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Removal of causes. After transfer of case to Federal court, files were destroyed by fire; parties thereupon, by stipulation, admitted loss of files, that cause had been transferred according to statute, and that copies of pleadings might be filed; case then went to trial, without objection by parties or court. Held, that jurisdic tional facts were affirmatively shown by record, pp. 326–329.

Cited in Bosworth v. Providence, 17 R. I. 59, 20 Atl. 97, where party waived certain reasons of appeal by failure to introduce evidence.

Distinguished in Denny v. Pironi, 141 U. S. 124, 35 L. 658, 11 8. Ct. 967, reviewing authorities, such facts must appear in paper, properly part of record on which judgment is entered.

22 Wall. 329-341, 22 L. 786, STEPHEN v. BEALL

Joint tenant, or tenant in common, may convey his portion of the estate without affecting interests of co-tenants, though there is an attempt to convey the whole, pp. 335, 336.

Quieting title. No cloud is cast upon title by proceeding or claim, where record, through which title is to be made, shows defense to claim, p. 336.

Parties. Where one joint tenant, or tenant in common, makes deed of trust purporting to convey whole property, but records show interests of all co-tenants, those who did not join in deed, are not proper parties in action to enforce it, pp. 335, 336.

Explained and limited in Detweiler v. Holderbaum, 42 Fed. 340, holding devisees necessary parties in foreclosure of mortgage given by executor.

Husband and wife.- Married woman may, by joining in deed with her husband, convey any interest she has in real estate; such deed conveys interest of both, p. 337.

Cited in Hall v. Dotson, 55 Tex. 525, reviewing authorities, where wife joined husband in deed of trust to secure debt of third person.

Husband and wife.- Where she has exercised her power in legal manner, and there is the required evidence of due execution, married woman may charge her separate estate with payment of her husband's or other debts, p. 338.

Cited and principle applied in Vantilburg v. Black, 3 Mont. 466, reviewing authorities, holding judgment against married woman, on note, erroneous; Thompson v. Ela, 58 N. H. 491, citing cases, a mortgage of wife's property, to secure husband's debts, held valid; Flaum v. Wallace, 103 N. C. 311, 9 S. E. 570, reviewing authorities, and holding wife bound by written contract charging her personal estate; Webster v. Helm, 93 Tenn. 332, 24 S. W. 490, married woman's equitable separate estate bound by her contract as surety;

Hall v. Dotson, 55 Tex. 525, where wife mortgaged her property to secure debt of stranger; Witters v. Sowles, 32 Fed. 770, dismissing bill brought to enforce stock assessment, for want of equity. See elaborate notes in 72 Am. Dec. 514, 78 Am. Dec. 227. and 81 Am. Dec. 602.

Trusts. As general rule, trustee cannot deal with subject of his trust; and if he become interested in purchase of same, directly, or through intervention of third person, cestuis que trust may have sale set aside, p. 340.

Approved in Roush v. Fort, 2 Mont. 486, citing cases setting aside sale to fraudulent trustee. See note in 19 Am. St. Rep. 289.

Trusts. Where transaction was not contemplated at original sale of trust property, but first thought of years after, when fiduciary duty was at an end, where there was no actual fraud, and full and fair consideration was actually paid, a purchase of such property by trustee will not be set aside as fraudulent, p. 341.

22 Wall. 341-350, 22 L. 877, RAILWAY CO. v. POLLARD.

Carriers. In action for damages, proof that plaintiff was inJured while passenger on defendant's railroad train, and in exercise of ordinary care, is prima facie evidence of defendant's liability, pp. 346, 350.

Cited and applied in Inland, etc., Co. v. Tolson, 139 U. 6. 555, 35 L. 271, 11 S. Ct. 654, citing cases, proof of unusual damage by steamboat, prima facie evidence of negligence; Gleeson v. Virginia, etc., R. Co., 140 U. S. 443, 35 L. 463, 11 S. Ct. 862, reviewing authorities, where refusal so to charge jury was error; The Reliance, 4 Woods, 424, 2 Fed. 252, injury by explosion of steamboat's boiler; Sprague v. Southern Ry. Co., 92 Fed. 62, 63 U. S. App. 716, injury received by passenger on freight train; Georgia Pac. Ry. Co. v. Love, 91 Ala. 434, 24 Am. St. Rep. 928, 8 So. 715, Montgomery, etc., Ry. Co. v. Mallette, 92 Ala. 216, 9 So. 365, Alabama, etc., R. Co. v. Hill, 93 Ala. 521, 30 Am. St. Rep. 71, 9 So. 725, collecting numerous authorities, Wall v. Livezay, 6 Colo. 473, and Cloudy v. St. Louis, etc., Ry. Co., 85 Mo. 85, approving instruction to same effect as rule; Eagle Packet Co. v. Defries, 94 Ill. 602, 34 Am. Rep. 246, injury to passenger by falling stage plank; Southern Kan. Ry. Co. v. Walsh, 45 Kan. 659, 26 Pac. 47, by derailment of train; Louisville, etc., R. Co. v. Ritter, 85 Ky. 372, 3 S. W. 592, collision with cow; Stevens v. E. & N. A. Ry., 66 Me. 77, loosening of car wheel; Smith v. St. Paul City Ry. Co., 32 Minn. 5, 50 Am. Rep. 552, 18 N. W. 829, reviewing authorities, collision of street cars; Dougherty v. Missouri Pac. R. Co., 9 Mo. App. 481, sudden starting of horsecar; Ryan v. Gilmer, 2 Mont. 523, 25 Am. Rep. 749, where, on proof of injury by overturning sleigh, non-suit was improperly granted; Spellman v. Lincoln R. T. Co., 36 Neb. 896, 38 Am. St. Rep. 757, VOL. VIII-34

