not to suffer loss, nor the other effect a gain, through a mere shuffle, and whatever fairly belongs to the thing in question, as the young the dam is carrying, belongs to her, ought to be as fully bound as the thing itself, unless indeed there are circumstances which imply a different intention. It is not unreasonable to construe the act of these parties by these principles and to consider that when Lovely sold the mare without receiving any thing down, and Kellogg gave back the mortgage for the whole purchase price to be due before the colt, according to the ordinary course of things, would be old enough to be separated from the mare, it operated as well to hold the colt as to hold the mare herself. The intendment is a fair and just one that the security was to be so far beneficial to Lovely as to preserve to him the right to claim at the maturity of the mortgage the same property he would have had in case he had made no sale." That the mortgagee of animals with young is the owner of the increase was held in Forman v. Proctor, 9 B. Monr. 124; Thorpe v. Cowles, 7 N. W. Rep. 677. party; nor, as is said in Schmid v. Humphrey, 48 Iowa, 652; S. C., 30 Am. Rep. 414, 'is he seeking to enforce any right obtained by the breach of any law."" The next case also arose from a Sunday horse trade. In Kinney v. McDermott, Iowa Supreme Court, April 20, 1881, 8 N. W. Rep. 148, plaintiff and defendant made a horse trade on Sunday, defendant leaving his horse with plaintiff, and taking the horse of plaintiff with him. A day or so later defendant, without plaintiff's knowledge, returned the horse of plaintiff he had received and took his own from plaintiff's stable. Held, that as the original contract was an unlawful one, the court would render no aid to either, and as plaintiff's possession was prima facie evidence of ownership, he might, on the strength of that possession, and the trespass of defendant, maintain replevin for the horse so taken away by defendant. The court said: "If the defendant in this action had brought replevin for the horse, instead of taking him by force, he would have been defeated, because he would have been obliged to introduce evidence to overcome the presumption arising from plaintiff's possession. By the acts of the parties in violation of law the plaintiff became entitled to the possession of the horse. This possession was such that the defendant could not have recovered by action the price, if sold and not paid for, and could not maintain an action of replevin. He, however, wrongfully and by a trespass, deprived the plaintiff of the possession. The question is, will he be allowed to recover by force what the law would not have aided him to recover peaceably? It is insisted by counsel for appellant, that because the plaintiff claims title to the horse, he was bound to introduce evidence of such title, and could only do so by showing the Sunday contract. But according to the certificate of the trial judge, the plaintiff was in possession, and the defendant, by force, and without the knowledge of the plaintiff, removed the horse from plaintiff's stable. The question is, by what right did the defendant possess himself of the horse? The burden was on him to show his right. In doing so he would necessarily be compelled to introduce the Sunday contract in evidence. In Smith v. Bean, 15 N. H. 577, referring to a contract of sale made on Sunday, it is said: "The transaction being illegal, the law leaves the parties to suffer the consequences of their illegal acts. The contrat is void so far as it is attempted to be made the foundation of legal proceedings. The law will not interfere to assist the vendor to recover the price. The contract is void for any such purpose. It will not sustain an action by the vendee upon any warranty or fraud in the sale. It is void in that respect. The principle shows that the law will not aid the vendor to recover possession of the property if he has parted with it. The vendee has the possession as of his own property by the assent of the vendor, and the law leaves the parties where it finds them. If the vendor should attempt to retake the property without process, the law, finding that the vendee The next case, Gunderson v. Richardson, Iowa Supreme Court, April 22, 1881, 8 N. W. Rep. 175, involved a horse trade on Sunday. It holds that an action for damages, under the statute, for knowingly offering to trade a horse diseased with glanders, cannot be maintained when the trade was made on Sunday. After laying down the doctrine that the law will not intervene between parties to an illegal contract, to help one to damages against the other for a matter growing out of it, the court observed: "Counsel for appellee contends, however, that this action is not for fraud or breach of warranty, but that it is an action for damages against the defendant for" "a crime,” and that "the defendant cannot escape liability by asserting that his unlawful and criminal act was committed on Sunday." "It appears to us that by all the allegations of the petition the plaintiff bases his right to recover by reason of the contract for the exchange