some of the cases maintain, against attaching creditors, especially where they have actual notice of the mortgage. Holroyd v. Marshall, 10 H. L. 191; Mitchell v. Winslow, 2 Story, 630; Pennock et al. v. Coe, 23 How. (U. S.) 117; Galveston R. R. Co. v. Cowdrey, 11 Wall. 459; United States v. New Orleans R. R. Co., 12 id. 362; Butt v. Ellett, 19 id. 544; Smithurst v. Edmunds, 14 N. J. Eq. 408; Tedford v. Wilson, 3 Head, 311; Sillers et ux. v. Lester, 48 Miss. 513; Seymour v. Canandaigua & Niagara Falls R. R. Co., 25 Barb. S. C. 284. The ground of these decisions is that the mortgage, though inoperative as a conveyance, is operative as an executory contract which attaches to the property when acquired, and in equity transfers the beneficial interest to the mortgagee, the mortgagor being held as trustee for him, in accordance with the familiar maxim that equity considers that done which ought to be done. But in the case at bar the plaintiff is not suing in equity, but at law in an action of trover for the tortious conversion of the property, and is suing not a mere wrong-doer, but the persons having the legal ownership of the property, and certainly, therefore, cannot prevail without proof of something more than a merely equitable title or interest. He ought to prove that he has the legal title or ownership, either general or special, and the right of present possession. Fulton, Adm'r, v. Fulton, 48 Barb. S. C. 581; Herring v. Tilghman et al., 13' Ired. 392; Killian, Adm'r, v. Carrol, id. 431; Lonsdale v. Fairbrother, 10 R. I. 327.

It is true, language was used in some of the cases above cited, decided in the Supreme Court of the United States, which seems to go beyond what we have stated to be the effect of the cases; but the cases referred to were cases in equity, and we presume, therefore, the language was designed to express the rule in equity, and not at law, except in so far as the rule at law had been modified by statute, or, the cases being railway cases, in so far as the rule may be regarded as modified by considering the rolling stock and equipment of a railroad as fixtures. And see The Farmers' Loan & Trust Co. v. Hendrickson, 25 Barb. S. C. 484; Pierce v. Emery, 32 N. H. 484.

The plaintiff's counsel claims that there are cases at law upon the authority of which he is entitled to recover. He cites Chapman v. Weimer et al., 4 Ohio St. 481; Carr v. Allatt, 3 H. & N. 964; Chidell v. Galsworthy, 6 C. B. (N. S.) 470. In these cases possession of the after-acquired property had been given to the mortgagee, or lawfully taken by him under the mortgage, and it was for this reason that the mortgagee was held to have acquired the legal title, and not because it was supposed the mortgage itself was effectual to transfer it. There are numerous cases which hold that, though the mortgage per se is inoperative to transfer the legal title, possession so given or taken under it transfers the legal title to the mortgagee, being the Novus actus interveniens required by Lord Bacon's Maxim to give effect to the mortgage as a declaratio præcedens. The maxim is "Licet dispositio de interesse futuro sit inutilis, tamen fieri potest declaratio præcedens quæ sortiatur effectum, interveniente novo actu." Broom's Legal Maxims, 498; Hope v. Hayley, 5 El. & B. 830; also in 34 Eng. Law & Eq. 189; Langton v. Horton, 1 Hare, 549; Congreve v. Evetts, 10 Exch. 298; also in 26 Eng. Law & Eq. 493; Baker et al. v. Gray et al., 17 C. B. 462; Carrington v. Smith, 8 Pick. 419; Rowley v. Rice, 11 Metc. 333; Rowan v. Sharp's Rifle Manuf. Co., 29 Conn. 282; Tilus et al. v. Mabee et al., 25 Ill. 257; Chapin v. Cram, 40 Me. 561; Bryan v. Smith, 22 Ala.

534; Farmers' Loan & Trust Co. v. Commercial Bank, 11 Wis. 207. In the case at bar the plaintiff has never acquired the legal title in this way, for he has never been in possession of the property.

