fendant below was specifically charged, as the only ground of liability to the plaintiff for the injury he sustained in falling off the platform of the car on which he was then standing, was the failure of the company to provide a sufficient number of cars to seat all the passengers on the train. Without assenting to the broad proposition contended for, that a railroad company using steam motive power is bound absolutely, and under all circumstances, to provide every passenger on the train with a seat, it can not be questioned that, as a general rule, and under ordinary cirsumstances, it is the duty of such company to provide suitable car accommodations and seats for those whom it undertakes to carry; and if a passenger, exercising reasonable care and prudence, is injured in consequence of the company's neglect of duty in that regard, the latter is liable to respond in damages for the injury thus occasioned solely by its own negligence. There appears to be nothing in the circumstances of this case to exempt the company from that general rule of duty; and if its negligence was the proximate cause of the plaintiff's injury, the liability of the company would necessarily follow, unless the plaintiff himself was guilty of negligence which contributed thereto. His contention was that, in common with many other passengers, he was unable to procure a seat, and while searching for one he was thrown from the platform of one of the cars, and thus sustained the serious injury which resulted in the loss of his arm. The overcrowded condition of all the cars composing the train, and the consequent inability of the plaintiff and others to procure seats were facts clearly proven. Assuming for the present that the company was justly chargeable with negligence resulting in injury to the plaintiff below, and that, under the circumstances, he was not guilty of contributory negligence in passing from car to car in search of a seat while the train was in rapid motion, can it be pretended that it would not be gross negligence in him to voluntarily take a position near the outer edge of the platform, and remain there until, by an ordinary jolt of the car, he lost his equilibrium and was thrown off? This is precisely what the evidence as to the plaintiff's position at the time of the action clearly establishes. Apart from his own testimony there is very little evidence tending to show precisely where he was at and shortly before that time, and there is certainly nothing that militates against his own version of what then and there occurred. He testified, in substance, that on entering the cars at Atlantic City, and finding the rear one overcrowded, he pushed his way forward, searching in vain for a seat, until he reached the front car. After remaining there a short time he started back; and, quoting from his own testimony, as found in the bill of exceptions, he says: "I left that car because I was tired standing there; had been there seven or eight minutes; started back through the cars, and went through some ten or twelve cars; stopped several going through; can't recollect the time it took to go through back; could not get through for crowd; it was pretty near the same going back as coming through; I stopped outside on platform; rear platform of fourth or fifth car, right outside the door; stood on one side; the right-hand side coming up. When I got out first, I had hold of a little rail or something across the window; I held on to the little rail across the window to keep from falling off; let go to go through the cars; I was standing there a minute or two,or so; it was two minutes to the best of my knowledge; can't tell if it was longer; when I left I started to go through, when the car got a jolt and somebody struck me; could not count how many passengers passed through while I was on the platform; they were coming in the opposite direction, up towards the engine, and some were going through the same way, towards the rear of the train; can't say whether the car door of the car I passed out of was open; when I went out of the door of the opposite car I am positive sure, was open; saw parties coming from the opposite car; I did not stand aside inside of car, because I could not see them well, because I wanted to go through myself; I came out and stood with my back against the car and hand on the rail, resting myself; I was leaning with my back against the car and my hand behind me; people were passing through into the car I left; there was a crowd; I left that car to go into an adjoining car; while standing there the car got a jolt, and somebody behind me struck me and staggered me; the jolt and it had something to do with it; can't tell whether the jolt without the other would have thrown me off; as soon as I got the jolt I made a grab with my right hand and missed, and caught with the left the rail on the platform; there is a similar rail on the body of the car to assist people on or off; I tried to get hold of the rail on the body; I was thrown partly around, and caught the dasher rail with