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said: "Each right is the handmaid of civilization: APPEAL from Marion Special Term. The plaintiff

and neither can be exercised without, in some degree, impairing the other. This conflict of rights therefore must be reconciled. The law furnishes a solution of this difficulty by allowing the owner of the soil over which a floatable stream, which is not technically nagivable, passes to build a dam across it, and erect a mill thereon, provided he furnishes a convenient and suitable sluice or passage-way for the public by or through his erections. In this way both these rights may be exercised without substantial prejudice or inconvenience."

In Dwinel v. Veazie, supra, it is said: "To give either interest absolute prerogative would be destructive to both. Hence the rights of each must be so exercised as not unnecessarily or unreasonably to interfere with or obstruct the rights of the other. And such is the law."

* * *

In Gould on Waters, a new and excellent work, at section 110, it is said: "The rights of the public are not superior to private rights, in streams that are merely floatable, to the same extent as in rivers which are capable of more extended navigation. In the latter the public right extends equally to all navigable portions of the river. But the right of floatage is not paramount to the use of the water for machinery, and the rights of the public and those of the riparian owners are both to be enjoyed with a proper regard to the existence and preservation of the other. In streams which are only floatable, the riparian owner is only bound not to obstruct its reasonable use for that purpose." To this the author appends a long list of citations. It is to be noticed that the author remarks that the right of floatage is not paramount to the use of the water for machinery. That is not of such paramount character as to prevent the erection of dams, bridges, and flumes and the like, which do not prevent a reasonable chance for public passage. The right of passage is the dominant right, because it is a right that cannot be very well exercised unless the other right temporarily yields to it. But its use must not be usurping, excessive or unreasonable. Wood Nuis. (2d ed.), §§ 464, 465, and cases. Cool. Con. Lim. (5th ed.) 731.

With these enunciations of opinion upon the legal questions presented, we think the cases need no further attention or consideration at our hands. While the report allows us to decide the facts, we think that duty should be performed by a jury, if the parties cannot agree upon a referee or commissioner for the purpose, or cannot settle the question themselves.

The parties would act wisely to indulge a spirit of mutual forbearance and concession in these matters. In no other way are the embarrassments and difficulties, usually incident to such contentions, avoidable. The rule that governs some of their rights is a general and necessarily an indefinite one. Emergencies may often arise when the different interests will clash. Discreet words and acts are a better resort, in the first instance, than law suits.

Cases to stand for trial.

Danforth, Virgin, Libbey, Emery, Foster and Haskell, JJ., concurred.

CARRIER-UNINDORSED BILL OF LADING. INDIANA SUPERIOR COURT, GENERAL TERM, 1884.

JORDAN V. PENNSYLVANIA Co.

The delivery to the acceptor of a draft of an unindorsed bill of lading is sufficient to transfer the title to the property covered thereby.

In such case the carrier is not liable to the shipper for the value of the goods should the acceptor fail to pay the draft.

had judgment below. Defendant moved for a new trial which was denied, and they appeal.

TAYLOR, J. This is a suit by the plaintiff to recover the value of twelve barrels of eggs shipped by the plaintiff over the defendant's line of road, from the city of Indianapolis in the State of Indiana, to the city of Baltimore, in the State of Maryland, which the plaintiff alleges were delivered by the defendant to a person to whom the bill of lading was not indorsed, and without an order from the plaintiff for their delivery.

The defense of the defendant is, first, the general denial, and second, a special answer setting up facts in bar of the suit. The plaintiff's reply to the special answer is a general denial.