The plaintiff also claims to be entitled to recover upon the authority of Abbott v. Goodwin, 20 Me. 409. The mortgage in that case was not a mortgage of property to be subsequently acquired. It was a mortgage given to secure the payment of certain notes upon a stock of goods then in the possession of the mortgagor, and contained a stipulation that the mortgagor should retain possession of the goods, "and pay over and account for the proceeds of all sales of said goods to them (the mortgagees), to be applied in payment of said notes, or directly to apply said proceeds to the payment of said notes, at the discretion" of the mortgagees. The action was trespass for taking four hundred casks of lime, obtained by the mortgagor in exchange for goods or the proceeds of goods mortgaged to the plaintiffs. The court sustained the action, holding that the lime must be considered as substituted for and representing the goods which were mortgaged, having been exchanged for them or their proceeds, by the mortgagor acting as the agent of the mortgagees. In the case at bar there was no stipulation reserving to the mortgagee control of the proceeds of the property sold by the mortgagor, and, moreover, there is no evidence that the new property was paid for out of the proceeds of the old, or, in fact, that it was paid for at all, though there is evidence that it was acquired to renew or replace the old. We think, therefore, the case of Abbott v. Goodwin, 20 Me. 408, is not an authority which can control the case at bar. And see Rhines v. Phelps, 8 Ill. 455; Holly v. Brown, 14 Conn. 255, 265; Levy v. Welch, 2 Edw. Ch. 438; Chapin v. Cram, 40 Me. 561.

In Hamilton v. Rogers, 8 Md. 301, it was held that a mortgage of goods in a store, "together with all renewals and substitutions for the same or any part or parts thereof," did not convey subsequently-acquired goods so as to give the mortgagee an action at law against a party seizing them. And Rose et al. v. Bevan, 10 Md. 466, maintains that the rule is the same even though the new goods are paid for out of the proceeds of the old. And in Massachusetts, such mortgages have been repeatedly condemned as ineffectual to confer any title to the goods subsequently acquired, though acquired in the usual course of business, and by way of substitution for goods which were mortgaged. Jones v. Richardson, 10 Metc. 481; Moody v. Wright, 13 id. 17; Barnard v. Eaton et al., 2 Cush. 294. And see Codman v. Freeman, 3 id. 306. In the case at bar the only fact proved is that the new goods were acquired in the usual course of business to replace the old. We do not think this is enough to give the mortgagee the same title in the new goods which he had in the old, or in fact to give him any legal title in them. The plaintiff contends that the defendants are estopped from denying his title. The facts set up by the defendants are not in contradiction of, but in conformity with the mortgages. The mortgages contain no express covenants of title. The case, therefore, discloses no ground for the application of the doctrine of estoppel. Chynoweth v. Tenney et al., 10 Wis. 397.

We decide that the plaintiff cannot recover in this action for goods acquired after the mortgage was given. The court also find the defendants not guilty of converting the remainder of the property. The evidence

shows that the defendants refused to surrender all the property to the plaintiff; it does not show to the satisfaction of the court that they refused to surrender so much of the property as was on hand when the mortgage was given.

POTTER, J. While I cannot concur in all the statements of law in the opinion of the majority of the court, I concur in the result.

So long as we maintain the system of forms of actions which we have inherited from England, and by which justice is so often sacrificed to mere technicalities, we must hold that an action of trover cannot be sustained in a case like the present.

Judgment for the defendant for his costs.

COURT OF APPEALS ABSTRACT.

CARRIER.

When contract as carrier terminates. Where merchandise was shipped by canal-boat from Geneva to New York, under a contract whereby it was to remain stored in the boat ninety days after its arrival, at a specified compensation, held, that the liability of the boat owner as carrier ceased upon the arrival of the boat with its cargo at New York, in good order, ready for delivery, and notice to the consignees and their election not to remove such cargo but to store it in the boat. Judgment below affirmed. Putnam v. Furman. Opinion per curiam.

[Decided Oct. 9, 1877.]

COSTS.

When not allowable out of estate of decedent in litigation over will. - Appellants made claim that a testator had died intestate as to one-fourth of his estate, and on that account the executor brought an action for a judicial construction of a clause of the will. The Supreme Court, at Special Term, held adversely to the appellants and gave judgment in favor of the will and a valid disposal of the whole estate by it. The appellants then took an appeal to this court and the judgment below was affirmed, but without costs. Upon a motion to amend remittitur by awarding costs in this court to all the litigants, payable out of the estate of the testator, held, that such costs should not be allowed. Courts have no right to be liberal to suitors at the expense of the estates of decedents or of trust funds over which they have control. McLean v. Freeman. Opinion per curiam.

[Decided Oct. 9, 1877.]

EASEMENT.

