Vol. III.]

HIGHWAY.

- DUTY OF RAILROAD TO GIVE SIGNAL, ETC. The plaintiff was on his way to his place of employment, along Ninth Street, in the city of Washington. The defendant's train of freight cars was lying along Maryland Avenue, between 7th and 8th streets, nearly to 10th, and obstructing the cross-walk at its intersection with 9th. The train had an engine attached at the west end. The plaintiff attempted to pass over said train between two of the cars, and while so crossing, the train was started without any signal or warning, throwing the plaintiff so that his foot was caught between the bull noses and crushed. The avenue was impassable except at the street crossings, and the plaintiff could not have passed to the opposite side, without going out of his way a distance of two squares. The court of first instance instructed the jury as follows: "If the jury find from the testimony that the train of the defendant was lying across Ninth Street; that the plaintiff got on the train when it was standing still; that the injury to the plaintiff was occasioned by suddenly starting the train either backward or forward; that there was no notice given of the movement of the train, either by ringing a bell, blowing a whistle, or otherwise, and that theretofore the defendant had been in the habit of obstructing Ninth Street; that footmen had theretofore been in the habit of passing under and over the cars in the presence of the employees of the defendant having charge of the train, with their acquiescence, and without their protest. If you find these conclusions concurring, the defendant is liable; these facts concurring make it the duty of the defendant to give notice of some kind before moving." Held, that there was no error. Grant v. B. & P. R. R. Co., W. L. R., Jan. 26, 1876.

MADE.

REMOVAL OF CAUSES.

1. APPLICATION REMOVES CAUSE IPSO FACTO.- WHEN APPLICATION SHOULD BE The rule is said to be well settled that the application to remove a cause is, if sufficient, effectual to remove the cause, however it may be disposed of by the state court. Where the application to remove a cause was made during the term of the federal court which preceded the passage of the Act of March 3, 1875, and before the actual trial of the cause, but at the date subsequent to the passage of the act, it was held to be in time. The statute should be construed to refer to a term occurring after the passage of the Act of 1875. See Andrews's Ex'rs v. Garrett, 2 Cent. L. J. 797. Merchants', &c. Bank v. Wheeler, C. C. U. S. So. D. N. Y., Cent. L. J., Jan. 7, 1876.

2. REMOVAL AFTER ISSUE Joined. PLEADING. Where a suit not in equity or in admiralty is removed after issue joined, no other or different pleadings are necessary than those filed in the state court. Ib.

3. WHEN REMOVAL MAY BE MADE. A suit was pending in the supreme court of California on appeal from the judgment of the district court at the date of the passage of the Act of Congress of March 3, 1875, relating to the jurisdiction of the United States circuit courts, in which the judgment was reversed and the cause subsequently remanded to the district court for new trial. At the first term of the district court at which a trial could be had after the filing of the remittitur and before any other trial, the suit was removed to the United States circuit court, on application of the plaintiff. Held, that the case is within the provisions of sections 2 and 3 of said act of Congress, and that it was properly removed. Hoadley v. City of San Francisco, C. C. U. S. Cal., Chicago L. N., Jan. 15, 1876.

4. IBID. A suit commenced and actually tried in a state court before the passage of the Act of Congress of March 3, 1875, but in which a new trial had been granted, and which was pending after the passage of the said act, may be removed from such state court to the circuit court of the United States. The condition of the suit, or the time it has been pending, makes no difference in the jurisdiction. Andrews v. Garrett, C. C. U. S. So. D. Ohio, Chicago L. N., Jan. 8, 1875.

TRUSTS.

STATEMENT BY A THAT HE HELD PROPERTY FOR B NOT SUFFICIENT TO CREATE TRUST. Where B declared that he was holding certain stock for the benefit of his brother, and made an affidavit to that effect for the purpose of being relieved from a tax, which otherwise he would have been obliged to pay for the stock; when, in point of fact, he had purchased and paid for the stock himself, and it stood in the books of the company in his name, and he retained possession of the certificate therefor until his death, his bad faith in this respect is not sufficient to create a trust or claim of title on the part of such brother. He who sets up a claim to property of any kind must estab

Vol. III.]