my left hand; I was thrown with my chest towards the inside track; train was traveling very rapidly; my arm was mangled." It was very evident, from the plaintiff's own statement, that at the time of the accident, and for some minutes before, he was not in the act of passing from one car to another in search of a seat. On the contrary, he was standing quite near the edge of the platform with his back to the end window of the car. He was not only in the position of known danger, but was there voluntarily and in disregard of the rules of the company. There is nothing in the testimony from which a jury would be justified in coming to any other conclusion. While he was thus standing on the platform, persons passed from one car to the other in both directions, and there is nothing whatever to show that he could not have gone into the next car if he had been so disposed. Neither he nor any other witness pretends to say it was necessary for him to stop and stand on the platform. In the seventh point of the defendant below,the MICHIGAN, PENNSYLVANIA, 9. 21, 22 4, 5, 8 16, 18 FEDERAL SUPREME COURT, 1, 2, 3, 6, 7, 10, 11, 12,13, 14, 17 1. ADMINISTRATION-PURCHASER AT EXECUTOR'S SALE-PRESCRIPTION. court was requested to charge: "That even if a WEEKLY DIGEST OF RECENT CASES. search for a seat was the real purpose of the plaintiff in going out on the platform, and if it were not negligence for him to have crossed from car to car for that purpose, yet, if the jury believes from the evidence that he lingered on the platform instead of immediately crossing, the verdict should be for the defendant." The learned judge, in affirming this proposition, added the qualifying words: "Unless compelled thereto by circumstances." The jury was then authorized to inquire whether or not the plaintiff was compelled by circumstances to linger on the platform. We see nothing in the testimony to warrant the submission of this inquiry to the jury. As already intimated, there was not a particle of testimony from which it could be reasonably inferred that plaintiff was compelled to take or retain the position he did on the platform. Having shown by his own testimony that, at the critical juncture, he was in a position where no one of ordinary prudence should have placed himself, it was incumbent on him to prove that he was there from necessity and not from choice. While the latter was clearly shown, there was no testimony tending to prove the former. The point should have been affirmed without the qualification complained of; but, for reasons already suggested, we think the court should have gone further and instructed the jury as requested in the defendant's ninth point, which was: "That the evidence shows negligence on the part of plaintiff, which contributed to produce the injury complained of, and therefore he can not recover," The dangerous position on the platform in which the plaintiff voluntarily placed himself while the cars were in rapid motion, was undoubtedly the immediate cause of his being jolted off. If there had been any testimony from which it could have been reasonably inferred that he was there from necessity and not from choice,it would have been a question for the jury; but, in the absence of such evidence, it was error to refuse the point and leave it to the jury to determine whether he was or was not guilty of contributory negligence. Of all the passengers on a long train of twenty overcrowded cars, the plaintiff was the only one who appears to have been injured. If he had submitted, as many others did, to the inconvenience of standing inside the cars, or if he had been guilty of no greater imprudence than passing from car to car while the train was in rapid motion, It is not at all probable he would have been injured. His much to be regretted misfortune was the result of his own carelessness. This was clearly proved by uncontroverted testimony from which no other conclusion could reasonably be drawn. Judgment reversed. MERCUR, GORDON and TRUNKEY, JJ., dissent. 1. The fact that a court of probate has made an order for the sale of a testator's estate, is, of itself. an adjudication that all the facts necessary to give it jurisdiction to make the order really existed. 2. The deed of an executor conveying property sold by order of a probate court under which possession had been held for over sixty years, and which recites that the sale was made "after the publications and delays prescribed by law," and the account of the executor of record in the probate court for fifty years, which shows that he had paid a specified sum for advertising the sale of the property conveyed, are competent as evidence to prove the advertisement of the sale, and being uncontradicted are sufficient to establish the fact. 3. To entitle one to claim the benefit of the preseription applicable to immovables, the jurisprudence of Louisiana requires that he should have obtained the property prescribed for in good faith and by a just title; that is to say, a title derived from one whom the possessor believed to be the true owner, and which, by its nature, was sufficient to transfer the ownership if it had in fact been derived from the true owner. 