Grant of right to lay water-pipe: general terms of grant made definite by subsequent acts of grantee.- In 1863 one Brown, whose lands adjoined those of plaintiff, gave to defendant's grantor, a railway company, by deed, the right to enter upon his lands and construct and maintain a reservoir for collecting the waters of a natural spring, and to lay and maintain a pipe across his lands to its railway tank. At the same time plaintiff, knowing the contents of Brown's deed, executed to the same grantee a deed, giving it the right to enter upon his land and lay and maintain a pipe to conduct the water to its tank in connection with the pipe and reservoir on Brown's land. The deeds were general and contained no limitation as to the size of the pipe or where it should be laid. At the time water flowed from the spring by a natural channel across plaintiff's land and was used by him in watering stock, etc. The company immediately constructed

a reservoir and laid a two-inch pipe, which did not carry all the water flowing from the spring, but left a surplus sufficient for plaintiff's use. In 1871 defendant enlarged the reservoir and laid a four-inch pipe, which carried away all the water from the spring, leaving not enough for plaintiff's use. In an action for the damage done thereby, held, that the acts of the parties before and immediately after the execution of the deed might be taken into consideration for the purpose of learning the intention of the parties and defining and limiting the easement, that although there was in the deed no specification as to where the pipe should be laid and its size, the company by its action fixed the easement as to those matters and could thereafter lay its pipes in no other place than the one chosen and of no other size than the one selected, and the action was maintainable. (French v. Hays, 43 N. H. 30; Washb. on Easem. 225, 240; Wynkoop v. Burger, 12 Johns. 222; Jennison v. Walker, 11 Gray, 423; Bannon v. Angier, 2 Allen, 128.) Judgment below affirmed. Onthank v. L. S. & M. S. R. R. Co. Opinion hy Earl, J.

[Decided Nov. 9, 1877. Reported below, 8 Hun, 131.]

EVIDENCE.

Writing not contemporaneous: when inadmissible.A writing not made near the same time and entirely disconnected with the matters under investigation and consisting of words, letters and figures, whose meaning required explanation, and about whose meaning there was a conflict in the testimony, held, not competent to explain the meaning of words and figures contained in another writing which was the subject of controversy. Judgment below affirmed. Mumby v. Jackson. Opinion by Earl, J. [Decided Nov. 13, 1877.]

JUDGMENT.

1. Judgment by confession: what a sufficient statement for.-In a confession of judgment by one Gibbons to one Harrison it is alleged that the judgment is confessed for a debt justly due to Harrison, and then proceeds as follows: "The following is a statement of facts upon which said confession of judgment is founded: That said Gibbons was for a long time absent from the State of New York, and engaged in the occupation of mining in the State of California; that, during his said absence, and prior to his leaving said Brockport for said California, he has and had obtained groceries, provisions, crockery, money, flour, etc., to the amount of $1,109.41, including interest, of John Owens, who has duly assigned the same to said Harrison; that since his return to said Brockport he has incurred a debt to said Harrison amounting to the sum of $92.28, being for groceries and provisions furnished by said Harrison for the use of his family; that there is now justly due and owing said Harrison, over and above all effects and payments, the sum of $1,207.69." Held, following Freligh v. Brink, 22 N. Y. 418, a sufficient statement under the provision of section 383 of the old Code. Judgment below reversed. Harrison v. Gibbons. Opinion by Andrews, J.

2. Setting aside sale under execution: when not proper. The Special Term held the judgment valid as to the item of $98.28, but set it aside as to the other item of $1,109.41 as against one Kattener, a subsequent judgment creditor. A sale under execution upon the judgment had been had of the personal property of Gibbons, realizing $130, and of his real estate, before Kattener obtained his judgment. The court below

held that the sale of the personal property extinguished the valid portion of the judgment, and ordered the sale of the real estate to be set aside. Held, error. The judgment between the parties was valid, even though the statement was defective (Nuesbaum v. Keim, 24 N. Y. 325), and there was no equity in a subsequent judgment creditor, entitling him to have the money realized from the sale of the personal property applied to extinguish an item in the judgment where the statement was not defective. Ib. [Decided Oct. 9, 1877.]

MANDAMUS.

1. When peremptory, not allowed. Where a claim had been allowed by a board of supervisors, which the county treasurer refused to pay, and in an application for a peremptory mandamus it appeared, that, in reference to a portion of the claim, a fraud had been perpetrated upon the board of supervisors, and another part of the claim was without sanction of law, held, that in such a case a peremptory mandamus could not be allowed. Such a writ is allowed, only when there is a clear and unquestioned legal right. Order below affirmed. (People ex rel. Mott v. Supervisors of Greene, 64 N. Y. 600.) People ex rel. Slavin v. Wendell. Opinion per curiam.

2. Discretion of court as to allowing peremptory or alternative mandamus. - Even if a case was made out where a peremptory mandamus might be issued, the court was vested with a discretionary power under the facts presented, of granting or refusing such writ, and could issue an alternative writ instead. (People ex rel. Hackley v. Crot. Aq. Bd., 49 Barb.259.) Ib. [Decided Nov. 13, 1877.]

