he was compelled in the Circuit Court to join in the demurrer. Either party, plaintiff or defendant, has a right to demur to the evidence, and the other party will be compelled to join in the demurrer, unless the case be plainly against the demurrant, and his object in demurring seems to be clearly nothing else but delay. Trout v. Va. & Tenn. R. Co., 23 Gratt. 619; Boyd's Admr. v. City Savings Bank,.15 id. 636; Hyers v. Green, 2 Call. 556; Rohr v. Davis, 9 Leigh, 30; Eubank'r Ex'r. v. Smith, Va. L. J. 1883, 245. Upon the evidence in this case it cannot be said that the evidence was plainly against the demurrant, or that the object of the demurrant was clearly nothing else but delay, and the plaintiff was properly required to join therein. When we consider this evidence in the light of the authorities cited, and the established principles which govern in the case of a demurrer to evidence, we must determine first whether the defendant was guilty of such negligence as was the immediate cause of the injury received by the deceased, and whether there was contributory negligence on the part of the deceased; whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary or common care and caution, that but for such negligence or want of ordinary care or caution on his part the misfortune would not have happened.

In the first case, the plaintiff would be entitled to recover; in the latter not; as but for his own fault the misfortune would not have happened. Mere negligence or want of ordinary care or caution would not however disentitle him to recover unless it were such that but for that negligence or want of ordinary care and caution the misfortune could not have happened, nor if the defendant might, by exercise of care on his part, have avoided the consequence of the neglect or carelessness of the plaintiff. The negligence charged against the defendant company is as we have seen that the over-head bridges are constructed so low as not to allow a person to stand erect upon the top of freight cars passing thereunder, and in the second place not sufficiently warning the deceased of the threatened danger.

In the case of Devitt v. Pacific Railroad, 50 Mo. 302, questions similar to these raised by this record were considered and decided by the court. The plaintiff's son was a minor and was killed riding on the top of a freight car passing under a bridge. The accident occurred in the day time, and the deceased had been in the employ of the company about three weeks, had frequently passed under the bridge, and had been repeatedly warned to look out for this and other bridges and when last seen he was sitting upon the brake facing the bridge. The court in that case held that "it would be difficult to imagine a clearer case of contributory negligence, and if one guilty of it could recover, or his friends for him, if the experiment proved fatal, we must necessarily ignore the legal consequences of such negligence. * * * An employee or servant cannot recover for injuries received from the negligence of other servants when the principal is not at fault. But if the principal has been guilty of fault or negligence either in providing suitable machinery or in the employment or selection of suitakle agents or servants, and injury arise in consequence, he must respond in damages. This liability is however modified when the servant himself, well knowing the default of his principal, as in providing defective or unsuitable machinery, voluntarily enters upon the employment. By so doing he assumes the risk and hence cannot charge it to his employer. * * * If persons are induced to engage, in ignorance of such neglect, and are injured in consequence, they should be entitled to

compensation; but if advised of it they assume the risk. They contract with reference to things as they are known to be, and no contract is violated, and no wrong is done if they suffer from a neglect whose risk they assumed." Citing Wright v. N. Y. C. R., 25 N. Y. 566; Buzzell v. Laconia M. Co., 48 Me. 113: Thayer v. St. L. and T. H. R., 22 Ind. 26; Hayden v. Smithville M. Co., 2 Conn. 548; Mad. River and L. E. R. v. Barber, 5 Ohio St. 541.

In the case of Owen v. N. Y. C. R. Co., 1 Lans. 108, a brakesman, in the employ of a railroad company, while discharging duties in the line of his employment upon the roof of a freight car, was carried against a highway bridge, and sustained injuries, for which he brought an action against his employer. The bridge was some three and a half feet higher than the top of the highest freight car in use by the company. The brakesman had entered into the employment of the company with knowledge of the position and height of the bridge, and he had had opportunity of informing himself as to its continuance in the same position. It was held that the plaintiff should have been nonsuited, the danger from the bridge being clearly incident to the labor he undertook to perform. In view of the brakesman's knowledge as to the bridge, his . omission to avoid the accident by stooping was such want of ordinary care and caution as would have defeated his action if otherwise maintainable. Having assumed the risk of injury to his person from the bridge, evidence offered by him upon the trial tending to show its dangerous character was properly excluded. "The danger was open and obvious and within the plaintiff's personal knowledge at the time he entered the defendant's employment. It was a danger clearly incident to the service he undertook to perform. He knew as well as his employer the perils of the business, at least as respects the bridge in question, and the law will imply that he assumed the risk of personal injury." Citing Sherman v. Rochester & Syracuse R. Co., 17 N. Y. 153; Faulkner v. Erie R. Co., 49 Barb. 324; 39 N. Y. 468.

