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necessarily a termination of the ten- menced the trial of the cause, purancy. The verbal notice given by suant to the order of reference, but defendant was not sufficient. But the trial has not yet been concluded even if he had given formal notice, by the referee. his continuance in possession of a The next term of the State Court portion of the premises enabled the does not occur until the 5th day of landlord to treat him as a tenant of November, proximo. the whole for another year.

Held, That the case was not propJudgment reversed and new trial erly removed. The act under which granted, costs to abide event. this cause was attempted to be reOpinion by Smith, J.; Talcott, P. moved (Rev. Stat., § 639,

639, subdiJ., concurs; Merwin, J., did not sit. vision 3), requires the petition and

affidavit for the removal to be filed

“in the State Court." And in REMOVAL OF CAUSES.

order to such removal the petitioner U. S. CIRCUIT Court, D. OF Iowa.

must, at the time of filing his petition M. T. Scott v. H. W. Otis et al.

therefor, offer in said State Court, Decided October 23, 1877.

good and sufficient surety, &c." A cause cannot be removed to the Federal shall thereupon be the duty of the Court under & 639 of the Revised Statutes

State Court to accept the surety and by a petition and bond filed in the clerk's office in vacation, without any action of the to proceed no further in the cause State Court.

against the petitioner.” Unlike the On motion by the defendant to re-Act of March 3, 1875, the statute mand cause to the State Court. The under which the removal was here suit was brought in the State Court attempted contains no provision auat the May term, 1875, and at the thorizing the petition for the transMay term, 1877, it was by consent fer to be filed in vacation. It is our referred by the Court to a referee for opinion that the filing in vacation of trial. This reference was made in the petition, and affidavit and bond pursuance of the Code of Iowa on for the removal of this cause, did not that subject.

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 The precise point presented is, with the clerk of the State Court a whether under the Revised Statutes petition, affidavit and bond, under the (§ 639), the removal of a cause can “prejudice and local influence” Act be effected by a petition and bond (Rev. Stats., $ 639, subdivision 3, Act filed in the clerk's office in vacation, of March 2, 1867), to remove the without any action of the State Court. cause to this Court. The State Court, We hold that it cannot. not being in session, did not act on

Case dismissed. the petition or accept the bond.

Opinion by Dillon, J. Notice of the filing of the petition and bond was given to the referee, who nevertheless, it seems, com

as

COMMON CARRIERS. DELIV. hundred feet in length and some ERY.

three or four hundred feet in width, U.S. SUPREME COURT.

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.

without any partition wall between Decided October 22, 1877.

them. There was a railway track in

the centre of the building, upon The liability of a common carrier commences

when the goods are delivered to it, and ter- which cars were run into the building minates upon delivery to the consignee or to to be loaded with freight. The only a succeeding carrier for further transpor

use which the defendant had of said tation. Where one company of a connecting line has section was for the deposit of all goods

an apartment in the depot of another, and a and property which came over its particular place is set apart for deposit, by road or were delivered for shipment the former, of goods to be transported by over it. This section, in cominon the latter without further notice, a deposit with the rest of the building, was of the goods at such designated place is a sufficient delivery to discharge the liability nnder the control and supervision of of the former company.

the Michigan Central Railroad ComError to the Circuit Court of the pany, hereinafter mentioned. United States for the Eastern District Goods which came into the section of Michigan.

from defendant's road, destined over The defendant is a corporation en- the road of the Michigan Central gaged as a common carrier in the Railroad Company, were, at the time transportation of persons and prop- of unloading from defendant's cars, erty. This action seeks to recover deposited by employees of the Michidamages for a violation of its duty in gan Central Railroad Company in a respect to certain merchandise shipped certain place in said section, from from Liverpool to St. Louis, and car- which they were loaded into the car's ried over its road from Montreal to of said latter company by said einployDetroit. The goods reached the city ees when they were ready to receive of Detroit on the 17th of October, them; and, after they were so placed, 1865, and on the night of the 18th of the defendant's employees did not the same month were destroyed by further handle said goods. Whenfire.