NEGLIGENCE.

Duty of telegraph company as to construction of line in streets of a city. In an action against a telegraph company, for personal injury, caused by the breaking and fall of one of its posts in the streets of a city, the defense was, that the accident was caused by a storm of unprecedented violence. Held, that the company, having the right to place its poles and wires in the streets, could be made responsible for the accident, only by proof of negligence on its part, in constructing or maintaining its line. A telegraph company is not absolutely bound to make its line safe to the public, or to have its posts in the street so strong and secure that they cannot be blown down or broken by any storm. It is bound to use reasonable care in the construction and maintenance of its line. The poles must be strong enough to withstand such violent storms as may be reasonably expected, but they are not required to be so strong that no storm can break them, or to withstand such storms as reasonable foresight and prudence could not anticipate. Judgment below reversed. Ward v. Atlantic & Pacific Telegraph Co. Opinion by Earl, J.

[Decided Oct. 10, 1877.]

UNDERTAKING.

Action on undertaking given on appeal: condition precedent to maintenance of.-In an action upon an undertaking given to stay execution upon appeal to the General Term, the complaint did not allege specifically or generally, a compliance with the requirement of the last clause of section 348 of the old Code, requiring the service of notice of the entry of judgment of affirmance upon the adverse party, ten days before the commencement of action upon the undertaking

given on appeal. Held, that the giving of such notice was a necessary condition precedent to the commencement of an action, and a complaint not alleging it did not state facts sufficient to constitute a cause of action. Judgment below affirmed. Porter v. Newton. Opinion by Earl, J.

[Decided Oct. 2, 1877.]

UNITED STATES SUPREME COURT ABSTRACT. OCTOBER TERM, 1877.

AMENDMENT.

Of judgment after term.- An action was tried by the court and judgment ordered for the plaintiffs at the April Term, without any formal finding of facts. At a subsequent term, upon due notice, an order was made that “a finding of facts in the cause, with the conclusions of the court thereupon, conformably to the opinion of the court theretofore filed," be prepared and signed by the judges; that "said special finding of facts" be entered of record nunc pro tunc as of the April Term. Held, that the court had power to make such an order, and that such order made the special finding a part of the record. "Generally it may be admitted, that judgments cannot be amended after the term at which they are rendered, except as to defects or matters of form, but every court has power to amend its records so as to make them conform to and exhibit the truth. Ordinarily there must be something to amend by, but that may be the judge's minutes or notes not themselves record, or any thing that satisfactorily shows what the truth was." In this case the opinion filed with the judgment was sufficient to amend by. Etna Ins. Co. v. Boon. Opinion by Strong, J.

BANKRUPTCY.

1. Preference: what constitutes. - On the morning of August 26, H. sold the M. bank, in Cincinnati, his check on New York for $10,000. In the afternoon, becoming satisfied that he must fail, he wrote to the president of the bank this note: "Dear sir, a disappointment gives us reason to fear that our check of this date will not be paid. I leave with you the inclosed as security." He inclosed certain securities in the envelope, and the note and securities were delivered to the bank the next day, and accepted by it. The bank knew that shortly previous H. was pressed for money. Held, a preference within the 35th section of the national bankruptcy law, and that there was in the note sufficient to give the bank reasonable cause to believe that H. was insolvent. Merchants' Nat. Bank v. Cook. Opinion by Hunt, J.

2. What constitutes reasonable cause to believe debtor insolvent. When the condition of a debtor's affairs are known to be such that prudent business men would conclude that he could not meet his obligations as they matured in the ordinary course of business, there is reasonable cause to believe that he is insolvent. Knowledge is not necessary nor even a belief but simply reasonable cause to believe. (Toof v. Martin, 13 Wall. 50; Buchanan v. Smith, 16 id. 277; Wager v. Hall, id. 584.) Ib.

CONSTITUTIONAL LAW.

1. What is not a tonnage tax.—The city of Keokuk, under the authority of a statute of Iowa, authorizing it to construct wharves and fix the rates of landing thereat, constructed at a great expense along the banks of a navigable river an improved wharf, and by ordinance provided, that any steamboat making fast

REMOVAL OF CAUSES FROM STATE TO FEDERAL COURT.

SUPREME COURT OF THE UNITED STATES. - OCTOBER TERM, 1877.

PHOENIX INSURANCE COMPANY V. PECHNER.

A petition for the removal of a cause from a State to the Federal court under the act of 1789 must expressly state that the parties were citizens of the respective States at the time the suit was commenced.

