for the same cause of action. Upon the other side it was said that the two injuries, although one part of the cause of action was common to both, were in reality two different causes of action, and no rule exists against bring separate actions for two separate and distinct causes of action. It was admitted that it may be oppressive to bring several actions, but it was said that if they were brought oppressively the court would have power to stop them, but that in this case, where there was an undeveloped injury, an action is brought bona fide, and is not oppressive. Therefore the question is whether the causes of action are the same, because the law is that a person cannot in different actions recover successive amounts of damages for the same cause of action, but he must when he first brings the action recover all the damages to which he is entitled in respect of that cause of action. When this rule is applied to damages which are or must be known to the plaintiff at the time of the first action, I have always thought it a good rule; but when applied to cases where the damage is not known at the time of the first action, but develops itself afterward, and when the claim is made bona fide for ulterior damages, and could not in fact have been made at the time of the first action, because the further damage was not known, I have always been of opinion that it is a harsh rule, and if it were to be established now for the first time it could not have my concurrence. It is based upon the maxim that it is for the benefit of the State that the litigation of individuals should come to an end. To my mind that is one of those maxims which appear to be the less true the more one looks into them. It cannot matter to the State, and the maxim is never vouched except in cases where the subsequent litigation would be just if it were not for the maxim. In these cases of undeveloped injury the maxim if not only untrue, but also unjust as between individuals. However the rule exists, and I have not the smallest intention of cavilling at it. It must remain, although the subsequent injuries are unknown, and cannot be known. Nevertheless in cases where there has already been a trial, one is to suppose that which is not the truth, viz., that the first jury tried the case, when the subsequent damage or injury could not be known to them, and that they have in contemplation of law given damages for the prospective injury. The question is whether the cause of action in this case is the same as that in the former action. The cause of action alleged is an injury to the plaintiff's person by reason of the negligent driving of the defendant's servant. The existence of that negligence and the collision alone do not give any cause of action. Supposing that by negligent driving the wheel of a cart is run against a carriage, and there is no injury caused, the owner of the carriage could not succeed in an action for nominal damages; such an action would not lie. The cause of action in such a case is the negligence which causes appreciable injury to the vehicle. There must be both the negligence and the appreciable injury. Therefore in the first action the cause of action was the negligent driving and the appreciable injury to the plaintiff's cab. Suppose that in the days of strict pleading he had relied upon that cause of action, and had pleaded it, he could not have given evidence of the personal injury. The cause of action in such a case is injury to property. That is the cause of action, and is in respect of a right of property. Now the plaintiff brings an action in which he says that he has been injured in his person. That is a different right. He has a perfect right by law to have his person unmolested by the negligence of another man's servant. The mere fact of the defendant's vehicle having touched or shaken the person of the plaintiff would give no cause of action if no appreciable damage had been caused. Therefore it is clear that the cause of action is the negligent driving and the injury to the plaintiff's person; that is, the injury to the right to have his person unmo lested. That is a distinct cause of action, and therefore the plaintiff is entitled to maintain the second action. That in itself seems to me to be sufficient reasoning upon which to found a decision that the two causes of action are different. But different tests have been applied by judges at different times. They are not grounds of judgments, but tests by which to determine sometimes, but not always, whether the causes of action are the same or different. A very good, though not always a very accurate, test is to see whether the same sort of evidence would prove both cases. It is