"This is a well-settled rule; but if the rule were otherwise, upon the evidence in this case, the plaintiff was not entitled to recover upon another ground. The injury was caused by his own negligence. It is admitted that he knew that this was a low bridge, and he must have known that he could not pass under it while on the top of the cars, unless he stooped, without injury. He might have avoided all injury by the exercise of the most ordinary care and caution. The exception taken to the ruling of the court, excluding the evidence offered by the plaintiff that other persons had been killed at the same crossing, must be overruled. That evidence was wholly immaterial if the plaintiff took upon himself the risk of injury to his person from that structure, as he undoubtedly did."

In the case of the Baltimore & Ohio R. Co. v. Stricker, 51 Md. 47, the court said upon this question: "This suit was brought by the appellee to recover for injuries received by being carried against a bridge spanning the appellants' road while he was on the top of a 'horse car' in the discharge of his duty as a conductor of a freight train. * ** *To entitle the plaintiff to maintain this suit, it was necessary to prove that the company had been guilty of negligence which directly caused the injury; that is to say, that in the relation which existed between the appellee and the company, the latter had failed or neglected to perform some duty toward the appellee, which was devolved upon it by law. And secondly, it must appear that the appellee was not guilty of any negligence on his part, or any want of reasonable prudence and caution to avoid the accident. 1st. As to the alleged negligence on the part of the company. In what did this consist?

It was said it was negligent in constructing the bridge so low that a conductor or brakesman could not pass under it in safety on the top of a house car where his duty required him sometimes to be. But there is no evidence to support this position; on the contrary all the proof shows that the employees of the company, and the appellee among them, every day passed under the bridge safely by observing the simple and easy precaution of stooping or sitting down while passing under the bridge.

"No negligence can be imputed to the company because the struts of the bridge were not high enough to allow a person to pass under them standing upright on top of the cars. Baylor v. Del. W. R. Co., 11 Vroom, 23. It was not required of the appellee to stand upon his feet while passing the bridge. * * * Nothing is better settled than that the implied contract between the employer and the employee is that the latter takes upon himself all the natural risks and perils incident to the service. Moran's case, 44 Md. 292.

"When a servant enters upon an employment he accepts the service subject to the risks incidental to it. An employee who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he had opportunity to ascertain. ** *

"If a man chooses to accept employment, or continue in it, with the knowledge of the danger, he must abide the consequences so far as any claim against the employer is concerned. Wooley v. M. D. R. Co., 2 L. R. (Ex. Div.) 389.

46

'What then was the legal duty of this company? It was the duty of the company to exercise all reasonable care to provide and maintain safe, sound, and suitable machinery, road-way, structures and instrumentalities; and it must not expose its employees to risks beyond those which are incident to the employment and were in contemplation at the time of the contract of service; and the employee has a right to presume that the company has discharged these duties. O'Connell's case, 20 Md. 212; Scally's case, 27 id. 589; Wonder's case, 32 id. 419."

In the case in hand the deceased, after service in the company's depot grounds for some time, engaged about shifting cars, coupling cars, and such like duties, sought employment as brakesman. As this service was performed in the town of Manchester, on the banks of the James river, which is spanned by one of the bridges of this railroad company, and close to the same, it might be presumed perhaps that he knew of the character of the duties of a brakesman performed before his eyes every day. But in this case it is clearly proved that he was instructed by his employer at the time of the contract of service, as to the dangerous character of the service required of a brakesman, and especially as to the danger in passing under these overhead structures without sitting down or stooping, and that he was notified in particular about this particular bridge, and that it was shown to him, and that he passed under it in the broad daylight which he could not have done without stooping. That after passing under this bridge three times, he was specially warned about it again as he was about to pass under it on the fatal night. That he did not exercise the precaution required of stooping, and that he was standing up when he was struck. Why he did not stoop or sit down will never be known, as he was killed by the collision. Whether he forgot to stoop, as he had before done in passing under this bridge, is not known, but his negligence in not exercising this simple and ordinary care and caution was the proximate cause of his death, without which it would not have occurred, and the appellant cannot recover damages therefor of the

