a member, embraces what was formerly
two school districts of the town of Avon,
known as the second and fifth districts,
and by certain proceedings, authorized by
statute, those two districts were consoli-
dated into one, now called the second dis-
trict. The inhabitants of the old second U. S. DISTRICT COURT-SOUTHERN DIS-



district were dissatisfied with the proceedings and adopted certain measures Edward L. Stanton, Receiver of the which they claim to have been authorized First National Bank of Washington, D. C, v. Catherine C. Wilkeson. Decided February, 1876.

by a special act of the General Assembly for the dissolution of the two consolidations, and the re-establishment of the old districts. The legal validity of these proceedings is denied by the relator, who claims that the only legal district within. the territory is the consolidated or new second district.

An action to recover an assessment on stock held by defendant may be maintained by the receiver of a national bank.

The inhabitants of the old second district held their annual meeting as such in October last, and elected the defendants a committee of the district, and they are now claiming to be, and are acting as a committee of the old second district, and do not claim to be a committee of the consolidated or new district.

Defendants pleaded that they did not claim to exercise the office in the new consolidated district, and as to the old second district they were legally elected. Demurrer by the State, and judgment below in its favor.

Held, 1. The proceeding assumed the continued legal existence of the new consolidated district, and that defendants' plea that they did not claim the office perfect answer.


2. But if the proceeding was to oust them from office in the old second district, their answer that they were duly elected was good.

3. That if the old district was not now a legally existing district, the defendants were not legal officers, and a quo warranto will not lie to try the right to an office that is not a legally authorized public


4. The legal existence of the district cannot be tried in this proceeding.

Judgment reversed.
Opinion by Phelps, J.

The U. S. District Court has jurisdic tion of such an action.

A suit at law is the proper remedy.

Action by the receiver of the First National Bank of Washington to recover 60 per cent. assessment on 100 shares of the par value of $10,000, held by defendant when the bank suspended. The bank was organized under the act of January 25th, 1863.

Defendant demurred to the complaint, and urged as grounds, first, that the plaintiff had no capacity to sue; that under Sec. 721 of the R. S. of the U. S., the laws of the State of New York govern, and that under Secs. 111 and 113 of the N. Y. Code, the plaintiff cannot maintain the action.

Second, That the United States District Court has no jurisdiction of the suit.

Third, That the proper remedy of the plaintiff is not by separate suits at law against the individual stockholders, but by a bill in equity.

Man & Parsons for piff.
Gray & Stanton for deft.

Held, 1. That by Section 5234 of the Revised Statutes, the receiver was authorized and required to sue; and that, under its provisions, neither the comptroller of the currency nor any one else can sue; that therefore the action was properly brought by the receiver.

2, That under Section 563 of the Re- his mother, and also in the share which vised Statutes, this court has jurisdiction, descended to him from his sister Fanny. if the plaintiff is an officer of the United Subsequent to this Barbara died, leavStates, and that in view of the statutes ing a will by which she devised all her under which plaintiff was appointed, he real estate to the defendant. must be regarded as such officer.

3, That an action at law will lie against the individual stockholders, to enforce the collection of an assessment.

Demurrer overruled.

Opinion by Blatchford, J.


Caster respt. v. Sitts et al. applts.
Decided January, 1876.

A mistake in a deed can be corrected
as between the parties to the convey.
ance, but not as against a bona fide
purchaser without notice.

Action to reform a deed. Partition. In November, 1864, one A. C. died intestate and seized and possessed of certain lands, and leaving him surviving his wife Barbara, Peter A., Elizabeth, Emma, Louise and Fanny, his children.

Fanny died intestate, and without having conveyed her interest in said land, and without issue, &c.

Emma, Elizabeth and Louisa conveyed to Peter A. their interests, except their interest in the dower right of the mother and in the estate from their sister Fanny. Dower was never set off to the widow. Peter A. subsequently conveyed to one Uhle all his right, title and interest in said land, subject to, and reserving the dower right of the widow, Barbara.

Subsequent to this, the Uhles sold to widow Barbara the interest sold to Peter A., subject &c., to the right of dower of Barbara.

Subsequently all the parties in interest united in a conveyance of 64 acres of said land to one Caster, leaving 79 acres sought to be partitioned in this case.