The cause was tried by the court upon agreed facts which so far as within the issue and material to state are these: The defendant was, on the 18th day of March, 1883, and for many years prior thereto, a common carrier of goods for hire, and as such was the owner and operator of a fast freight line from the city of Indianapolis, Ind., to the city of Baltimore, Md., known and designated as the "Union Line." On the 18th day of March, 1883, the plaintiff delivered to the defendant, at Indianapolis, Ind., for transportation to the city of Baltimore, Md., twelve barrels of eggs. At the time of the delivery the defendant delivered to the plaintiff its receipt for the eggs in which is acknowledged their delivery in good order, aud the undertaking to deliver them in like good order without delay to the plaintiff at the station of Baltimore, Md. On this receipt, under the head of "Marks," is the following: "J."--" Notify Henry E. Hopkins & Co., 60 Hanover street, Baltimore." The defendant at the same time delivered to the plaintiff a bill of lading for the eggs, on the margin of which under the head of "Marks" is the following: "J."-"Notify Henry E. Hopkins & Co., 60 Hanover street, Baltimore, Md." A way bill accompanied the shipment of the eggs on which was the following: "A. Jordan-Ord. A. Jordan-J.-Notify Henry E. Hopkins & Co., 60 Hanover street, Baltimore, Md." The eggs were immediately shipped and transported by the defendant to the city of Baltimore, Md. Immediately upon receipt of the bill of lading the plaintiff forwarded to the Bank, at said city of Baltimore, his certain draft, payable one day after sight, drawn by him in his own favor upon said Henry E. Hopkins & Co., the draft being for the value of the eggs; aud the plaintiff attached to the draft and forwarded with it the bill of lading, but did not indorse the bill of lading. Henry E. Hopkins & Co., accepted the draft, and thereupon the Baltimore Bank, to which plaintiff had sent the draft with the attached bill of lading, delivered the unindorsed bill of lading to said Hopkins & Co., and they presented it to the defendant at said city of Baltimore, and thereupon demanded the delivery to them of the eggs, and they were delivered by the defendant to said Hopkins & Co., and the bill of lading was surrendered to the defendant. Within a reasonable time after the arrival of the eggs at the city of Baltimore, the plaintiff demanded at said city of the defendant the delivery to him of the eggs, offering to pay any and all freights and charges due thereon, and the defendant refused to make such delivery, alleging that the eggs had already been delivered to said Hopkins & Co. The eggs were of the value of $146, and the defendant has never delivered the eggs nor any part of them to the plaintiff, and has never paid the plaintiff any part of their value; and the plaintiff has never received any compensation for the eggs from any source. The trial court found for the plaintiff and rendered judgment in his favor against the defendant for the value of the eggs. The defeudant moved for a new

trial, which was refused; and the proper exception was taken by the defendant.

There is but one question to consider. Was the delivery of the eggs to Henry E. Hopkins & Co. a lawful delivery? This question answered in the affirmative, the judgment of the trial court must be reversed; but if it is answered in the negative the judgment should stand.

The right of the plaintiff to make any reservation in the bill of lading; that he pleased to secure the payment of the value of the eggs is settled. He had the right to fix the person to whom and the terms upon which the defendant should deliver the eggs. He could instruct the bank to whom he sent the time draft with bill of lading attached not to deliver the bill of lading to the acceptors until the draft was paid; and in such case, delivery of the bill of lading before such payment would not have passed the title to such bill. It was the duty of the defendant to deliver the eggs to the plaintiff, or according to his instructions. If the defendant violated its contract for the delivery made a misdelivery of the eggs, it is liable as for their conversion. Hutchinson on Car. 102; Benjamin on Sales (3d Am. ed.), § 382; Stollenwerck v. Thatcher, 115 Mass. 224; Jones on Pledge, §§ 257, 258; Ivatts on Car., etc., 417. The bill of lading is in the usual form, and the delivery by it as well as by the receipt and way bill is to the order of the plaintiff. The direction to notify Henry E. Hopkins & Co. may be considered as indicating that they had an interest in the eggs either as vendees or factors. In the absence of any expressed declaration it is susceptible of no other meaning. As soon as the bill of lading is delivered to the plaintiff he draws the time draft on Henry E. Hopkins & Co., attaches the bill of lading to it, and forwards the draft with the attached bill to the Baltimore Bank for presentation to Henry E. Hopkins & Co. The time draft so drawn and sent with the bill of lading attached covers the value of the eggs shipped, and is not indorsed by the plaintiff; but there is no evidence that any special instructions were given by the plaintiff to the bank to withhold delivery of the bill of lading until the draft was paid, or other conditions performed, and the question must be considered as if there were no such instructions, leaving the bank in the position of a general agent in this particular matter, with such powers and duties as that relation implies. On receipt of the draft and attached bill of lading, the Baltimore Bank presents the draft to Henry E. Hopkins & Co., who accept it, and the bank detaches the bill of lading and delivers it to said Hopkins & Co., who take and present it to the defendant and demand the delivery of the eggs; and the defendant thereupon delivers the eggs to said Hopkins & Co., and takes up the bill of lading.

