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a legal proposition, whether the vehicle was of such unusual size and length as not to be entitled to passage along the street as requested. The judge, also, properly declined to charge a proposition already covered, so far as it was good law, or a proposition which would make the question of negligence depend upon a single fact instead of the whole facts of the

case.

Held also, That it was proper to. admit evidence of a resolution passed by the Common Council of the city after the accident, directing the removal of the bridge, and of its removal in pursuance thereof. It is not admissible as evidence of negli gence, but as tending to show the existence of power and authority over this street and bridge, creating a responsibility for neglect of duty in respect thereto. See Manduschid v. City of Dubuque, 4 Amer. R., 196, 204 (29 Iowa, 73), in which is cited Folsum v.Underhill, 36 Vermont, 580. Judgment and order affirmed with

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tried by a jury. A motion for a new trial on the evidence was made at the circuit and denied.

Geo. Miller, for applt.
Robt. S. Green, for respt.

Held, That the amount of the judgment being less than $500, this court has no jurisdiction; that an appeal would not lie to this court from such an order. 46 N. Y., 409, 464. Appeal dismissed.

Opinion by Rapallo, J. All concur.

MARRIED

WOMEN. PROMISSORY NOTES. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Hiram Baker, respt., v. Jane Lamb, applt,

Decided September 20, 1877.

A married woman has no separate estate,

where her only property is her interest in a farm which was deeded to her and her husband jointly.

A promissory note given by a married woman

under such circumstances is invalid.

Appeal from judgment for plaintiff on report of a referee.

Action upon a promissory note for $100, in the ordinary form, given by defendant, a married woman, to plaintiff. Defence, coverture, and that the note was not given for the benefit of her separate estate and was not made a charge thereon. The referee finds that defendant had a separate estate prior to 1867; that in that year $1000 thereof was expended in connection with moneys of her husband in the purchase of a farm which was deeded to defendant and her husband jointly; that the remainder of her separate estate has been since expended, and that she has no estate except her interest in the farm. Also that

defendant asked for the loan of said money for the benefit of her separate property, viz.: to improve the dwelling house on said farm and to pay for a horse then used thereon; and plaintiff loaned the money for such purposes.

Belknap & Edson, for applt. L. L. Bundy, for respt. Held, That upon the facts as found defendant had no separate estate to be benefited by, or charged with the payment of the note. Fireman's Insurance Company v. Bay, 4 Barb., 414; S. C., 4 N. Y., 11. The husband and wife do not hold as joint tenants, or tenants in common, but as tenants by entireties. They hold as one person. Neither has a separate or divisable interest, and during their joint lives the husband is entitled to the possession, rents, issues, and profits. Farmers', &c., Bank v. Gregory, 49 Barb., 162; Beach v. Hollister, 3 Hun, 519, and cases cited; Torrey v. Torrey, 14 N. Y., 430.

Held also, That defendant having no separate estate or property, her promissory note was a nullity.

Except she possessed property to be benefited by her contract she is not authorized, by the Acts of 1860, Chap. 90, and 1862, Chap. 172, to make contracts.

The only power given to married women by those acts is to contract in reference to their separate estate. We speak simply of their power to bind themselves by their promissory notes. Such notes are, prima facie, nullities. Second Nat. Bk. v. Miller, 63 N. Y., 639; S. C., 7 Th. & Cook, 104; Kinne v. Kinne, 45 How., 68; Bodine v. Kelsen, 53 N. Y., 93. To remove such presumption the existence of a

Vol. 5-No. 7.

separate estate must be shown, and that such note was given for the benefit thereof, or by its terms charges the same with its payment. This note therefore was invalid.

Judgment reversed and new trial granted; costs to abide event, and reference discharged.

Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur.

REMOVAL OF CAUSES. U. S. CIRCUIT COURT. D. OF MINNE

SOTA.