of the horses. To support these allegations it is abso-horse from plaintiff's stable. lutely essential that he show that the exchange was actually made. He could establish his damages in no other way. It was therefore incumbent on him to show the contract as he alleged it to be. This he could not do, for the law leaves the parties to such contracts where they place themselves. In other words, as appears from the petition, both these parties were active participants in violating the law by entering into a contract on Sunday. The plaintiff claims that, in making the contract, defendant defrauded him to his damage. The law will not afford him redress, and it will not avail the plaintiff to assert that the defendant, in making the Sunday contract, also violated another provison of the Criminal Code. The case, it appears to us, is essentially different from the case of one travelling on Sunday, and being assaulted by another, or injured by a defect in the highway. In the latter class of cases the plaintiff does not seek to enforce an illegal contract, or to recover damages growing out of such contract, to which he was an active had a possession which could not be controverted, would give a remedy for the violation of that possession.' See, also, 2 Pars. on Cont. 764, and notes. The author admits there is some conflict of authority upon the question whether a vendee will be allowed to retain the property without paying the price. In our opinion he should, upon the ground that the law will leave the parties where it finds them. It was held in Pike v. King, supra, that the plaintiff could not recover the value of the property aside from the price agreed upon, or, in other words, could not recover upon the quantum valebat." So, to punish two for horse-trading on the Lord's Day, the law gave one of them both the horses. In Harris v. White, 81 N. Y. 532, Chief Judge Folger expounds the law of horse-racing in this State in an elaborate opinion. The action was by a jockey against his employer for wages. The defense was that the contract of employment was in violation of the statute, which declares that all wagers, bets, or stakes, on any race shall be unlawful. The testimony showed that the agreement was to drive in races for purses, prizes, or premiums, and the court holds that a purse, prize, or premium, is not a bet or stake within the statutory prohibition. In the case of a bet, as defined by the chief judge, "each party gets a chance of gain from others and takes a risk of loss of his own to them." But "a purse, prize, or premium, is ordinarily some valuable thing offered by a person for the doing of something by others, into the strife for which he does not enter. He has not a chance of gaining the thing offered, but must certainly lose it." It was argued that the payment of entrance fees by the owner of a horse was a staking of his money on the result. "So it might have been," say the court, "if the entrance fees went immediately to make up the purse trotted for; but they do not, certainly not specifically, make up the purse." The entrance fees and the gate-money go into the treasury of the association, and the prizes come out of that treasury: but this does not make the prizes stakes in law. Nor, said the court, does the fact that the owner of a horse fraudulently agrees to "sell out" the race make it a case of betting. This decision is contrary to that of the Pennsylvania Supreme Court, in Comly v. Hillegar, March, 1880, where the court said that a "trial of speed" of horses, for which a premium is offered by an agricultural society, is "in plain English, a horse-race" upon a wager. In Harris v. Woodruff, 124 Mass. 205; S. C., 26 Am. Rep. 658, it was held that a lien may be maintained for the expense and skill bestowed in training a horse for illegally running races for bets and wagers. This was put on the ground of in pari delicto, potior est conditio possidentis, but the court said it might well against a stakeholder to recover a stake on a horserace. The defense was that the race was unfair, because the stakeholder, who was to give the word "go," not imitating the considerateness of Bottom, gave the word in so loud a tone that Armstrong's horse was frightened, and could not come to the scratch, or to time, or to the pole, or whatever the horse phrase is, and did not play at all. The other horse having stronger nerves pulled over the course alone. Evidence was adduced to show that by custom in Western Texas owners took their risks of such occurrences, but the judge charged that if this evidence was believed the jury should find for the plaintiff. For this a new trial was granted. The court said: "If, then, the proof disclosed, as we think it did, tended to prove that by the rules of racing, upon the giving of the word by the person selected as the mutual agent of the parties to give it, the race was begun, that he had no power to recall the horses, that the horse that did not start lost the race, and the horse that run through won it, that the parties took all the risks of frightened horses, or imperfect or boisterous utterances, it was error to refuse to