The Baltimore Bank was the agent of the plaintiff, and in the absence of special instructions to the contrary had the right to surrender the bill of lading to Henry E. Hopkins & Co., on their acceptance of the draft; indeed it is not stating the rule too strong to say that it was the duty of the bank to do so. And there can be no question but that the delivery of the bill of lading to Henry E. Hopkins & Co., the acceptors of the time draft, by the bank agent of the plaintiff, checked by no instructions to the contrary, transferred the eggs to the acceptors, Henry E. Hopkins & Co., without its formal indorsement by the plaintiff. If the plaintiff had not intended that the bill of lading should be delivered to Henry E. Hopkins & Co., on their acceptance of the time draft, he should have so instructed his agent, the Baltimore Bank. The burden was upon him, and in the absence of proof to the contrary, the presumption is against the plaintiff; it is that he not only intended to but actually did part

with the title to the bill of lading, and transfer the eggs to the acceptors of the time draft. This results whether the plaintiff is to be held as a vendor and the acceptors as vendees of the eggs, or if the acceptors are to be considered as factors, agents, or as pledgees. But the correct conclusion from the facts of the case is, as it seems to me, that the acceptors of the time draft were purchasers of the eggs, and paid for them by the accepted draft; for in the absence of any showing to the contrary, the draft must be considered as a negotiable instrument, the giving up of which is presumed to be payment for whatever given.

These principles are, in my opinion, sustained by the following authorities: Daniels on Neg. Inst., § 223; Jones on Pledge, §§ 256, 257, 258, 262; City Bank of Rochester v. Jones,4 N. Y. 497, 507; City Bank v. Rome, W. & O. R. Co., 44 id. 136; Merchants Bank v. Union R. & T. Co., 69 id. 379; Michigan Cent. R. Co. v. Phil. lips, 60 Ill. 190; Holmes v. German Security Bank, 87 Penn. St. 525; Emory Sons v. Irving Nat. Bank, 25 Ohio St. 360, 366; National Bank of Green Bay v. Dearborn, 115 Mass. 222; J. M. & I. R. Co. v. Irvin, 46 Ind. 180, 186; Colebrook on Collat. Sec., § 380, 382, 409; Lambeth v. Turnbull, 5 Rob. 264; National Bank v. Merchants' Bank, 91 U. S. 92; Low v. De Wolf, 8 Pick. 101; Smith v. Bettger, 68 Ind. 254.

The intent of the plaintiff is only to be judged from what he did and what he failed to do. It was in his power to make his own terms-to give his own instructions-explicit and not the subject of doubt. This the law required of him. That he made a mistake and met with loss in trusting the acceptors, Hopkins & Co., is no evidence of an intention, pre-existent or existent at the time, that the bill of lading should be held by his agents, the Baltimore Bank, after its acceptance by Hopkins & Co., until they paid the draft. The sanction of such a rule would be the introduction of a new and uncertain if not destructive element in the administration of the law.

Therefore it is my conclusion that the delivery of the eggs, by the defendant, to Henry E. Hopkins & Co., the acceptors of the time draft, was a rightful delivery, and that the judgment of the Special Term should be reversed.

The judgment of the Special Term is reversed, and the cause remanded with instructions to enter judgment on the agreed facts for the defendant. The other judges concurred. [See 12 Alb. L. J. 163.]

