,!hic.h' ,this>cbeck was n11N1n8,at,hll.nd wIth whIch ,toha\l'e' made good theO'heck at theballk. Tllis'qUie&tio'n has; .however, it seems· to me, .become, wholly immaterial, and is'really eliminated from the Controversy by the fact that'the check was surrendered., and Mrs. Davenport took in lieu thereofthe note of Swaitout,'with'whichsbe was entirely satisfied. !tis insisted on the part of the complainant that, altogether, the transaction between the bankrupt and his wife and son; and the transaction between the son andSwa.rtortt,'and Swartout and Mrs. Davenport,'shows a conspiracy on the. part of these parties to defraud the creditors of Theron Davenport·. It is sufficient, however, I think, to say that these parties, who have been examined as witnesses, all deny any such conspiracy, deny that they' knew there were any creditors to be defrauded, and deny any bad faith in allY of the transactions whichal'e attacked by the bill. And whatever may have been the purpose of Theron Davt::nport in making the conveyance tO'his Ron, the case, as I have already said, entir.elyhrc:ks proof of any knowledge on the part of the son or wife of a fraudulent intent on the part of the bankrupt. With regard to the sale'of,:the personal property by the bankrupt to Josephus, the evidence is: olear,and: 1 may say undisputed, that Josephus was responsible: a8 surety onbis father's paper for the full amount of 83,800; that the property probably would not have sold for more than that is doubtful, I think, if it would have brought the amount for which Joseph us was liable. He agreed to take thE' property arid supposed, thereby relieving his father from allinuebtedness, anll heihas paid the debts as he agreed. The trans.. not, as it seelils tome, show any evidence of fraudulent intent, so' hlhgas there is; no proof of any knowlE'dge of the lather's in. solvency. thE'Se reDecms I am of opinion that tf.le complainant hus not Jluide out ra ()ase by ,the proof which entitles him to have this con· veyancif $tit aside, and UUit the bill should be Jismissed ior want of equity.'ilt
.rOHNSTON t1. CANADtAN PAC. Ry.. Co.
(CircuU' Court;D;:Veniwnt. June 20, 1892.)
L 4'N'1) The .JIlepe of a freight ttal" to a brakeman, who fs thereby thrown' rtouf the. rear car. '\B not actionable, 'unle88 Buch Btarting was suddenly. violell,tly" or: negligently clone.' .
A brakeIJiI'i1, suing fO.r alleged to reBulttrom the known incom. petehcyofttu' conductor, need Dot set out the pal'ticularB of the conductor'. incompetBMf··. . ...' . '
OP OP LAWB.. .
In anactlolt in Vermont-bya railway hrakeman againBt the company for pel'Bonal .(KlC8.!;ioned in tpe province of Quebec, Can., defendant in its pleas set out "a geneJ"llllaw of the province of Quebec," "that all BuitB for any damage or injurY' .u'Btained by reaBon of the railway &hall De 1tletltuted within J.j
JOHNSTO).'i V· . CANADIANPAt;l;RY. CO.
months." Heta, that thi!!,w3s a mere general sta.tute of,Umitat!ons, anc\ as the right of action is given by the commOn law, and not by the statute, the statute of ". limitations of Vermont should govern.
At Law. Action by William Johnston against the Canadian Pacific Railway Company to recover for personal injuries. Heard on demurrers, pleas, and replication. Gilbert A. Davis, for plaintiff. Joel a. Baker, for deffmdant.