company. While we think the accident was caused by want of reasonable care on the part of the appellant's intestate, we do not rest our decision solely on this ground. This peril was one incident to the employment, in contemplation at the time of the contract, and arising from causes open and obvious, the dangerous character of which the deceased had an opportunity to ascertain, and the risk of which he assumed. Having stated our opinion upon the rules of law applicable to the case, which deny to the appellee the right to recover, it is not necessary to more specially notice the several assignments of error contained in the record. We are of opinion that there is no error in the judgment complained of aud appealed from in this case, and the same must be affirmed.

Fauntleroy, J., dissents.

Judgment affirmed.

CORPORATE STOCK-EXECUTION SALE-RIGHTS OF PURCHASER.

RHODE ISLAND SUPREME COURT, FEBRUARY 9, 1884.

BECKWITH V. BURROUGH.*

Whenever any property, tangible or intangible, becomes liable to attachment or execution for debt, it falls under the common-law rules forbidding its transfer in fraud of creditors.

A. transferred certain corporate stock in fraud of his creditors. It was subsequently attached as the property of A. and after judgment against A. sold on execution. The purchaser filed a bill in equity to obtain the stock. Held, that the shares of stock were liable to attachment and execution sale as the property of A. notwithstanding the prior fraudulent transfer by him.

Held further, that the bill in equity should be maintained, the complainant having no adequate remedy at law, if

any.

BILL in to a bi

in equity to avoid a transfer of corporate

James M. Ripley and John D. Thurston, for complainant.

Rollin Mathewson and Nathan W. Littlefield, for respondents.

DURFEE, C. J. This is a suit to avoid certain transfers of corporate stock. The stock was attached on original writ in an action at law in favor of the complainant and one John T. Mauran against the defendant Burrough, and after judgment recovered against Burrough was sold on execution to the complainant. The stock had formerly belonged to Burrough and had stood in his name on the books of the corporation, but had been transferred on the books before the attachment. The bill alleges that the transfers were made by Burrough with intent to hinder, delay and defraud his creditors, and therefore asks to have them avoided. The case is before us now on demurrer under which three questions have been argued, to wit, first does our statute of fraudulent conveyances extend to fraudulent transfers of corporate stock, and if not, second, are such transfers void as against credlaw, and third, are corporate stock liable to attachment and to sale on execution, if they do not stand in the name of the debtor? The discussion of the two first ques tions discloses some diversity of decision. There are cases which apply to the statute a very liberal construction and hold that it extends to every species of property which is liable to be taken by legal process for the payment of debts, the words "goods and chat

itors at common

of

*To appear in 14 Rhode Island Reports.

shares

tels" being construed so as to include shares of corporate stock and choses in action. Sims v. Thomas, 12 A. & E. 536, 554; Barrack v. M'Culloch, 3 Kay & J. 110; Stokoe v. Cowan, 29 Beav. 637; Pinkerton v. Manchester & Lawrence Railroad, 42 N. H. 424, 457. This construction has been criticised as too lax and elastic. Doyle v. Sleeper, 1 Dana, 531.

Other cases hold that the statute is simply declaratory of the common law and that any transfer of property, which is liable to execution, if made by the owner with intent to hinder, delay, and defraud his creditors, is void as to such creditors at common law. Cadogan v. Kennett, 2 Cowp. 432; Sturtevant v. Ballard, 9 Johns. R. 337; Hamilton v. Russell, 1 Cranch, 309; Clements v. Moore, 6 Wall. 299, 312; Blackman v. Wheaton, 13 Minn. 326; Hudnal v. Wilder, 4 McCord, 294; Peck v. Land, 2 Ga. 1, 10; Fox v. Hills, 1 Conn. 295; Lillard v. McGee, 4 Bibb, 165; 1 Story Eq. Juris., § 352. We are inclined to think the cases first cited notwithstanding the criticism on them were rightly decided; but if not, we are entirely satisfied of the correctness of the opinion of Lord Mansfield, so often reiterated by learned jurists and judges, that "the principles and rules of the common law, as now universally known and understood, are so strong against fraud in every shape, that the common law would have attained every end proposed by the statute." Cadogan v. Kennett, 2 Cowp. 432, 434. We think moreover that these principles, however it may be with the statute, are not limited in their operation by any Procrustean formula, but that whenever any kind of property, tangible or intangible, becomes liable to be taken by attachment or execution for debt, they immediately extend to it their protection. And see Scott v. Indianapolis Wagon Works, 48 Ind. 75, 79.