charge as asked by the defendants, and it was error to make the result of the case depend, as the judge makes it in his charge, to depend upon the manner in which the word was given, and whether a fair test was prevented of the speed of the horses by the manner of giving the word. Parchman, who gave the word, was the agent of the plaintiff as of the defendant to give it, and unless complicity or fraud upon his part were shown, we think, without regard to any racing rules, Armstrong cannot charge. upon the defendants any wrong he has suffered from the negligence or unskillfulness of his own agent whereby his horse was hindered from starting. And it may be that the effect attributed to the giving the word among racing men, would have a tendency, as a general rule, to insure that the best horse should win. can see how it would prevent vexations and worrying false starts by cunning jockeys, devised to in We sure that the race should not be to the swift and eager, but to the sluggard and cold blooded.* The objection made by to the judgment because of the immorality of horse-racing, was properly overruled. Horse-racing is not unlawful. Wagers are recovera ble made upon them. If the practice leads to vicious causes it will not tend to mend the morals of the turf, to facilitate parties in escaping from the binding force of contracts deliberately entered into, not in violation of the law.” THIRTY-FOURTH AMERICAN REPORTS. THIS volume of 858 pages contains selected cases Tfrom be Alabama, 33 Arkansas, 4 Colorado, 61 be doubted that the known purpose of the training Georgia, 92, 93, 94 Illinois, 68 Indiana, 51 Mary would render the contract for training illegal. land, 127 Massachusetts, 57 Mississippi, 78 New York, 8 Oregon, 12 Rhode Island, 8 Texas Court of Appeals, 32 Grattan, 1 Washington. The leading. *Vigilantibus, et non dormientibus, jura subveniunt. — ED. ALB. L. JOUR. notes are on account stated, between whom it applies; liability of corporation for malicious prosecution; evidence, res gestæ, declaration of deceased; infant, custody of, separation of parents; seduction, evidence, pregnancy; chance verdict. The following cases are noteworthy: ACCOUNT STATED. The doctrine of liability from retaining a stated account without objection is only applicable between merchants, but between other parties such retention is a circumstance for the consideration of the jury. Anding v. Levy, 57 Miss. 54; p. 435. AGENCY. In an action for breach of warranty of a safe sold and warranted by an agent, held, that there must be proof of express authority from the principal, or of a custom to warrant. Herring v. Skaggs, 62 Ala. 180; p. 4. CRIMINAL LAW.- On the trial of an indictment for larceny, the prisoner's evidence of good character must be confined to his character for honesty and integrity. State v. Bloom, 68 Ind. 54; p. 247. An objection to the qualifications of a grand juror may be raised by plea in abatement. State v. Davis, 12 R. I. 492; p. 704. The prosecutor delivered to the defendant a roll containing ten twenty dollar gold pieces, supposing it to contain only ten silver dollar pieces. The defendant, although when he discovered the mistake he had reason to know the money belonged to the prosecutor, on demand refused to make restitution. Held, larceny. State v. Ducker, 8 Oreg. 394; p. 590. DAMAGES. In an action for breach of a safe sold and warranted by an agent, held, that in the absence of fraud the value of articles stolen from the safe by burglars could not enter into the damages. Herring v. Skaggs, 62 Ala. 180; p. 4 In an action of damages for breach of warranty on sale of seed, held, that the proper measure of damages is the difference in value between the crop raised and the crop represented, without interest. White v. Miller, 78 N. Y. 393; p. 544. ATTORNEY AND CLIENT.-An attorney's lien on a judgment does not authorize him to bring a suit thereon in his client's name without his authority. Horton v. Champlin, 12 R. I. 550; p. 722. CARRIER.- A railway passenger had merchandise checked without disclosing its character. There was no evidence of any agreement to carry it as freight, nor that the baggage-master had any authority to receive it as freight or as personal bag- EVIDENCE.- A testator devised lands in Portland gage. Held, that the company were not responsible as follows: To Margaret, lot 2 in block 187, and to for its loss, although the baggage-master knew the Esther, lot 1 in block 187. He had no such lots. character of the baggage, and received similar pack-Held, that oral evidence was admissible to show that ages from other passengers. Blumantle v. Fitchburg Railroad Co., 127 Mass. 322; p. 376. CIVIL DAMAGE ACT.