Argued at June Term, 1881, before Beasley, Chief Justice, and Justices Scudder, Knapp and Reed.

'W. B. Guild, Jr., for plaintiff in error. S. Kalisch, for defendant.

BEASLEY, C. J. The single exception taken to this record is, that the wrongful act, alleged to have been done by the defendant, does not appear to have been so closely connected with the damages resulting to the plaintiff as to constitute an actionable tort. The contention was that the wrong was done to Van Riper; that it was his horse whose shoe was loosened and whose foot was pricked, and that the immediate injury and damage were to him, and that consequently the damages of the plaintiff were too remote to be made the basis of a legal claim.

But this contention involves a misapplication of the legal principle and cannot be sustained. The illegal act of the defendant had a close causal connection with the hurt done to the plaintiff, and such hurt was the natural and almost direct product of such cause. Such harmful result was sure to follow, in the usual course of things, from the specified malfeasance. The defendant is conclusively chargeable with the knowledge of this injurious effect of his conduct, for such effect was almost certain to follow from such conduct, without the occurrence of any extraordinary event or the help of any extraneous cause. The act had a twofold injurious aspect: it was calculated to injure both Van Riper and the plaintiff; and as each was directly damnified, I can perceive no reason why each could not repair his losses by an action.

The facts here involved do not, with respect to their legal significance, resemble the juncture that gave rise to the doctrine established in the case of Vicars v. Wilcocks, 8 East, 1. In that instance the action was for a slander that required the existence of special damage as one of its necessary constituents, and it was decided that such constituent was not shown by proof of the fact that as a result of the defamation the plaintiff had been discharged from his service by his employer before the end of the term for which he had contracted. The ground of this decision was that this discharge of the plaintiff from his employment was illegal and was the act of a third party for which the defendant was not responsible, and that as the wrong of the slander became detrimental only by reason of an independent wrongful act of another, the injury was to be imputed to the last wrong and not to that which was farther distant one remove. In his elucidation of the law in this case, Lord Ellenborough says, alluding to the discharge of the plaintiff from his employment, that it "was a mere wrongful act of the master for which the defendant was no more answerable than if, in consequence of the words, other persons had afterward assembled and seized the plaintiff and thrown him into a horse-pond by way of punishment for his supposed transgression." The class of cases to which this authority belongs rests upon the principle that a man is responsible only for the natural consequences of his own misdeeds, and that he is not answerable for detriments that ensue from the misdeeds of others. But this doctrine, it is to be remembered, does not exclude responsibility when the damage results to the party injured through the intervention of the legal and innocent acts of third parties, for in such instances damage is regarded as occasioned by the wrongful cause, and not at all by those which are not wrongful. Where the effect was reasonably to have been foreseen, and where, in the usual course of events, it was likely to follow from the cause, the person putting such cause in motion wil! be responsible, even though there may have been many concurring events or agencies between such cause and its consequences. This principle is stated and is illustrated by

a reference to a multitude of decisions in Cooley on Torts, 70 et seq.

The case of McDonald v. Snelling, 14 Allen, 290, is pertinent to this point, and also to the circumstance that a wrongful act which is primarily detrimental to one person may, under some conditions, be actionable by a third person, to whom more remotely damage has been occasioned. In the case cited it appeared that the defendant's servant negligently drove his carriage against the carriage of a second person, and by that means caused the horse attached to such second carriage to run away. The plaintiff was injured by this latter runaway horse in his flight, and it was decided that the defendant was liable for the damage thus done to the plaintiff. It will be noted that here the primary injury by the defendant's negligence was done to the owner of the carriage first struck whose horse was terrified and ran away; and that the injury to the plaintiff was removed one degree further from such wrongful cause, being occasioned by the horse thus put to flight; nevertheless such latter damage was held to be, in a legal point of view, proximate, as it was in the usual course of things the probable and natural result from the negligence of the defendant. The rule of decision is stated in these terms: "Where a right or duty is created wholly by contract, it can only be enforced between the contracting parties; but where the defendant has violated a duty imposed upon him by the common law, it seems just and reasonable that he should be held liable to every person injured whose injury is the natural and probable consequence of the misconduct. In our opinion this is the well-established and ancient doctrine of the common law, and such a liability extends to consequential injuries by whomsoever sustained, so long as they are of a character likely to follow and which might reasonably have been anticipated as the natural and probable result under ordinary circumstances of the wrongful act."