ever the agent of the Michigan CenThe defendant claims to have made tral Railroad Company would see a complete delivery of the goods to any goods deposited in the section of the Michigan Central Railroad Com said freight building set apart for the pany, a succeeding carrier, and thus use of the defendant, destined over to have discharged itself from liability the line of said Central Railroad, he before the occurrence of the fire. would call upon the agent of the

At the time the fire occurred, the defendant in said freight building, defendant had no freight room or and, from a way-bill exhibited to him depot at Detroit, except a single by said agent, he would take a list of apartment in the freight depot of the said goods, and would then, also, for: Michigan Central Railroad Company. the first time, learn their ultimate Said depot was a building several | place of destination, together with

Vol 5–No. 12.

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 The same proposition is stated in a Michigan Central Railroad Company different form when it is said that the for the transportation of said goods liability of a carrier is discharged by over its line of railway, and not be a delivery of the goods. If he is an fore.

intermediate carrier, this duty is perThese goods were, on the 17th of formed by a delivery to the succeedOctober, 1865, taken from the cars ing carrier for further transportation, and deposited in the apartment of and an acceptance by him. Authorisaid building used as aforesaid by the ties supra. defendant, in the place assigned as In this case the goods were placed aforesaid for goods so destined. within the control of the agents of

Hell, That these acts constituted a the Michigan Company. complete delivery of the goods to the 2. They were deposited by the one Michigan Central Company, by which party and received by the other for the liability of the Grand Trunk Com- transportation, the deposit being an pany was terminated.

accessory merely to such transportaThe liability of a carrier com- tion. mences when the goods are delivered 3. No further orders or directions to him or his authorized agent for from the Grand Trunk Company transportation, and are accepted. 52 were expected by the receiving party. N. Y., 262; 59 Id., 34.

Except for the occurrence of the fire If a common carrier agrees that the goods would have been loaded property intended for transportation into the cars of the Michigan Central by him may be deposited at a particu- Company, and forwarded, without lar place without express notice to further action of the Grand Trunk him, such deposit amounts to notice Company. and is a delivery. 20 Conn., 354; 4. Under the arrangement be33 Id., 166.

tween the parties the presence of the The liability of the carrier is fixed goods in the precise locality agreed 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 If the deposit of the goods is a was the understanding of both parmere accessory to the carriage, that ties. is, if they are deposited for the pur- Judgment affirmed. pose of being carried, without further

Opinion by Hunt, J. orders, the responsibility of the carrier begins from the time they are received ; but when they are subject to 1

USURY

APPEAL. N. Y. SUPREME COURT. GENERAL N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

TERM. FOURTH DEPT. Lewis Culver, Assignee, &c., respt.,

Daniel Brokaw et al., respts., v. v. Emily W. Randall, adm’rx., applt. Phebe M. Brokaw, applt. Decided October, 1877.

Decided October, 1877. An agreement by A. to lend money to B. by Where a party to an appeal has died before

discounting and renewing B.'s notes, on con- the Code of Civil Procedure went into effect, dition that B. shall pay on all such notes and

an application for the order to show cause renewals one-half of one per cent. in addi

provided for in § 1298 made before the extion to the regular discount, is usurious and

piration of three months from the time such void.

section took effect is premature. A note given for the balance found due on a settlement of transactions under said con

Petition by respondents, showing tract is also usurious,

that appellant died May 26, 1875, Appeal from judgment entered that an appeal had been perfected upon report of Referee in favor of before that time, and that no order plaintiff.

had been made substituting another Plaintiffs' assignee agreed to lend person, and asking for an order to money to defendant by discounting show cause, etc., under $ 1298 of the and renewing her notes from time to Code of Civil Procedure. time, on condition that she would Held, That the application was premake the paper payable in New mature, as three months had not exYork City, and would pay on all said pired since the section referred to notes and renewals one-half of one went into effect. per cent. in addition to the regular Dictum. The order to show cause discount. Defendant borrowed ser- referred to in said section should be eral thousand dollars in pursuance of made returnable at a Special Term. such agreement. The notes were

Opinion by Smith, J. All concur. not sent to New York, but were taken up from time to time by defendant.