We have also come to the conclusion that the shares of stock were liable to be attached and to be sold on execution notwithstanding this prior transfer, if the transfer was fraudulent and void. It is true the statute directs, that in case of attachment on original writ or mesne process, the proper officer of the corporation shall render to the court an account on oath of what stock or shares the defendant had. Gen. Stat. R. I., ch. 197, §9; Pub. Stat. R. I., ch. 208, § 9. From this it may be inferred that it was contemplated by the statute that the shares when attached should be in the name of the defendant. Doubtless this is what would ordinarily occur, but we do not think the inference that it must occur to make the attachment valid is warranted. The statute directs the affidavit but it does not provide that a neglect to make it either invalidates the attachment or subjects the corporation to any liability.

The language in Falk v. Flint, 12 R. I. 14, is too broad. It is provided in Gen. Stat. R. I., ch. 212, § 20; Pub. Stat. R. I., ch. 223, § 22, that shares of stock may be taken and sold on execution without any previous attachment, and in such a case no affidavit is required. Corporate stock has long been attachable, Digest of 1822, p. 163, but until quite recently it could not be attached on original writ unless the defendant was out of the State or concealed within it so that he could not be personally served. It is probable therefore that the primary purpose of the affidavit was to show whether there was any stock to be attached to give the court jurisdiction. The statutes, whether they relate to attachment or levy, all of them desiguate the stock simply as the stock of the defendant, not as stock standing in his name. The question is whether the stock of a debtor, which he has transferred in fraud of his creditors, is not still as to them the stock of the debtor, the same as the real estate of a debtor, which he has conveyed away in fraud of his creditors, is still as to them his real estate and may be attached or levied upon as such. The transfer being void as against

creditors, can it not be treated by them as a nullity? We can see no good reason, if we look simply to the language of the statute, why this view, which is the logical view and the view which obtains in regard to real estate and tangible personal property, should not be taken. Is there any reason why, if we look beyond the statute to the character of the property, this view should not be taken? It may be thought that such attachments and levies, if upheld, will expose the corporation and innocent third persons to jeopardy and fraud. We think the corporation has notice enough by the procedure prescribed for attachment or levy, to put it on inquiry and is therefore protected if vigilant. Doubtless there is danger to innocent third persons. The fraudulent transferee having a certificate may sell the stock after attachment or levy to a bona fide purchaser, who buys trusting to the certificate. There is the same or nearly the same danger however when there has been no fraudulent transfer; for a debtor whose stock standing in his own name has been attached or levied on still retains his certificate, and may sell his stock to a bona fide purchaser, who buys in ignorance of the levy or attachment, trusting to the certificate. It seems clear therefore that these dangers afford no sufficient reason for any distinction in this respect between corporate stock and other personal property. The defendant calls our attention to the case of Van Norman v. Jackson Circuit Judge, 45 Mich. 204, in which it was decided, that under the statute of Michigan, shares of corporate stock are not liable to attachment or levy on writ or execution unless they stand in the name of the defendant in such writ or execution. The decision however seems to rest mainly on certain words or phrases and on a provision in the Michigan statute which are not in ours. The provision referred to makes it the duty of the officer selling the stock to leave a certified copy of the execution and of his return thereon with the corporation, and thereupon entitles the purchaser to a certificate of the shares bought by him upon paying the fees therefor, and for recording of the transfer. Such a provision imports that the title must pass by the sale, and therefore implies almost of necessity that the shares of stock, to be liable to the sale, must stand in the name of the debtor so that no question of fraud can remain for settlement.