This same rule of law is sanctioned and enforced in Rigby v. Hewitt, 5 Exch. 242, Chief Baron Pollock saying: "I am however disposed not quite to acquiesce to the full extent in the proposition that a person is responsible for all the possible consequences of his negligence. I wish to guard against laying down the proposition so universally; but of this I am quite clear, that every person who does a wrong is at least responsible for all the mischievous consequences that may reasonably be expected to result under ordinary circumstances from such misconduct." Judge Parsons expresses the rule almost in these same terms. 2 Parsons on Cont., 456.

In this same line there are many other illustrative cases among which should be specially noted the following: Dixon v. Fawcus, 30 L. J., Q. B. 137; Tarleton v. McGawley, Peake, 270; Bell v. Midland Railway Co., 10 C. B. (N. S.) 307; Keeble v. Hickeringill, 11 East, 574, n.

The principles thus propounded must have a controlling effect in the decision of the question now before this court, as they decisively show that the damage of which the plaintiff complained was not, in a legal sense, remote from the wrongful act. What in point of substance was done by the defendant was this: he defamed, by the medium of a fraudulent device, the plaintiff in his trade, and by means of which defamation the latter sustained special detriment. If this defamation had been accomplished by words spoken or written, or by signs or pictures, it is plain the wrong could have been remedied in the usual form by an action on the case for the slander; and plainly no reason exists why the law should not afford a similar redress when the same injury has been inflicted by disreputable craft. It is admitted upon the record that the plaintiff has sustained a loss by the fraudulent misconduct of the defendant; that such loss was not

only likely, in the natural order of events, to proceed from such misconduct, but that it was the design of the defendant to produce such result by his act. Under such circumstances it would be strange indeed if the party thus wronged could not obtain indemnification by an appeal to the judicial tribunals.

NEW YORK COURT OF APPEALS ABSTRACT.

ARREST WHERE SHERIFF RELEASES ON BAIL HE CANNOT RE-ARREST UNTIL SURETIES FAIL TO JUSTIFY AFTER NOTICE.- When a sheriff makes an arrest in a civil action, if defendant offers sufficient bail he must take it and discharge him. It is not not discretionary with him whether or not he will take bail; he is bound to take, and if he refuses, acts oppressively, or declines to accept reasonable bail, he can be held responsible for his misconduct. As the bail is in the first instance for his protection he must see to it that it is sufficient. Where he has discharged a prisoner on receiving bail, and plaintiff (under § 192 of the Old Code) gives notice that he does not accept bail, the sheriff may, by notice, require the bail to justify, and if the bail fail to justify the sheriff becomes liable as bail, but until such failure to justify he cannot re-arrest the defendant. A sheriff in an action in which an order of arrest was granted arrested S. S. immediately gave bail in the form required by the practice with two sureties. Within the proper time notice of the non-acceptance of the bail was served on the sheriff by the attorney for plaintiff, and the sheriff transmitted such notice to the attorneys for S. Thereafter these attorneys moved to vacate the order of arrest, and stipulations were made between them and plaintiff's attorney, consenting that S.'should have five days after the decision of the motion to vacate the order of arrest within which to serve notice of justification of the bail. The motion does not appear to have been decided. About three months afterward the sheriff notified the attorneys of S. that he would expect the undertaking upon the arrest to be approved at once, either by the judge on justification or by the attorney for plaintiff. The bail not being approved for several months, the sheriff issued an order remanding S. to jail for non-justification and directing certain persons to execute the remand. Under this instrument S. was re-arrested and imprisoned in the county jail. In an action by S. against the sheriff the deputy executing the warrant and the warden of the jail for false imprisonment, held, that S. was entitled to recover. Judgment affirmed. Arteaga v. Flack. Opinion by Earl, J.

[Decided March 21, 1882.]

