NAT. FCn:-iACE CO. 'C. MOLINE MALLEABLE IRON WORKS.
.which it relates. In the state courts in this state all cases, at the option of either party, ml1st, on issues of fad, be tried before a jury. The common law of England, as now practiced and understood in its ll.pplication to evidence, is the general rule enjoined by statute upon of this state. All thl:l provisions of the Texas statute in .reference to taking depositions are manifestly made "in order to prevent, a failure or delay of justice." And 1 do not perceive any sound reason to forbid the courts of the 'United States in this state granting commissions to take depositions in. every case where the parties could obtain such a commission, if the suit or action was in the state courts. If we can a:qd should so grant them, we may order the clerk to issue them in all such cases by a general order or a rule of court, to relieve the judges from receiving and acting upon separate applications and the parties from the inconvenience and uncertaintyof finding one of the judges of the court. Nor do I perceive any difficulty in the fact that the commission issues to any clerk of the district court, judge or clerk of the. county court, Or any notary public qf (say) Dallas county, Texas. It is matter of common knowledge that, either under rules of court or consent of parties, the testimony of witnesses living out of the county where the case is to be tr:ied, hal? heretofore commonly been taken by deposition, and must .always of necessity continue to be so taken in this state. And, if the.circuit court cannot do what I conceive we have tried by our rule 14 to do, parties litigating in this court will be practically remitted to the grace and courtesy of their adversary. In the absence of controlling authority, I am unwilling to so limit the power of this court. The motion for new trial is refused.
V. MOLINE MALLEABLE IRON WORKS.
(Oircuit Court, N. D. Illinois. January 7, 1884.)
SPECIAL ApPEARANCES·- WHEN ALLOW.ED, AND FOR WHAT PURPOSES.
A defendant may, without leave of court, enter a special appearance for the purpose of objecting to the jurisdiction of the court, by virtue of the steps taken to bring him in or serve him with process, or for any other but a defendant interested in a controversy cannot be allowed to come in unoer a special appearance and avail himself of all the chances of a decree in his favor and retire without harm if the decision of the court should be against him.
BLODGETT, J. In this case a cross-bill is filed by 'the defendant Wheelock, asking for the foreclosure of the trust deed and chattel mortgage described in the original bill as having been given by the
F. Ullmann, for complainant. Osborn ti; Lynde and Hill, Wood cI; Boyd, for defendant.
defendant company to Charles F., Heimingway, to indemnify com· plainant in the cross-bill and others who had become sureties for said company; and George H. Hill, who is one of the beneficiaries named in said trust deed and mortgage, is made a defendant, but with an allegation that he should not be allowed to participate in such secu· rity, because, as charged, said Hill had, as a director of the company, assented to the incurring of indebtedness by said company to an amount in excess of its capital stock. On the filing of this cross-bill a rule wits entered that a copy be served on defendant Hill, who was a resident of Cincinnati, Ohio, and that said Hill plead, demur, or answer to the said cross-bill within 20 days. Mr. Hill now asks that he be allowed to enter a special appearance for the purpose of ob· jecting to the proof, or of demurring to part of the cross-bill, or answering so much thereof as seeks to charge the property of the corporation with a lien, or that prays a decree as to the validity of the deed of trust, without submitting to the jurisdiction of the court as to any other matter; that is, he is asking to enter a special appearance in the case. If this defendant wishes to enter a special appearance for the purpose of objecting to the jurisdiction of the court, by virtue of the steps taken to bring him in or serve him with process, or for any otber reason, I think he has the right to do this, without a special leave of court; but, as I understand this motion, he asks leave to appear and contest all the relief claimed in the crossbill, but does not wish to so submit to the jurisdiction of the court as to authorize the court to proceed against him, so far as his right to indemnity under the trust deed is concerned, or to enforce, directly or indirectly, any liability he may have incurred as a director of the company, if he shall be shown to have assented to the incurring of indebtedness to an amount in excess of the capital stock of the company. It is clear from the tanor of this original bill and the Wheelock cross-bill that the questions raised in this case will be-First, as to the validity of the trust deed and mortgage; second, whether, if the trust deed and mortgage are valid, defendant Hill will be entitled to any benefit from it; thi1'd, whether defendant Hill assented to the incurment of debts exceeding the capital stock of the company, and by so doing has forfeited any right to indemnity under this trust deed and mortgage. It therefore seems quite evident to me that if defend· ant Hill wished to make this contest raised by the cross-bill, he should not be allowed to do so, except on condition that he enter his full appearance. His request in this case, if granted, would sanction the practice of allowing any defendant interested in a controversy to come in and avail himself of all the chances of a decree in his favor and retire without harm if the decision of the court should be agaiust him. As I said at the outset, if the defendant wished to challenge the sufficiency of the service by which jurisdiction over him is attempted to be obtained, he can do so by a special appearance, for that
purpose alone, without leave of court. Daniell, Ch. Pro 458, 512. 537. But if he asks the privilege of fighting his side of this battle under a special appearance, I do not think he should be allowed to do it. Thl;l motion is overruled.
(Oz'rcuit Oourt. D. OolQ'l'ado. December, 1883.,
The execution of a lease for real estate implies a covenant to lessee for quiet enjoyment during the term.
SAME-REMEDY OF LESSEE.
In case of entry upon the demised premises by the lessor during the term, the remedy of the lessee is in damages by Buit at law for breach of covenant, and not by action in equity for an ltccounting.
On Demurrer to Bill.
the Colorado Law Reporter.