NEW YORK COURT OF APPEALS ABSTRACT.

WILL-DEVISE IN TRUST- SUSPENDING POWER OF ALIENATION-REFUSAL TO ACCEPT PROVISION IN LIEU

OF DOWER.-The will of B. devised his residuary real estate to his executor in trust, to receive the rents and income, to divide the same into four parts, and pay each of said parts to beneficiaries named during the lives of two persons designated, who were strangers to the trust. Held, that there was no unlawful suspension of the power of alienation, and that the trust was valid. Upon the argument here, as well as in the court below, the concession appears to have been made that this clause of the will did not contain a valid estate in trust upon the authority of the opinion of Comstock, J., in the case of Downing v. Marshall, 23 N. Y. 366. It is there laid down that although trusts to receive and apply rents and profits may be created under the statute of uses and trusts, the one in question in that case was not constituted in the manner which that statute prescribes. It was there stated, after citing the statute, that "the trust must therefore be made dependent on the life of the bene

ficiary." The beneficiaries there were associations, incorporated or unincorporated, and it was determined upon the ground that admitting the trust to receive the rents and profits was void, the purposes of the will could be worked out under the power given to sell and pay over the proceeds, and hence it is not an authority upon the question considered. By a previous clause in the will the testator devised to his wife the use and in lieu of dower, income of a house and lot to his widow during life,and upon her death, it was declared that the same should become part of the residuary estate. Held, that there was no unlawful suspension of the power of alienation as to this portion of the real estate, also that upon the refusal of the widow to accept the devise, the provision became inoperative. No trust was created during the life of the wife, and she had the absolute right to dispose of her interest in the house and lot during that period. The power of alienation is therefore not suspended during her life. While she had the right to enjoy the use and income of it, she also had the right to sell her interest in the same if she so wished, and upon her death it passed, under the sixth clause, to the executor in trust during the lives named, and upon their termination as provided in the seventh clause of the will. It is insisted that the title to the house and lot did not vest until the death of three persons, the widow, Thomas Bailey and Webster Mabie, and hence there was an illegal suspension of the power of alienation and the devise was void. The gift of the use and income was equivalent to a devise of the land itself during the life of the widow, and she had a legal title and was entitled to possession of the same. 3 Wash. on Real Prop. 450; 2 Jarm. on Wills, 534; Monarque v. Monarque, 80 N. Y. 324; Craig v. Craig, 3 Barb. Ch. 76. She having refused to accept the devise made in lieu of dower and elected to take her dower, this provision was of no avail, and it must be considered as if it never had been made, and thus the house and lot became a part of the residuary estate from the beginning, and was not liable to the objection that the power of alienation was restrained during the life of the widow. Bailey v. Bailey. Opinion by Miller, J. [Decided Dec. 2, 1884.]

CONTRACT-USE OF PERSONAL PROPERTY-HOLDING

OVER NO IMPLIED CONTRACT — DAMAGES.-In August, 1876, the plaintiff entered into a written contract with the defendant, whereby in consideration of $1,200 per year payable in monthly installments of $100 each, he was to have the exclusive right to place advertisements in its cars for two years from the 30th day of December of that year. In pursuance of that contract he placed and kept advertisements in the cars for the two years, and paid the stipulated compensation. After the expiration of the two years, without any further agreement, he continued to place and keep advertisements in the cars until May 1, 1881, making the monthly payments, when in pursuance of a notice requesting him to remove the advertisements from the cars on or before that day, it removed them from its cars and refused to permit him to place any more therein. The plaintiff claims that by permitting him to keep his advertisements in the cars after December 30, 1880, and taking pay from him, the defendant must be held by implication to have renewed the original contract for another term of two years from that date; and that at least by permitting him to enter upon another year in 1881, it was bound to permit him to keep his advertisements in the cars for the whole of that year. This action was brought to recover damages from the defendant for its refusal to permit the plaintiff to keep his advertisements in the cars after May 1, 1881. He was defeated