MARRIAGE HABITATION IS NOT ILLICIT ALLEGED HUSBAND LEADING A DOUBLE LIFE-EVIDENCE-LETTER SIGNED BY ANOTHER THAN WRITER-TRANSACTION WITH DE

PRESUMPTION THAT CONTINUED CO

CEASED PERSON.—(1) B. lived two lives, in one locality he seemed to be a bachelor possessing wealth, at the head of a respectable business, occupying rooms with his sister and with others during much of the period, and not so frequently absent from home as to arouse suspicion or remark. In another locality in the same city he appeared under another name, living with plaintiff as his wife, introducing her as such, called uncle by her nephew and deemed father by her daughter, paying her bills and expenses, furnishing her the food and shelter he shared, and nursing her through severe and continud illness. The intercourse created no scandal but was reputed to be virtuous and respectable and that of husband and wife. No formal or ceremonial marriage was shown, nor any express agreement between the parties constituting such relation. The cohabitation continued for about 35 years. It was also shown that at the age of about 17 plaintiff had returned

to her home with an infant of tender years, no husband came with her or was known, there was no acknowledged father of the child and not a word of explanation seems to have been made. In an action by plaintiff against the heirs of B. for dower in his land, held, that the presumption was not that the intercourse between B. and plaintiff was illicit in its origin. The rule that a connection confessedly illicit in its origin or shown to have been such will be presumed to retain that character until some change is established is both logical and just. Brinkley v. Brinkley, 50 N. Y. 198. But facts often indicate a change in the character of the cohabitation, so that in spite of the illicit origin the subsequent intercourse is deemed matrimonial. Fenton v. Reed, 4 Johns. 52; Rose v. Clark, 8 Paige, 574; Starr v. Peck, 1 Hill, 270; Jackson v. Claw, 18 Johns. 346. See also, Caujolle v. Ferrie, 23 N. Y. 90. In the case at bar the facts fail to establish an illicit origin of the cohabitation as a separate and independent fact. (2) The fact that B. was reputed to be a bachelor and unmarried, held, inadmissible. This repute was not the product of the cohabitation and did not tend to explain it or solve its character,and could by no possibility bearjupon it. That B. lived a single life without presence or appearance of a wife or daughter at his rooms when boarding with his sister, was a fact properly admissible. See in relation to the subject, Clayton v. Wardell, 4 N. Y. 230; Commonwealth v. Stump, 53 Penn. St. 135; Vincent's Appeal, 50 id, 228; Lyle v. Ellwood, 19 Eq. C. 98. (3) A letter, the body of which was in the handwriting of B. and which was signed by the plaintiff as "Mrs. Mary B.," which congratulated her nephew upon his marriage and said: "We wish you much joy," and also “we expected a visit from you," held, admissible as tending to characterize the existing relation of B. and plaintiff and to indicate its connubial character. (4) A witness called for plaintiff, testified that B. once said to him that he was a married man once when he was a young man. On cross-examination he was asked if he did not ask B., in the presence of a party to this action, whether he was married, to which he replied "No, sir; I am a bachelor." A. was then called and permitted to testify to this conversation against the objection of the plaintiff. The court admitted the evidence to contradict W. Held, that A. was competent to testify, as it was not a transaction or conversation between her and B., she was merely a listener to one between him and W. See Cary v. White, 59 N. Y. 336; Hildebrandt v. Crawford, 65 id. 107. See also, Vantuyle v. Vantuyle, 57 Barb. 241; Platner v. Platner, 78 N. Y. 90. Judgment reversed. Badger.v. Badger. Opinion by Finch, J; Rapallo, Earl and Danforth, JJ., concur; Andrews, C. J., Tracy and Miller, JJ., concur in result.

[Decided April 11, 1882.]

WILL-CONSTRUCTION OF BREACH OF CONDITION - VALIDITY OF CONDITION IN RESTRAINT OF MAR

RIAGE. Testator in his will provided as follows: "I give, devise and bequeath to my daughter Mary the sum of $16,000, to be paid to her by my executors upon her attaining the age of 21 years or upon her marriage before she attains the age of 21 years, with the consent of her mother and my executors. And in the event of my daughter Mary marrying against the consent of my said executors and her said mother, then instead of the said sum of $16,000 she shall only receive from my said executors the sum of $5,000 in full for her share of my estate." The will further provided that the widow should have the tuition, custody and control of testator's children "as long as she remains unmarried and takes proper care of them," but in case of her death or marriage during the single life or nonage of any of his children, then that his executors should immediately take charge of his children and