4. The prescription of five years declared by art. 3543 of the Civil Code of Louisiana against all informalities connected with or growing out of any public sale by any person authorized to sell at public auction, may be pleaded by one who purchases in good faith at the sale of an executor or register of wills, and who holds by a just title, against the averment that the sale was not advertised, that the laventory of the estate was not completed before the order of sale was made, or that it was partly made by appraisers appointed by the testamentary executor, or that it was signed by only one of the two appraisers so appointed. Such informalities are cured by the lapse of five years. Davis v. Gaines, U. S. S. C., October Term, 1881, 3 Morr. Trans. 299. 2. ADMIRALTY- FEE OF SHIPPING COMMISSIONER. 3. BANKRUPTCY-PROCEDURE-APPEALS. days after being taken; and it was too late to wait till the commencement of the succeeding term. Ex parte Woolen, U. S. S. C., October Term, 1881, 3 Morr. Trans. 346. 4. BOND OF COUNTY TREASURER-SURETIES. A county treasurer who had been elected three successive terms proved to be a defaulter. Suit was brought by the county on his third bond. Held, 1. That the sureties might prove that the entire defalcation was committed before the giving of the bond sued on and before the commencement of the term of office covered by it, in which case they would not be liable. 2. That statements made by said treasurer to the board of county commissioners of the amount of money on hand at the commencement of the third term of office were not conclusive upon the sureties, nor were they estopped from denying, impeaching or contradicting the same. Van Sickel v. Buffalo County, S. C. Neb., June 22, 1882, 13 N. W. Rep. 19. 5. CONTRACT-ACCEPTANCE OF GOODS SHIPPED. N, under an agreement with M B, by which he was to receive certain goods from them, sent his order therefor. Being unable to furnish the goods at that time, M B handed the order to C & P, dealers in such goods, to fill, which they did in their own names, shipping them as directed in the order to N, and at the same time informing him of the price and terms of payment to be made to them. Held, that by the acceptance of the goods under these circumstances, the law implied an agreement on the part of N to pay for them according to the terms upon which they were delivered to him. Neidig v. Cole, S. C. Neb., June 21, 1882, 13 N. W. Rep. 18. 6. CONTRACT-GRANT BY STATE OF WATER PRIVILEGES ON CANAL-ABANDONMENT OF CANAL. The State of Ohio, by its board of public works, gave certain leases of the surpius waters in the canals which was not required fer navigation, reserving the right to resume the privilege whenever deemed necessary for navigation. Among others it owned a canal connecting at Cincinnati by locks with the Ohio River. The plaintiff had a lease of the surplus water around one of these locks. In 1863 the State granted to the city this part of the canal for a highway. Held, that this giant was an abandonment by the State of the canal for purposes of navigation; that the lease held by the plaintiff did not import an obligation to maintain the canal for the mere purpose of supplying surplus water, that the State might under its contract abandon the canal for navigation purposes at any time, and that the use of it by the city created no liability on its part to the plaintiff. Fox v. Cincinnati, U. s. S. C., March 6, 1882,3 Morr. Trans. 780. 7. EQUITY CONTRACT OF STATE TO HOLD AS TRUSTEE-CONFLICTING GRANT-RIGHT TO FILE INTERVENING PETITIONS. The State of Indiana, after the original construction of the Wabash aud Erie Canal, passed an act authorizing the engineer of the canal to let out a contract to so clear and improve the canal as to make surplus water power available, and pledg ing to the contractors all the rents received from the lease of such water power till they were paid; and certain contractors undertook and completed the work. Some leases were made, and the rents paid over to the contractors. Later, the State granted to a mill owner on the St. Joseph river, whose mill had been almost deprived of water by tapping the river for the canal above his mill, and who was claiming damages from the State, the right to draw off from the canal a certain amount of water for a mill free of rent, which he accepted, released his claim for damages, and proceeded to make costly improvements. Subsequent to this the State issued certificates of indebtedness to fund a portion of the original cost of constructing the canal, and granted all its interest in the canal to trustees in pledge to secure these certificates, subject to all existing rights and equities against the State on account of the same. A chancery suit was brought by a holder of one of these certificates against the trustees alone as defendants, in which the canal was sold free of incumbrances and the proceeds paid into court. Petitions being filed by these lessees and contractors asking to be made parties, and to be allowed to share in the proceeds, which were dismissed by the lower court on demurrer: Held, 1. That the effect of the agreement with the contractors was to convey to them a property right in the rents produced by leasing the water power, and to make the State a trustee to collect and pay over the rents as fast as collected until the contractors were paid, and that it operated as a complete transfer in equity. 