at the trial and then appealed to the General Term and to this court. The written contract between the parties amounted either to a license or to a lease (it is unimportant to determine which) to use the defendants' cars, personal property, for a certain purpose. The law did not imply a renewal of the contract for a term of two years, because such a contract which was not to be performed, and could not be performed within one year, not being in writing, was void under the statute of frauds. The law will not imply an unwritten contract which the parties themselves could not make without writing. It will sometimes imply an obligation on the part of a person who has received a benefit under a contract condemned by the statute of frauds, to make compensation to the other party. An implied contract is one which the law infers from the facts and circumstances of the case; but it will not be inferred, so far as I can conceive, in any case where an express contract would for any reason be invalid. The law will not make that valid without a writing which the law requires should be in writing. Coutracts void under the statute of frauds will sometimes be specifically enforced in equity, not because they are treated as valid, but for the prevention of fraud. This is not an equitable action for the specific performance of any contract or to compel the execution of a valid lease or contract on the part of the defendant. No such relief was claimed in the complaint or upon the trial. The action is to recover damages for the breach of an alleged valid agreement, and to maintain it the plaintiff must show a valid agreement. The claim of the plaintiff that he was entitled to the benefit of the contract for the whole of the year subsequent to December 30, 1880, upon the ground that there was an implied contract for the whole of that year, is also unfounded. If the cars had been real estate leased to him, his claim would have foundation. A tenant of real estate, permitted to hold over after the expiration of his tenancy, may hold for another year upon the same terms. The landlord has his option to treat the tenant as a trespasser or as a tenant for another year. But if he takes rent, or otherwise assents to the holding over, then the tenant has the rights of a tenant for another year. Schuyler v. Smith, 51 N. Y. 309. These are technical rules applicable to real estate, which have never been applied to personal property, and so it was held in Chamberlain v. Pratt, 33 N. Y. 47. To the reasoning of that case nothing needs to be added. By using the cars after the expiration of the first term of two years, the plaintiff acquired no new rights. It was always in the power of the defendant to put an end to his occupancy of its cars at any time. The plaintiff also invokes the doctrine of estoppel in país against the defendant, but I see no basis for it to rest upon. For aught I can see his damage and his embarrassment would have been just as great if it had removed the advertisement from its cars on the 30th day of December, 1880. It did nothing to mislead him. He knew that his contract had expired, and that he was using the cars at the will of the defendant, and it simply exercised a right which he was bound to know it had. Chase v. Second Avenue Railroad Co. Opinion by Earl, J.

[Decided Nov. 25, 1884.]

CORPORATION-ULTRA VIRES-WHEN CANNOT AVAILRECOVERY AGAINST ONE JOINT CONTRACTOR IS BAR TO OTHER. A contract was entered into between defendants jointly as parties of the first part, and plaintiff and all its stockholders, individually, as parties of the second part, it being executed by plaintiff's president on its behalf, by which the latter agreed to give the former three-eighths of plaintiff's capital stock. Two of its trustees were to resign and defendants to take

their places. Defendants agreed to promote the interests of the company, to furnish the means necessary for carrying on its business, of which they were to have the entire control, and to make up accounts and divide profits every six months. In an action to compel an accounting for payment of profits, held, that in the absence of proof to the contrary the presumption was that the contract was authorized by the proper officers of the company, and was entered into for its benefit and advantage; also that it had power to make the same. In the absence of proof showing a want of authority or a violation of the plaintiff's charter, the claim that the contract was ultra vires cannot be upheld. Every presumption is in the contrary direction. Another complete and perfect answer to the objection urged is that the defendants, having reaped the benefits arising from the contract, cannot under the plea of ultra vires seek to defraud the other parties. Even although it may have been made without express authority, the contract must be allowed to stand as the plainest rules of good faith demand. Castle v. Lewis, 78 N. Y. 131. The rule is well settled that the plea of ultra vires should not, as a general rule, prevail, whether interposed for or against a corporation, when it would not advance justice, but on the contrary would accomplish a legal wrong. Whitney Arms Co. v. Barlow, 63 N. Y. 62. See also Atlantic State Bank v. Savery, 82 id. 291. Under the authorities cited, it is very manifest that the defendants cannot avail themselves of the plea of ultra vires. Some of the decisions also hold that this plea can only be interposed by a corporation and not by an individual dealing with such corporation. Bissell v. Mich. South. R. R., 22 N. Y. 258; Davis v. Old Colony R. R., 131 Mass. 258. But inasmuch as the defendants cannot interpose such a plea on the ground already referred to, it is not necessary to determine the last point. The doctrine is well settled that where joint contractors are sued, a recovery against one discharged the liability of the others, and no action will lie afterward against the party now included in the first suit (Candee v. Smith, 93 N. Y. 349); and upon no principle can it be held that the plaintiff was bound to sue each one of the defendants individually to recover moneys not accounted for, which were received by reason of their joint liability. Rider Lije Raft Co. v. Roach. Opinion by Miller,