56 N. W. 272, 20 L. R. A. 319, reviewing authorities, Instruction that carrier must use only ordinary and reasonable care, erroneous. Cited also in extensive notes in 43 Am. Dec. 363, 62 Am. Dec. 681, 684, and 50 Am. Rep. 558.

Distinguished in Atchison, etc., R. Co. v. Walton, 3 N. Mex. 540 (384, 385), 9 Pac. 354, proof of killing of mule did not raise presumption of negligence.

Carriers.- Plaintiff, having shown injury while passenger on defendant's railroad, in exercise of ordinary care, latter must show that its whole duty was performed, and that injury was unavoidable by human foresight, pp. 346, 350.

Approved and applied in Gleeson v. Virginia, etc., R. Co., 140 U. S. 443, 35 L. 463, 11 S. Ct. 862, reviewing authorities, as to injury caused by collision with landslide; Georgia Pac. Ry. Co. v. Love, 01 Ala. 434, 24 Am. St. Rep. 928, 8 So. 715, Southern Kan. Ry. Co. ▼. Walsh, 45 Kan. 659, 26 Pac. 47, and Cloudy v. St. Louis, etc., Ry. Co., 85 Mo. 85, clting authorities, and approving instruction to same effect; Montgomery, etc., Ry. Co. v. Mallette, 92 Ala. 216, 9 So. 365, and Alabama, etc., R. Co. v. Hill, 93 Ala. 521, 30 Am. St. Rep. 71, 9 So. 725, collecting numerous authorities, where, after proof of injury, burden was on carrier; Louisville, etc., R. Co. v. Ritter, 85 Ky. 372, 3 S. W. 592, Stevens v. E. & N. A. Ry., 66 Me. 77, Smith v. St. Paul City Ry., 32 Minn. 5, 50 Am. Rep. 552, 18 N. W. 829, and Madden v. Missouri Pac. Ry. Co., 50 Mo. App. 675, all holding burden on carrier, after proof of injury. Cited also in elaborate notes in 43 Am. Dec. 355, and 20 Am. St. Rep. 491.

Distinguished in Atchison, etc., R. Co. v. Walton, 3 N. Mex. 540 (884, 385), 9 Pac. 354, proof of killing mule, raised no presumption of negligence.

Negligence.- Ordinary care is that degree of care which may reasonably be expected under circumstances, pp. 346, 350.

Cited in Grand Trunk Ry. Co. v. Ives, 144 U. S. 417, 36 L. 489, 12 S. Ct. 683, collecting authorities, approving instruction to same effect. Cited also in extensive note in 55 Am. Dec. 672.

Carriers of passengers, by rail, must use greatest possible care and diligence, pp. 346, 350.

Carriers of passengers, by rail, bound to use best precautions and improvements in known practical use, pp. 346, 350.

Approved in Pennsylvania Co. v. Roy, 102 U. S. 456, 26 L. 144, holding railroad company liable for injury caused by falling berth in sleeper; Madden v. Missouri Pac. Ry. Co., 50 Mo. App. 675, demurrer to evidence overruled.

Negligence. If negligence of plaintiff contributed to the injury, so that injury would not have occurred had he not been negligent, there can be no recovery, pp. 347, 350.

Approved in Dougherty v. Missouri Pac. R. Co., 9 Mo. App. 486, holding demurrer to plaintiff's evidence improperly sustained.