place them under the care of some suitable person to be approved by both his executors. After the death of testator his widow remarried. Subsequently Mary, the daughter, being then about 18 years of age, married with the consent of the executors but without the consent of her mother. Held, that the marriage of Mary without the consent of her mother was a breach of the condition in the will and she was entitled only to the sum of $5,000. The remarriage of the mother did not take away the necessity of her consent. See Raeymish v. Martin, 3 Atk. 334; Long v. Ricketts, 2 Sim. & St. 179; Clark v. Parker, 19 Ves. 17. Held, also, that the condition in relation to marriage was not invalid as being in restraint of marriage. A condition prohibiting marriage before 21 without consent is by the common law valid and lawful. In this case there was no gift over in case of a breach of the condition, but the legacy was charged upon the realty. Held, that while the rule is that where there is no devise over or a direction that the legacy should fall into the residue, a breach of a condition subsequent annexed to a legacy in qualified restraint of marriage does not operate to divest the title of the legatee, the legacy cannot be enforced as a charge upon the real estate. See Harvey v. Aston, 1 Atk. 378; Wheeler v. Bingham, 3 id. 364; Lloyd v. Branton, 3 Mar. 118; Stackpole v. Beaumont, 3 Ves. Jr. 89; Marples v. Bainbridge, 1 Mab. 318; Scott v. Tyler, 2 Bro. Ch. 432; Cornell v. Lovett, 11 Cas. 100; Corn v. Stauffer, 10 Varr. 350. Judgment affirmed. Hogan v. Curtin. Opinion by Andrews, C. J. [Decided Feb. 28, 1882.]

UNITED STATES SUPREME COURT ABSTRACT.

APPEAL-CLAIM LITIGATED DETERMINES AMOUNT IN ISSUE.- - A fund liable for debts under an assignment was $6,354, the debts entitled to the benefit of this fund were $17,233, of which complainants in this suit represented $9,672. Held, that the amount of complainant's claim not being $5,000, this court, under the rule in Terry v. Hatch, 93 U. S. 44, had not jurisdiction to consider an appeal. Appeal from U. S. Circ. Ct., W. D., Tennessee, dismissed. Chatfield v. Boyle. Opinion by Waite, C. J. [Decided March 6, 1882.]

BANKRUPTCY-ATTACHMENT PROCEEDINGS IN STATE COURT WHEN ASSIGNOR APPEARS NOT REVIEWABLE IN SEPARATE ACTION IN FEDERAL COURT.-A. commenced a suit against his debtor B. inļa State law court, attaching real estate belonging to the debtor. Subsequently C. and other creditors commenced suits against B. in a Chancery court of the same State and attached the same property. More than a year thereafter B. filed a petition in bankruptcy and was adjudged a bankrupt. D., his assignee, appeared in the chancery suits, and a decree was made in that Chancery Court fixing the amount of indebtedness of B. to the respective complainants, adjudging that the attached property be sold, the proceeds paid to the attaching creditors, the surplus, if any, to the assignee in bankruptcy. Thereafter A. appeared in the Chancery Court, asserted his prior attachment in the law court to be a prior lien and asked a postponement of the sale of the property, to be made a party to the equity suits. The Chancery Court denied the postponement, but gave A. a right to file a petition in the equity cases to establish his priority if it existed to the fund. It did not appear that A. availed himself of this right. The sale took place, the property was sold to purchasers, and realized not enough to pay the claim of C. and the other creditors in the chancery suits. A. thereafter commenced an action in the Federal District Court sitting in bankruptcy in order

to secure an adjudication establishing his prior lien, and asked a decree declaring the sales by the Court of Chancery void, and directing a sale of the property under the order of the bankruptcy court, and the application of the proceeds first to the payment of his debt. Held, that the relief would not be granted. The decision of the Chancery Court concluded all parties before it and its action was not reviewable in another court. See Doe v. Childress, 21 Wall. 646; Eyster v. Gaff, 91 U. S. 522; Scott v. Kelley, 22 Wall. 57; Claflin v. Houseman, 93 U. S. 133; Jerome v. McCarter, 94 id. 737; McHenry v. Société Française, 95 id. 58. Decree of U. S. Circ. Ct., W. D., Tennessee, reversed. Davis v. Friedlander. Opinion by Harlan, J.

