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Courts.- On question of jurisdictional citizenship, courts will look to citizenship of party in whom cause of action is vested, and not to residence of those beneficially interested in subject-matter of litigation, p. 124.

Cited and relied on in Thayer v. Life Assn., 112 U. S. 720, 28 L. 866, 5 S. Ct. 357, where, there being no showing as to place of residence of trustee, cause was dismissed for want of jurisdiction; Davies v. Lathrop, 20 Blatchf. 404, 12 Fed. 358, where, in case of suit by trustee, court looked to his actual place of residence; Whitman v. Hubbell, 24 Blatchf. 241, 30 Fed. 82, Vimont v. Chicago, etc., Ry. Co., 64 Iowa, 517, 17 N. W. 33, 64 Iowa, 524, 21 N. W. 12, Mitchell v. Tillotson, 11 Biss. 327, 12 Fed. 738, and Miller v. Sunde, 1 N. Dak. 4, 44 N. W. 302, reaffirm the rule, cases where suit was brought by trustee; Shipp v. Williams, 62 Fed. 6, 22 U. S. App. 380, holding Federal courts have no jurisdiction of bill by beneficiary under deed of trust against debtor and trustee to foreclose deed, trustee having refused to act, where trustee and debtor are citizens of same State,- for apparently contrary holding see Reinach v. Atlantic, etc., Ry. Co., 58 Fed. 38.

Removal of causes. Act of 1867 does not affect the rule, settled under act of 1789, that determines who are to be regarded as plaintiff and defendant, p. 124.

Cited in Hancock v. Holbrook, 27 Fed. 402, and Taylor v. Rockefeller, 23 Fed. Cas. 795, as authority for holding parties, plaintiff or defendant, must be collectively so situated as to authorize a removal; arguendo, in Southern Pac. Ry. Co. v. Court, 63 Cal. 610, 613, no special application; Texas v. Texas, etc., Ry. Co., 3 Woods, 312, F. C. 13,848.

Removal of causes.- Suit by trustees for bondholders, against their lessees, cannot be removed by latter, where the majority of the bondholders have incorporated, on ground that this new corporation, and not the trustees, are real parties in interest, pp. 123, 124.

Cited in Brownell v Troy, etc., R. R., 18 Blatchf. 245, 246, 3 Fed. 764, upholding jurisdiction of action against same defendant by Vermont citizen.

20 Wall. 125-137, 22 L. 299, BURTON v. DRIGGS.

Appeal and error.- Where exceptions are taken to admission of testimony, grounds for objection must be assigned, and, in proceeding for error, party will be confined to objections so taken, p. 133. Cited and relied on in Noonan v. Caledonia Co., 121 U. S. 400, 30 L. 1063, 7 S. Ct. 915, holding a general objection to the admission of evidence, unavailing on appeal, unless it be of such a character that it could not have been obviated at the trial; to same effect are District of Columbia v. Woodbury, 136 U. S. 462, 34 L. 476, 10 S

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Ct. 994, Van Gunden v. Virginia Coal Co., 52 Fed. 840, 8 U. S. App. 229, United States v. Shapleigh, 54 Fed. 137, 12 U. S. App. 26, Charleston Ice Co. v. Joyce, 54 Fed. 333, 8 U. S. App. 309, Ward v. Blake Co., 56 Fed. 441, 12 U. S. App. 295, Walsh v. Colclough, 56 Fed. 782, 9 U. S. App. 537, Tabor v. Commercial Bank, 62 Fed. 388, 27 U. S. App. 111, and Columbus Safe Co. v. Burke, 88 Fed. 634, 60 U. S. App. 262, all holding alleged error in admission of evidence will not be considered by appellate court, where record merely recites that the complaining party 'objected" and "excepted;" Toplitz v. Hedden, 146 U. S. 255, 36 L. 962, 13 S. Ct. 71, mere objection to the admission of an instrument, which both sides have treated as a copy, is unavailing; Hamilton v. South., etc., Mining Co., 13 Sawy. 120, 33 Fed. 568, and all grounds not specified are considered waived; Union Pac. Co. v. Reese, 56 Fed. 290, 15 U. S. App. 92, where party moves, before trial, for suppression of a deposition and then suffers it to be read without objection, he cannot avail himself of his previous exception in the reviewing court; North Chicago Ry. Co. v. St. John, 85 Fed. 807, 57 U. S. App. 368, and the omission is not cured by the statement of the grounds in the assignment of error; Ward v. Ward, 37 Mich. 259, Wheaton v. Beecher, 49 Mich. 356, 13 N. W. 772, Columbia Bridge Co. v. Geisse, 38 N. J. L. 44, Pitts Works v. Young, 6 S. Dak. 565, 62 N. W. 434, and Warren v. Warren, 93 Va. 75, all reaffirm the rule, and hold, under general objection, a party will not be permitted in appellate court to spring on his adversary, defects which he did not appear to have relied on below. Cited, arguendo, in Board v. Keenan, 55 Cal. 645, no special application; Caledonia Min. Co. v. Noonan, 3 Dak. 199, 14 N. W. 429, holding objection to testimony cannot be raised for first time in appellate court.