2. That the agreement to permit the mill owner to draw water from the canal was in effect an absolute grant for a valuable consideration of the right, and that it was a property right, and the legitimate subject of a grant. 3. That the trustees merely obtained the State's interest, subject to all prior incumbrances, and hence that the rights of the contractors and mill owners were superior to those of the trustees, or of those claiming under a judicial sale of their interest. 4. That the contractors, mill owner and other lessees while not necessary would have been proper parties, and were entitled to intervene by petition, and submit to adjudication their rights against the proceeds of sale as the representative of the res itself. French v. Gapin, U. S. S. C., March 6, 1882, 4 Morr. Trans. 120. 8. EXECUTION-IMPROPERLY SATISFIED BY LEVY AND SALE-VACATION OF LEVY AND ISSUE OF ALIAS. Where a levy has been made on property where the debtor has no title or interest, the property sold, the execution returned satisfied, and afterwards the property is replevied by a third party, to whom it is finally adjudged by the court, the creditor may make application to the court to vacate the levy and satisfaction, and to award a new execution. This application is addressed to the power of the court to correct its own records, and this power may be lawfully exercised by the court on motion, accompanied by affidavit and notice. Zeigler v. McCormack, S. C. Neb., June 22, 1882, 13 N. W. Rep. 28. 9. EXEMPTION-SALOON-POOL TABLE NOT EXEMPT. A saloon is supposed to be a place for obtaining refreshment; and a pool table belonging to it is not, as matter of law, exempt from execution as apparatus necessary to enable the saloon-keeper to carry on his business. Goozen v. Phillips, S. C. Mich., June 21, 1882, 12 N. W. Rep., 889. 10. FEDERAL JURISDICTION-APPEAL-DECREE FOR LESS THAN $5,000. Where the decree against the defendant is for less than $5,000, and she appeals, the fact that the decree should have been for more than $5,000 can not be urged by the defendant in order to give this court jurisdiction. Lamar v. Micou, U. S. S. C., October Term, 1881, 3 Morr. Trans., 349. 11. FEDERAL JURISDICTION CASE DECIDED BY STATE COURT-FEDERAL QUESTION. A case decided by a State court on a ground that was not a Federal question, is not reviewable here. To give this court jurisdiction the record must show that a Federal question was raised and decided. Boughton v. American Exchange National Bank, U. S. S. C., October Term, 1881, 3 Morr. Trans., 279. 12. FRAUDULENT CONVEYANCES-BONA FIDES-SALE UNDER DECREE. Certain decrees rendered against a father, as guar dian of his two daughters, for a large sum in their favor, on which executions were issued and under which his property was nearly all sold: Held, on the evidence to be valid and bona fide, in a suit brought by other creditors to set all the decrees and proceedings aside, as made by collusion for amounts larger than what was really due, and alleged to be in pursuance of a design and conspiracy to hinder, delay, and defraud his creditors. Micou v. First National Bank of Montgomery, U. S. S. C., October Term, 1881, 3 Morr. Trans., 554. 13. FRAUDULENT CONVEYANCE-INSOLVENT MORTGAGOR-FRAUDULENT PREFERENCE. 1. A mortgage executed by an insolvent mortgagor and covering his entire estate, to his creditor, who knows of his insolvency, and who, for the purpose of giving him a fictitious credit, conceals the mortgage and withholds it from the record, and represents the mortgagor as having a large estate and unlimited credit, by which means the latter is enabled to contract other debts which he can not pay, is void at common law. 2. A mortgage executed by an insolvent debtor with intent to give a preference to his creditor, who has reasonable cause to believe him to be insolvent and knows it to be made in fraud of the provisions of the bankrupt act, and who, for the purpose of evading the provisions of that act, actively conceals and withholds it from the record for two months, is void under the bankrupt act, although executed more than two months before the filing of a petition in bankruptcy by or against the mortgagor. Blennerhassett v. Sherman, U. S. S. C., April, 1882, 14 Reporter, 161. 14. INJUNCTION-DISSOLUTION-CHANCERY JURISDICTION TO ASSESS DAMAGES. A court of chancery has an inherent power to assess damages upon the dissolution of an injunction. Such assessment becomes an incident of the principal case, and enables the court to do entire equity between the parties, and it would seem to be the duty of the court to proceed in the case, and not compel the party to resort to an independent action at law for the recovery of his damages. Lea v. Deakin, U. S. C. C., N. D. Ill., August 8, 1882, 14 Ch. Leg. N., 391. 