[Decided Jan. 9, 1882.]

EQUITABLE ACTION - WHAT SUFFICIENT BILL TO AUTHORIZE INJUNCTION.— A bill in equity by a municipal corporation averred that plaintiff is a municipa! corporation, its eastern boundary being the middle of the main channel of the Missippi river. It is the proprietor of the bed of that river within the city limits, and by its charter is authorized to construct all needful improvements in the harbor; to control, guide or deflect the current of the river; to erect, repair and regulate public wharves and docks; to regulate the stationing, anchoring and mooring of vessels and wharf-boats within the city; to charge and collect wharfage; and to set aside and lease portions of the improved wharf. It further set forth its purpose to establish a wharf by ordinance on certain premises, and that the defendant is engaged in the business of manufacturing and selling lumber, and is erecting a saw-mill upon the premises just described. For the purpose of hauling saw-logs from the river, the defendant is constructing a run-way, extending from the mill into the river, a distance of about one hundred feet eastwardly from its western bank. It is also driving piles in the bed of the river east of the eastern boundary of its premises, and east of the eastern line of the wharf, as established by the city. Portions of the wharf, established by the ordinance, to the north and to the south of defendant's premises, have been improved and completed by the city, and are used for landing boats and vessels engaged in navigation. After averring in substance these facts, the bill proceeds: "That the effect of driving the piles in the bed of the river and constructing the run-way as aforesaid, as proposed and intended by defendant, will be to divert the navigable water of the Mississippi river from its natural course and throw it east of its natural location, and from along the river bank north and south of said run-way and piling, and create, in front of and upon plaintiff's improved wharf as aforesaid, a deposit of mud and sediment, so that it will be impossible for boats and vessels engaged in navigating the Mississippi river to approach or land at the improved wharf north and south of defendant's premises." The bill then alleged that plaintiff had no adequate legal remedy, and asked that defendant be enjoined from driving piles and constructing its run-ways east of the western water's edge in front of its premises; that it be required to remove the piles already driven, and the run-way so far as constructed; and that the city have such other and further relief in the premises as may be proper. Held, that there were sufficient facts stated to make a prima facie case of the right of the city to bring the action and for granting the relief asked. Judgment of U. S. Circ. Ct., E. D., Missouri, reversed. City of St. Louis v. Knapp, Stout & Co. Opinion by Harlan, J. [Decided March 6, 1882.]

PATENT-OWNER OF PATENTED MACHINE MAY USE THROUGH EXTENDED TERM AND SELL.-The right of an owner of a patented machine, without any conditions attached to his ownership, to continue the use of

his machine during an extended term of the patent is well settled. Bloomer v. McQuewan, 14 How. 550; Chaffee v. Boston Belting Co., 22 id. 223; Mitchell v. Hawley, 16 Wall. 547; Adams v. Burke, 17 id. 455. He can also sell it to others to be used in the same way. Power to sell the machine and transfer the accompanying right of use is an incident of unrestricted ownership. Decree of U. S. Circ. Ct., S. D., Ohio, affirmed in part and reversed in part. Union Paper Bag Machine Co. v. Nixon. Opinion by Waite, C. J. [Decided March 6, 1882.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

MARITIME LAW - WHEN MORTGAGEE OF VESSEL MAY BE PARTY IN ADMIRALTY PROCEEDINGS INSURANCE COMPANY.-The mortgagee of a vessel sunk by a collision is entitled, for the protection of his mortgage interest, to come in on petition as co-libellant in a libel filed by the owners against the offending vessel. He may also represent in such petition the interest of insurers, by their consent, who have paid a part of the loss. Admiralty courts have jurisdiction in all cases of maritime torts connected with navigation, and this jurisdiction is exercised in favor of all persons who would have a remedy at common law for similar injuries by an action on the case. Philadelphia W. & B. Co. v. Philadelphia & H. DeG. Co., 23 How. 209, 215. A mortgagee at common law can maintain an action of trespass or of trespass upon the case, for any injury to his interest as mortgagee (Van Pelt v. McGraw, 4 N. Y. 110; Manning v. Monaghan, 23 id. 539); and whenever such an injury arises through a marine tort, he has therefore upon the general principles of admiralty jurisdiction, a right to relief in this court. "All persons interested in the cause of action may be joined as libellants; in a collision, for instance, the owners of the ship which is injured, the shippers of the goods, and all persons affected by the injury which is the subject of the suit." Dunlap, Adm. Pr. 85. And where insurance companies paid a portion of the loss to certain mortgagees, held that such mortgagees could prosecute in behalf of such companies. Fritz v. Bull, 12 How. 466; Monticello v. Mollison, 17 id. 152; Garrison v. Memphis Ins. Co., 19 id. 312; Hall v. Railroad Co, 13 Wall. 367; Campbell v. The Anchoria, 9 Fed. Rep. 840. U. S. Dist. Ct., S. D. New York, Jan. 28, 1882. The Grand Republic. Opinion by Brown, D. J.