plain that where damage to a vehicle is in question persons who know about vehicles should be called to show what the injury was, but in the case of injury to the person doctors are called to show what was the external or internal damage to the person. The cases would be tried with two different sets of witnesses. In my opinion that is only a test, and not always an accurate one, but here it is sufficient to show that the causes of action are different. Therefore in my opinion we are not called upon in this case to apply the maxim I have mentioned, which for my part I think the law ought never to apply except in cases where it has already been determined that it must apply. It ought not to be stretched, and it is not applicable in this case. Therefore I am of opinion that the plaintiff is entitled to recover the sum awarded to him by the jury. Two different actions may be brought for different causes of action, but not to recover damages for the same cause of action. It follows that the judgment of the Divisional Court cannot be supported, and this appeal ought to be allowed. BOWEN, L. J. The plaintiff in this case has recovered a verdict for 350l. damges for personal injuries sustained by him through the negligence of the defendant's servants in driving a van, which had come into collision with the plaintiff's cab, thrown the plaintiff from his box, and seriously injured him in his legs. Previously to bringing the action the plaintiff had sued the defendant in the County Court for damages done to his cab in the collision, and the particulars delivered under this plaint had been confined to the damages which the cab had sustained. The defendant in the County Court action paid 41. 38. into court, together with 6s. costs, upon which the plaintiff had discontinued the County Court plaint. The present action was now brought in the High Court for personal injuries, of the importance and extent of which the plaintiff alleged that he had been ignorant at the time of the County Court proceedings. On a motion for a new trial the court below have entered a verdict of the defendant, on the ground that the recovery in the County Court of damages in respect of the cab is a bar to any further action for injury to the plaintiff's person. The rule of the ancient common law is, that where one is barred in any action, real or personal, by judgment, demurrer, confession, or verdict, he is barred as to that or the like action of the like nature for the same thing forever. "It has been well said," says Lord Coke in a note to Ferrer's case (6 Coke, 9 a), "Interest reipublicæ ut sit finis litium, otherwise," says Lord Coke, "great oppression might be done under color and pretense of law. See also Sparry's case, 5 Coke, 61; Higgen's case, 6 id. 45 b, Year-book, 12 Edw. 4, p. 13, 9. Accordingly in Hudson v. Lee, 4 Co. 43, it was held to be a good plea in bar to an appeal. of mayhem that the appellant had recovered damages in an action for trespass brought for the same assault, battery and wounding. So in Bird v. Randall, 3 Burr. 1346, it was decided to be an answer to an action for seducing a man's servant from his service that penalties had previously been recovered by the master in satisfaction of the injury done him. So too in Phil lips v. Berryman, 3 Doug. 286, a recovery in replevin was held to be a good bar to an action on the Statute of Marlbridge for an excessive distress, on the ground that the plaintiff had already had his remedy, and that a recovery in one personal action is a bar to all other personal actions on the same subject. The principle is frequently stated in the form of another legal proverb: Nemo debet bis vexari pro eâdem causa. It is a well-settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all. The difficulty in each instance arises upon the application of this rule. How far is the cause which is being litigated afresh the same cause in substance with that which has been the subject of the previous suit? "The principal consideration," says De Gray, C. J., in Hitchin v. Campbell, 2 Wm. Bl. 827, "is whether it be precisely the same cause of action in both, appearing by proper averments in a plea, or by proper facts stated in a special verdict, or a special case; and one great criterion," he adds, "of this identity is that the same evidence will maintain both actions." See per Lord Eldon in Martin v. Kennedy, 2 Bos. & Pull. 71. "The question," says Grose, J., in Seddon v. Tutop, 6 T. R. 607, "is not whether the sum demanded might have been recov. ered in the former action; the only inquiry is whether the same cause of action has been litigated and considered in the former action." Accordingly, though a declaration contain