Our statute simply requires the corporation to record the sheriff's deed; it does not require the corporation to recognize the purchaser as a stockholder by issuing a certificate of stock to him. Under a statute of Indiana corporate stock may be taken on execution.

In Scott v. Indianapolis Wagon Works, 48 Ind. 75, 79, which was a suit in equity by a judgment creditor for stock fraudulently transferred by the debtor, the court while sustaining the suit remark, that "notwithstanding the transfer of the stock by the execution defendent, the sheriff may still levy upon and sell it, when it has been fraudulently assigned by the debtor." See also State, Bush v. Warren Foundry & Machine Co., 32 N. J. L. 439.

The defendants contend that the complainant, as purchaser at the execution sale, cannot maintain a suit in equity to avoid the transfers as fraudulent. They contend that if such a suit was to be brought, it should have been brought by the complainant and his co-plaintiff at law, as judgment creditors in aid of their execution, after levy and before sale, so that a fair sale could have been had. There is some plausibility in this argument, for doubtless the stock would have sold better if the transfers had been first avoided; but if the transfers are fraudulent the defendants are to blame for their being so, and therefore if they suffer in consequence of it, they have no right to complain. Hildreth v. Sands, 2 Johns. Ch. 35, 50. The cases are

Demurrer overruled.

UNITED STATES SUPREME COURT ABSTRACT.

TRIAL CHARGE OF COURT-ERROR.-During the trial of a case whose cause of action, as set out in the declaration, is in effect that the defendant had fraudulently imposed on the plaintiff, and by false representations extracted money from him, the court in instructing the jury should confine itself to the point really in issue, which is the defendant's actual representation as to the material facts, and not his silence, whereby the plaintiff had been influenced to pay the money. Thorwegan v. King. Opinion by Matthews, J.

[Decided May 5, 1884.]

--

ESTOPPEL-WHEN JUDGMENT NOT-INTEREST -COUPONS-"TWO-THIRDS CONSTITUTION OF MISSISSIPPI. (1) The record of a judgment in a former suit has not the effect of an estoppel upon a person who was not a party in that suit. In this case the bonds were negotiable, and there was therefore no constructive notice of any fraud or illegality by virtue of the doctrine of lis pendens. County of Warren v. Marcy, 97 U. S. 96. It is not alleged in the plea that the defendant in error had actual notice of the litigation, or of the grounds on which it proceeded, or that any injunction was served upon the board of supervisors; and if he had, that notice would have been merely of the question of law, of which, as we have seen, he is bound to take notice, at all events, and which is now for adjudication in this case. There is nothing in the case of Williams v. Cammack, 27 Miss. 209, 224, to which we are referred by counsel on this point, inconsistent with these views. The decision in Hawkins v. Carroll County, 50 Miss. 735, is not a judgment of the Supreme Court of Mississippi, construing the Constitution and laws of the State, which, without regard to our own opinion upon the question involved, we feel bound to adopt and apply in the present case. It is a decision upon the very bonds here in suit, pronounced after the controversy arose, and between other parties; it was not a rule previously established, so as to have become recognized as settled law, and which of course all parties to transactions afterward entered into would be pre

sumed to know and to conform to. When therefore it is presented for application by the courts of the United States in a litigation growing out of the same facts, of which they have jurisdiction by reason of the citizenship of the parties, the plaintiff has a right, under the Constitution of the United States, to the independ ent judgment of those courts, to determine for themselves what is the law of the State by which his rights are fixed and governed. It was to that very end that the Constitution granted to citizens of one State,suing in another, the choice of resorting to a Federal tribunal. Burgess 7. Seligman, 107 U. S. 20, 33. We have however considered the reasoning of the Supreme Court of Mississippi in its opinion in the case of Hawkins v.Carroll County, with the respect which is due to the highest judicial tribunal of a State speaking upon a topic as to which it is presumed to have peculiar fitness for correct decision, and while we are bound to admit the carefulness and fullness of its examination of the question, we are not able to adopt its conclusions. On the contrary, we are constrained to follow the decision in St. Joseph Township v. Rogers, 16 Wall. 664, and adhere to the views expressed by this court in County of Cass v. Johnston, 95 U. S. 360, in deciding the same question upon the construction of a provision of the Constitution of Missouri, which is identical with that of the Constitution of Mississippi under consideration. It was there declared and decided that "all qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares. Any other rule would be productive of the greatest inconvenience, and ought not to be adopted unless the legislative will to that effect is clearly expressed." In Missouri, as in Mississippi, there was a constitutional provision requiring a registration of all qualified voters. State v. Sutterfield, 54 Mo. 391. (2) The assent of two-thirds of the qualified voters of the county, at an election lawfully held for that purpose, to a proposed issue of municipal bonds, intended by that instrument, meant the consent of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result. Supervisors of Carroll Co. v. Smith. Opinion by Matthews, J.

