necessarily a termination of the ten-menced the trial of the cause, pur suant to the order of reference, but the trial has not yet been concluded by the referee. The next term of the State Court does not occur until the 5th day of November, proximo. ancy. The verbal notice given by defendant was not sufficient. But even if he had given formal notice, his continuance in possession of a portion of the premises enabled the landlord to treat him as a tenant of the whole for another year. Judgment reversed and new trial erly removed. The act under which granted, costs to abide event. Opinion by Smith, J.; Talcott, P. J., concurs; Merwin, J., did not sit. REMOVAL OF CAUSES. U. S. CIRCUIT COURT, D. OF Iowa. M. T. Scott v. H. W. Otis et al. Decided October 23, 1877. A cause cannot be removed to the Federal Court under § 639 of the Revised Statutes by a petition and bond filed in the clerk's office in vacation, without any action of the State Court. Held, That the case was not prop this cause was attempted to be removed (Rev. Stat., § 639, subdivision 3), requires the petition and affidavit for the removal to be filed "in the State Court." And "in order to such removal the petitioner must, at the time of filing his petition therefor, offer in said State Court, good and sufficient surety, &c." "It shall thereupon be the duty of the State Court to accept the surety and to proceed no further in the cause against the petitioner." Unlike the Act of March 3, 1875, the statute under which the removal was here attempted contains no provision authorizing the petition for the transfer to be filed in vacation. It is our opinion that the filing in vacation of the petition, and affidavit and bond for the removal of this cause, did not have the effect to divest the jurisdicIn the vacation after the May tion of the State Court, or that of the term, 1877, and prior to the Novem-referee under the order of reference. ber term, 1877, the plaintiff filed with the clerk of the State Court a petition, affidavit and bond, under the "prejudice and local influence" Act (Rev. Stats., § 639, subdivision 3, Act of March 2, 1867), to remove the cause to this Court. The State Court, not being in session, did not act on the petition or accept the bond. On motion by the defendant to remand cause to the State Court. The suit was brought in the State Court at the May term, 1875, and at the May term, 1877, it was by consent referred by the Court to a referee for trial. This reference was made in pursuance of the Code of Iowa on that subject. Notice of the filing of the petition and bond was given to the referee, who nevertheless, it seems, com The precise point presented is, whether under the Revised Statutes (§ 639), the removal of a cause can be effected by a petition and bond filed in the clerk's office in vacation, without any action of the State Court. We hold that it cannot. Case dismissed. COMMON CARRIERS. DELIV- hundred feet in length and some ERY. U. S. SUPREME COURT. three or four hundred feet in width, and was all under one roof. It was E. G. Pratt, plff. in error, v. The divided into sections or apartments, Grand Trunk Railway Co. Decided October 22, 1877. The liability of a common carrier commences when the goods are delivered to it, and terminates upon delivery to the consignee or to a succeeding carrier for further transpor tation. Where one company of a connecting line has an apartment in the depot of another, and a particular place is set apart for deposit, by the former, of goods to be transported by the latter without further notice, a deposit of the goods at such designated place is a sufficient delivery to discharge the liability of the former company. Error to the Circuit Court of the United States for the Eastern District of Michigan. The defendant is a corporation engaged as a common carrier in the transportation of persons and property. This action seeks to recover damages for a violation of its duty in respect to certain merchandise shipped from Liverpool to St. Louis, and carried over its road from Montreal to Detroit. The goods reached the city of Detroit on the 17th of October, 1865, and on the night of the 18th of the same month were destroyed by fire. The defendant claims to have made a complete delivery of the goods to the Michigan Central Railroad Company, a succeeding carrier, and thus to have discharged itself from liability before the occurrence of the fire. At the time the fire occurred, the defendant had no freight room or depot at Detroit, except a single apartment in the freight depot of the Michigan Central Railroad Company. Said depot was a building several Vol. 5-No. 12. without any partition wall between them. There was a railway track in the centre of the building, upon which cars were run into the building to be loaded with freight. The only use which the defendant had of said section was for the deposit of all goods and property which came over its road or were delivered for shipment over it. This