FARVE fl. LOUISVILLE:ll:N. R. 00.
It by plaintiff's counsel that the failure·· of the collector to make a proper demand, prior 'to the levy" entitles the plaintiff to maintain replevin, although it be conceded that a tax-book, duly ,authenticated as provided by law, is legal process. The court, however, is not able to concur in that view. The test of plaintiff's right to inaintain replevin is whether the property in controversy was actually held by the defendant at the time snit was brought under process issued against the plaintiff. If it was, and the plea in this case so avers, he cannot maintain replevin, but must resort to some other remedy for the injury sustained. The statute, in generAl terms, denies the right to replevin property that has been seized, and is held by an officer, under any process, execution, or attachment against the plaintiff. There are no exceptions to the rule mentioned, and no provisions of the statute appear to warrant the inference that replevin may be resorted to, if the mode of serving the process pursued by the officer was faulty or irregular. The construction contended for would practically create an important exception to the rule, not founA in the statute, and one that would impair its efficacy. Itwotild, in its practical operation, enable a litigant, against whom process for the collection of a debt'has been issued, to test, by means of a replevin suit, the regularity of every act done bya ministerial officer in the execution of such process. This, in my' judgment, was a result not contemplated by the legislature. On the' contrary, its purpose seems to have been to \vithhold from a person whose property has.been seized 'under process for the collection of a debt, the power to interfere with the execution of such process by a writ of replevin. My conclusion is· that the demurrer to the:plea in the. suit for damages should be sustained, but that the plea in the replevin suit states a good, defense, and that the demurrer should be overruled, for the reason that it shows that the property ,when the writ of replevin was sued out, was held under legal process issued against the plaintiff.
& N. R. Co.
(Oircuit Court, S. D. Mississippi, S. D. March 7,
RAILROAD COMFANIES-RUNNING 011' TRAINS.
A railroad company has a right to run its trains at any speed deemed propel' when they are not passing through an incorporated city or town, or crossing a publio street or highway; and the engineer, in such case, is not bound to look out for per. sons on the track. Where a persol\' knowing that a fast train Is due, gets on the track, and is struck by thd train, he is guilty of such contributoryneghgence as Will prevent his recov. ery for the injuries sustained.
SAME-INJURIES TO PERSONS ON TRAOK.
:Actidn by John ,B. Railroad Company., ,for,perSonal·j..njuries. ,!B.Deblitux, for plaintiff.. R·! Olark,
the Louisville & Na,shvi,lle
HILL,J.; (charging"ittry.) The issue which you are called upon to determine is as to wh'ether or noLthe injuries to the person of Victor Farveiwere' causecl::hy:the willful; reckle88, ,and careless conduct of the conductor,engineer,:and fireman operating the engine and train of the defet;lQaut company, as alleged in th'e plaintiff's to which allegationS the defencilant company.has interposed two defenses-First, a 'plea, of not guilty, .whioh is a denial of the alleged trespasses and wropgSI) and, 8econ"dly;:;that, if .any such wrongs.were committed, that said, VictollFal've, by his ownwrong'and negligent conduct, contributed ,tdsuolldnjuries.To.entitle the pla.intiff to a verdict iu , his favor, .the him to satisfy your minds reasonably, by the proof, that the alleged injurieswereicaused by ·the running of the engine and .train ssiillegedin thedaclamtion. Hyou, are satisfied of fact ,by the proofi·s'nd if there were no proofs to' rebut it, or other proof of the nature of theaccident"thenthe! fact of the injury, under the law of the state, wGuld,beprrim.a facie: evidence of a want of skill and care on the part of the of defendantin operating the engine and train, and would entitle the plaintiff to a verdict. . This rule of evidence is based on the fact that-such acoidents usually. occur when there are no witnesses to it except the employes operating the engine and train, and therefore it is reasonable that the defendant corporation should by its employes, who areprestimed, to have witnessed the acCident, explain how it occurred. But, wihen there are witnesses on