MUNICIPAL CORPORATION-NOT LIABLE FOR DAMAGE FROM ACT AUTHORIZED BY LEGISLATURE.-Where a city by authority of an act of the Legislature of the State in which it is situated, builds a dike extending into a navigable river, owners of land on the opposite shore and in another State who suffer no loss in conse quence of the erection of the dike cannot maintain actions against the city for damages. See as bearing more or less upon the case Atlee v. Packet Co., 21 Wall. 389; Boom Co. v. Patterson, 98 U. S. 403; Pennsylvania v. Wheeling Bridge Co., 13 How. 518. See also Moffit v. Brewer, 1 Greene (Iowa) 348; Hosher v. Railroad Co., 60 Mo. 333; Railroad Co. v. Schurmeir, 7 Wall. 272; Benson v. Morrow, 61 Mo. 345; Crosby v. Hanover, 36 N. H. 404; Transportation Co. v. Chicago, 99 U. S. 635; Lee v. Pembroke Iron Co., 57 Me. 481; Cogswell v. Essex Mill Co., 6 Pick. 94; Thacher v. Dartmouth, etc., Co., 18 id. 501; Comins v. Bradbury, 1 Fairf. 447; Crittenden v. Wilson, 5 Cow. 165; Rippe v. Railroad Co., 28 Minn. 18; Dutton v. Strong, 1 Black, 23; Yates v. Milwaukee, 10 Wall. 497; Pumpelly v. Green Bay Co., 13 id. 166; Avery v. Fox, 1 Abb. (U. S.) 246; Hatch v. Railroad Co., 25 Vt. 49; Rowe v. *Appearing in 10 Federal Reporter.

Granite Bridge Co., 21 Pick. 344; Railroad Co. v. Stein, 75 Ill. 45; Meyer v. City of St. Louis, 8 Mo. App. 266. U. S. Circ. Ct. E. D. Missouri, Feb. 13, 1882. Rutz v. City of St. Louis. Opinion by Treat, D. J.

REMOVAL OF CAUSE JURISDICTION MUST BE CLEAR TO AUTHORIZE.-Under the removal act of 1875, where the jurisdiction of the Federal court is not clear, from the facts as presented, as to whether one of the defendants, a citizen of the same State as the plaintiff, is a necessary or only a formal party, and there is not a controversy wholly between citizens of different States and which can be fully determined as hetween them, the case will be remanded to the State court. See Riton v. Railroad Co., 16 Wall. 446; Blake v. MeKim, 103 U. S. 336. U. S. Circ. Ct. N. D. Illinois, Feb. 13, 1882. Evans v. Faxon. Opinion by Drummond, C. J.