BULLOCK v. Wallingford.

[No. 3.

lish his own right. If he has no right in himself, it matters not what declaration may have been made to others by the party to whom it does in fact belong, especially where there has been no delivery of possession. Brick v. Brick, S. C. D. C., W. L. R., Jan. 12,

A certificate from the United States Commissioner of Patents that diligent search has been made, and that it does not appear that a certain patent has been issued, is not competent evidence of that fact.

ASSUMPSIT, to recover the contents of a promissory note, made by the defendant, payable to John C. Thompson, or order, on the first day of December, 1873, and by said Thompson indorsed to the plaintiff. Tried before Stanley, J., and a jury. The defence set up was, that the note was without consideration, and obtained by Thompson by fraud; that it was not purchased by the plaintiff in good faith, nor indorsed until after it became due. The defendant offered evidence tending to show that the consideration of the note was the sale by Thompson to him of the right to sell in various towns in this state an improvement in mowing-machine grinders, alleged to have been patented by one L. P. Thompson; and that said John C. Thompson falsely and fraudulently represented to him that a patent had been obtained upon this invention, and that he had seen the letters-patent. As evidence tending to show that the note was without consideration, and that Thompson's representations were false and fraudulent, the defendant offered a certificate purporting to be issued from the Patent-office of the United States, of which the following is a copy :

"THE U. S. PATENT-OFFICE.

"To all persons to whom these presents shall come:

"This is to certify that a diligent search has been made, and it does not appear that a patent has been issued to L. P. Thompson for improvement in mowing-machine grinders, from January 1, to present date.

"In testimony whereof, I, J. M. Thacher, acting commissioner of patents, have caused the seal of the Patent-office to be hereunto affixed, this third day of December, [L. S.] in the year of our Lord one thousand eight hundred and seventy-three, and of the Independence of the United States the ninety-eighth.

“J. M. THACHER, Acting Commissioner."

The plaintiff objected to the admission of this evidence; but the objection was overruled, and the paper admitted in evidence, to which the plaintiff excepted. The jury having returned a verdict for the defendant, the plaintiff moved that the same be set aside and for a new trial; and it was ordered, that the questions of law arising on the foregoing case be transferred to this court for determination.

Wheeler & Faulkner, for the plaintiff.

Wadleigh & Wallace, for the defendant.

LADD, J. I think the paper signed by J. M. Thacher, acting commissioner of patents, was clearly inadmissible. It is not and does not purport to be a copy of any record or paper existing in the Patent-office, but is simply the statement of a fact within the knowledge of the gentleman who signed it. The plaintiff was entitled to have that fact proved in the usual way, and could not legally be deprived of the privilege of cross-examination by the form in which the statement was put. I think the verdict must be set aside.

CUSHING, C. J. By Rev. Stats. U. S. p. 166, sec. 882, it is provided, that "Copies of any books, records, papers, or documents, in any of the executive departments, authen

Vol. III.]

THE PHILADELPHIA HYDRAULIC WORKS v. SCHENCK.

[No. 3.

ticated under the seals of such departments respectively, shall be admitted in evidence equally with the originals thereof."

In

It is clear that this section does not make the certificate in question evidence, since it relates only to copies, and I know of no other statute which could apply to the case. the absence of statutory regulations, this certificate must be governed by the ordinary rules of evidence. It is not under oath, neither has it any of the other requisites to make it admissible as a deposition.

SMITH, J. The certificate should have been rejected. It was the conclusion drawn by the certifying officer from the examination of the records in his office, and possibly he may have been mistaken. Hanson v. So. Scituate, 115 Mass. 336. The statute authorizes him to certify to the correctness of copies of records in his office. What effect shall be given to such copies is a question for the court when put in evidence. When a party desires to prove the negative fact that there is no record, he must do so in the usual way, - by the deposition of the proper officer, or by producing him in court so that he may be sworn and cross-examined as to the thoroughness of the search made. If the summoning of such officer to testify in relation to the public records at the call of a suitor shall be found impracticable by reason of interfering with his public duties, the remedy must be found in further legislation. The court cannot disregard the plain rules of evidence to meet the difficulty. Verdict set aside and a new trial granted.