- An intoxicated person going home at night had to cross a railroad. Next morning he was found on the track killed by being run over by the cars. Held, that the intoxication was the proximate cause of his death, and the seller of the liquor which intoxicated him, and the owner of the premises where it was sold, were liable, under the Civil Damage Act, to his widow, for injury to her means of support. Schroeder v. Crawford, 94 Ill. 357; p. 236. CONTRACT. The plaintiff having failed in the first deliveries of goods which he contracted to manufacture and deliver, in successive lots, cannot compel the acceptance of goods subsequently manufactured and offered. King Philip Mills v. Slater, 12 R. I. 82; p. 603. An action lies in Rhode Island for breach of contract of sale of goods, the contract being made there and valid there, but the goods to be delivered in New York, where the contract was invalid by the statute of frauds. Hunt v. Jones, 12 R. I. 265; p. 635. CORPORATION.-A corporation is liable to an action for a malicious prosecution conducted by its agents. Williams v. Planters Ins. Co., 57 Miss. 759; p. 494. An action will lie against a corporation for malicious prosecution, but where the prosecution set in motion by an employee of the corporation was a criminal proceeding for embezzlement, express authority or ratification and adoption by the corporation must be shown. Carter v. Howe Machine Co., 51 Md. 290; p. 311. - he did own lots 3 and 4 in that block, and that those lots would pass by the will. Moreland v. Brady, 8 Oreg. 303; p. 581. The declarations of one who has been poisoned, as to his present symptoms, are competent, but otherwise of his declarations as to what he had drunk an hour before. Field v. State, 57 Miss. 474; p. 476. FIXTURES. A portable hot-air furnace and gasfixtures in a house, although connected with the house in the usual manner, are not part of the realty. Towne v. Fiske, 127 Mass. 125; p. 353. INSURANCE. Husband and wife mortgaged the wife's premises, and got an insurance thereon payable to the mortgagee, as his interest might appear. The policy was conditioned to be void in case of subsequent insurance, whether valid or not, without consent written on the policy. The wife alone procured another insurance in her own name. Held, (1) that the first insurance was of the mortgagors' and not of the mortgagees' interest; (2) that the first insurance was avoided by the second. Continental Insurance Company v. Hulman, 92 Ill. 145; p. 122. The defendant's medical examiner, at the request of an agent of the defendant who had acted to some extent as general agent and occupied defendant's principal office, filled up an application for life insurance. The applicant made correct answers, but the medical examiner incorrectly and untruly stated some of them in the application. Held, that in the absence of evidence on the part of the defendant to show the true authority of the agent, a finding that he was authorized to depute the medical examiner to fill up the application was justified, and defendant was estopped from taking advantage of the mistakes. Flynn v. Equitable Life Insurance Co., 78 N. Y. 568; p. 561. INTEREST.- A note, providing for a conventional rate of interest, but omitting to provide for the rate of interest after maturity, draws the legal rate after maturity. Burns v. Anderson, 68 Ind. 202; p. 250. MARRIAGE. Betrothal, followed by cohabitation, but without a present agreement to become husband and wife, does not constitute a valid marriage. Peck v. Peck, 12 R. I. 485; p. 702. MASTER AND SERVANT. - A fireman on a locomotive engine carelessly threw a lump of coal from the tender, which struck and killed a track repairer, servant of the same company, standing near. Held,. that the company was liable in damages. Chicago and North-western Railroad Co. v. Moranda, 93 III. 302; p. 168. MUNICIPAL CORPORATION. A city is not liable for the expense of a public entertainment given to strangers upon the resolution of the common council, and an injunction to restrain payment therefor will issue at the suit of a tax-payer, brought after the entertainment is given, although he knew of the resolution before the entertainment. Austin v. Coggeshall, 12 R. I. 329; p. 648. A municipal corporation is not liable for allowing ordinary surface water to escape from a highway on to adjacent land, nor for the results of such ordinary changes of grade as must be presumed to have been contemplated and paid from laying out the highway. Wakefield v. Newell, 12 R. I. 75; p. 598. NEGLIGENCE.- Where one was found fatally injured in an excavation in a highway, and there was no proof of the circumstances of his death, the jury may consider his habits as to temperance and caution, and his acquaintance with the locality, upon the question whether he had used reasonable care. Cassidy v. Angell, 12 R. I. 447; p. 690. One who sustains injury at a public hospital from unskillful surgical treatment by an unpaid attending surgeon may maintain an action against the hospital therefor, although the hospital is a public charity, supported by trust funds, and the plaintiff paid nothing but a small amount for board and attendance. Glavin v. Rhode Island Hospital, 12 R. I. 411; p. 675. NEGOTIABLE INSTRUMENT.