REMOVAL OF CAUSE- UNDER ACT OF 1875-CONSTRUCTION OF § 2 OF ACT.-The United States courts have no original jurisdiction under the act of March 3, 1875 (18 St. 470), in suits between citizens of one State and citizens of the same and of another State. In the Removal cases, 100 U. S. 469, although the judges were not unanimous, a majority held that the statute gives jurisdiction only where the controversy is one exclusively between citizens of different States; where all the defendants reside in a State other than that in which plaintiffs reside; that where one or more reside in the same State as a plaintiff the court has no jurisdiction; that it is only where a controversy exists between citizens exclusively of different States that the court has jurisdiction. This construction of the second section must be taken as the construction of the first. The court has in two instances said so. In Barney v. Latham, 103 U. S. 205, the Supreme Court held that by the second clause of the second section of the act of 1875 Congress intended to import into that act the provision of the act of 1866 (14 St. 306), that where there are several defendants, some residing in the same State with the plaintiff and others in different States, and there are several distinct controversies in the suit, the parties to a distinct controversy residing in different States may ask for a removal. The court further held that the act of 1875 goes beyond that of 1866, and authorizes the transfer of the entire suit; so that, the parties being as above, and there being a severable controversy between citizens of the same State and between citizens of different States, the act of 1875 authorizes a removal of the entire suit. U.S. Circ. Ct. E. D. Pennsylvania, Oct. 17, 1881. Karns v. Atlantic & Ohio Railroad Co. Opinion by Butler, D. J., concurred in by McKernan, C. J.

REMOVAL OF CAUSE-UNDER ACT OF 1875 WHAT MUST APPEAR -UNDER ACT OF 1867.—(1) Under the act of 1875 it must affirmatively appear on the record, or by facts in the petition, that the case could not have been heard and tried at a term before the application was made. The construction of the statute is that if the case is in a condition where it can be tried in conformity with the law and the practice of the court, then an application after that term in which it is in that condition comes too late. (2) The statute of 1867 does not permit a citizen of the State in which a suit is brought to make application to remove on account of prejudice, but only the citizen of another State, where the suit is between such citizen and the citizen of the State in which the suit is brought. See Bible Society v. Grove, 101 U. S. 610; Babbitt v. Clark, 103 id. 606; Gurnee v. County of Brunswick, 1 Hughes, 270; Murray v. Holden, 1 McCrary, 341; S. C., 2 Fed. Rep. 740; Forrest v. Keeler, 17 Blatchf. 522; Kerting v. American Oleograph Co., 10 Fed. Rep. 17, also note to the case at bar, id. 307. U. S. Circ. Ct. N. D. Illi

ACTION WHEN TENDER OF PERFORMANCE BY PLAINTIFF NECESSARY.- Where a note is given for the price of land, under a contract that if the note is paid at maturity the payee will convey the land to the maker, the law requires a tender of a conveyance of the land in order to maintain a suit upon the note given for the price of the land. Iles v. Elledge, 18 Kans. 296. And this rule forbids, not only an action to recover a personal judgment on a note, but also one to foreclose the equitable lien of the note upon the land. Terrell v. Morrison. Opinion by Brewer, J.

EXEMPTION

PENSION MONEY.-Section 4747 United States Revised Statutes protects pension money only as it is due or becomes due and while in transit to the pensioner, and does not exempt money in the hands of the pensioner although the proceeds of a pension.

Where a pensioner receives pension drafts and sells the same to a bank in the usual course of business, which bank buys the drafts and credits the general account of the pensioner with the amount thereof, and from time to time thereafter a large portion of such account is checked out. Held, that the balance due on such general account is subject to garnishment. Cranz v. White. Opinion by Brewer, J.

NEGLIGENCE INJURY TO TRESPASSER.- (1) As a general legal proposition, where both parties are guilty of gross negligence, the plaintiff cannot recover damages sustained by the negligence of the defendant. (2) Where a railway company has constructed a trestle work or bridge over a street and creek, laid out on the plot of Wyandotte city, and at a place where a street has not been graded or improved, and the trestle work with a span of one hundred feet extends over a stream sixty feet wide with perpendicular banks from fifteen to twenty feet high, and is thirty feet above the water in the creek, and the water under the trestle work is from three to six feet deep, and there are no railings to the trestle work or bridge and no foot planks upon it, and the only way of crossing such trestle work or bridge is by stepping from tie to tie, and the railway company is constantly using the track on such trestle work or bridge for the operation of its engines and cars, and a party climbs up and attempts to cross such trestle work or bridge without the consent of the company and is injured by being run over with a hand car operated on the track lying on such trestle work or bridge. Held, in'an action for the recovery of damages for such injury, the court commits no error in ruling out the evidence concerning the custom of foot passengers crossing such trestle work or bridge, after two persons had testified to it without objection. (3) A railway company has exclusive right to occupy, use and enjoy its railway tracks, trestle work and bridges, and such exclusive right is absolutely necessary to enable it to properly perform its duties, and any person walking upon a track or bridge, or any part of the same, of a railway track without the consent of the company, is held in law to be there wrongfully, and therefore to be a trespasser, and in case of an injury happening to such person while so trespassing upon it, from the movement or operation of the cars of the company over it, he is without remedy unless it be proved by affirmative evidence that the injuries resulted from negligence so gross as to amount to wantonness. Mason v. Missouri Pacific Railway Co. Opinion by Horton, C. J. WATER-COURSE-NAVIGABLE RIVER OF ICE.-Courts will take judicial notice of the navi

