language of the statute in charging the offense For insurance, see "Insurance," § 3.

*The law applicable in a prosecution under By, grand jury, see "Indictment and InformaRev. St. 5480 [U. S. Comp. St. 1901, p.

the jury.-United States v. White (D. C.) 379. In civil actions, see "Evidence," § 1.

*Point annotated. See syllabus.

PRINCIPAL AND SURETY.

See "Bail"; "Guaranty."
Sureties on bonds of Indian agents, see "In-

dians."

81. Creation and existence of relation.
*Contract of suretyship is that the surety will
see that the principal pays or performs.-Ameri-
can Bonding Co. v. Pueblo Inv. Co. (C. C. A.) 17.
§ 2. Nature and extent of liability of

surety.

constitute a novation discharging the contract-
ors' surety from liability.-Wing v. Bostwick
Co. v. United States Fidelity & Guaranty Co.
(C. C.) 672.

*A creditor who held as collateral security
property owned by his debtor, and also other
of the property of his debtor, without the con-
property pledged by another, by his surrender
sent of the other pledgor, forfeited his right to
retain the property pledged by the latter.-In
re Sanderson (D. C.) 236; Hill v. Horskins, Id.
PRIVATE ROADS.

Written language is to be determined by the
same rules of law where it is found in the
contract of a surety as in other agreements. Rights of way, see "Easements."
American Bonding Co. v. Pueblo Inv. Co. (C.
C. A.) 17.

*The obligation of a surety may not be ex-
tended or reduced by construction or implica-
tion beyond the true meaning expressed by the
contract.-American Bonding Co. v. Pueblo Inv.
Co. (C. C. A.) 17.

While an agreement of suretyship restricts
the liability of the surety to that which he
agreed to undertake, it holds him to that liability
which by the plain terms of his agreement he
promised to assume.-American Bonding Co. v.
Pueblo Inv. Co. (C. C. A.) 17.

Where a tenant agreed to put into the prem-
ises a heating plant, to renew the plumbing,
etc., held, the surety on his bond was liable to
the lessor for the amount the latter necessarily
paid to relieve the property from a lien for
labor and material furnished for the heating
plant and the plumbing.-American Bonding Co.
v. Pueblo Inv. Co. (C. C. A.) 17.

§ 3. Discharge of surety.

Where a lease granted the lessee an option
to purchase during its life time and on the de-
fault, the lessee surrendered the leased premises,
and the lessor accepted them, the option to pur-
chase ceased, but the surrender did not wrong-
fully deprive the surety of its right to exercise
this option.-American Bonding Co. v. Pueblo
Inv. Co. (C. C. A.) 17.

*Surrender of premises held to terminate the
lease, but not to relieve the surety from the
matured obligations of the lessee.-American
Bonding Co. v. Pueblo Inv. Co. (C. C. A.) 17.
*Any material alteration of the contract
guarantied, without the consent of the surety.
releases him.-American Bonding Co. v. Pueblo
Inv. Co. (C. C. A.) 17.

*The wrongful surrender by the obligee of
security without the knowledge of the surety,
discharges him from liability entirely or pro
tanto.-American Bonding Co. v. Pueblo Inv.
Co. (C. C. A.) 17.

See "Injunction."

PROCESS.

Effect of appearance, see "Appearance."
In actions against foreign corporations, see
"Corporations," § 3.
Process in special jurisdictions, see "Admiral-
ty,” § 2.

PROPERTY.

Particular species of property.
See "Copyrights"; "Mines and Minerals";
"Shipping"; "Trade-Marks and Trade-
Names."

Remedies involving or affecting property.
Protection of rights of property by injunction,
see "Injunction," §.1.

Transfers and other matters affecting title.
See "Adverse Possession."
Intermixture, see "Confusion of Goods."

*Trees growing on land constitute a part
of the realty, as provided by Code Ga. 1895, §
3045.-Marthinson v. King (C. C. A.) 48.

PUBLIC IMPROVEMENTS.

By municipalities, see "Municipal Corpora-
tions," § 1.

PUBLIC LANDS.

Conspiracy to obtain public land, see "Con-
Construction of statute relating to, see "Stat-
spiracy," § 2.
utes," $ 1.