Evidence. Where a deposition properly filed with clerk of court has been lost, copy thereof may be admitted as evidence, if it be shown that witness is out of State or resides more than 100 miles from the place of trial, p. 134.

This rule was approved and followed in Stebbins v. Duncan, 108 U. S. 46, 27 L. 646, 2 S. Ct. 322, holding objection to admission of copy where original deposition was destroyed by fire, is defective if party fails to request one offering same to show that witness comes within this rule; Gage v. Eddy, 167 Ill. 106, 47 N. E. 201, reaffirms rule; Sayward v. Gardner, 5 Wash. 254, 31 Pac. 763, when secondary evidence of a contract of sale of land was admitted, the original contract being in the office of the commissioner of lands, whence it could not be withdrawn; Houston v. Blythe, 60 Tex. 512, holding evidence of a witness taken by deposition, which was incorporated in a statement of facts on a former trial, and signed by opposing counsel, the deposition having been subsequently lost, may be used on subsequent trial between same parties.

Evidence. If books or papers, necessary as evidence, in one State be in possession of person living in another, secondary evidence, without further showing, may be given to prove contents of such papers, p. 134.

Jited and applied in Whilden v. Merchants' Bank, 64 Ala. 30, 38 Am. Rep. 4, holding telegram delivered by transmitting company is admissible evidence, where the original and the office from which it was sent are beyond jurisdiction of court; Memphis, etc., Ry. Co. v. Hembree, 84 Ala. 185, 4 So. 394, reaffirms the rule; Zellerbach v. Allenberg, 99 Cal. 73, 33 Pac. 791, holding a letter beyond the territory of the State within meaning of rule; Owers v. Olathe Min. Co., 6 Colo. App. 12, 39 Pac. 984, Gage v. Eddy, 167 Ill. 107, 47 N. E. 202, and Smith v. Bank, 82 Tex. 376, 17 S. W. 783, reaffirm and apply the rule; Fisher v. Greene, 95 Ill. 99, where sworn copy of paper held by party residing out of State, was admitted as evidence, the holder of the original having refused to part with same; Bullis v. Easton, 96 Iowa, 516, 65 N. W. 396, where person without the State refused to attach to her deposition, letters written to her, secondary evidence of contents of such letters is admissible; Forsdick v. Van Horn, 40 Ohio St. 467, holding secondary evidence admissible to prove that books of account do not contain certain entries, the books being out of State and beyond jurisdiction of court; Hagaman v. Gillis, 9 S. Dak. 66, 68 N. W. 193, and Dwyer v. Salt Lake Co., 14 Utah, 343, 47 Pac. 312, both holding notice to adverse party to produce paper is unnecessary. Referred to in Vinal v. Gilman, 21 W. Va. 310, 45 Am. Rep. 565, no special application.

Limited in Londoner v. Stewart, 3 Colo. 49, and Kirchner v. Laughlin, 6 N. Mex. 308, 28 Pac. 507, both holding the circumstance that a writing is without the jurisdiction is not, of itself, sufficient to support secondary evidence of its contents. Distinguished in Kirchner v. Laughlin, 5 N. Mex. 369, 23 Pac. 176, holding testimony of a stenographer as to statements made by a witness at a former trial, such stenographer having refreshed his memory by examination of his notes, taken at trial, is hearsay; Wiseman v. Northern Pac. Ry. Co., 20 Or. 431, 23 Am. St. Rep. 139, 26 Pac. 274, it must be shown that effort was made to obtain the original.

Evidence. When it is necessary to prove results of voluminous facts or of examination of many books and papers, and examination cannot be conveniently made in court, result may be proved by person who made examination, p. 136.

Cited and relied on in San Pedro Lum. Co. v. Reynolds, 121 Cal. 86, 53 Pac. 413, holding schedules presented by an expert book accountant, in connection with his testimony that they were a correct summarization of what the books showed, are admissible; Davis v. Harper, 17 Tex. Civ. App. 90, 42 S. W. 789, where evidence is the result of an examination of numerous papers, the rule re

quiring primary proof will be relaxed. Approved, arguendo, in State v. Byam, 23 Or. 570, 32 Pac. 624.

Assumpsit.—Where assignment of a certain alleged claim to plaintiff was fraudulent and false, assumpsit to recover back the consideration paid was held proper remedy and not suit upon the instrument of assignment, p. 136.