W. H. Latham et al. v. A. H. Barney et al.

Decided August 24, 1877.

The right to remove a cause from a State to a Federal Court, where such right depends upon the question whether one of the defendants is a necessary party, is to be determined by the condition of the controversy as it appeared when the complaint was filed, and is not controlled by the answer.

The plaintiffs, one a citizen of Minnesota, and the other a citizen of the State of Indiana, sued the defendants in the District Court of the County of Waseca, in the State of Minnesota.

All the defendants, except the Winona and St. Peter Land Company, a corporation created by the legislature of Minnesota, being citizens of a different State from either of the plaintiffs, joined in a petition to that Court for a removal of the suit into the Federal Court, stating that they desired to remove the same before the trial thereof, in pursuance of the provisions of law as contained in the Act of Congress, approved March 3, 1875, and that in this suit the controversy is, and the issues are, wholly between the plaintiffs and

these petitioners; and that the Winona & St. Peter Land Company is not a necessary party to or in the trial or determination of the controversy, or issues, or any of them.

The plaintiffs charge in their complaint, that the defendants who have petitioned for this removal have defrauded them, and also withhold, wrongfully, their money, and have conveyed or authorized to be conveyed, a large amount of real property in which they claim an interest to the defendant, the Winona & St. Peter Land Company, which corporation with full knowledge of the fraud, and of all the facts in regard to the plaintiff's claim, accepted the property, and is selling the same, and refuses to recognize their rights.

In the prayer for relief, they ask that this company account to them for their interest in the proceeds of lands sold, and, also, that it be decreed to convey to them the interest claimed in the lands unsold.

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The answer of the Land Company alleges that it is unwilling to contend with the plaintiffs in this action, and if the matters at issue between them and its co-defendants are decided in favor of the former, it consents that the matters and facts established and proven against its codefendants may and shall be considered as established and proven against it, and that judgment may be entered accordingly," &c.

The District Court of Waseca County approved the bond tendered, and entered an order that it proceed no further.

The suit has been properly docketed in the United States Circuit Court for the District of Minnesota,

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EQUITABLE MORTGAGE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

John C. T. Smidt, applt., v. Peter H. H. Jackson, respt.

Decided July 6, 1877.

Where the Court has held that an instrument,

purporting on its face to be an absolute deed, is a mortgage, it cannot, in an order giving the grantor a right to redeem within a specified time, provide that, in case of a failure so to do, the instrument shall be deemed an absolute conveyance.

Action for the construction of certain instruments which are claimed to constitute a mortgage.

Plaintiff was the owner of certain real estate situate in Nyack, which

From this part of the order plaintiff appeals.

Allan Lee Smidt, for applt. G. S. & J. H. Stitt, for respt. Held, Error. If the deed is held as a mortgage, then the plaintiff is entitled to a sale of the property in the usual way.

were incumbered by certain mort- to be an absolute deed and convey. gages. Foreclosure proceedings hav-ance." ing been commenced upon the first mortgage, defendant, who was a junior mortgagee, offered to and did advance to plaintiff money sufficient to pay off and discharge all the incumbrances, and took from plaintiff and his wife a deed of said premises, and gave back to him an agreement to resell the premises to plaintiff upon repayment, on December 1, 1876, of the sum so advanced. At the same time both parties executed a landlord and tenant agreement.

He may not be able to pay the amount by a given day, but a public sale may call out some one who will pay the value of the premises. This value is shown by the papers to be nearly or quite double the amount advanced by plaintiff. That part of the

On December 1, 1876, plaintiff not being able to raise the necessary sum, the agreement was extended to Jan-order appealed from reversed. uary 3, 1877.

Opinions by Barnard, P. J., and

Plaintiff not paying said amount | Gilbert, J.

on the 3d of January, 1877, defendant caused a notice to quit to be served on plaintiff on the 6th of January, 1877.

RAILROAD COMPANIES.

NEGLIGENCE.