Mineral lands, see "Mines and Minerals," § 1.

PUBLIC WATER SUPPLY.

See "Waters and Water Courses," § 1.

PUNISHMENT.

*A new contract executed between a con-
tractor and a subcontractor after breach of the
latter's contract held not to discharge the sub- For violation of injunction, see "Injunction,"
contractor's surety from liability.-Wing &
Bostwick Co. v. United States Fidelity & Guar-
anty Co. (C. C.) 672.

A continuance of work on a building beyond

§ 3.

QUESTIONS FOR JURY.

the time specified for completion held not to In civil actions, see "Trial," § 1.

150 F.-56

*Point annotated. See syllabus.

See "Street Railroads."

from the fact that it runs trains over the crossing at a high rate of speed.-Latham v. Staten Island Ry. Co. (C. C.) 235.

Intent is not necessary to a violation of the safety appliance acts.-United States v. Great Northern Ry. Co. (D. C.) 229.

A common carrier cannot excuse itself from compliance with the safety appliance acts by showing that a particular equipment is out of repair.-United States v. Great Northern Ry. Co. (D. C.) 229.

Evidence held to show that the provisions of Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], requiring automatic couplers, had not been complied with.-United States v. Great Northern Ry. Co. (D. C.) 229. A railroad company is subject to the penalty provided for violation of section 2 of Act March 1901, p. 3174], by using a car in interstate commerce not equipped with automatic couplers, where, although the car has such couplers, they are defective, or out of repair, or disconnected, so as not to be effective to prevent the necessity of men going between the ends of the cars.

Appealability of order requiring production of 2. 1893, c. 196, 27 Stat. 531 [U. S. Comp. St.
books of, see "Appeal and Error," § 1.
As employers, see "Master and Servant.'
Carriage of goods and passengers, see "Car-

riers."

Requiring production of books by, see "Discov-
ery," § 1.
Specific performance of contract by trustee for
railroad company, see "Specific Performance,"
§ 1.

Taking case from jury in action for injuries
from operation of, see "Trial," § 1.

§ 1. Sales, leases, traffic contracts, and

consolidation.

United States v. Great Northern Ry. Co. (D.
C.) 229.

Mere failure of the car inspectors of defendant railroad company to discover a defective coupling on the first inspection thereof, before not a violation of the safety appliance act. delivering the car to the connecting carrier, held Act Cong. March 2, 1893, c. 196, 27 Stat. 531 U. S. Comp. St. 1901, p. 3174].-United States

An agreement between two railroad companies held not to effect a consolidation, but av. Atchison, T. & S. F. Ry. Co. (D. C.) 442. merger under which one company remained in existence as a corporation of the state in which it was organized.-Lee v. Atlantic Coast Line

R. Co. (C. C.) 775; Dunning v. Same, Id.; See "Property."

Myers v. Same, Id.; Enter v. Same. Id.

REAL PROPERTY.

REBATES.

RECEIVERS.

*There is a distinct difference between a consolidation and a merger of two railroad companies: In a consolidation both go out of exist- Receiving from carriers, see "Carriers," § 1. ence as separate corporations, and a new corporation is created which takes their place and property, while in case of a merger one loses its identity by absorption in the other, which remains in existence and succeeds to its property and issues its own stock to the stockholders of the merged company.-Lee v. Atlantic Coast Line R. Co. (C. C.) 775; Dunning v. Same, Id.; Myers v. Same, Id.; Enter v. Same, Id.

§ 2. Indebtedness, securities, liens, and mortgages.

*A provision of a railroad mortgage, requiring as a condition precedent to foreclosure that a demand shall be made on the trustee by the holders of a majority in amount of the bonds, with a tender of indemnity against liability for costs and expenses, will not be enforced where it appears from a bill filed by a bondholder that compliance is impossible, and that the trustee is antagonistic because of its interest in a second mortgage.-Cochran v. Pittsburg, S. & N. R. Co. (C. C.) 682.

§ 3. Operation.

*Duty of a railroad to maintain a flagman at a highway crossing cannot be inferred alone

Adoption by federal court of state practice as
Appointment of as act of bankruptcy, see
to appointment of, see "Courts," § 1.
"Bankruptcy," § 1.