Subsequently Peter A. conveyed to plaintiff his interest in the dower right of

Plaintiff, in his complaint asks that the deed from Peter A. to the Uhles be reformed by inserting therein a reservation by the grantor of the share of said farm that descended to him from his sister Fanny, which it was the intention of the parties to that conveyance should be reserved, but which was omitted by mistake, &c. The complaint also asked for a partition. It was stipulated on the trial that if a reformation of the deed from Peter A. to the Uhles was desired in the land were as stated in the decree. then the rights and interests of the parties

The referee to whom the action was referred, found judgment and ordered reformation as asked, and directed a partition, &c.

Held, That that portion of the decree direct ng a reformation was erroneous; that defendant is to be treated as a bona fide purchaser of the interest of her mother, as her mother clearly was, without notice of any mistake. Mistakes between the same parties to the instruments, or transactions, may be corrected, but not as between others not in any way connected with such instrument or transac


No mutual mistake of the parties to the deed was proved, and in such a case there cannot be any reformation. Judgment reversed. Opinion by Mullın, P. J.



Ogden Spencer v. Edmund D. Roberts
Same v. James G. Wells., et al.

February, 1875.

At common law and by statute of 1875, a right to immediate possession is

necessary to maintain replevin for goods unlawfully detained. Under statute of 1866, title was suffi


Two actions of replevin for goods unlawfully detained; brought to the City Court of the city of Hartford.

The defendants had attached, as the property of W. S. Spencer, a son of the plaintiff, certain hotel furniture owned by the plaintiff, and leased by him to the said W. S. Spencer. Judgment below, in both suits, for the defendants.

Held, It appears from the records in these cases that the plaintiff was the owner, but had not the possession, or the right to the immediate possession, of the goods which were replevied.

At common law, and by the present revision of the statutes, which has gone into effect since these actions have been pending, the right to the possession. accompanied by a general or special property in the goods, is vitally essential; but by sections 327, 337, and 341, of chapter 15, of tile 1, of the revision of 1866, in force when these suits were commenced, the plaintiff seems only to be required to either make out a title as the true owner, or show that he is entitled to the immediate possession. There is error in the judgment complained of.

Opinion by Phelps, J.



Bradly v. Cole.

Decided January; 1876.

A refusal based upon one ground to deliver personal property to one claiming it, is a waiver of all other objections to a delivery, which cannot afterwards be abandoned and others insisted upon.

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Plaintiff brought an action and replev-road, which they had previously agreed to ied a wagon. Before suit brought plaintiff made a demand, and defendant refused to deliver the wagon, on the ground that

build for the Kansas Pacific Railway Com. pany (then Union Pacific Railway Company, Eastern Division), from Junction

Judgment below for defendants.

City, westward. They employed the erty became theirs by reason of its being Kansas Pacific Railway Company to spiked down to the cross-ties, and being transport the iron from the State line thus made a part of the realty, which bewestwardly, to the place where they ex-longed to them. pected to use it. At the same time William A. Simpson (one of the defendants), owned certain town lots in the city of Lawrence, Kansas, on the north side of the Kansas river, and between the river and the Kansas Pacific Railway. Previously a railroad track had been constructed across such lots, from the Kansas Pacific Railway to the river. But at this time the iron which had originally been rut on this track had been removed therefrom, and only the road-bed and cross-ties then remained. About this time, the Kan

Bas Pacific Railway Company, or its agents, took the twenty-six bars of iron from the iron of Shoemaker, Miller & Co., at the State line, transported them to Lawrence, and there spiked them on the cross-ties on the lots of William A. SimpThis was done by the Kansas Pacific Railway Company, or its agents, for


the temporary purpose of obtaining some

ninety car loads of sand from the Kansas R. R. DAMAGES-CONTRIBUTORY

river; and it was intended to remove the

Held, 1. That the plaintiffs being innocent of all wrong in the premises could not be thus deprived of their property; that whilst in some cases iron attached to the road-bed would become a part of the realty, clearly it was not so here. It was taken against their consent, attached to the road-bed against their consent, by a third person, and it may be removed without any great inconvenience and without substantial injury to the land.

Plaintiffs made no demand for the property before commencing the action. The defendants claimed that the p:op


2. No demand was necessary. fendants' possession was without authority

from the owners and inconsistent with

their rights, and was therefore illegal and wrongful.