[Decided May 5, 1884.]

BANKRUPTCY-PAYMENT OF DEBTS-EQUITABLE ASSETS-TRUST FUND - LEX REI SITE.-The question of subjecting the equitable interest in the real estate of a bankrupt to the payment of his debts is one to be settled according to the local laws in the State wherein such real estate is. This was expressly decided in Nichols v. Levy, 5 Wall. 433, and was also intimated in Nichols v. Eaton, 91 U. S. 716-729. The Bankruptcy Act, section 5045 Rev. Stat., expressly adopts the local law of the State as to such exemptions. And in Illinois the subject is regulated by a special statutory provision. By section 49, chapter 22 (Hurd's Rev. Stat. Ill. 195) of the Chancery Practice Act of that State, providing for creditors' bills of discovery and to reach and apply equitable estates and interests to the satisfaction of debts, property held in trust is made subject to that proceeding, "except when such trust has in good faith been created by, or the fund so held in trust has proceeded from some person other than the defendant himself." The Tennessee statute, which was applied to the exoneration of the interests sought to be appropriated in Nichols v. Levy, 5 Wall. 433, was substantially the same as this; and both seem to be copies from that of New York (2 Rev. Stat. 173, §§ 38, 39), although in the last named State, as appears in the decision of the Court of Appeals in Williams v. Thorn, 70 N. Y. 270, and McEvoy v. Appleby, 27 Hun, 44,

another statute (1 Rev. Stat. 729, 57) limits the exemption in cases where income is payable under such a trust, to the principal fund itself, and the beneficial interest of the cestui que trust in the income only to the extent of a fair support of the beneficiary out of the trust estate. The statute of Illinois does not apply merely, as is argued, to cases where a technical discovery is sought, but to all cases where the creditor, or his representative, is obliged, by the nature of the interest sought to be applied, to resort to a court of equity for relief, as he must do, in all cases, where the legal title is in trustees, for the purpose of serving the requirements of an active trust, and where, consequently, the creditor has no lien, and can acquire none, at law, but obtains one only by filing a bill in equity for that purpose. If the trust was merely passive, and therefore executed by the law of its locality, in the cestui que trust, so as to be subject to the levy of executions at law, and the present was such a case, then the bill would fail, because the remedy at law would be adequate and complete. Spindle v. Shreve. Opinion by Matthews, J. [See 24 Eng. R. 544; 60 How. Pr. 161. -ED.]

[Decided May 5, 1884.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

CONSTITUTIONAL LAW-TAXATION IN AID OF PRIVATE ENTERPRISES.-State legislatures have no authority to authorize taxation in aid of private enterprises or objects, even where there is no express constitutional prohibition. It is not necessary to review the many cases cited. A court cannot ignore that the Federal and State Constitutions-nay, that all State Constitutions-prohibit the taking of private property even for public uses without just compensation. Is it to be argued therefore that private property can be taken for private uses, either with or without just compensation? The Supreme Court of the United States stated the elemental thought underlying American constitutional law when it declared that an attempt, through the guise of the taxing power, to take one man's property for the private benefit of another is void, an act of spoliation, and not a lawful use of legislative or municipal functions. There have been so many well-considered cases in the United States courts and in the State courts on this subject that it would be a work of supererogation to repeat their arguments. It must suffice that the weight of author ty and sound reason concur in holding bonds and coupons like those in question void ab initio. Loan Ass'n V. Topeka, 20 Wall. 665; Com. Bank v. City of Iola, 2 Dill. 353; Parkersburg v. Brown, 106 U. S. 487; S. C., 1 Sup. Ct. Rep. 442; Allen v. Jay, 12 (N. S.) Am. Law Reg. 481, with notes; State v. Curators State Univ., 57 Mo. 178; St. Louis Co.Ct. v. Griswold, 58 Mo. 175; Livingston Co. v. Darlington, 101 U. S. 407. In Cooley Const. Lim. the subject is fully discussed, cases reviewed, and conclusions stated. Page 264 et seq. Cir. Ct., E. D. Mo., March 22, 1884. Cole v. City of Lagrange. Opinion by Treat, J.