section, in common with the rest of the building, was under the control and supervision of the Michigan Central Railroad Company, as hereinafter mentioned. Goods which came into the section from defendant's road, destined over the road of the Michigan Central Railroad Company, were, at the time of unloading from defendant's cars, deposited by employees of the Michigan Central Railroad Company in a certain place in said section, from which they were loaded into the cars of said latter company by said employees when they were ready to receive them; and, after they were so placed, the defendant's employees did not further handle said goods. Whenever the agent of the Michigan Central Railroad Company would see any goods deposited in the section of said freight building set apart for the use of the defendant, destined over the line of said Central Railroad, he would call upon the agent of the defendant in said freight building,. and, from a way-bill exhibited to him by said agent, he would take a list of said goods, and would then, also, for the first time, learn their ultimate place of destination, together with the amount of freight charges due the further order of the owner, the thereon; that, from the information case is otherwise. 25 N. Y., 364; thus obtained from said way-bill in 13 Id., 569; 47 Id., 658; 7 Mich., the hands of the defendant's agent, a 515. way-bill would be made out by the Michigan Central Railroad Company for the transportation of said goods over its line of railway, and not be fore. These goods were, on the 17th of October, 1865, taken from the cars and deposited in the apartment of said building used as aforesaid by the defendant, in the place assigned as aforesaid for goods so destined. Held, That these acts constituted a complete delivery of the goods to the Michigan Central Company, by which the liability of the Grand Trunk Company was terminated. The liability of a carrier commences when the goods are delivered to him or his authorized agent for transportation, and are accepted. 52 N. Y., 262; 59 Id., 34. If a common carrier agrees that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit amounts to notice and is a delivery. 20 Conn., 354; 33 Id., 166. The same proposition is stated in a different form when it is said that the liability of a carrier is discharged by a delivery of the goods. If he is an intermediate carrier, this duty is performed by a delivery to the succeeding carrier for further transportation, and an acceptance by him. Authorities supra. In this case the goods were placed within the control of the agents of the Michigan Company. 2. They were deposited by the one party and received by the other for transportation, the deposit being an accessory merely to such transportation. 3. No further orders or directions. from the Grand Trunk Company were expected by the receiving party. Except for the occurrence of the fire the goods would have been loaded into the cars of the Michigan Central Company, and forwarded, without further action of the Grand Trunk Company. 4. Under the arrangement between the parties the presence of the goods in the precise locality agreed The liability of the carrier is fixed by accepting the property to be trans-upon, and the marks upon them, " P. ported, and the acceptance is com- & F., St. Louis," were sufficient plete whenever the property thus notice that they were there for transcomes into his possession with his portation over the Michigan road assent. 38 Ill., 354. towards the city of St. Louis, and such was the understanding of both parties. If the deposit of the goods is a mere accessory to the carriage, that is, if they are deposited for the purpose of being carried, without further orders, the responsibility of the carrier begins from the time they are received; but when they are subject to to | Judgment affirmed. Opinion by Hunt, J. N. Y. SUPREME COURT. GENERAL N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Lewis Culver, Assignee, &c., respt., v. Emily W. Randall, adm'rx., applt. Decided October, 1877. An agreement by A. to lend money to B. by discounting and renewing B.'s notes, on condition that B. shall pay on all such notes and renewals one-half of one per cent. in addition to the regular discount, is usurious and void. A note given for the balance found due on a settlement of transactions under said contract is also usurious. Appeal from judgment entered upon report of Referee in favor of plaintiff. Plaintiffs' assignee agreed to lend money to defendant by discounting and renewing her notes from time to time, on condition that she would make the paper payable in New York City, and would pay on all said notes and renewals one-half of one per cent. in addition to the regular discount. Defendant borrowed several thousand dollars in pursuance of such agreement. The notes were not sent to New York, but were taken up from time to time by defendant. A general settlement being had of all the matters growing out of said transactions, in