15. INSURANCE-PAYMENT OF PREMIUM-TAKING NOTE-USAGE. 1. While taking a note in payment of a premium due on a policy of insurance is a waiver of the conditional forfeiture for non-payment of the premium, yet where there is an express condition that the policy shall be void on failure to pay such premium note at maturity, it is not a waiver of this secondary condition. 2. A usage and custom of an insurance company not to demand punctual payment of a premium note at the day is a mere matter of voluntary indulgence, and not a permanent waiver of the clause of forfeiture, or an agreement to do the same in future. Thompson v. Knickerbocker Life Ins. Co., U. S. S. C., October Term, 1881, 3 Morr. Trans., 332, Where a note is made payable at a future day "with" interest at a prescribed rate per annum, such interest does not become due or payable until the principal sum does, unless there is a special provision in the note or contract to that effect. Tanner v. Dundee Land Investment Co., U. S. C. C., D. Oreg., July 5, 1882, 9 Pac. C. L. J., 706. 18. LIMITATIONS-NEW PROMISE - REQUEST FOR DELAY, INSUFFICIENT. In order to take a case out of the statute of limitations there must be either a promise to pay, or an acknowledgment of the debt, consistent with a promise to pay. A mere request to delay bringing suit is not at all inconsistent with a denial of liability, and will not toll the running of the statute. Junior Steam Fire-Engine Co. v. Douglas, S. C. Pa., April 3, 1882, 12 W. N. C., 11. A bill of review which prayed to have so much of a decree set aside as denied the statutory right of redemption given by the State law in cases of foreclosure of a mortgage, dismissed, it appearing that the party wishing to redeem did not make the offer to redeem in the time required by the statute, and the court holding that he could not makesuch offer after such time had expired, and that therefore it could serve no good purpose to set aside such decree, even if erroneous. Burley v. Flint, U. S. S. C., March 13, 1882, 4 Morr. Trans.,. 270. 20. MUNICIPAL BONDS-LEGALITY OF ISSUE-ELEC TION. One section of the charter of a railroad provided that the counties along its line might make subscriptions or donations to the railroad after a popular vote authorizing it; and another section provided that a particular county might, by its board of supervisors, make a subscription of a certain amount, and did not require a popular vote: Held, that the two sections were not inconsistent, and that a donation might be made under one and a subscription under the other. The mere transposition of two of the words of the name of the railroad to which the aid was to be voted in the petition for and notice of the election authorizing the subscription, did not avoid the donation nor the election, it being evident what railroad was intended. Moultrie County v. Fairfield, U. s. S.. C., March 6, 1882, 4 Morr. Trans., 140. 21. NEGLIGENCE-DUTY OF STABLE KEEPER TO HORSE. In an action for damages against a stable keeper for negligence in allowing a sack of corn to be left open upon the barn floor, and the horse of plaintiff in the night got loose and ate from the sack, from the consequences of which the horse was injured: Held, that the defendant's duty was not that of an insurer of the safety of the horse, and that he could only be held responsible in case the In an action for negligently causing the death of plaintiff's intestate, a switch tender employed by a railway company, through the explosion of nitroglycerine being transported by it on its road, it was held, that the defendant, in complying with a proper request from another railroad company to run for it a short distance one of its cars, to be loaded with an article, safe when properly handled, but dangerous when carelessly handled, is not bound to assume that negligence on the part of those handling it would occur, nor bound to take measures for the protection of its servants on that assumption. Foley v. Chicago, etc. R. Co., S. C. Mich., June 21, 1882, 12 N. W. Rep., 879. 23. PATENT-COMBINATION OF OLD ELEMENTSMUTUAL QUALIFICATION. In a patentable combination of old elements, all the constituents must so enter into it as that each qualifies every other; that is, either a new machine of a aistinct character and function must be formed, or a result produced which is due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions. Pickering v. McCullough, U. S. S. C., October Term, 1881, 3 Morr. Trans., 321. 24. PATENT-INFRINGEMENT EVIDENCE. As against a party proved to have infringed a patent is prima facie evidence of both novelty and utility. Lehnbeuter v. Holthaus, U. S. S. C., March 6, 1882, 4 Morr. Trans., 112. 