WHEELER, District Judge. The plaintiff has declared in two connts, -one for being thrown from the rear car of a freight tra.in of the defendant, where he bad been placed as a brakeman, under the .caboose, which had been detached and was slowly, by the, to him, unexpected starting forward of the train ordered by the conductor representing the defendant; the other for being thrown through incom petency and unfitness of the conductor, known before to the defendant. To these counts thtl defendant hus pleaded the statute of limitations of the province of Quebec, in which the cause of action accrued, of one year upon such causes of action, both with and without alleging .residence of the plaintiff in that province. The plaintiff has traversed the residence in those pleas alleging it, and demurred to those notlJlleging it; and the defendant has demurred to the traverse. The demurrers reach back to the first defect in the pleadings. and bring in question the sufficiency of the declaration, and the operation of this statute. The gist of this action is negligence; and, although the starting forward of the train is alleged to have been done by direction of a representative of the defendant, it is not alleged to have been done suddenly, or violently, or negligently, otherwise than as it is alleged to have been done unexpectedly to the plaintiff. nothing actionable is alleged in the first count, unless a brakeman at the top of tbe rear car of a freight train is entitled to notice. before the train is started lorward, and to start it unexpectedly would, ofitself, if injurious to him, be actionable. But freight trains must necessarily be, at times, slowed up and started up; and, if carefully done, the starting up would lurnish no ground of action, although done to such a brakeman. The first count fails, therefore, to setout any actionable negligence, either in doing what should not have been done or in negligently doing what was done. To furnish competent, fit conductors; or those reasonably supposed to be such, was a duty resting on the defendant. Railway Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. Rep. 932. The second count sets forth a failure to fulfill this duty, and an injury to the plaintiff through that. The partiCtllars of the incompetency or unfitness are not set out. That they should be is argued to be necessary, because actionable negligence must be set out. But the negligence of the conductor is not what is. actionable; that of the defendant, in placing such a. conductor over the plaintiff,is.. The conductor was an instrument whose defects need not be withpalticularity described. Barber v. Vt. 62. ,Besides
and be understood to relate to starfing up a train unexpectedly to brakemen situated as theplaintitl' is alleged to have been. This count seems to be sufficient. That ,the statutes of limitation of the forum, and not those of the place, generally prevail, is not, and could not well be, disputed. M'Elmoyle v. Cohen, 13 Pet. 312. But that the effect of the law of the province is to give a cause of action for a year only, as some contracts do, is urged. Riddlesbarger v. Insurance 00.,7 Wall. 386. The action, however, is founded upon the common law, which is understood to prevaU;everywhere, and not upon any peculiar law of the place, which would' ha",e. to"be pleaded. The statute relied upon is set out in the pleas-a&lla general law of the said province of Quebec," Ilthat all suits, fora:ny'damage or injury sustained by reason of the railway, shall be instit'\ed within twelve months next after the time that such supposed damage"is sustained, and not afterwards." This seems to be an statute of limitation, not affecting the cause of action in any way, hut only the time within which a suit upon it, in the courts where the 'lawp:revails, must be brought. The pleas are therMore bad here. Bad pleas *ould be good, enough for a bad declaration, but as one counti1'l' i tMs declaratioIl is good, and the pleas profess to answer both, the pleas must be sustained; and, asa bad replication is good tlnough for a bad 'plea, the demurrer to the replication must be overroledl. Demurrer tt:! pleas sustained, and those pleas adjudged insufficient. Demurrer ro replication overruled.
Co. tJ. TtmCK.
(C#buit Court of Appeals, Efghth. Circuft. May 9, 1892.)
L JInoill .A1m "MTNING-En:cTllfENT-DEFlIII11111S. . . In;eiectPient.for:a miningplaim the issue raised by the pleadings was wbetbel' plaintiA' was the owner and entitled ,the possession of an alleged veinbaving its apex within his location,after the same had passed under the side lines of an ad" joining claim. Ilf:ld, that it "was not & "change of the issue to defend upon the ,rounq tilat both partie If ha.d the apex of separate veins within the boundaries of theirelliims,",VvhiOh veins, 'in descending, became united within the side lines of defendant's claim i and that therefore defendant was entitled to /lold all of the vein from the PQitit of Junction .downward. . B. DEFENSES. . Defendaut.wasalso entitled to set up that the alleged vein, having Its outcrop In plaintiff's olabn. was n9taSeparate and independent vein, but simply one of numer. OUs ore'obannels, which together formed one broad lode having Its apex partly in plaintiff's- and· partly jD;i "defendant's olaim; and it was immaterial that these defenseswere inconsistent in the sense that proof of one WaS necessarily disproof of the other,' "for in 1 ejeotment defendant. may set up anything tending to dlaprove plaintiff's generalolaim and right of possession;, $. B.UIll:-AD1QJNIlS'9 CL,uMs-FOLLOWIN9 VBINS, The'right of"a mine owner, under Rev. St. $ 23221 to follow a vein whoseapexlles within the;bOilndaties of" his 'olaim beyond the vertiCal side lines thereot and within the liUli!. of othe,r claims. is not confined to cases in which the claim thus entered is held Uijd.er a junior patent or cerWioate, and the relative datea of the pateDts or . oertiificatea are immaterial