Judgment reversed.

Opinion by Valentine, J.



Hill, admr., Respt., v. The New York
Central and Hudson River R. R. Co.,

iron as soon as the sand was obtained. N. Y. SUPREME COURT, GENERAL TERM,
This was all done without the knowledge
or consent of either Shoemaker, Miller &
Co., or William A. Simpson. The railway
company had, however, taken other iron
from Shoemaker, Miller & Co. for which
they subsequently settled, but the parties
never settled for this particular iron; and
Shoemaker, Miller & Co. objected to the
railway company taking or using their
iron in any such manner. Afterwards, Wil-
liam A. Simpson, through his agents, re-
moved the twenty-six bars of iron from
the lots, claiming it to be his iron. Shoe-
maker, Miller & Co. then commenced this
action and replevied the twenty-six bars
of iron from William A. Simpson and his
agents, the other defendants.

Decided January, 1876.

The question of contributory negligence
is one for the jury.
Refusal to charge.

Court should not set aside a verdict of
a jury except upon clear and palpa-
ble evidence of fraud, bias, or preju

This action was brought for damages. for the death of plaintiff's wife.

Plaintiff and his wife were driving in a buggy, and in crossing defendant's track the buggy was struck by one of the defendant's trains and plaintiff's wife was killed.

On the trial defendant's counsel re

quested the Court to charge the jury jury upon the whole evidence and circum"that notwithstanding plaintiff stopped stances of the case, and it is not the provhis horse, and looked and listened when ince of the court to overrule their decision at a distance of sixteen rods from the except upon clear and palpable case of crossing, yet, when he came to a point mistake, bias or prejudice, and when their where he could again look, he was bound verdict is essentially unjust and unwarto look, and to keep up that looking, down ranted. to the time when he reached the track, and if he omitted to do so, he is chargea-denied. ble with negligence, and that he was bound to put himself in a position, so far as his vehicle was concerned, so that he could look.

The motion for a new trial should be

The Court refused to so charge, and plaintiff's counsel excepted.

There was a verdict for the plaintiff.

A motio.. was made to set the verdict aside, which was denied.


Gallagher v. Whitaker.

Decided February 16, 1876.

Delivery of good. by a vendor to a carrier is a delivery to the vendee. But until the transitus is completely ended, the vendor has a right to stop them in transitu, if the vendee was insolvent at the time of the purchase, whether it was known to the vendor or not, no right of stoppage exists. Action for damages for conversion. Defendant, as sheriff, seized under pro

By the Court: E. Darwin Smith, J. None of the exceptions taken on the trial are, we think, well taken. The motion for a nonsuit at the close of the plaintiff's case, and also at the close of the evidence, were made upon the ground that the negligence of the plaintiff's intestate contrib-cess certain goods consigned to one S. At uted to the injury. This was a question the time of the seizure they were in the which properly belonged to the jury, in possession of plaintiff's agent, who had view of all the facts of the case. The taken them from the carrier under 2 claim point was not taken that the plaintiff was of right to stop in transitu, and also upon bound to prove affirmatively that his in- the ground that they had not been sold. testate was free frem negligence. They had, when plaintiff took them, reached the point where the carrier was to deliver them, and had been in the carrier's warehouse about a month. called for the goods.

S. never

The refusal of the Circuit Judge to charge as requested in respect to the duty of the plaintiff's intestate to continue to listen and to look for trains coming from the west on the defendant's road was not error. The judge had charged fully on that subject in respect to the duty of the plaintiff's intestate, and it was not error for him to refuse to vary his charge.

Appeal from order denying new trial and for judgment.

E. Harris, for applt.

J. H. Martindale, for respt.

New trial denied.

sented the case to the jury upon fair and proper grounds. The question of negligence in such cases is peculiarly one for a

The court left it to the jury to say whether or not there had been a sale, and charged that delivery to the carrier was a delivery to S., but that plaintiff had a right to stop the goods in transitu if, after the sale, and before delivery, S. became

The charge of the judge, upon the whole case, was full and clear, and pre-insolvent or bankrupt; but that if he was

insolvent at the time of the sale, whether that fact was known to defendant or not, the right to stop did not exist.

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