Carriers. Proof of injury to passenger standing in slowly-moving sleeping-car, through sudden jerk, which threw her against seat, held sufficient to justify court in leaving case to jury, p. 350. Approved in Dougherty v. Missouri Pac. R. Co., 9 Mo. App. 482, reviewing authorities, where injury was caused by starting of horse-car before passenger was seated; Nelson v. Chesapeake & O. R. Co., 88 Va. 979, mere fact that plaintiff was standing on car, did not show contributory negligence; Lane v. Spokane, etc., Ry. Co., Wash., 57 Pac. 370, whether standing in aisle was contributory negligence, properly left to jury. See note in 62 Am. Dec. 684.

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Trial. Request to charge jury is properly refused where it involves determination of facts by court, concerning which there is conflict of evidence, p. 350.

Cited and applied in Grand Trunk Ry. Co. v. Ives, 144 U. 8. 417, 96 L. 489, 12 8. Ct. 683, collecting authorities, and holding question of negligence properly left to jury; Pyle v. Clark, 79 Fed. 747, 49 U. S. App. 264, and Chicago, etc., Ry. Co. v. Chambers, 68 Fed. 151, 32 U. S. App. 253, citing cases, where question of contributory negligence was properly left to jury; Northern Pacific R. Co. v. Charless, 51 Fed. 576, 7 U. S. App. 359, Union Pac. Ry. Co. v. Jarvi, 53 Fed. 70, 10 U. S. App. 439, and Northern Pac. R. Co. v. Peterson, 55 Fed. 943, 12 U. S. App. 254, reviewing authorities, affirming trial court's refusal to direct verdict for defendant.

Limited in Pyle v. Clark, 79 Fed. 747, 49 U. S. App. 264, collecting cases, being no conflict, question of contributory negligence properly determined by court.

Trial. Where evidence submitted by plaintiff is sufficient to justify court in leaving case to jury, non-suit is properly refused, p. 350.

Witnesses. In Federal courts, parties to suit are admissible to testify for themselves and compellable to testify for the others, p. 350.

Cited in Lowery v. Kusworm, 66 Fed. 540, compelling plaintiff to attend, with certain papers, and testify at defendant's instance.

22 Wall. 351-381, 22 L. 716, WOODSON v. MURDOCK.

Constitutional law. Every clause of Constitution must have reasonable interpretation, p. 369.

Trusts. A trustee may have no right to give up security for claim, and yet be at full liberty to settle and adjust or sell claim itself, p. 871.

Constitutional law.- Provision of State Constitution that " general assembly shall have no power, for any purpose, to release lien held by State upon any railroad," construed to mean that while debt remains, legislature may not let go security for it, and not to forbid sale or compromise of claim for less than total indebtedness, pp. 369, 370.

Cited in Cleveland City Ry. Co. v. Cleveland, 94 Fed. 408, collecting cases, statute did not forbid city to modify contract with company as to rates; State v. Chappell, 74 Mo. 347, construing later constitutional provision further restricting power of legislature.

Railroads. Missouri act of 1868, providing for sale of Pacific railroad and foreclosure of State's lien thereon, not repugnant to provision of Missouri Constitution forbidding legislature to release State's lien on any railroad, nor with railroad ordinance adopted with Constitution; compromise or sale of State's claim against said road and release of lien, under said act, held valid, pp. 371, 372, 873.

Cited in Ketchum v. Pacific R. R., 4 Dill. 85, F. C. 7,739, declaring lien of county on earnings of road, under provisions of said act.

Statutes.-Act having many details, but all relating to one general subject, held not repugnant to constitutional provision requiring that no law shall relate to more than one subject, which shall be expressed in title, p. 373.

Cited and applied in State v. Illinois Cent. R. Co., 33 Fed. 766, collecting authorities, upholding statute relative to disposal of certain lands on Chicago water front; Cantini v. Tillman, 54 Fed. 975, reviewing authorities, upholding "dispensary act," under Constitution of South Carolina; Block v. State, 66 Ala. 495, and Howell v. State, 71 Ga. 230, 51 Am. Rep. 263, reviewing authorities, statute prohibiting sale of liquor in two localities, held valid; Carson v. State, 69 Ala. 240, citing cases, prohibition statute valid, though more liquors mentioned in act than in title; Wilson v. Benton, 11 Lea, 56, particulars of assessment and collection stated in act for collection of revenue.

Distinguished in Ballentyne v. Wickersham, 75 Ala. 536, reviewing authorities, act containing two independent subjects, held invalid; County Commrs. v. Aspen, etc., Co., 3 Colo. App. 225, 32 Pac. 718, where interpolation of new section was not permissible, under title of amendatory act.

States. Bill against governor to enjoin sale of railroad under lien, in favor of State, already released, entertained by Circuit Court, and injunction granted, p. 374.

Approved and principle relied upon in Lynn v. Polk, 8 Lea, 259, reviewing authorities, suit against funding board not forbidden as against State.

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