אן

N error to the Court of Appeals of New York. The decision of the Court of Appeals is [reported 65 N. Y. 195.

Mr. Chief Justice WAITE delivered the opinion of the court.

On the 1st of June, 1867, Pechner, the defendant in error, sued the Phoenix Insurance Company, plaintiff in error, a Connecticut corporation, in the Supreme Court of Chemung county, in the State of New York, upon a policy of insurance. On the 8th of July, in the same year, and at the time of entering its appearance, the company presented to the court a petition, accompanied by the necessary security, for the removal of the cause to the Circuit Court of the United States. The petition, when taken in connection with the pleadings, set forth sufficiently the citizenship of the defendant in the State of Connecticut, but as to the citizenship of the plaintiff, the statement was that " ав your petitioner is informed and believes, Isido. Pechner, the plaintiff in said action, is a citizen of the State of New York." The petition bears date June 11, 1867, and was sworn to June 12. Upon its presentation the court approved the security, but denied the application for removal.

On the 5th of June, 1869, the plaintiff filed an amended complaint, to which the defendant answered June 21, 1869. On the 2d of February, 1872, the cause coming on for trial, the defendant again presented its original petition for removal, which remained upon the files, and requested the court to proceed no further with the trial, but this request was denied, for the reason that the petition did not state facts sufficient to remove the cause. A jury was thereupon called, which returned a verdict in favor of the plaintiff, and judgment was in due form entered thereon against the defendant. The case was then taken to the Court of Appeals, where the judgment of the Supreme Court was affirmed, the Court of Appeals deciding that the petition for removal was not sufficient in law to effect a transfer of the cause, for the reason that it did not state affirmatively that Pechner was a citizen of the State of New York when the suit was commenced. To reverse this judgment the present writ of error has been brought, and the only error assigned is predicated upon this decision.

The application for removal in this case was made under section 12 of the Judiciary Act of 1789.- (1 Stat. 79.) That section, so far as it is important for the determination of this case, reads as follows: "If a suit be commenced in any State court * * by a citizen of the State in which the suit is brought against a citizen of another State, * * and the defendant shall, at the time of entering his appearance in such State court, file a petition for the removal of the cause for trial into the next Circuit Court, * * it shall then be the duty of the State court to * * proceed no further in the cause. * * *" Clearly this has reference to the citizenship of the parties when the

suit is begun, for the language is, “if a suit be commenced by a citizen of the State in which the suit is brought against a citizen of another State, the defendant may, when he enters his appearance, petition for its removal." The phraseology employed in the acts of 1866 (14 Stat. 307), 1867 (Id. 558), and 1875 (18 Stat. 470), and in the Revised Statutes (§ 639), is somewhat different, and we are not now called upon to give a construction to the language there used. As to the act of 1789, we entertain no doubt in this particular.

This right of removal is statutory. Before a party can avail himself of it he must show upon the record that his is a case which comes within the provisions of the statute. His petition for removal when filed becomes a part of the record in the cause. It should state facts which, taken in connection with such as already appear, entitle him to the transfer. If he fails in this, he has not, in law, shown to the court that it cannot "proceed further with the cause." Having once acquired jurisdiction, the court may proceed until it is judicially informed that its power over the cause has been suspended.

It remains only to apply this rule to the facts as they appear in this record. The suit was commenced June 1, 1867. At that time there was nothing in the pleadings or process to indicate the citizenship of the plaintiff. The defendant, in its petition for removal, bearing date June 11, simply stated that the plaintiff isthat is to say, was at that date-a citizen of New York. This certainly is not stating affirmatively that such was his citizenship when the suit was commenced. The court had the right to take the case as made by the party himself and not to inquire further. If that was not sufficient to oust the jurisdiction, there was no reason why the court might not proceed with the cause. We think, therefore, that the Court of Appeals did not err in its decision, and the judgment is consequently affirmed.

Mr. Chief Justice WAITE delivered the opinion of the Court.

These cases are substantially disposed of by the decision in Phoenix Ins. Co. v. Pechner, just announced. They each present the question of the sufficiency of a petition for removal under the act of 1867. 14 Stat. 558. The suits were in New York by the defendants in error as executors, against the plaintiff in error, a citizen of New Jersey. The petitions for removal set forth sufficiently the citizenship of the plaintiff in error, but as to the defendants in error the allegations are "that said plaintiffs, as such executors, are citizens of the State of New York." Clearly this is not sufficient. Where the jurisdiction of the courts of the United States depends upon the citizenship of the parties, it has reference to the parties as persons. A petition for removal must, therefore, state the personal citizenship of the parties and not their official