which defendant was charged one-half of one per cent. on ali discounts in addition to the regular seven per cent., the defendant gave her note for the balance found due from her on said settlement. This action being brought upon said note, TERM. FOURTH DEPT. Daniel Brokaw et al., respts., v. Phebe M. Brokaw, applt. Decided October, 1877. Where a party to an appeal has died before the Code of Civil Procedure went into effect, an application for the order to show cause provided for in § 1298 made before the expiration of three months from the time such section took effect is premature. Petition by respondents, showing that appellant died May 26, 1875, that an appeal had been perfected before that time, and that no order had been made substituting another person, and asking for an order to show cause, etc., under § 1298 of the Code of Civil Procedure. Held, That the application was premature, as three months had not expired since the section referred to went into effect. Dictum. The order to show cause referred to in said section should be made returnable at a Special Term. Opinion by Smith, J. All concur. U. S. SUPREME COURT. Good, plff. in error, v. Martin. (October, 1877.) If a party indorse a promissory note in blank before it is indorsed by the payee, to give the maker credit with the payee, or has participated in the consideration, he is to be deemed a joint maker. Held, That the transaction referred If his indorsement be subsequent to the makto, and said note, were usurious. Judgment reversed and new trial ordered. Opinion by Smith, J.; Talcott, J., concurs; Merwin, J., dissents. ing and delivery, and done at the request of the maker pursuant to a contract between the maker and payee for further indulgence or forbearance, he can only be held as guarantor, which can only be done where there is legal proof of a consideration for the promise, or he is connected with the incep- back of the note before the delivery tion of the note. If done with the understanding that his in dorsement would be inoperative until indorsement by the payee, he is then only liable as second indorser. Where the party is charged as an original promisor or second indorser, no other consideration than the original one need be shown; but where he is charged as guarantor, a distinct consideration must appear. of the same to the payee, and that he did not then make any statement of his intention in so doing, he is presumed to have done so as the surety of the makers and for their accommodation, to give them credit with the payee, and is liable for the payment of the note in this action; and that Error to the Supreme Court of the if that presumption is not rebutted Territory of Colorado. The action was one of assumpsit upon a promissory note brought by Ida Martin against Parker B. Cheney, William M. Shepard and John Good, and payable to the order of Alexander Davidson. Cheney and Shepard were makers of the note, and Good indorsed the same. Three of the counts of the declaration are framed upon a promissory note, dated June 29, 1866, payable to Alexander Davidson, or order, sixty days after date, signed by the first two defendants, and the record shows that it was indorsed by the other defendant before it was indorsed by the payee and before it was delivered to take effect as a negotiable instrument. His indorsement was in blank, and of course was without any written explanation as to its nature and intended effect. Service was made, but the two defendants first named failed to appear and were defaulted. Instead of that the other defendant appeared, pleaded the general issue, and went to trial. Evidence was introduced on both sides, and the verdict and judgment were for the sum of $3,625.33. On the trial the Court instructed the jury as follows: That if they found from the evidence that the defendant wrote his name upon the by the evidence in the case they must find for the plaintiff in the issue joined between her and the lastnamed defendant. Held, no error. When a promissory note made payable to a particular person or order is first indorsed by a third person, such third person is held to be an original promisor, guarantor or indorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place. 1. If he put his name in blank on the back of the note at the time it was made and before it was indorsed by the payee, to give the maker credit with the payee, or if he participated in the consideration of the note, he must be considered as a joint maker of the note. 20 Mo., 571; 31 Me., 537. 2. Reasonable doubt of the correctness of that rule cannot be entertained, but if his indorsement was subsequent to the making of the note and to the delivery of the same to take effect, and he put his name there at the request of the maker, pursuant to a contract of the maker with the payee for further indulgence or forbearance, he can only be held as guarantor, which can only be done where there is legal proof of consideration for the promise, unless it |