. III. 9 |