SUPREME COURT OF PENNSYLVANIA.

(From the Legal Gazette, Feb. 18, 1876.)

THE PHILADELPHIA HYDRAULIC WORKS v. SCHENCK.

Where A contracted to erect machinery according to written specifications, and subsequently abandoned the work, and B contracted to "complete" the work according to the specifications, B is not responsible for the sufficiency of the plan, nor for the work done by A. It was error to instruct the jury that B stood in the shoes of A.

ERROR to the district court for the city and county of Philadelphia.

SHARSWOOD, J. Le Van & Co. having agreed with the defendant to erect for him certain machinery according to a written specification, abandoned the work before it was finished. The defendant then made a contract with the plaintiffs" to complete the work as per contract" between W. B. Le Van & Co. and him. The plaintiffs went on and completed the work, and initiated their action in the court below to recover the amount which the defendant agreed to pay them. No question seems to have arisen on the trial as to the work done by the plaintiffs, but objection was made to their recovery on the ground that the work done by Le Van & Co. was defective, and prevented the proper operation of the machinery. The learned judge instructed the jury that the plaintiffs had placed themselves in the shoes of the original contractors, and that any defence which would have availed the defendant against them would be equally good as against the plaintiffs.

We think ttha in this there was error. The defendant took the unfinished work from the hands of the first contractors, and made a new agreement with the plaintiffs to finish it according to the specifications contained in the first contract. The first contract is referred to in the second, only for this purpose. Had the agreement of the plaintiffs been with Le Van & Co. to go on and complete the work, then indeed they would have stood in their shoes, and could have recovered nothing, except what Le Van would have been entitled to recover. Here, however, there was an entirely new contract, though the terms and specifications of the old contract were referred to, and incorporated in it as to the work to be done by the plaintiffs. There is not a word in the letter of the defendant' accepted by the plaintiffs, which proves the contract, which can justify the conclusion that the plaintiffs had agreed to become responsible, either for the sufficiency of the plan or of the work done by their predecessors. They were to complete the work, that is, do what remained to be done, and if they did their part in a skilful and workmanlike manner, why should they be answerable, either for the sufficiency of the plan, or

Vol. III.]

NOTES OF NEW BOOKS.

[No. 3.

for the work done by others? It is true, that what they were to receive was not to exceed the amount which was due to Le Van & Co. had they gone on and finished the work, — and it is said in defendant's letter, that if the amount of plaintiffs' bill should exceed the sum thus due, Le Van & Co. agreed to answer the excess. We may assume that Le Van & Co. were parties to the arrangement, and did agree as stated in the letter. We can see nothing in this like an assignment by Le Van & Co. of the contract to the plaintiffs, and agreement by them to stand in their shoes. To make the builder of a house responsible for defects in the plan of the architect, would not be any worse, and unsupported by reason and authority, than to visit upon a man who has agreed to complete a work according to specifications liability for the faults of others who have gone before Judgment reversed, and venire facias de novo awarded.

him.

NOTES OF NEW BOOKS.

MESSRS. DIOSSY & Co. of New York announce the following: :

A KEY TO EQUITY JURISPRUDENCE, BASED ON STORY. An Analysis containing over 800 questions designed for Students and Law Schools. By R. S. Guernsey.

A TREATISE ON MANUFACTURING AND MINING CORPORATIONS. With Forms and By-laws. By J. F. Baker.

A NEW EDITION of Bigelow's Law of Estoppel is about to be issued by Messrs. Little, Brown & Co.

MESSRS. BANKS & BROS. of New York, have ready Addison on Torts. The work is in two volumes of over 700 pages each. Price $15.