counts under which the plaintiff's whole claim might have been recovered, yet if no attempt was made to give evidence upon some of the claims, they might be recovered in another action. Thorpe v. Cooper, 5 Bing. 129. It is evident therefore that the application of the rule depends not upon any technical considerations of identity of cause of action, but upon matters of substance. I have now to consider the application of the above doctrine to the present action; and the question to be decided is, whether the damage done by the negligent driving of the defendant's servant to the plaintiff's cab is in substance the same cause of action as the damage caused by such negligence to the plaintiff's person. Nobody can doubt that if the plaintiff had recovered any damages for injuries to his person, he could not have maintained a further action for fresh bodily injuries caused by the same act of negligence, merely because they had been discovered or developed subsequently. See Fetter v. Beal, 1 Lord Raymond, 339. "The jury," says the court in that case, "have in the former action considered the nature of the wound and given damages for all the damage that it had done to the plaintiff." This authority however leaves still open the point we now have to determine, whether the cause of action arising from damage to the plaintiff's cab is in substance identical with that which accrues in cousequence of the damage caused to his person. In order clearly to elucidate this question, let me assume for the sake of argument that the damage had been caused by some act of the defendant himself, and not merely an act of his servant. According to the old distinctions of forms of actions, which still have a historical value as throwing light upon the priuciples and definitions of the common law, the form of action upon such a hypothesis would have been trespass to the person for the personal injury-trespass to goods for the damage to the vehicle. Injury would have been done to the plaintiff in respect of two absolute and independent rights, the distinction between which is inveterate both in the English and the Roman law. Every one in this country has an absolute right to security for his person. Everybody has further an absolute right to have the enjoyment of his goods and chattels unmeddled with by others. In the hypothetical case I am assuming both these rights would have been injured, and though the two injuries might have been combined in one suit, could it have been said that the subject-matter of each grievance was the same? Applying the test of identity furnished by De Grey, C. J., in Hitchin v. Campbell, the first matter that is obvious is, that the same evidence would not have supported an action for trespass to the person and an action for trespass to the goods. In the one case the identity of the man injured and the character of his injuries would be in issue, and justifications might conceivably be pleaded as to the assault, which would have nothing to do with the damage done to the goods and chattels. In the other case the plaintiff's title to the goods might have been in issue, in addition to the question of the damage done to them. Different provisions of the statute of limitations might possibly have applied in each case. And finally the damage in one case might have been directly due to the wrongful act complained of; inthe other case it might not. There is no authority, so far as I know, in the books for the proposition that the recovery in an action for a trespass to the person would be a bar to the maintenance of an action for any trespass to goods committed at the same time. In the present instance, as the defendant himself was not driving, but his servant, trespass would not have lain under the old law, and the plaintiff's remedy would have been in an action on the case for negligence, based on the negligent management by the servant of his master's horses, a negligence for which in the eye of the law the master or employer is responsible. Now what is the gist of such an action on the case for negligence? If the whole of the plaintiff's case were to be stated, and the entire story told, it seems to me that it would have comprised two separate or distinct grievances, narrated, it is true, in one statement or case. Actions for the negligent management of any animal, or any personal or movable chattel, such as a ship or machine or instrument, are all based upon the same principle, viz., that a person who contrary to his duty conducts himself negligently in the management of that which contains in itself an element of danger to others, is liable for all injury caused by his want of care or skill. Such an action is based upon