REMOVAL OF CAUSE--WHEN JURISDICTION ATTACHES. -It has been decided by the Supreme Court of the United States that the jurisdiction of the United States Circuit Court attaches in a case removable, under the statute, at the time when the petition and bond is filed in the State Court. The transfer of jurlsdiction is then complete in advance of the entry of a transcript of the record in the clerk's office of the Circuit Court. Duncan v. Gegan, 101 U. S. 812; Railroad Co. v. Koontz, 104 id. 15; Steamship Co. v. Tug

*Appearing in 19 Federal Reporter.

man, 106 id. 122; S. C., 1 Sup. Ct. Rep. 58; St. Paul & C. R. Co. v. McLean, 2 id. 499. The Circuit Court does not take the suit unless its jurisdiction appears of record; and if before the statutory time, when the removing party is required to enter a copy of the record and his appearance in the United States Circuit Court, either party procures a transcript and files it in the clerk's office, the jurisdiction then appears of record, and all proceedings necessary to prepare the cause for trial at the next session of the court can be taken by either party. The court then has jurisdiction of the cause as if it had been commenced there by original process. In the case of Kern v. Huidekoper, 103 U. S. 487, the plaintiff applied for removal July 6th, and filed the transcript in the clerk's office of the United States Circuit Court on July 27th The term of that court prescribed by law began on July 2d, before the petition for removal was filed in the State court. On November 14th, the July term still continuing, the Circuit Court made an order approving the filing of the record. The Supreme Court held that the filing of the record July 27th gave the Circuit Court the right to proceed with the cause; that is, as I understand the decision, to go on and perfect the issues, if necessary, and grant provisional remedies, but the removing party is not required to try the issues until the term next ensuing that of the State court when the cause was removed. Cir Ct., D. Minn., April 24, 1884. Judge v. Anderson. Opinion by Nelson, J.

SHIP AND

SHIPPING-NEGLIGENCE PRIVITY OF

CONTRACT-RESPONSIBILITY.- -A stevedore employed by another, who has contracted to unload a vessel, can recover for injuries sustained by the defective appliances furnished him by the vessel, upon the same evidence which would enable his employer to recover. Though there is no privity of contract between the ship owners and him, they were under the same obligation to him as they were to his employer. What would be negligence to one would be negligence to the other. Coughtry v. Globe Co., 56 N. Y. 124; Mulchey v. Methodist Society, 125 Mass. 487. The implied obligation on the part of one who is to provide machinery, or means by which a given service is to be performed by another, is to use proper care and diligence to see that such instrumentalities are safe and suitable for the purpose. "It is the duty of an employer inviting employees to use his structures and machinery, to use proper care and diligence to make such structures and machinery fit for use." Whart. Neg., § 211. If he knows, or by the use of due care might have known, that they were insufficient, he fails in his duty. This doctrine is cited with approval in Hough v. R. Co., 100 U. S. 220. Due care or ordinary care implies the use of such vigilance as is proportional to the danger to be avoided, judged by the standard of common prudence and experience. Applying this test here, where if the appliances to be used were defective, serious casualties were to be apprehended, it was the duty of the master of the steamer to exercise a corresponding vigilance to provide against them. Cir. Ct., S. D. New York, April 12, 1884. Coughlin v. The Rheola. Opinion by Wallace, J.

MARYLAND SUPREME COURT ABSTRACT.*

BANK-AFFIDAVIT BY CASHIER.-Where a suit is brought by a national bank under the act of 1864, ch. 6, the cashier of the bank is the proper officer to make the affidavit required by the act to be filed with the declaration, stating the true amount that the defendant is indebted to the plaintiff over and above all discounts. He has the means of knowing the dealings

*Appearing in 61 Maryland Reports.