Judge Miller's fourth volume, in continuation of Curtis's Decisions, has been completed. Price $5. W. H. & O. H. Morrison, Washington.

Of the merit of this series there can be no doubt. The volumes bear evidences of the profound analytical power of their compiler. The profession has expected much and has not been disappointed.

THE MESSRS. MORRISON have also recently published a Collection of Patent, Trademark, and Copyright Cases decided in the Supreme Court, covering the period from the 1st of Black to the 20th of Wallace, with a Table of Cases cited, affirmed, and reversed. The work is edited by C. I. Whitman, Esq., and edited as such collections should be. Mr. Whitman has given the original head-notes, a course that is the only safe one where the original reporting is even fairly done. To "rewrite" a syllabus is often to misconstrue an opinion. Every syllabus is full of danger if it be really a syllabus. But in any event to have given the profession anything short of the results of Mr. Wallace's labors would have been unfortunate.

The Table of Cases affirmed and reversed is meritorious, although it contains some errors. The inevitable pad of statute law concludes the volume. No patent lawyer will hesitate to accept the book as a very satisfactory one, and as a timely addition to his never complete list of hand-books.

THE AMERICAN LAW TIMES.

NEW SERIES. APRIL, 1876. VOL. III., No. 4.

NOTES OF OPINIONS, DECISIONS, AND ORDERS

OF THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1875.

Monday, January 24, 1876. No. 51. The Mississippi & Missouri Railroad Co., appellants, v. Charles T. Cromwell. Appeal from the Circuit Court of the United States for the District of Iowa. Mr. Justice Bradley delivered the opinion of the court, reversing the decree of the said court, with costs, and remanding the cause, with directions to dismiss the bill of complaint. This bill was filed to compel the railroad company to transfer to the complainant on its books and to issue to him a certificate for certain shares of stock which he claimed to

have purchased at a sale on execution. The court hold that as the stock of the company had become worthless, and had gone with its franchises and the small percentage the stockholders had expected to realize, and consequently it would have been nothing but an empty name, kept afloat only for speculative purposes, the proceeding is not such as should recommend it to a court of equity. The parties to such a transaction ought at least to be left to their remedies at law. A court of equity, it is said, should have no sympathy with any such contrivances to gain a contingent or speculative advantage if such was sought.

No. 67. Caleb Ives and George B. Green, plaintiffs in error, v. Milton A. Hamilton, administrator, &c. In error to the Circuit Court of the United States for the Eastern District of Michigan. Mr. Justice Bradley delivered the opinion of the court, affirming the judgment of the said court, with costs and interest. This was the affirmance of a judgment sustaining a patent to Hamilton for an improvement in saw-mills, and against the plaintiffs in error for an infringement. It is held that the improvement was novel and the proper subject of a patent, and that the specifications were sufficient.

No. 74. Ann Kittredge, widow, &c., plaintiff in error, v. Olivia C. Race and her husband. In error to the Circuit Court of the United States for the District of Louisiana. Mr. Justice Bradley delivered the opinion of the court, affirming the judgment of the said court, with costs. This was an action by Mrs. Race and her husband to recover on two promissory notes given to Dr. Kittredge, deceased, former husband of the administratrix and father of the plaintiff, in settlement of the latter's share of her mother's estate, the first wife of the doctor. The judgment was against the administratrix as such, and also as the tutrix of the minor children, against the objection that the suit could not be maintained against her in those capacities, and if it could the claim was barred by limitation. The judgment is here affirmed, the court holding that the first objection is one of form rather than of substance, and remarking that in common law actions it is not usual to render two distinct judgments against executors in their personal and official capacities. The community of interests is liable, and the judgment is correct. The objection as to the limitation, it is said, is not presented in the record, and it is not considered.

No. 73. John S. Wills et al., plaintiffs in error, v. Horace B. Claflin et al. the Circuit Court of the United States for the Northern District of Illinois. Davis delivered the opinion of the court, affirming the judgment of the said 4

VOL. III.

In error to Mr. Justice court, with