J.

[Decided Nov. 25, 1884.]

PLEADING-CONSTRUED AGAINST PLEADER-DENIAL —“ADMITTED, QUALIFIED OR DENIED"-ADMISSIONANSWER IN ANOTHER SUIT.-It was formerly the settled rule to construe doubtful pleadings most strongly against the pleader, but this rule has been so far modified by the Code as now to require them to be liberally construed with a view to substantial justice between the parties. This modification has however been held to extend only to matters of form and not to apply to the fundamental requisites of a cause of action. Spear v. Downing, 34 Barb. 522; Cruger v. Hudson R, R. Co., 12 N. Y. 190; Bunge v. Koop, 48 id. 225. A construction of doubtful or uncertain allegatious in a pleading, which enables a party by thus pleading to throw upon his adversary the hazard of correctly interpreting their meaning, is no more allowable now than formerly; and when a pleading is susceptible of two meanings, that shall be taken which is most unfavorable to the pleader. Bates v. Rosekrans, 23 How. Pr. 98. Plaintiff's complaint alleged that defendants excavated a pit in a city street and left the same unguarded, in consequence whereof plaintiff's wife, while passing along the street, fell into the pit and was injured. The answer contained three defenses, separately stated. The first alleged that the injuries complained of were caused and contributed to by the in

jured party. The second set up a settlement and compromise of plaintiff's claim. The third denied "each and every other allegation" in the complaint not before specifically admitted, qualified or denied." Held, that the answer did not put in issue the allegations of the complaint that defendants made the excavation which caused the injury, or that the same was in a public street, and that plaintiff was not required to prove the same on the trial. It was held in the case of Allis v. Leonard, reported in memorandum, 46 N. Y. 688, and more fully, 22 Alb. L. J. 28, that an answer which admitted the execution and delivery of a promissory note, and denied every fact not expressly admitted, did not concede the truth of an allegation in the complaint stating a transfer upon good consideration of such note by the payee to the plaintiff. The facts of that case however leave no question as to what was admitted or claimed and do not bear upon the questions raised here. But there seems much reason for saying in this case within the principle stated in Potter v. Smith, 70 N. Y. 300, and People v. Northern R. Co., 42 id. 227, that the implied admission contained in the first and second counts of the answer may be construed as coming within the description of facts excepted from the effect of the general denial as having been theretofore specifically admitted. Under the second defeuse defendants introduced in evidence the record in an action brought by plaintiff's wife against defendants to recover damages for the same injury. In the answer in that action defendants admitted that the place of the accident was a public street, and that defendants caused the excavation. Held, that the admission so made, unexplained, must be taken as an admission in this action, and aside from the question of pleading, justified a refusal to nonsuit. Clark v. Dillon. Opinion by Ruger, C. J. [Decided Nov. 25, 1884.]