both sides to the accident, then the reason, for the. rule ceases, and the rule with it, and the case is decided upon,the evidence, aaim other cases. Victor Farve, who received the jury, having' testified to the way in which the injuries were received. this prima facie rule of evidence does not apply in this case, and the burden is on the plaintiff to reasonably satisfy you, from the proof, that the injuries were caused by the willful negligence and wrong of defend. ant's employes, as alleged in his declaration. There is no proof that the place where the accident happened, was in an incorporated city ;or. tbwn, or on aerossing of a public street or road. Therefore the defendant, by its agents and employes, had a right to its railroad track,imd;to:runits trains thereon, without any obstruction thereto, at any speed deemed proper; alld Victor Farve, when he went on ilia ra.ihoag,track, did so at his own risk, and. must suffer the consequences.. Of Victor Fa.rve, his,father, and. the other proof on his piut,is that 'the fast train was expected in a short time, and Victor Farve to get to his cows, to drive them off,thetrack or to hie track. heard the approach, attempted to get off, slipped, and fell outside ot the track, between the ends of the cross-ties, and received the injury. The getting on the track of the railroad, when he was looking for the fast train to pass, was an
,:: :" AOL&BR ". ERHARDT.·[
;l>ct andcareiessnes8 which constituted: cofitributtve negU.gence On his :part, andileprives the plaintiff of a recoveryJnthis ,nction. engineer and. other employes engaged in· running the train :were not required to look .and see whether there was any:()ne on the except at a publio crossing, or in an incorporated city or town, or nt a depot station, or to give a siRnal ofthe approach, ofthe train except at such crossing, station, town, or city. There is no proof that the enor conductor saw Victor Farve, but ,the.proof is that see him, before or at the tin1e of the If the engineer had seen Victor Farve on the track, and had reason .to believe .that he coulil not get off the track in time to save himself, it would have .been his duty to do all he reasonably could to avoid the accident. There.fore, you.are instructed that the testimony on the part of the plaintiff, and not contradicted by any other proofin the cause, docs not entitle him to a verdict in his favor, and that you will return your verdictm the defendant.
aZ. ".ERHARDT, Collector. , ,.'
(Oircuit Oourt, & D. New York.
April 21, lSOO.l
O17STOJl'S DUTIES-CONSTRUCTION' OJ!' LAWS-CL.lSSIll'IC.lTION-FLOWBRING BULBS.
Croc)Ul. gladiolus, hyacinth, narcissus, tulip; and other bulbs, which are not dicinal and not edible, are in a crude state, and not advanced in value or condition by refining, grinding, or by other vrocess of manufacture, and are used for the pur. pose of pl,"oducinjfiowers, are not free of duty under, the provision for" bulbs.and bulbous. 'roots, * * any of the foregoing of which are n9t edible and are ina 'crudestatej and not advanced in value or condition by refining or grinding,or by ot:Qer pr:OCf/6S of manufacture, and not specially enllmerated or provided for in this act, " contained in the free-list of the act of March 3, (22 U. B. 8t. 488; Tariff Index, New, par. 686,) but are dutiable at the rate of 2O.per cent. ad valorem for "bulbs and bulbous roots, not medicinal, and not specially enumerated or proVided for in tbi$.act, " cOntained in N of the same tari1f act, (ld. par. 405.) (8IIllalYuBb'u the Oourt.) .
At Action to recover back dutiM. During the year 1889 tbe plaintiffs imported from England, France, and Holland, into tbe port of New York, certain crocus, gladiolus, byacinth, narcissus, tulip, and other flowering bulbs. These bulbs were classified. for duty under the provision for" bulbs and bulbous roots, not medicinal,' and not specially enumerated or provided for in this act," contained in Schedule N of the tariff act of March 3, 1883, (22 U. S. St. 488j .TariffIndex, New, par. 405,) and, pursuant tothis provision, duties were exacted thereon, at the rate of 20 per centum ad. valorem, by the defendant,.as collector of that port. Against this classification thilil the plaintiffs dUly. protested, claiming that these bulbs wer.e free of duty as "bulbs which were not edible, and were in a crude sf./lte, and ,])ot advanced in value or condition by refining or grinding, or other proce!jSof under the provision for" bulbs and bulbous