the union of the negligence and the injuries caused thereby, which in such an instance will as a rule involve, and have been accompanied by specific damage. Without remounting to the Roman law, or discussing the refinements of scholastic jurisprudence, and the various uses that have been made either by judges or juridical writers of the terms "injuria" and "damnum," it is sufficient to say that the gist of an action for negligence seems to me to be the harm to person or property negligently perpetrated. In a certain class of cases the mere violation of a legal right imports a damage. "Actual perceptible damage," says Parke, B., in Embrey v. Owen, 6 Ex. 353, is not indispensable as the foundation of an action; it is sufficient to show the violation of a right, in which case the law will presume damage." But this principle is not as a rule applicable to actions for negligence which are not brought to establish a bare right, but to recover compensation for substantial injury. “Generally speaking," says Littledale, J., in Williams v. Morland,2 B. & C. 916, there must be temporal loss or damage accruing from the wrongful act of another, in order to entitle a party to maintain an action on the See Fay v. Prentice, 1 C. B. 835, per Maule, J. This leads me to consider whether in the case of an accident caused by negligent driving, in which both the goods and the person of the plaintiff are injured, there is one cause of action only, or two causes of action which are severable and distinct. This is a very difficult question to answer, and I feel great doubt and hesitation in differing from the judgment of the court below, and from the great authority of the present chief justice of England. According to the popular case. use of language the defendant's servant has done one act and one only-the driving of the one vehicle negligently against the other. But the rule of law which I am discussing is not framed with reference to loose popular expressions of the sort, but for the sake of preventing an abuse of substantial justice. Two sep arate kinds of injury were in fact inflicted, and two wrongs done. The mere negligent driving in itself, if accompanied by no injury to the plaintiff, was not actionable at all, for it was not a wrongful act at all till a wrong arose out of the damage which it caused. One wrong was done as soon as the plaintiff's enjoyment of his property was substantially interfered with. A further wrong arose as soon as the driving also caused injury to the plaintiff's person. Both causes of action, in one sense, may be said to be founded upon one act of the defendant's servant, but they are not on that account identical causes of action. The wrong consists in the damage done without lawful excuse, not the act of driving, which if no damage had ensued, would have been legally unimportant. It certainly would appear unsatisfactory to hold that the damage done in a carriage accident to a man's portmanteau was the same injury as the damage done to his spine, or that an action under Lord Campbell's act by the widow and children of a person who had been killed in a railway collision is barred by proof that the plaintiff recovered in his life-time for the damage done to his luggage. It may be said that it would be convenient to force persons to sue for all their grievances at once, and not to split their demands; but there is no positive law (except so far as the County Court acts have from a very early date dealt with the matter) against splitting demands which are essentially separable (see Seddon v. Tutop, 6 T. R. 607), although the High Court has inherent power to prevent vexation or oppression, and by staying proceedings, or by apportioning the costs, would have always ample means of preventing any injustice arising out of the reckless use of legal procedure. In the present case the plaintiff's particulars in the County Court were confined to the damage done to his cab; the injury to his person therefore was neither litigated nor considered in the County Court. The real test is not, I think, whether the plaintiff had the opportunity of recovering in the first action what he claims to recover in the second. See Seddon v. Tutop, With all respect, I do not see how it can be said that Nelson v. Couch, 15 Com. Bench (N. S.) 99, so decides. That case establishes only the converse rule, viz., that the maxim nemo debet bis vexari cannot apply where in the first action the plaintiff had no such opportunity of satisfying his claim. The language of Coleridge, J., and the other members of the court in Hodsoll v.Stellebrass, 11 Adol. & El. 301, must, I think, be read by the light of the special circumstances of that case, and so read