IOWA SUPREME COURT ABSTRACT.*

INSURANCE-MASONIC AID ASSOCIATION-BY-LAWS ALLOWING CHANGE OF BENEFICIARY-WILL DOES NOT CHANGE.-R. S. became a member of the Northwestern Masonic Aid Association, and received a certificate providing that if he was a member at his death the association would pay to his wife, R., four-fifths of $2,500, and to his daughter, M. A. D., oue-fifth. The by-laws provided that any member might change the name or names of the beneficiaries in his certificate upon application in writing to the secretary, stating to whom he desired such benefits paid, whereupon the secretary, upon surrender of his old certificate, should change upon the record the name of such beneficiary, and issue a new certificate of the same number as the old one. S. made a will, in which he bequeathed to his sous, T. S. and J. F. S., and his daughter, M. A. D., $2,500, the proceeds of his life insurance, in equal shares. Held, that the beneficiaries could only be changed in the manner designated in the by-laws; that the will was not effectual for that purpose; and that the fund should be divided as stated in the cer

tificate. McClure v. Johnson, 56 Iowa, 620; S. S., 10 N. W. Rep. 217; Kentucky Masonic Mutual L. Ins. Co. v. Miller's Adm'r, 13 Bush, 489; Foster v. Gile, 50 Wis. 603; S. C., 7 N. W. Rep. 555. Supreme Council v. Priest, 9 N. W. Rep. 481, distinguished. Stephenson v. Stephenson. Opinion by Seevers, J. [See 22 Eng. Rep. 702.]

[Decided Oct. 21, 1884.]

NEGLIGENCE-ACCIDENT-NO PRESUMPTION FROM.In an action for personal injury caused by reason of a

*Appearing in 21 Northwestern Reporter.

car door falling upon plaintiff while he was standing on a street where a freight train of defendant containing the car was passing, where it does not appear how the door happened to fall except that the fastenings had become insufficient, probably by wear or breakage, mere proof of the accident and its attending circumstances does not raise a presumption of negligence on the part of the defendant, and cast the burden of rebutting such presumption upon it, but plaintiff must prove that the defect causing the 'accident came to the knowledge of defendant, or existed for such a length of time that knowledge should be presumed. Gandy v. C. & N. W. R. Co., 30 Iowa, 420; McCummons v. C. & N. W. R. Co., 33 id. 187; Aylesworth v. C., R. I. & P. R. Co., 30 id. 459; Perry v. Railroad Co., 36 id. 102; Davis v. C., R. I. & P. R. Co., 40 id. 292; McCormick v. C., R. I. & P. R. Co., 41 id. 193; Losee v. Buchannan, 51 N. Y. 476; Garrison v. New York, 5 Bosw. 497; Hall v. Manchester, 40 N. H. 410; Hart v. Brooklyn, 36 Barb. 226; Thomp. Neg. 1227. Case v. Chicago, etc., R. Co. Opinion by Adams, J. [Decided Oct. 22, 1884.]

NEGLIGENCE-CAUSE OF ACTION ASSIGNABLE-MAINTENANCE-DEPRIVING OF RIGHT TO REMOVE TO FEDERAL COURT.-An action for a tort is assignable so as to vest in the assignee a right of action in his own name. In Weire v. City of Davenport, 11 Iowa, 49, it was held that a right of action for a tort could be sold and transferred at common law, and in Gray v. McCallister, 50 Iowa, 497, it was held that a claim for a personal tort, which dies with the party, could be sold or transferred like any other cause of action. See also Small v. Railroad Co., 50 Iowa, 338. We are not disposed to depart from the rule established in these cases, therefore the assignment in this case is valid under the law of this State. J., who was injured by the negligence of defendant railroad company, assigned his claim for damages to V., and V. executed the following agreement: "In consideration of the assignment to me by J. of his claim for damages against the Chicago & Northwestern Railway Com. pany, resulting to him by reason of an injury received by him on or about the 31st day of August, 1881, on said railway, I hereby agree to dispose of the entire amount realized on said claim as follows: For my own compensation in and about the prosecution of said claim, and for the use of any advances of money I may make I am to retain thereof the sum of $50; I am also to retain all sums of money that I may advance in the prosecution of said claim; next, I agree to pay out of the proceeds of said recovery the reasonable fee of the attorneys and agents employed to prosecute said claim on such fee therefor, as may be agreed upon, if any agreement for a specific amount shall be agreed upon, and the balance of said recovery I agree to pay to the said J." Held, that the cause of action was assignable; that the assignment and agreement did not constitute barratry, champerty or maintenance; and that V. was entitled to maintain an action for damages against the railway company in his own name. Conceding that the object of the assignment was to deprive the defendant of the right to remove the action to the Federal court, yet it had the effect to vest the legal title to the claim in the plaintiff. He legally owns and controls it, and if the action is tried on the merits the judgment is conclusive against the world. There is no law which prohibits the assignment. Clearly the act of Congress does not do so. It cannot therefore be, a fraud on the rights of the defendant. At most the defendant has been deprived of a right in a manner not prohibited by law. The assignment does not have the effect to cut off any defense the defendant may have. This case is clearly distinguishable from Browne v. Strode, 5 Cranch, 303, and McNutt v. Bland, 2 How.