§ 1. Management and disposition of
property.

The power to continue business of a bankrupt plies the power to make debts, to provide for corporation through a receiver or trustee imtheir payment, and to borrow money for urgent necessities. In re Erie Lumber Co. (D. C.) 811.

RECORDS.

Transcript on appeal or writ of error, see "Appeal and Error," § 4.

REFERENCE.

§ 1. Report and findings.

*The court will not review the findings or conclusions of a referee to whom a cause has *Point annotated. See syllabus.

been referred to pass upon all questions, both of fact and law, unless to correct a manifest clerical error.-Kilduff v. John A. Roebling's Sons Co. (C. C.) 240; John A. Roebling's Sons Co. v. Carbon Steel Co., Id.

REFORMATION OF INSTRUMENTS.

See "Cancellation of Instruments."
§ 1. Right of action and defenses.

and which could not, therefore, have been originally brought in a federal court, is not removable.-Yellow Aster Min. & Mill. Co. v. Crane Co. (C. C. A.) 580.

*An action pending before a justice of the peace in Nebraska, whose Constitution (article 6, § 1) creates such courts, held removable to a federal court on petition of a nonresident defendant, if there exists proper diversity of citizenship, and the value of the matter in controversy exceeds $2,000, exclusive of interest and costs.-Katz v. Herschel Mfg. Co. (C. C.) 684.

A contract which is based wholly on the ownership by one of the parties of the stock of a corporation, without which it could not perform the contract on its part, will not be re-§ 2. Citizenship or alienage of parties. formed by a court of equity so as to give the other party the right to attack such ownership. -North Chicago St. R. Co. v. Chicago Union Traction Co. (C. C.) 612; West Chicago St. R. Co. v. Same, Id.

A contract made by the directors of corporations which were in the hands of receivers will not be reformed at suit of the corporations on the ground of mistake, where it was ratified and signed by the receivers pursuant to an order of the court made with full knowledge of the facts.-North Chicago St. R. Co. v. Chicago Union Traction Co. (C. C.) 612; West Chicago St. R. Co. v. Same, Id.

REHEARING.

See "New Trial."

REISSUE.

Of patent, see "Patents," § 2.

RELIGIOUS SOCIETIES.

Under Const. W. Va. art. 6, § 47 [Code 1906, p. lxiii], Code 1899, c. 57, §§ 1, 7 [Code 1906, §§ 2606, 2613], and section 30, c. 54, Code 1899 [Code 1906, § 2322], a trust of 351 acres of land located in West Virginia, created for the benefit of a foreign religious corporation, held contrary to the public policy of the state of West Virginia, and therefore void.-Miller v. Ahrens (C. C.) 644.

RELOCATION.

The obtaining of a certificate or charter of consolidation, under Civ. Code Laws S. C. 1902, $ 2050 et seq., by a Virginia railroad corporation which had been enlarged by a merger by virtue of which it acquired the property of anSouth Carolina for the purposes of the jurisdicother company, held not to make it a citizen of tion of a federal court.-Lee v. Atlantic Coast Line R. Co. (C. C.) 775; Dunning v. Same, Id.; Myers v. Same, Id.; Enter v. Same, Id.

Where a corporation defendant in a netition for removal alleges that it was organized under the laws of a state other than that in which it is sued, an allegation that it is not a citizen of the latter state is unnecessary.-Lee v. Atlantic Coast Line R. Co. (C. C.) 775; Dunning v. Same, Id.; Myers v. Same, Id.; Enter v. Same, Id.

In distinguishing between a wrongful and a justifiable purpose in seeking state rather than federal jurisdiction, where a resident and a nonresident defendant are joined, the court must be guided by the showing in each case; but mere denials of allegations of the complaint in a petition for removal, coupled with a statement that the resident defendant is without means, are not sufficient to impugn plaintiff's good faith where he resists the petition by a counter showing.-Shane v. Butte Electric Ry. Co. (C. C.) 801.

§ 3. Proceedings to procure and effect

of removal.

