son to believe that the value would not be adequate compensation for its loss, which might be recovered at law; La Mothe v. Fink, 8 Biss. 499, 500, F. C. 8,032, holding that a mortgagee of personalty in possession is not entitled to enjoin its sale under execution of a judgment against the mortgagor; Walker v. Brown, 58 Fed. 27, dismissing for want of jurisdiction a bill against an administrator praying discovery, no allegation of fraud or maladministration being made; Allen v. Winstandly, 135 Ind. 107, 34 N. E. 699, holding a sale under an execution against a third person would not be enjoined unless shown that replevin was not a remedy plain and efficient; Coulson v. Harris, 43 Miss. 751, holding that a taxpayer could not enjoin the tax collector from collecting a specific tax; Mobile, etc., R. Co. v. Moseley, 52 Miss. 137, refusing to enjoin collection of taxes, part legally due and part not, unless former was paid or tendered; Kuhl v. Pierce County, 44 Neb. 591, 62 N. W. 1068, refusing an accounting in equity in suit by county against a defaulting treasurer and sureties; Muir v. Howell, 37 N. J. Eq. 42, holding that a married woman living with her husband not entitled to enjoin sheriff's sale under doubtful claim of exemption under the execution act as " a debtor having a family residing in this State;" Lough v. Outerbridge, 143 N. Y. 276, 42 Am. St. Rep. 716, 38 N. E. 294, 25 L. R. A. 677, holding a common carrier could not be enjoined from making special conditional rates to overcome an occasional competition by another carrier; Ming Yue v. Coos Bay R. Co., 24 Or. 394, 33 Pac. 641, holding bill will not lie to foreclose a mechanic's lien which failed to state a cause of suit; Baker v. Rinehard, 11 W. Va. 242, holding that equity will not enjoin sale of personalty upon an execution against a stranger, where the property is not of peculiar value and sale will not greatly injure the owner.

Execution.- Measure of damages for a wrongful levy made in good faith, if property not sold, cannot extend beyond the injury done; if sold, damage is value when taken, with interest to time of trial. Consequential damages cannot be awarded in a trial at law, pp. 78, 79.

Citing cases which sustain and apply this rule are Vance v. Vandercook Company, 170 U. S. 480, 42 L. 1115, 18 S. Ct. 650, holding, in action alleging special damage, damages for detention could not be awarded; Nashua Iron, etc., Co. v. Brush, 91 Fed. 215, 50 U. S. App. 465, holding, in an action for damages to a steamer, arising from a defective beam strap, that enhanced damages be yond the actual value of the strap are not recoverable; Vincent v. McNamara, 70 Conn. 341, 39 Atl. 446, holding that a plaintiff in a wrongful attachment, with malice, might be liable for consequential and perhaps vindictive damages; Thompson v. Webber, 4 Dak. 244, 29 N. W. 673, holding loss of trade, destruction of credit and failure of business prospects are not elements of damage.

t

Execution. Since damage to tradesman whose goods are wrongfully levied on cannot be compensated at law, equity will interfere and enjoin the execution, p. 79.

See note to 11 Am. Dec. 501, on irreparable injury and equitable interference to prevent.

Miscellaneous.- Blake v. Alabama, etc., R. Co., 6 N. B. R. 335, 3 Fed. Cas. 588, on jurisdiction of receiver.

5 Wall. 81---87, 18 L. 542, PARMELEE v. SIMPSON.

Deeds. Nothing passes by a deed until it is delivered, p. 85.

The following citing cases apply the rule: Pascault v. Cochran, 34 Fed. 362, holding a deed and mortgage to secure the purchase money are regarded as parts of the same transaction, though bearing different dates; Hibberd v. Smith, 67 Cal. 549, 56 Am. Rep. 726, 8 Pac. 46, holding a deed not delivered void as against a sheriff's deed on a judgment which became a lien before the grantee became possessed of the deed; Fisher v. Hall, 41 N. Y. 423, holding a deed executed, but retained among testator's papers and not known to grantee until after testator's death, not delivered; Peck v. Rees, 7 Utah, 474, 27 Pac. 584, 13 L. R. A. 716, holding that a deed without good consideration, executed and delivered to an agent not authorized by the grantee, to be kept until after the grantor's death, created no equity. See note to 53 Am. St. Rep. 537, on what is delivery.

Modified in Blanchard v. Blackstone, 102 Mass. 347, holding that leaving an instrument on table or in hands of third person sufficient delivery.

