FEDERAL. REPORTER.

tion of the act in the New Orleans Ca.se cited above, and hold jurisdiction of actions by assignees, when the.liLssignor was not competent to sue in this court only in cases of foreign bills of exchange and negotiable securities payable to bearer, and mat,ie by a corporation. In Jerome v. Commissioners, 18 Fed. Rep. 873, county Wl.'lrrants payable to a person named, or bearer, were regarded'asof this class of'Securities. That case was decided under the act of but the opinion is of equal force under the act of1887; and it isa full answer to the remarks of counsel and the authorities cited in support of the demurrer in the Custer County Case, except oh the point, not beforerai;led in this court, that an action cannot be maintained on a county warrant until after such, reasonable time from its date, as may be evidence of a refusal to pay on the part of the county. In supp()rt:qf that positioh it recent decision of the supreme court in Manufacturing 00. v. County of Otoe, ,8 Sup. Ct. Rep. 582, is cited, from which it appears that some rule of that kind isestabJished in Nebraska. If any such rule obtains in this state, the demurrer in the Custer County Case does not call for its appliclltion. Some of the warrants are of long standing, and the demurrer is direc1ed against them as well as those of more recent date. In the Chaffee County Case the warrants being payable to the order of a person named therein, and passing only by indorsement, in the absence of averment that the assignors were qualified to sue in this court weare without jurisdiction, and the demurrer be sustained and the suit dismissed at plaintiff's cost. In the OtUJter Oounty Case the warrants being payable to bearer, and made by a corporation, 'appear to be within the exception of the statute. In that case the demurrer'will be overruled, and the defendant will be required to answer.

MISSOURIPAO.Ry. Co.

t1.

TEXAS & P. Ry. Co.

(CARTER, Intervenor.)

(Oircuit Oourt, R.

n. LouiSiana.

February 25, 1888.)

CARRIERS-OF PASSENGERS-CONTRIBUTORY NEGLIGENCE.'

.Where.in an action for damages by one alleging that he had been jolted off a railroad train on which he was a passenger so as to strike a moving freight train and be thrown with his feet under the wheels of the freight train and thus recefvedthe injuries complained of, the evidence shows that claimant was injured· in attempting without right to ·mount the freight train while in motion. he is not en titled to recover.

On Exceptions to Master's Report. The intervenor sought to recover damages for injuries received by being run overby a freight train operated by the receivers of the defendant railroad. ,The master reportedadvel'sely on the claim and intervenor excepted. E. D. Craig and B. K. Mille1., for intervenor. Hawe &: Prentiss, for receivers.

MISSOURI PAC. RY. CO. V. TEXAS & P. RY. CO.

93

PARDEE, J. The finding of the master is adverse to the intervenor in several,aspects of his case, and is very elaborate, and seems, as to facts, to be supported by the evidence, and, as to law, to be iu accord with many adjudged cases. I have given the evidence careful examination and consideration, and my conclusion on one of the findings of fact of master renders it unnecessary to review any of the authorities cited bythe master or by the learned counsel in argument. The master finds that the intervenor was not injured in being jerked off the passenger train on which he was a passenger, but was injured in attempting, without right, to mount the freight train while in motion, and, of course, if this be true, intervenor was injured by his own negligence. That the intervenor was injured by the'freight train is undisputed. At the time, between the passenger train and the freight train, there was an open interval of at seven feet, and between the tracks on which the respective trains stood, the distance was eleven feet. That the intervenor was jerked or jolted off from the steps of the passenger car so as to strike the freight train with his hands, and be thrown backwards, with his feet on the main track under the wheels of the freight train, is sworn to by the intervenor only. No one saw it. It is controverted by the distance apart of the trains and the tracks rendering it extremely improbable, if not impossible; by his statements made to the section hands immediately after the injury to the effect that he was injured in attempting to climb on the freight train; and by the evidence tending to show that the intervenor went to Winchester to get work with a contractor; that he learned before leaving the passenger train that the contractor was not at Winchester, but further east; that he then expressed the determination to return to Donaldsonville, and that for the latter purpose, the moving freight train. offered the convenient transportation. That the intervenor was :injured while attempting to climb on the moving freight train is in harmony with all the evidence in the case, excepting only the, intervenor's own testitimony, and this excepted testimony is so by the circumstances and surroundings of the case, and by the testimony of other witnesses that it c.annot be taken as true. The exceptions to the master's report will be overruled, and the said report confirmed.

FEDEBA.:L REPOR'tER.
I.;'

,,'1

,",

STATES BUNG' MANUF'G

Co.v.

ARMSTRQNG.

(Oi'l'ooit Court;S. D. Ohio, W. D. February29,1888.)
i f ..

i',

Tlle, 'volun.tary paymeq.t by the, maker of a promissorl with a .full knowledge 'of all the facts.,op'erates as an abandonment andw1\lver of &11 rIght tt)$et oft cross'demands at independent debts, and a bill disclosing such facts preseu,t& 110 Cllose equitabillrelief by of
,

W

, , '

,

.

In: Equity· On demurrer .tobiU. , Thej,United States Bung Mllllufacturing Company,as maker, paid David: Armstrong as receiver. of the Fidelity National Bank a certain promissory note, and afterwards file<itheir bill in equityto secure right of offset. .The defendants. demurred toplaintiff'l\ bill. I M.' B. Ha.gan8, for compla,ipant. E. W; KUtredge and W. B. ·Burnet, for respondent. JAdItsON; J., The demurrer to this bill is well taken, and must be sustained. The complainant's right of offset was waived or abandoned by itspnyment of the note described in the bill. That payment was made voluntarily, with full knowledge of all the facts. It was made by therri8.ker 6f the parly legaJlyboundto pay. Such payment as an equitable assignment· of the collecting bank's rights as 'against the Fidelity Bank or its receiver. If the comtllainant had intended to rely upon its debts against the Fidelity National Bank as a set-off'llgainst its note, it should have declined payment of the note, stood suit thereon, and set up its counter-claim as aeet-off. This was .not done, but it paid its note voluntarily, and now invokes the aid of this courtto enforce what is called its "equitable right of ,set-off." The factspresanted by the bill do not raise any such equitable right. It is well settled that the mere existence of cross-demands or independent debts does not create any- right to an equitable set-off. There must exist a mutual credit between thaparties,founded at the time upon the existence of some debt, due by the crediting party to the "By mutual credit," saYI:! Story, Eq. Jur. § 1435, "in the sense in which the terms are here used, we are to understand a knowledge on both sides of an existing debt due to one party, and a credit by the other party, founded on and trusting to such debt as a means of discharging it." Mutual credit means something different from mutual debts. Mutual credit, such as will give rise to an equitable set-off, applies only to that class of cases where there has been mutual trust or understanding that an existing debt should be discharged by a credit given upon the ground of such debt. The bill presents 110 such case. It discloses nothing more than the existence of cross-demands or independent debts, which could have been set off at law, if complainant had asserted its right to do so at the proper time, and in the proper mode. Having voluntarily waived or abandoned this legal right and remedy by paying the note to avoid