*A state court is without authority to try questions of fact arising upon a petition for removal, but must accept the facts alleged therein as true, and, if they are sufficient in law and a sufficient bond is filed, it is its duty to tric Ry. Co. (C. C.) 801.

Of mining claim, see "Mines and Minerals," order the cause removed.-Shane v. Butte Elec§ 1.

REMAND.

*Where a complaint in a state court alleges

Of cause removed from state court, see "Re- a joint cause of action against a nonresident moval of Causes," § 4.

REMEDY AT LAW.

Effect on jurisdiction of equity, see "Equity," § 1; "Specific Performance," § 1.

REMOVAL OF CAUSES.

1. Power to remove and right of removal in general.

corporation and its resident servant, the question of improper joinder cannot be raised by allegations and denials in a petition for removal filed by the corporation, but the question of removability, unless fraud is shown, must be determined by the complaint.-Shane v. Butte Electric Ry. Co. (C. C.) 801.

*Where a petition for removal in connection with the record as presented to the state court fails to disclose grounds for removal, the federal court, after the cause has been removed, has no authority to permit an amendment of the petition to state other and different grounds *Point annotated. See syllabus.

*A suit in a state court in which neither of the parties is a citizen or resident of the state,

of removal inconsistent with those stated in the original petition.-Shane v. Butte Electric Ry. Co. (C. C.) 801.

§ 4. Remand or dismissal of cause. Denials and averments in a petition for removal, taken in connection with the complaint,

RESTRAINT OF TRADE.

Contracts in, see "Contracts," § 1.
RETAINER.

held insufficient to warrant a finding of fraud- Of attorney, see "Attorney and Client," § 1. ulent joinder of defendants such as to entitle the petitioner to a removal, its codefendant being a citizen of the state.-Shane v. Butte Electric Ry. Co. (C. C.) 801.

On a motion to remand, in an action against a nonresident and a resident defendant, the motive of the plaintiff in making the joinder is immaterial, and cannot make such joinder

RETIRING PARTNERS.

See "Partnership," § 1.

REVENUE.

fraudulent where, tested by the allegations of See "Customs Duties"; "Internal Revenue";

the complaint, plaintiff had a legal right to sue jointly, and there is nothing substantially impugning his good faith.-Shane v. Butte Electric Ry. Co. (C. C.) 801.

To warrant a federal court in retaining jurisdiction of an action removed from a state court, in which a nonresident and a resident defendant are joined, on the ground that such joinder was fraudulent, it must appear to the satisfaction of the court that such joinder was wrongful and for the purpose of preventing a removal by a defendant who is entitled to that right. Shane v. Butte Electric Ry. Co. (C. C.) 801.

§ 5. Proceedings in cause after removal.

"Taxation."

REVIEW.

See "Appeal and Error"; "Criminal Law," § 3.

REVIVAL.

Of action, see "Abatement and Revival," § 1.
Of judgment, see "Judgment," § 7.

RIGHT OF WAY.

See "Easements."

ant," 1.

RISKS.

*A motion to quash the service on a defendant who has not entered a general appearance, Assumed by employé, see "Master and Servwhich involves the jurisdiction of the court over the defendant, although overruled by a state court, may be renewed after the cause has been removed into a federal court.-Lathrop-Shea & Henwood Co. v. Interior Const. & Imp. Co. (C. C.) 666.

REMOVAL OF CLOUD.

See "Quieting Title."

RENT.

See "Landlord and Tenant," § 2.

REPORT.

On reference, see "Reference," § 1.

REQUESTS,

For instructions in civil actions, see "Trial," § 1. Warranties. § 2.

RESCISSION.

see

*A contract for the installation of a sprinkler system in a building held to exclude an implied warranty of fitness on the part of the manufacturer.-Bagley v. General Fire Extinguish

Cancellation of written instrument, see "Can- ing Co. (C. C. A.) 284. cellation of Instruments."

RES JUDICATA.

See "Judgment," §§ 5, 6.

*Where an article is ordered from a manufacturer for a particular purpose, there is ordinarily an implied warranty that it will be fit for that purpose.-Bagley v. General Fire Extinguishing Co. (C. C. A.) 284.

*Point annotated. See syllabus.