10. It has been held that when trustees are personally qualified by citizenship to bring suit in the Federal courts the jurisdiction is not defeated by the fact that the parties whom they represent may be disqualified. Coal Co. v. Blatchford, 11 Wall. 172; Knapp v. Railroad Co., 20 id. 123. The converse of this proposition must be true. The results of the litigation belong to the parties beneficially interested. The trustees in one sense are mere conduits; but as they control the litigation, and are legally the owners of the cause of action, they are entitled to maintain the action. We do not understand Jones y. League, 18 How. 76, conflicts with the foregoing views. In that case the question was whether there had been a change of citizenship, so that the Federal courts had jurisdiction. The court said: "The change of citizenship, even for the purpose of bringing suit in the Federal court, must be with the bona fide intention of becoming a citizen of the State to which the party removes." This case recognizes the right of a party to change his residence, although it may be done for the express purpose of affecting the jurisdiction of the Federal courts. The motive or intent therefore of the change is immaterial. Vermont v. Chicago, etc., R. Co. Opinion by Seevers, J.

[Decided Oct. 21, 1884.]

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MISSOURI SUPREME COURT ABSTRACT.*

MARRIAGE-WIFE'S PROPERTY — ACQUISITIONS BY PURCHASE BY GIFT - ACT OF 1875. - The married woman's act of 1875 (now § 3296, Rev. Stat. 1879) in nowise interfered with the right of married women to acquire, or in the manner in which they might acquire a separate estate in personalty by gift or purchase, as it previously existed. The act was designed to enlarge the operation of the right, to simplify the proof of the existence of the estate, and to afford protection, especially against the effects of the husband's reducing the property to possession by providing that no such reduction should be effectual unless evidenced by writing signed by her. The purchases of a married woman protected by that act are those made with her separate money or means, and those only. The act protects gifts as well as purchases; and where a married woman by her pleading claimed property by virtue both of gift and purchase, and there was evidence tending to show that she acquired it in consideration partly of love and affection and partly of money paid, held, that it was error so to instruct the jury as to permit a verdict for her only in case they found the money paid was her separate means. She might fail to show this, and consequently so far as the acquisition was a purchase it might be without the pale of the act, and yet so far as it was a gift be protected; and the possible difficulty of ascertaining the exact extent of her interest would not warrant the court in withholding the question from the jury. Held, also, that where a married woman had such an undivided interest, if a person claiming through her husband appropriated the property to his exclusive use, and denied her right altogether, that was in law a conversion and entitled her to maintain an action against him as in trover for damages to recover her interest. Wiles v. Maddox, 26 Mo. 77; Watson v. King, 4 Campb. 272; Wilson v. Reed, 3 Johns. 175; Holcomb v. People's Savings Bank, 92 Penn. St. 338. McCoy v. Hyatt. Opiuion by Philips, Com'r.

EVIDENCE-AGENT'S DECLARATIONS.-The declarations of an agent are admissible as evidence against his principal only when made while transacting the * To appear in 80 Missouri Reports.

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