is not inconsistent with the view at which I have here arrived. I am in no way departing from the language of this authority in holding, as I do in the present instance, that the damage for which the plaintiff is now suing accrues from a different injury, and therefore a different wrong, from that for which he recovered damages in the County Court. The view at which I have arrived is in conformity with the reasoning of the judgment recently pronounced by this court in the case of Mitchell v. Darley Main Colliery Co., where it was held (reversing Lamb v. Walker, 3 Q. B. Div. 389; 28 Moak Eng. Rep. 332) that each fresh subsidence of soil in the case of withdrawal of support gave rise to a fresh cause of action. Nor do I feel called upon to extend the application of the sound and valuable principle of law that none shall be vexed twice for the same cause of action to a case to which it has never yet been applied, and to which it can only be applied by pursuing analogy to 6 T. R. 607. lengths which would involve practical injustice. The present case is one in which I am conscious that lawyers of great authority do differ and will differ. But on the whole, in my opinion, the judgment of the Court of Queen's Bench ought to be reversed, and the judg ment entered at the trial for the plaintiff be restored, with costs to the plaintiff, including the costs below and of this appeal. Lord COLERIDGE, C. J., dissenting. In this case I am, with much regret, unable to concur in the judg ment of my brother Bowen, to which I understand the master of the rolls to assent. I should have been glad in the face of this difference of opinion, to have given reasons at length for my inability to agree in the judgment. But the plaintiff very naturally presses for judgment, and I am unable to do more than shortly to express my dissent. It appears to me that whether the negligence of the servant or the impact of the vehicle which the servant drove be the technical cause of action, equally the cause is one and the same. That the injury done to the plaintiff is injury done to him, at one and the same moment, by one and the same act, in respect of different rights--i. e., his person and his goods-I do not in the least deny; but it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions if he is injured in his arm and in his leg, but can bring two if besides his arm and leg being injured, his trousers, which contain his leg, and his coat-sleeve, which contains his arm, have been torn. The consequences of holding this are so serious, and may be very probably so oppressive, that I at least must respectfully dissent from a judgment which establishes it. I think that the court below was right, and that this appeal should be dismissed. Judgment reversed. UNITED STATES SUPREME COURT ABSTRACT. SURETY-ACTION ON BOND-NOTICE OF DEFAULT.A bond by a principal and a surety was conditioned that the principal should pay to V. all indebtedness existing or to exist from the principal to V. under existing or future contracts between him and V., and waived notice of non-payment on all notes executed, indorsed or guaranteed by the principal to V. In a suit on the bond against the obligors to recover the amount of the notes executed by the principal to V., and other notes indorsed and guaranteed by him to V., held, that it was not necessary to allege or show any notice to the surety of a default by the principal in paying V. Murphy v. Victor Sewing Machine Co. Opinion by Blatchford, J. [Decided Jan. 5, 1885.] AGENCY-SALE OF SEWING MACHINES AND ATTACHMENTS-PLEADING-BOND OF AGENT-LIABILITY OF SURETY-STATUTE OF LIMITATIONS. (1) A written agreement between a company making sewing machines and a consignee to receive and sell them on commission, provided that the commission should be calculated on the retail prices for which the machines should be sold, as reported by the consignee, and that attachments should be sold to the consignee at the lowest wholesale rates. The proceeds of sales of machines beyond the commission belonged to the company. In a suit by it against the consignee, and a person liable with him on a bond for his indebtedness, to recover such proceeds, and the sale price of attachments, the complaint set forth schedules showing the retail price of each machine as so reported, and the excess of money, beyond commission, retained by the consignee, and the price of each attachment sold to the consignee. Held, that the complaint was sufficient. (2) The con signee and another person united in a bond to the [Decided Jan. 5, 1885.] INSURANCE-FIRE-CHANGE OF INTEREST- ADMISSION OF PARTNER.