Deeds. Placing a deed on record without assent of grantee is not delivery, and vests no title in grantee as against a bona fide mortgagee, p. 86.

Cited and affirmed in Weber v. Christen, 121 Ill. 98, 2 Am. St. Rep. 71, 11 N. E. 896, holding the acknowledging and recording of a deed without knowledge or assent of grantee not per se delivery, referring to Union Mutual Ins. Co. v. Campbell, 95 Ill. 267, 35 Am. Rep. 166, for a review of authorities; Hart v. Forbes, 60 Miss. 749, holding an assignment of a policy, made and recorded without knowledge of assignee, does not invest him with superior title over a garnishment served on the insurers before notice; Milling Co. v. Eaton, 86 Tex. 410, 25 S. W. 618, 24 L. R. A. 387, and n., holding that assent of parties is essential to existence or non-existence of a mortgage contract; Croom v. Jerome Hill Cotton Co., 15 Tex. Civ. App. 331, 40 S. W. 147, holding that a deed executed and recorded without purchaser's knowledge, and retained by grantor till after the levy of an attachment by a creditor, was not delivered. Cited in dissenting opinion in Robbins v. Rascoe, 120 N. C. 85, 26 S. E

809, 38 L. R. A. 240, majority holding that delivery of a deed to a third person unconditionally passed title to the grantee, though he was ignorant of the fact. See note to 37 Am. Dec. 138.

Qualified in Colee v. Colee, 122 Ind. 112, 17 Am. St. Rep. 347, 23 N. E. 688, holding that the making and recording of a voluntary conveyance, by a parent to child, is evidence of intention and passes title.

Deeds. If a grantee agrees to accept a deed in liquidation of a debt and constitutes the recording officer his agent, delivery to the recorder is a delivery to grantee, p. 86.

Cited in Schmidt v. Deegan, 69 Wis. 307, 34 N. W. 85, holding that if a note and mortgage were placed with third party to be delivered to the mortgagee on the execution of a release, the mortgagee was entitled to the securities on performing the condition.

Distinguished in Robbins v. Rascoe, 120 N. C. 83, 58 Am. St. Rep. 776, 26 S. E. 808, 38 L. R. A. 239, holding delivery of deed to trustee for grantee is complete and title passes, although grantee may be ignorant of the facts.

Deeds. A grantee may ratify an imperfect delivery of a deed to an agent, but ratification cannot relate back so as to cut out a mortgage executed by the grantor between the delivery and ratification, p. 86.

Cited and principle applied in In re Kansas City Stone, etc., Co., 9 N. B. R. 81, 14 Fed. Cas. 130, holding that where four months prior to bankruptcy a corporation ratified a deed of trust made several months previously by an officer without authority, the validity of the deed must depend on the circumstances existing at the time of the ratification; Evans v. Coleman, 101 Ga. 160, 28 S. E. 648, holding that as to a mortgage not accepted nor ratified by the creditor until after recordation, judgment liens obtained after the delivery to the recorder, but before the ratification, take precedence; Cravens v. Rossiter, 116 Mo. 345, 38 Am. St. Rep. 609, 22 S. W. 737, holding the subsequent acceptance by the grantee of a deed executed by his grantor in payment of a note does not prevail against the lien of a judgment obtained after date of a deed and before ratification of the deed. Kuh v. Garvin, 125 Mo. 563, 28 S. W. 850, holding that delivery of a chattel mortgage to the recorder of deeds, followed by mortgagee's taking possession, is sufficient to support a good delivery; Fischer Leaf Co. v. Whipple, 51 Mo. App. 185, holding that the presumption of delivery and acceptance of a deed beneficial to the grantee will not obtain when the right of a third party has intervened; Rogers v. Head's Iron Foundry, 51 Neb. 52, 53, 70 N. W. 532, 37 L. R. A. 433, 434, holding that a chattel mortgage delivered to an unauthorized third person for record takes effect as between the parties from time of delivery, but not as to persons who, before the acceptance, have obtained

an interest in or lien on the property; Pollock v. Cohen, 32 Ohio St. 525, holding that the ratification of acts of an unauthorized agent do not relate back so as to injuriously affect intervening rights of third persons. See note to 5 Am. St. Rep. 114, and note to 53 Am. St. Rep. 553.

5 Wall. 87-89, 18 L. 517, WOODWORTH v. INSURANCE CO.

Collision. One who, at his own cost, establishes liability of a vessel or its proceeds, is entitled to have his claim satisfied in priority to a claimant who has contributed nothing to cost of litigation, p. 89.