PROMISSORY NOTES. A general settlement being liad of all

IN

DORSERS. the matters growing ont of said transactions, in which defendant was

U. S. SUPREME COURT. charged one-half of one per cent. on Good, plff. in error, v. Martin. . ali discounts in addition to the regular (October, 1877.) seven per cent., the defendant gave If a party indorse a promissory note in blank her note for the balance found due before it is indorsed by the payee, to give from her on said settlement. This

the maker credit with the payee, or has action being brought upon said note,

participated in the consideration, he is to be Held, That the transaction referred If his indorsement be subsequent to the mak

deemed a joint maker. to, and said note, were nsurious.

ing and delivery, and done at the request of Judgment reversed and new trial the maker pursuant to a contract between ordered.

the maker and payee for further indulgence

or forbearance, he can only be held as guarOpinion by Smith, J.; Talcott, J.,

antor, which can only be done where there concurs; Merwin, J., dissents.

is legal proof of a consideration for the

tion of the note.

promise, or he is connected with the incep back of the note before the delivery

of the same to the payee, and that he If done with the understanding that his in

dorsement would be inoperative until in- did not then make any statement of dorsement by the payee, he is then only his intention in so doing, he is preliable as second indorser.

sumed to have done so as the surety Where the party is charged as an original pro- of the makers and for their accommo

misor or second indorser, no other consideration than the original one need be shown ; dation, to give them credit with the but where he is charged as guarantor, a payee, and is liable for the payment distinct consideration must appear.

of the note in this action; and that Error to the Supreme Court of the if that presumption is not rebutted Territory of Colorado.

by the evidence in the case they must The action was one of assumpsit ind for the plaintiff in the issue upon a promissory note brought by joined between her and the lastIda Martin against Parker B. Cheney, named defendant. William M. Shepard and John Hel, no error. When a promissory Good, and payable to the order of note made payable to a particular Alexander Davidson. Cheney and person or order is first indorsed by a Shepard were makers of the note, third person, such third person is and Good indorsed the same.

held to be an original promisor, Three of the counts of the declara- guarantor or indorser, according to tion are framed upon a promissory the nature of the transaction and the note, dated June 29, 1866, payable to understanding of the parties at the Alexander Davidson, or order, sixty time the transaction took place. days after date, signed by the first 1. If he put his name in blank on two defendants, and the record shows the back of the note at the time it that it was indorsed by the other de- was made and before it was indorsed fendant before it was indorsed by by the payee, to give the maker credit the payee and before it was delivered with the payee, or if he participated to take effect as a negotiable instru- in the consideration of the note, he ment. His indorsement was in must be considered as a joint maker blank, and of course was without any of the note. 20 Mo., 571; 31 Me., written explanation as to its nature 537. and intended effect.

2. Reasonable doubt of the correctService was made, but the two de- ness of that rule cannot be enterfendants first named failed to appear tained, but if his indorsement was and were defaulted. Instead of that subsequent to the making of the note the other defendant appeared, plead- and to the delivery of the same to ed the general issue, and went to trial. take effect, and he put his name there Evidence was introduced on both at the request of the maker, pursnant sides, and the verdict and judgment to a contract of the maker with the were for the sum of $3,625.33. payee for further indulgence or for

On the trial the Court instructed bearance, he can only be held as the jury as follows: That if they guarantor, which can only be done found from the evidence that the de- where there is legal proof of confendant wrote his name upon the sideration for the promise, unless it

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