-A fire policy, covering merchandise belonging to a firm, provided that it should be void if the property "be sold or transferred, or any change takes place in title or possession (except by succession by reason of the death of the insured), whether by legal process, or judicial decree, or voluntary transfer or conveyance." Subsequently, and before loss, the firm owning this property in certain pro portions made an agreement in writing with A., by which they agreed to receive him into their busines upon the following terms and condition: Said company is to become incorporated. A. is to pay into the firm for its use $5,000 forthwith, and $5,000 in two years, with interest semi-annually until paid. The name of the new company shall be determined hereafter. The property of the existing firm shall be put into the corporation to be formed as aforesaid, adding to it the $10,000 to be paid by A. The interest and shares of the several parties in the new company shall be in proportion to the amount so contributed by each to the capital stock. When a charter shall be procured as aforesaid, half of A.'s stock shall be held by said company till said second sum of $5,000, with interest, shall be paid. No change in the name or character of the existing firm shall be made until said corporation shall be formed. Held, that A. did not become a partner, or acquire any interest in the property of the partnership, before it was made a corporation. Drennen v. London Assur. Corp. Opinion by Harlan, J. [Decided Jan. 5, 1885.] a PLEADING -MONEY ILLEGALLY EXACTED NEW YORK CODE-ANSWER-EVIDENCE.—(1) In an action of indebitatus assumpsit, to recover money alleged to have been illegally exacted, a declaration which avers the fact of indebtedness, and a promise in consideration thereof, is sufficient on general demurrer, unless it appears that the alleged indebtedness was impossible in law. (2) To such a declaration, treated as complaint according to the New York Code, an answer was filed, setting up as a defense an act of Congress to legalize the collection of head-moneys already paid, approved June 19, 1878. The Circuit Court refused to hear evidence in support of the plaintiff's case, and gave judgment on the pleadings in favor of the defendant. Held, that this was error, because it did not appear from the record that the money sued for was within the description of the act of Congress. Liverpool, New York, etc., Steamship Co. v. Commissioners of Emigration. Opinion by Matthews, J. [Decided Jan. 5, 1885.] PUBLIC LANDS-ACT OF CONGRESS-MILITARY RESERVATION-DISPOSSESSION OF OCCUPANT-PROOF NECESSARY-EVIDENCE-SCOPE AND EFFCT OF A PATENT.— (1) A party who contests the title of another to land held under an act of Congress, in which an exception was reserved saving from its operation land occupied by the United States for military purposes, must establish the exception, when his right to the premises depends upon its existence. (2) If by a legislative dec laration, a specific tract of land is confirmed to any one, his title is not strengthened by a subsequent patent from the government. Such a patent would be an instrument of quiet and security to the patentee, but it would not add to the validity and completeness of the title confirmed by the act of Congress. Langdeau v. Hanes, 21 Wall. 521; Ryan v. Carter, 93 U. S. 78; Tripp v. Spring, 5 Sawy. 209, 216. If there was any difference in the grade of the two conveyances of the government, that by a direct legislative act, and that by officers acting under provisions of the statute, it would seem that there should be greater weight and dignity attached to the legislative grant as proceeding more immediately from the source of title than the patent. No impeachment can be had of the motives of the Legislature, whereas the motives of officers employed to supervise the alienation of public lands may sometimes be questioned, as in proceedings to set aside their action. Still if the law be complied with, the title passes as completely in the one case as in the other. Montgomery v. Bevans,1 Sawy. 677. Whitney v. Morrow. Opinion by Field, J. [Decided Jan.5, 1885.] SHIP AND SHIPPING TION AS TO SAILING.