Cited and followed in The Battler, 67 Fed. 253, holding that a claim for pro rata distribution may be forfeited by laches in refusing to join in the suit and suggesting difficulties in the way of recovery.

Distinguished in The Lady Boone, 21 Fed. 733, holding that by maritime law creditors of the same rank have an equal lien on the vessel, which cannot be destroyed by the mere act of instituting the first suit.

5 Wall. 90-106, 18 L. 591, RAILROAD CO. v. BARRON.

Railroads Personal injuries — Liabilities of owner of railroad granting running powers.- A railroad company which grants running powers over its road to another company is liable for accidents to its own passengers caused by negligence of the other company, p. 104.

Cited and principle applied in Briscoe v. Southern Kan. R. Co., 40 Fed. 278, holding a corporation cannot, by leasing its line, avoid its obligations to the public without express consent of legislature, and is liable for the tortious acts of its lessee; Singleton v. Southwestern Railroad, 70 Ga. 468, 48 Am. Rep. 577, holding that the original obligation can only be discharged by a legislative enactment; Peoria, etc., R. Co. v. Lane, 83 Ill. 450, holding that the company owning the franchise and right to operate the road is liable for negligence of grantee of running powers, collecting authorities in Illinois; Littlejohn v. Fitchburg R. Co., 148 Mass. 481, 20 N. E. 103, 2 L. R. A. 503, arguendo, that in an action by passenger for personal injuries it was immaterial whether the negligence was that of defendant's servants or of a third person who managed the road; Heron v. St. Paul, etc., R. Co., 68 Minn. 551, 71 N. W. 709, holding that under a general statute the proprietor company retaining control and possession of the road could not be held free from liability for the negligence of company having running powers; McCoy v. The Kansas City, etc., R. Co., 36 Mo. App. 454, holding that the lessor is as much bound as the lessee for negli

gence, even though the engine belonged to the lessee and was being operated by its immediate servants; Little v. Dusenberry, 46 N. J. L. 643, holding that the liability of a company issuing a through ticket, for negligence, remained, though the journey was laid out over several roads; Aycock v. Railroad, 89 N. C. 330, holding a railroad company liable for damage caused by sparks from an engine of another company, using the line "by courtesy," and igniting a heap of combustible rubbish negligently left by the company near its track; Lakin v. Willamette Valley, etc., R. Co., 13 Or. 441, 57 Am. Rep. 28, 11 Pac. 70, holding that a company, owner of the road, was liable for negligence of the employes of another company employed by it in constructing the road and at the time of the accident operating the road for the purposes of traffic; Central, etc., R. Co. v. Morris, 68 Tex. 59, 3 S. W. 460, holding, in a suit against a railroad company for refusal of another company operating the road to furnish facilities for shipping lumber, a lease of the road will not release the company from a failure to discharge its charter obligations unless the enabling act contains a provision to that effect; Stetler v. Chicago, etc., R. Co., 46 Wis. 503, 1 N. W. 114, holding that a company using another company's track is liable for any damages caused by defects in the road or negligence of the servants of the owning company during the transportation. Cited also in dissenting opinion in Engel v. New York, etc., R. Co., 160 Mass. 263, 35 N. E. 548, 22 L. R. A. 286, and n., majority holding a railroad company not liable for death of an employe caused by defect in a private siding owned and maintained by a third person. Cited in general discussion in Ballou v. Chicago, etc., R. Co., 54 Wis. 279, 11 N. W. 570. See note to 50 Am. Dec. 796, 62 Am. Dec. 617, and 71 Am. Dec. 295.

Distinguished in Arrowsmith v. Nashville, etc., R. Co., 57 Fed. 175, 176, holding that a lessor company was not liable for injuries caused by negligence of lessee where the lease was authorized by law; Murray v. Lehigh, etc., R. Co., 66 Conn. 520, 34 Atl. 507, 32 L. R. A. 540, holding that where the lessee company agreed that its trains while on the leased road should be under the control and direction of the lessor's servants, then such servants were for the time being servants of the lessee company, and it was liable for an injury caused by their negligence.

Abatement and revival.- Illinois statute confers right of action on widow or next of kin of one tortiously killed, irrespective of whether they have or have not a legal claim on the deceased for support, p. 106.

Cited and ruling relied upon in Howard v. Delaware, etc., Canal Co., 40 Fed. 198, 199, 6 L. R. A. 78, 79, and n., holding the sum recovered was to go to the widow and next of kin, exclusive of creditors and legatees; Serensen v. Northern Pac. R. Co., 45 Fed.