-OWNERSHIP

gability of large rivers. Chapter 92, Laws of 1864, which declared the Kansas a non-navigable river by implication, recognized the fact that theretofore it had been a navigable river and did not have the effect to extend the title of the riparian owner from the bank to the center of the stream. A riparian owner owns only to the bank and not to the center of a navigable stream. A riparian owner along a navigable stream does not own the ice which is formed on the stream adjacent to his land, and without first taking possession of and securing it may not maintain an injunction to restrain a stranger from cutting and removing it. Wood v. Fowler. Opinion by Brewer, J.

NEW JERSEY SUPREME COURT ABSTRACT. NOVEMBER TERM, 1881.*

CONTRACT OF SALE CERTAINTY - TENDER OF PERFORMANCE — WAIVER-WHEN TENDER UNNECESSARY.

(1) A contract by one who has a quantity of straw on hand, to sell all he has to spare not exceeding three tons, is not void for uncertainty, in not expressing the quantity of straw contracted to be sold; the quantity agreed to be sold can be ascertained by extrinsic evidence. (2) The general rule is that the vendee cannot sue for the non-delivery of goods purchased, unless the price has been paid or tendered, if no period of credit has been agreed upon. Leonard v. Davis, 1 Black, 476. But payment or tender of the price as a condition precedent to the right to sue may be waived. Bright v. Ashley, Peters C. C. 15. See also Ripley v McClure, 4 Exch. 344; Cort v. Ambergate, etc., Co., 17 Q. B. 127; Benj. on Sales, 559; Philpots v. Evans, 5 M. & W. 475. (3) Where the vendor before the time for the performance of his contract of sale has disabled himself from performing his contract, neither a demand of performance nor a tender of the consideration money, nor an averment of the plaintiff's readiness to accept the goods and pay for them, is necessary. Bowdell v. Parsons, 10 East, 359; Lovelock v. Franklyn, 8 Q. B. 371; Short v. Stone, id. 358; 1 Add. on Cont., § 323. "A party," says Lord Lyndhurst, C. B., can only be obliged to make a tender when by making it he could obtain the possession of the goods." Jones v. Cliff, 1 C. & M. 541. Where the vendor has refused to deliver the property sold to the purchaser, and has sold the same to other persons, an offer to pay the purchase-money before suing for damages is unnecessary. Hawley v. Keeler, 62 Barb. 231. A tender under the circumstances of this case would have been an idle ceremony, and was unnecessary. Parker v. Pettit. Opinion by Depue, J.

LANDLORD AND TENANT CONSEQUENCE OF EVICTION. The consequence of an eviction by a landlord of his tenant from the whole or a part of the demised premises is, that there is a suspension of the entire rent during the continuance of the eviction; the tenancy is not thereby ended for all purposes, but the rent and all remedy for its collection are suspended. Morrison v. Chadwick, 7 C. B. 266; Salmon v. Smith, 1 Saund. 204; Pendleton v. Dyete, 4 Cow. 581; Ogilvie v. Hall, 5 Hill, 52; Bennett v. Bittle, 4 Rawle, 339. But the eviction, to have the effect of suspending the rent, must be effected before the rent becomes due, for the rent already accrued and overdue is not forfeited by the eviction. Taylor L. & T. 379; Wood L. & T. 795, 796; 3 Kent Com. 464. The rule is the same, although the rent is payable in advance and the eviction occurs before the expiration of the period in respect to which the rent claimed accrues. Giles v. Comstock, 4 N. Y. 270. Hunter v. Reiley. Opinion by Scudder, J.

* Appearing in 14 Vroom's (43 N. J. Law) Reports.