-A stipulation in the charterparty of a steamer, that she is "now sailed, or about to sail from Benizaf with cargo for Philadelphia," is a stipulation that she has her cargo on board and is ready to sail. It is a substantive part of the contract, and not a mere representation, and is not an independent agreement, serving only as a foundation for an action for compensation in damages. A breach of it by one party justifies a repudiation of the contract by the other party, if it has not been partially executed in his favor. The case falls within the class of which Glaholm v. Hays, 2 Man. & G. 257; Ollive v. Booker, 1 Exch. 416; Oliver v. Fielden, 4 id. 135; Gorrissen v. Perrin, 2 C. B. (N. S.) 681; Croockewit v. Fletcher, 1 Hurl. & N. 893; Seeger v. Duthie, 8 C. B. (N. S.) 45; Behn v. Burness, 3 Best & S. 751; Corkling v. Massey, L. R., 8 C. P. 395; and Lowber v. Bangs, 2 Wall. 728, are examples; and not within the class illustrated by Tarrabochia v. Hickie, 1 Hurl. & N. 183; Dimech v. Corlett, 12 Moore P. C. 199; and Clipsham v. Vertue, 5 Q. B. 265. It is apparent, from the averments in the pleadings of the charterers, of facts which are established by the findings, that time and the situation of the vessel were material and essential parts of the contract. CHARTER-PARTY-STIPULA Construing the contract by the aid of and in the light of the circumstances existing at the time it was made, averred in the pleadings and found as facts, we have no difficulty in holding the stipulation in question to be a warranty. See Abb. Shipp. (11th ed.) by Shee, 227, 228. But the instrument must be construed with reference to the intention of the parties when it was made, irrespective of any events afterward occurring; and we place our decision on the ground that the stipulation was originally intended to be, and by its terms imports a condition precedent. The Whickham. Opinion by Blatchford, J. [Decided Jan. 5, 1885.] UNITED STATES CIRCUIT COURT AB- CARRIER-OBLIGATIONS TO PASSENGER-INJURY BY FELLOW PASSENGER-DUTY OF EMPLOYEES.-A common carrier of passengers for hire is bound to see that no harm comes to a passenger from a fellow passenger, whose conduct and condition clearly show that he is a dangerous person and likely to injure his fellow pas*Appearing in 22 Federal Reporter. sengers. Where the conduct of a passenger is such as to clearly show that he is dangerous, it becomes the duty of the employees of the company in charge of the train to keep him in close custody and disarm him, or remove him from the train. By the common law, and especially by the statutes of this State, ample powers in these respects are conferred upon conductors and other railroad employees. Vinton v. Middlesex R. Co., 11 Allen, 304; Railroad Co. v. Anthony, 43 Ind. 183; Railroad Co. v. Van Houten, 48 id. 90; Railroad Co. v. Vandyne, 57 id. 576; Railroad Co. v. Griffin, 68 Ill. 506; Ind. Rev. Stat., 1881, §§ 1702, 2091, 3922-3924. These powers, whether conferred by statute or deduced from the principles of law, are given for the safety of those who travel by railroad, and any failure iu a proper case to exercise them, contributing to the injury of a passenger, is a breach of the carrier's contract, for which damages may be allowed. This conclusion is strongly supported by decisions made in analogous cases, cited in argument of which see the following: Railroad Co. v. Hinds, 53 Penn. St. 512; S.C., 7 Am. Law Reg. (N. S.) 14; Railroad Co. v. Pillow, 76 Penn. St. 510; S. C., 18 Am. Rep. 424; Flint v. Transportation Co., 34 Conn. 554; S. C., 6 Blatchf. 158; Railroad Co. v. Burke, 53 Miss. 200; S. C., 24 Am. Rep. 689; Britton v. Railroad Co., 88 N. C., 536; S. C., 43 Am. Rep. 749; Railroad Co. v. Flexman, 103 Ill. 546; Stewart v. Railroad Co., 90 N. Y. 588; S. C., 43 Am. Rep. 185. Cir. Ct., Dist. Ind., Dec. 1884. King v. Ohio, etc., R. Co. Opinion by Woods, J. STATUTE OF LIMITATIONS-PROPER INQUIRY UNDER PLEA OF.-The inquiry under a plea of the statute of limitations is always properly limited to a few simple topics; as (1) when did the cause of action arise? Manifestly in a case like this, when the bond or coupon fell due and was not paid, though it is claimed by the plaintiffs that it did not arise so long as the plaintiffs were prevented by the action of the defendant's officers from getting service on the mayor. By the same contention, if the maker of a note should conceal himself for a week after his note fell due, so that summons could not be served upon him, the cause of action would not arise until he should come out from his hiding place so that service could be had. Nobody is capable of maintaining such a proposition. (2) How long a period has elapsed from the time the cause of action arose to the time when suit was commenced? By limiting the inquiry to these simple questions which was no doubt the intention of the Legislature, the application and operation of the statute is made certain and uniform, and its effect salutary. See the following cases: Dupleix v. De Roven, 2 Vern. 540; Hall v. Wybourn, 2 Salk. 420; Beckford v. Wade, 17 Ves. 87; Hunter v. Gibbons, 1 Hurl. & N. 459; Brown v. Howard, 4 Moore, 508; Imp. Gaslight & Coke Co. v. London Gaslight Co., 18 Jur. 497; S. C., 2 C. L. Rep. 1230; McIver v. Ragan, 2 Wheat. 