SUPREME COURT OF OHIO.

The Pittsburg, Fort Wayne, and RR., plffs. in error, v. Bingham. railroad company is not bound to exercise

ordinary care and skill in the erection or▾ maintenance of its station-houses, as to persons who enter them by its mere sufferance or permission.

The deceased was at the plaintiff's

A temporary injunction to restrain defendant &c., from instituting or prosecuting any proceedings to dis- C. possess plaintiff, was granted in this A action on February 6, 1877, which was afterward continued until May 1, 1877; the Court deciding that the transactions constituted a mortgage, that, until said 1st of May, the plain-station-house in Massillon, on Decemtiff have a right to redeem, and that, ber 5, 1870, and while there was in case of payment of the sum ad- struck by a portion of its roof, torn vanced with legal interest before that off by wind, and blown, during a viotime, defendant should execute a con- lent storm, from the building, with veyance free of incumbrance to plain- such force against and upon him as tiff. The order also provides as fol- to cause his death. The plaintiffs in lows: "But that in case the said error-one the owner of, and the plaintiff shall fail within that time to other the lessee operating the railpay said sum, and redeem said prem-road--were charged with the wrongises, then and in that case the conveyance of said premises referred to in said complaint shall be deemed

ful act and neglect alleged to have resulted in the death of Bingham, consisting in negligence in the construc

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part of the charge that held it to be the duty of the company to have exercised due care in the construction and maintenance of the building, if the deceased entered and was there by "mere permission and without ob

Held, Error. An implied license to enter a depot creates no additional duty upon the part of the company as respects the safety of the building entered. Its only effect is to make that lawful which, without it, would be unlawful. Wood v. Leadbitter, 13 M. & W., 838; Sweeny v. Old Colony and Newport Railroad Company, 10 Allen, 372; Carlton v. Franconia Iron and Steel Co., 99 Mass., 216; Gillis v. Pennsylvania Railroad Co., 59 Penn. St., 129. It is a waiver or relinquishment of the right to treat him who has entered as a trespasser.

tion and maintenance of said stationhouse, the plaintiff below claiming it to have been defectively and unskilfully constructed, and maintained and used in an unsafe and insecure condition. Issue was joined upon the question jection;" and from a judgment of negligence, and the cause submit- against it, carried the cause to the ted to a jury. Upon the trial, evi- District Court, where the judgment of dence was given which tended to show the Common Pleas was affirmed. that the deceased, on the day and at the time of receiving the injury resulting in death, was at said passenger depot or station-house, not for the purpose of transacting any business with the company, its agents or servants, or with any one rightfully there, nor on business in anywise connected with the operation of the road; but, being out of employment, was there for pastime or pleasure, or as a place of safety during the continuance of what appears to have been a violent storm. After the testimony was concluded, the Court instructed the jury, in substance, that if the deceased was at, in, or near said depot, not on any business, "but was there by the tacit permission of, and without objection from," the company operating the road, "its agents or servants, and there peaceably and innocently relying upon such station-house as a place of security," and was free from negligence contributing to his injury and consequent death, and ordinary care and skill were not employed in the construction and maintenance of the station-house, but from want of such care and skill it was defectively and insufficiently constructed, and imprudently and negligently maintained and used, and by reason thereof the deceased lost his life, the company was liable. The defendant below excepted to that

It is doubtless true that a railroad company, by erecting station-houses and opening them to the public, impliedly licenses all persons to enter. But it is equally true that such license is revocable at the pleasure of the company as to all persons who are not there on business connected with the road, or with its servants or agents. Commonwealth v. Powers, 7 Met., 596; Nicholson v. The Erie Railway Company, 41 N. Y., 532.

In the circumstance supposed-the presence of the deceased at the depot by the mere sufferance or permission of the company-it was under no legal obligation to protect him from danger, not known to exist, although the unsafe condition of the building that gave rise to such danger was a

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