Savannah morning news. [volume] (Savannah) 1868-1887, 1886-11-26
SUPREME COURT CASES.
Decisions Rendered by Judge Hall
in Eastern Circuit Appeals.

DECISIONS Rendered by JuuHe haii
in Eastern Circuit Appeals.
The Supreme Court, in the decisions 1T
handed down on Tuesday, disposed of
number of cases from the Eastern circuit.
Among others was that OF Wortsnan vs.
United States Marshal Wade, in which
the judgment OF the City Court was
affirmed. Judge Hall, in his opinion,
says: where levy was made by mar
shall of the United States, claim was
interposed, and a forthcoming bond
was given payable 10 such marshal
and his successors, conditioned
for the forthcoming of the prop
erty levied on and claimed, and where
subsequently the successor Of such mar
shall brought suit in State court on such
forthcoming bond, for the use OF the plain
tiffs in execution, who were non-resi-
dents of the State, the Marshal was
merely formal party, without interest
in the subject matter of the suit, the
plaintiffs in execution being the real
plaintiffs in the action, and they could re-
move such action to the Circuit Court OF
the United States on the ground oil their
non-resIdence, although the Marshal was
a citizen OF this State. The
giving OF a bond for the forthcoming
OF property in claim case was a pro-
ceeding unknown to the common law and
is peculiar to the remedies provided by
the statutes of this State; and while gen.
orally an action on contract should be
brought in the name of the party in whom
the legal interest is vested, yet suit on
such bond is for the benefit Of the plain
tiffs in Fl. fa., who are the real parties
plaintiff; and In this respect 1t differs
from bond given when an affidavit OF
lllegality is interposed to levy.'
In the case OF Morgan vs. the Central
railroad, for the injury to stock through
alleged negligence of railroad, APP
pealed from the bingham Superior
Court, Judge Adams Judgment was
affirmed. Judge Hall rendered the opinion
and said: The statute requiring railroad
companies to erect blow posts at dis
lance of 400 yards from road crossings,
and that the engineer shall blow the
whistle OF the engine and keep blowing
until the engine passes the crossing. and
simultaneously to check and keep cheek
ing the speed of the train, SO as to stop in
time, should any person or thing be cross
ing the track on the highway, is penal in
its character, and subjects employees fall
ing to observe its provisions to indIct-
ment and punishment; and being penal
it should be strictly construed. 1t applies
in terms TO trains approaching or passing
beyond points where blow posts should
be located, and not to those working eX-
clusively between such points.
The provision requiring the continuous
checking of the speed of the train is
harsh one, and legislation modifying 1t is
suggested.
Had the station agent in this case
known the timidlty of the mare, which
was injured through becoming frightened
by a passing train, and that in that re-
spect she was different from other
draught animals bringing freight to the
depot, or had the driver of the team been
in the employment of the company and
subject to the agents orders, then negli-
gence might have been inferred from the
Invitation Of the agent to the driver to
come to the depot and unload. Such was
not the fact, however, and the driver,
though knowing the liability OF the mare
to take fright, made no protest or objec-
ton to driving to the platform.
1t is only where the company's SER
wants make unusual and unnecessary
noises in the running of their trains, and
where no necessity for the making OF
such noises is made to appear, that it is
liable for injuries resulting in conse-
quence thereof.
The continued blowing OF a whistle,
instead of preventing would probably
have contributed to the injury in this
case.
The presumption arising against a
railroad, where damage is done to stock
or other property by the running of its
locomotives or cars was rebutted in this
case by the evidence for the plaintiff. A
nonsuit might have been awarded, but
this not having been done, and evidence
for the defendant having been introduced,
finding for the plaintiff was unsupported
by the evidence, aud was properly set
aside.
The grant OF a new trial in this case
was proper, although one new trial had
already been granted.