Cited and relied on in Steiner v. Clisby, 103 Ala. 191, 15 So. 614, holding similar complaint not demurrable for misjoinder of actions, because it contains a count for money had and received, and other counts alleging fraudulent transaction, which was foundation of suit; Robinson v. Welty, 40 W. Va. 395, 22 S. E. 76, as authority for holding, where defendant has obtained plaintiff's money by fraud, the tort may be waived and an action in assumpsit maintained. See note, 4 Am. Dec. 330; also monographic note, 52 Am. Dec. 758.

Trial.- Where instructions given cover whole case, court need not give others, suggested by either party, p. 137.

Miscellaneous.- Cited in Price v. Foreman, 12 Fed. 803, not in

point.

20 Wall. 137-152, 22 L. 331, TIOGA, ETC., RY. CO. v. BLOSSBURG, ETC., RY. CO.

Judgment on a cause of action between parties, until set aside by subsequent proceedings, operates as a bar to future litigation on same point, p. 143.

Cited and relied on in Wilson v. Deen, 121 U. S. 534, 30 L. 982, 7 S. Ct. 1007, where second suit involved new matters as well as matters in issue in former action; New Orleans v. Bank, 167 U. S. 396, 42, L. 211, 17 S. Ct. 913, holding estoppel, resulting from thing adjudged, does not depend upon whether there is the same demand in both cases; Fessenden v. Barrett, 50 Fed. 691, and Southern Minn. Ry. Co. v. St. Paul Ry. Co., 55 Fed. 696, 12 U. S. App. 320, both holding bar in second suit, extends to all matters and material facts put in issue in first, the findings of which are necessary to uphold the judgment; Neil v. Tolman, 12 Or. 295, 7 Pac. 107, holding similarly.

Courts.- New York decision, that foreign corporations doing business within the State are not within benefits of State statute of limitation, is binding on Supreme Court in cases coming up from that State, p. 143.

Cited, arguendo, in Larson v. Aultman Co., 86 Wis. 285, 39 Am. St. Rep. 895, 56 N. W. 917, where a foreign corporation was held to be a person "out of the State," within meaning of statute of limi tations. See note in 52 Am. Dec. 257; also note in 75 Am. Dec. 398 VOL. VIII— 20

Explained and distinguished in McCabe v. Illinois Central Ry. Co., 4 McCrary, 497, 13 Fed. 831, and in Wall v. Chicago, etc., Ry. Co., 69 Iowa, 502, 29 N. W. 428, both holding where foreign corporation may sue and be sued in State where it is doing business, it may claim benefits of statute of limitation.

Courts.- Construction of State statute by State Supreme Court, involving no question under Federal laws or Constitution, is conclusive upon Federal Supreme Court, p. 143.

Rule reaffirmed in Erie Ry. Co. v. Pennsylvania, 21 Wall. 497, 22 L. 598, holding this rule will be observed even if court has adopted a different construction of a similar statute of another State; Moores v. Nat. Bank, 104 U. S. 629, 26 L. 872, where State statute of limitation had received different construction in Circuit Court, from what is subsequently received in State court; Bauserman v. Blunt, 147 U. S. 652, 654, 37 L. 318, 319, 13 S. Ct. 469, and Balkam v. Woodstock Co., 154 U. S. 188, 38 L. 957, 14 S. Ct. 1014, both holding similarly; Meeks v. Vassault, 3 Sawy. 211, F. C. 9,393, and French v. Edwards, 4 Sawy. 129, F. C. 5,097, where rule was applied in United States District Court; Powder River Cattle Co. v. Board, 45 Fed. 325, where construction given by State court to statute relating to manner of making assessments, was held binding on Federal courts; Black v. Elkhorn Co., 47 Fed. 603, holding Federal court in Montana bound by construction State court had given to Montana statute of limitation. Cited, arguendo, in Hill v. Boston, 122 Mass. 380, 23 Am. Rep. 366, no special application.

Appeal and error.- No error can be assigned on a general finding, p. 144.

Cited and applied in Meath v. Mississippi Com., 109 U. S. 271, 27 L. 931, 3 S. Ct. 286, holding when there is both a general and special finding, error cannot be assigned on the special; arguendo, in Lynch v. Grayson, 5 N. Mex. 496, 25 Pac. 994.

Limitation of actions.- Statutes of limitation are in their nature arbitrary, and rest upon no other foundation than the judgment of a State as to what will promote the interests of its citizens, p. 150.

Cited in Campbell v. Holt, 115 U. S. 628, 29 L. 487, 6 S. Ct. 213, where court holds the removal of the bar which the statute of limitations enables a debtor to interpose to prevent the payment of his debts, is a power which the legislature may exercise at any time.

20 Wall. 152-158, 22 L. 338, SIMPSON v. GREELEY.

Appeal and error.— All parties against whom joint judgment or decree is rendered, must join in writ of error or appeal, or it will be dismissed, unless a severance of parties in interest has been effected, p. 158.

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