25; Bank of the State of Alabama v. Dalton, 9 How. 522; Bowman v. Wathen, 1 id. 189; Kendall v. U. S., 107 U. S. 123: Wood v. Carpenter, 101 id. 135; National Bank v. Carpenter, id. 567; Andreae v. Redfield, 98 id. 225; Leffingwell v. Warren, 2 Black, 599; Gaines v. Miller, 111 U. S. 395; Fisher v. Harnden, 1 Paine, C. C. 61; U. S. v. Maillard, 4 Ben. 459; U. S. v. Muhlenbrink, 1 Woods, 569; Cocke v. McGinnis, Mart. & Y. 361; York v. Bright, 4 Humph. (Tenn.) 312; Miles v. Berry, 1 Hill (S. C.), 296; Howell v. Hair, 15 Ala. 191; Arrowsmith v. Durell, 21 La. Ann. 295; Yale v. Randle, 23 id. 579; Somerset Co. v. Veghte, 44 N. J. L. 509; Coleman v. Willi, 46 Mo. 236; Callis v. Waddy, 2 Munf. 511; Conner v. Goodman, 104 Ill. 365; State Bank v. Morris, 13 Ark. 291; Fee v. Fee, 10 Ohio, 469; Favorite v. Booher's Adm'r, 17 Ohio St. 548; Smith v. Bishop, 9 Vt. 110; Peoria M. & F. Ins. Co. v. Hall, 12 Mich. 202; Troup v. Ex'rs of Smith, 20 Johns. 33; Leonard v. Pitney, 5 Wend. 30; Demarest v. Wynkoop, 3 Johns. Ch. 129; Sacia v. De Graaf, 1 Cow. 356; Bucklin v. Ford, 5 Barb. 393; Woodbury v. Shackleford, 19 Wis. 55; Lindsay v. Fay, 28 id. 177; Eucking v. Simmons, id. 272. Cir. Ct. W. D. Wis., Aug., 1884. Amy v. City of Watertown. Opinion by Bunn, J. CHATTEL MORTGAGE-MORTGAGOR IN POSSESSION WITH POWER TO SELL-QUESTION OF FRAUD ONE OF FACT.-Provisions in a chattel mortgage that the mortgagor shall continue in possession of the property and dispose of it in the ordinary course of his business, keeping the stock replenished as nearly as might be, and that the mortgage shall cover subsequently-acquired property, and secure present and future indebtedness for goods bought of the mortgagee on credit, do not render the mortgage executed to a creditor in Michigan void on its face as to other creditors of the mortgagee. Gay v. Bidwell, 7 Mich. 519; Wingler v. Sibley, 35 id. 231; Fry v. Russell, id. 229. The rule in this State is that the question of fraud is one to be determined from all the facts and circumstances bearing upon the good faith of the transaction. Robinson v. Elliott was decided under the statute of Indiana, where the point had not been passed upon by the State court, so that the Supreme Court of the United States say it was at liberty to consider the question for itself as to what the Legislature intended. Argall v. Seymour, 4 McCrary, 56, asserts the rule laid down in Robinson v. Elliott, but the case is not disposed of under the doctrine of that case, I think. Mr. Judge Lowell, in Brett v. Carter, 2 Low. 458, in a well considered case, expresses different views. But independently of these cases, we think the Supreme Court of the United States would promptly hold, in a case arising under a chattel mortgage executed in this State, that the rule of interpretation, as held by the Supreme Court of Michigan, must control as a rule of property. Robinson v. Elliott, 22 Wall. 513; Argall v. Seymour, 4 McCrary, 56, distinguished. Cir. Ct. W. D. Mich., Nov., 1884. Morse v. Riblet. Opinion by Withey, J. MONEY HAD AND RECEIVED-BREACH OF CONTRACT. -In May, 1883, the Mexican National Construction Company sought subscriptions to a loan of $2,000,000 to aid in constructing the Mexican National Railway, and plaintiff subscribed $20,000 upon the terms of a contract, whereby the construction company agreed to deposit in trust securities of the nominal value of $20,000,000 as collateral for the repayment of the $2,000,000 loan on or before September 15, 1884. October 1, 1883, plaintiff paid the installments of his subscription as called by the company, and received receipts therefor, which, under the contract, were not transferable without consent of the company, but could be exchanged for formal certificates of interest in the loan, authenticated by the trustee. Before pay. ment of the last installment the company transferred to the trustee the securities by indenture, prescribing the powers and duties of the trustee, and providing that he should execute, as requested by the company, certificates of interest entitling the registered holders to an interest in the securities, or the proceeds of the sale thereof, bearing the same proportion to the whole as the amount of each certificate bore to the $2,000,000; but that he should not sell the securities to satisfy the loan unless the holders of certificates representing 25 per cent of the whole amount requested, and that the holders of a majority in interest might waive default in payment of the loan, or extend the time of payment, or suspend or postpone the sale of the collaterals at their discretion. Plaintiff had no knowledge of the terms of this indenture, and demanded a certificate, as provided in the contract, and on a refusal to deliver |