- The sale of the goodwill of a business is a valid consideration for a note, although the business subsequently proves unsuccessful. Smock v. Pierson, 68 Ind. 405; p. 269. --- A promissory note bearing in the margin the words, "given as collateral security with agreement, ," is not negotiable. Costello v. Crowell, 127 Mass. 293; p. 367. NUISANCE. Where stones were thrown against plaintiff's shop by a blast, carelessly set off by a contractor employed on a neighboring public work, and his workmen left his shop in fear, and his business was consequently suspended, held, that he might recover for the interruption of his business, and the measure of damages was the value of the work thus prevented from being done. Hunter v. Farren, 127 Mass. 481; p. 423. PARENT AND CHILD.- In case of separation of husband and wife, equally fit, by character and circumstances, to have the custody of children, the custody of a delicate female child of four years of age will be awarded to the mother for the time being. McKim v. McKim, 12 R. I. 462; p. 694. PARTY-WALL.— Where houses having a party-wall are accidentally destroyed by fire, leaving the wall standing, the easement in the wall ceases, and either owner may dispose as he pleases of the part on his ground. Hoffman v. Kuhn, 57 Miss. 746; p. 491. SALE. The mere delivery, for value, of a bill of sale of a chattel to the purchaser does not vest title in him as against a subsequent attaching creditor of the vendor. Dempsey v. Gardner, 127 Mass. 381; p. 389. SEDUCTION. An action for seduction of a daughter may be maintained upon proof that in consequence she becomes nervous and excitable, and did not appear to be herself, without proof of pregnancy or sexual disease. Blagge v. Illsley, 127 Mass. 191; p. 361. SUBSCRIPTION.-- One who had executed his note to the trustees of a church, as a donation to enable them to buy a bell, died before the bell was ordered. Held, that the note could not be enforced although the bell was afterward ordered. Pratt v. Trustess of Baptist Society of Elgin, 93 Ill. 475; p. 187. SUNDAY.-A., carefully driving on Sunday on a highway in Massachusetts, was injured by the reckless driving of B.; held, that A. could maintain an action therefor against B. in Rhode Island, without showing that he was travelling for necessity or charity. Baldwin v. Barney, 12 R. I. 392; p. 670. SURETY. If a creditor fails to sue his principal debtor, when solvent, at the request of the surety, and he afterward becomes insolvent, still the surety is not discharged. Findley v. Hill, 8 Oreg. 247; p. 578. VENDOR'S LIEN.- A vendor's lien subsists against a married woman. Kent v. Gerhart, 12 R. I. 92; p. 612. VERDICT.-- A verdict of damages, ascertained by averaging the aggregate separate markings of all the jurors, in accordance with a precedent agreement to abide the result, is arrived at "by chance," and will be set aside. Goodman v. Cody, 1 Wash. 329; p. 808. WITNESS. Under a statute providing that "husband and wife may be witnesses for each other in all criminal cases, but they shall not be required to testify against each other, as witnesses for the prosecution," neither is a competent voluntary witness against the other. Byrd v. State, 57 Miss. 45; p. 440. REMOVAL OF CAUSE – APPEAL TO UNITED STATES SUPREME COURT-TIME OF APPLICATION. UNITED STATES SUPREME COURT, MARCH 30, 1880. BABBITT V. CLARK. Under the Removal of Cause Act of 1875 (18 Stat. 270, ch. 137, § 5), an appeal or writ of error may be taken to the Supreme Court whenever the Circuit Court decides that a controversy removed thereto from a State court is not properly within its jurisdiction, because the necessary preliminary steps were not taken, and remands the same; the right to this appeal does not depend upon the pecuniary value of the amount in dispute. Whether a writ of error or appeal shall be taken, is to be determined by the nature of the suit whether it be at law or in equity. C. commenced an action against B. in a State court and B. filed his answer, to which C. was entitled to reply within a certain time. That time expired during a term of the court, at which time the case was ready for trial on the pleadings. Thereafter C., without leave of the court, filed a reply, and during the next term of the court an amended reply. Held, that an application for removal by B under the act of 1875, at the last term of the court was too late. APPEAL from the Circuit Court of the United States for the Northern District of Ohio, in an action by Parker P. Clark and others against Albert T. Babbitt. Sufficient facts appear in the opinion. WAITE, J. This action was brought by the appellees, citizens of New York, in the Court of Common Pleas of Lucas county, Ohio, against Babbitt, the appellant, a citizen of Wyoming Territory. By the statutes of Ohio regulating practice and pleadings in the courts of that State, a civil action is commenced by filing a petition in the office of the clerk of the proper court, and causing a summons to be issued thereon. Rev. Stat., Ohio (1880), § 5035. The summons is ordinarily returnable the second Monday after its date. Id., § 5039. The only pleadings are a petition, demurrer, answer, and reply. Id., § 5059. The rule day for the answer or demurrer to a petition is the third Saturday, and for a reply to the answer the fifth Saturday after the return day of the summons, but the court, or a judge thereof in vacation, may for good cause shown extend the time. Id., §§ 5097, 5098. Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, is, for the purposes of the action, to be taken as true, but the allegation of new matter in the reply is deemed controverted by the adverse party. Id., § 5081. When the action is founded on a written instrument as evidence of indebtedness, a copy thereof must be attached to and filed with the petition. Id., § 5085. A trial is defined to be "a judicial examination of the issues, whether of law or fact, in an action or proceeding" (id., § 5127), and all actions are triable as soon as the issues therein, by the time fixed for pleadings, are or ought to have been made up. Id., § 5135. The petition in this action was filed on the 28th of October, 1878, and alleged that on the 10th of June, 1878, the plaintiff recovered judgment in the Court of Common Pleas of the city, county and State of New York, against Babbitt and one Edgar A. Weed, for $2,626.80, debt and costs, which was in full force and unsatisfied, except by the following payments, to wit, one of $311.92, and a further payment of $887.50 made, to wit, October 1, 1878." Judgment was asked for the balance which remained unpaid, and interest at seven per cent. From the record of the New York suit found in the transcript sent up on this appeal, it appears that the action in that court was brought August 7, 1877, to recover a debt for goods sold Babitt and Weed, February 8, 1877, which it was alleged had been created by the fraud of Babbitt. The answer, which was by Babbitt alone, admitted that the debt had been contracted, but denied the fraud. It then alleged by way of defense, that on the 7th of July, 1877. proceedings in bankruptcy were instituted against Babbitt and Weed in the District Court of the United States for the Northern District of Ohio, which resulted in the acceptance by the creditors of the bankrupts and an approval by the court of a proposition for composition under the act of June 22, 1874 (18 Stat. 182, ch. 390, § 17), by which the bankrupts were to give their notes indorsed by T. S. Babbitt to their several creditors for forty cents on the dollar of their debts, divided into three equal parts, and payable in three, six. and nine months, respectively, from July 15, 1877, and that notes for the several amounts due the plaintiffs, • according to the terms of the composition, were executed and tendered them in proper time, and ever since had been and were subject to their order and disposal. Upon the issue thus made a trial was had which resulted in the judgment now sued on. The summons in the present action bears date December 4, 1878; and January 4, 1879, at rules, Babbitt filed his answer, in which he denied that the several payments credited on the judgment in the petition were made by himself or Babbitt and Weed, but averred that the item of $311.92 was collected by a sale of property on execution, and that of $887.50 was paid the plaintiffs by John R. Osborn, a register in bankruptcy. He then set forth the proceedings in bankruptcy and the composition, substantially as stated in his answer in the New York suit. He then alleged that the composition notes intended for the plaintiffs were paid to Osborn the register in bankruptcy, as they matured, and that on the 11th of September, 1878, the plaintiffs took from the register the money in his hands for them, with a full knowledge of all the facts. The rule day for a reply to this answer was January 18, 1879, but no reply was filed at that time and no extension of time was asked or given. The cause, therefore, under the law regulating the practice of the court, stood for trial on the issues presented by the petition and answer. A term of the court began on the 2d of January, and did not end until the 7th of April, though nothing but formal business was done after March 24. On the 3d of April the plaintiff filed in the clerk's office a reply without leave of the court and without notice to Babitt or his counsel. In this reply the facts in relation to the New York suit are set forth substantially as they appear in the record sued on, and it was insisted that the acceptance of the money from the register in bankruptcy did not operate in law as a satisfaction of the judgment. The next term of the court began on the 28th of April, and on the 3d of May the plaintiffs, also without leave of the court, filed an amendment to their reply, in which they set out certain unsuccessful proceedings by Babbitt in the New York court on the 5th of July, 1878, to obtain an injunction against the further execution of that judgment because of his payment of the composition notes to the register in bankruptcy. On the 17th of May, which was during the term of the court that began on the 28th of April, and before the cause had ever been called for trial, Babbitt filed his petition to remove the suit to the Circuit Court of the United States for the Northern District of Ohio, on the ground that his defense, which was made by answer filed in due time," was one arising under the Constitution and laws of the United States." The State court ordered the suit transferred, but the Cir |