25. PATENT-REMEDY FOR INFRINGEMENT-EQUITY JURISDICTION. The court, after reviewing the decisions on the rule of damages for infringements of patents and the various cases in England and America on the subject of chancery jurisdiction as founded on the want of a complete remedy at law, decides: 1. That a bill in equity for a naked account of profits and damages against an infringer of a patent can not be sustained. 2. That such relief ordinarily is incident to some other equity, the right to enforce which secures to the patentee his standing in court. 3. That the most general ground for equitable interposition is to insure to the patentee the enjoyment of his specific right by injunction against a continuance of the infringement. 4. That grounds of equitable jurisdiction may, however, arise, other than by way of injunction, as where the title of the complainant is equitable merely, or equitable interposition is necessary on account of the impediments which prevent a resort to remedies purely legal; and such an equity may arise out of and inhere in the nature of the account itself, springing from special and peculiar circumstances which disable the patentee from a recovery at law altogether, or render his legal remedy difficnlt, inadequate and incomplete; which latter cases must each rest upon its own particular circumstances as furnishing a clear ground of exception from the general rule. 5. That the rule holding an infringer a trustee for the patentee is a mere rule of administration, in cases where the jurisdiction to grant equitable relief is clear on other grounds, and does not confer equitable jurisdiction as creating a trust. Root v. Lake Shore, etc. R. Co., U. S. S. C., March 13, 1882, 4 Morr. Trans., 240. 26. PUBLIC LANDS-LAND GRANT-ALTERNATE SEC TIONS-CONSTRUCTION. A grant of lands to a railroad, by an act of Congress, alternate sections, without prescribing any lateral limit, construed to mean that the grantee could go off the line of the road only in case, at the time when its rights vested, there was not sufficient land on its line unappropriated to satisfy the grant. Wood v. Burlington, etc. R. Co., U. S. S. C., October Term, 1881, 3 Morr. Trans., 343. 27. RAILROAD MORTGAGE-RIGHT OF TRUSTEES, AS WELL AS BONDHOLDERS TO FORECLOSE. 1. In a railroad mortgage which is declared to be for the purpose of securing the payment of the interest as well as the principal of certain bonds, and where the mortgagor's right of possession terminates upon a default in payment of the interest as well as principal of any of the bonds, the trustees in the mortgage or any bondholder, on non-payment of any interest, may file a bill for foreclosure and sale, and will be entitled to a decree nisi, ascertaining the amount of interest due, and giving the debtor a reasonable time to pay it. In case of non-payment, a sale may be made and the proceeds applied to the payment of interest and also of principal; but the debtor, at any time before the sale or its confirmation, may redeem by bringing into court the amount of unpaid interest and costs. 2. The decree on which the sale is based must find correctly the fact, nature and extent of the default which constitutes the breach of the condition of the mortgage, and the amount due on account thereof; and a decree which orders a sale for the non-payment of a larger amount than is actually due is fatally erroneous. 3. Where the foundation of the trustees' right to foreclose was, that a certain amount of interest should be in default, and it was shown that such default had occurred, but there was nothing in the record to show that the coupons as to which default had been made had not been funded under certain funding agreements granting an extension, and the default so waived, and it was not even shown that the coupons held by some of the complainants had not been funded-this was not sufficient to justify a foreclosure based on such default as a necessary condition precedent. 4. Nor is such foreclosure justified by the fact that the company, after loss of possession of its property by the foreclosure proceedings, failed to pay interest; for the steps taken as a necessary preliminary to foreclosure must stand or fall upon the circumstances existing when they were taken, and can not be supported or validated by subsequent occurrences. 5. A mere provision that in case of a sale for default of interest, the proceeds are to be applied to the payment of principal also, does not make the principal due before the stipulated time, nor prevent the mortgagor from redeeming by the mere payment of interest. 6. Provisions imposing penalties being strictly construed, in a paragraph of a mortgage which provides that "if default be made in the paymen of any half-year's interest on any of the bonds secured, and such default continue for more than six months after demand without the consent of the holder, then the principal of all the bonds shall immediately become due, and the trustees may so declare the same and notify the debtor; and, upon the written request of the holders of a majority of the said bonds, shall proceed to collect both principal and interest,”—the latter clause |