PER CURIAM. At the trial plaintiff claimed to deraign title from Moro, who, so far as the record shows, never had any right, interest or estate in the demanded premises. The lands in controversy are neither included within the fences or inclosures of any of the parties of the second part to the agreement of April 9, 1868, nor within the lines of the respective possessions of said parties as surveyed by Hansen, County Surveyor, or as indicated by the green lines upon the Hansen map. Judgment and order denying new trial reversed, and cause remanded for new trial, Remittitur forthwith. [No. 5662.] [Filed March 27, 1878.] MEEKS vs. SOUTHERN PACIFIC R. R. CO. CONTRIBUTORY NEGLIGENCE-NOT ABROGATED BY SECTION 486 OF THE CIVIL CODE. The 486th Section of the Civil Code, providing that a railroad corporation shall be liable for all damages sustained by any person, and caused by the locomotive of the corporation, when a bell is not sounded or a whistle blown, as directed by that section, does not abrogate the doctrine of contributory negligence, or operate to give a right of action, if an adult, or an infant, by the negligence of the parent, materially and proximately contributed to the injury. SAME-CASE.-The plaintiff, an infant of six years, was permitted by his parents to make use of the roadway of the defendants as a play-ground, and to lie down on the track unattended. Held, that such conduct amounted to negligence per se, which would defeat a recovery by plaintiff, there being no evidence showing lack of due diligence or care on the part of the railroad company. Appeal from Eighteenth District Court. Glassell, Chapman & Smith and Satterwhite for Appellant. 1. The 486th section of the Civil Code, providing that a railroad corporation shall be liable for all damages sustained by any person and caused by the locomotive of the corporation, when a bell is not sounded or a whistle blown, as di rected by that section, does not abrogate the doctrine of contributory negligence, or operate to give a right of action where the negligence of the plaintiff, if an adult, or if an infant, as here, the negligence of the parent or person standing in loco parentis, materially and proximately contributed to the injury. 2. The jury, in response to the special issues submitted to them, found that neither the infant, plaintiff, nor his parents were chargeable with negligence which contributed to the injury of the plaintiff. The defendant moved the Court below for a new trial, on the ground that the evidence did not support the verdict in these respects. The motion was denied in the Court below. We think it should have been granted. The plaintiff, an infant of some six years, seems to have been permitted by his parents to make use of the roadway of the defendants as a play-ground, and to lie down on the railroad track unattended. As to whether he was asleep upon the track or awake, there is some conflict in the evidence. But this is not material, for in either case such conduct amounted to negligence, per se, which would defeat a recovery by the plaintiff here. It should be observed in this connection, that there is no evidence whatever of the lack of diligence and due care upon the part of those in charge of the train. The plaintiff was lying on the track, parallel with the rails, as he was discovered by the engineer and lookout at some distance ahead, but, notwithstanding a continued scrutiny exercised by them, they were unable to discern that the object at which they were looking was other than a bush, or some insignificant obstruction upon the track. When they did discover that a child was lying there, they used every endeavor to slow up the train, but it was then too late to prevent the accident by any, even the utmost effort upon their part. Under the circumstances, as now apparently in proof, we are constrained by the settled rules of law, applicable to cases of this character, to hold that the plaintiff ought not to have recovered for the injuries sustained by him. Judgment and order reversed and cause remanded for a new trial. [No. 5490.] [Filed March 27, 1878.] DORN VS. HOWE. HOMESTEAD-RESIDENCE.- Actual residence at the time of filing the declaration necessary to constitute a homestead. Appeal from the 20th District Court. This was an action of ejectment. The plaintiff claims title under execution sales. The defendants claim the property as a homestead. The Court below found that the defendant did not reside on the premises at the time of filing the declaration, but gave judgment for the defendant. Plaintiff appealed. Alexander & Sommerton for appellant; W. H. Webb for Respondent. PER CURIAM. The defendant was not residing on the premises in controversy at the time the declaration of homestead was filed. An actual residence thereon at the time of the filing of the declaration is required by the Statute (Civil Code, Sec. 1263). The Statute has been so construed here in several cases-the latest of which is Babcock vs. Gibbs, (No. 5669), at the last October Term. Judgment reversed and cause remanded, with directions to render judgment for the plaintiff, in accordance with the prayer of the complaint. Bankruptcy Decisions. FRAUD. The "fraud" referred to in the 33d Section of the Bankrupt Act (U. S. R. S., Section 5117) is positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality. Neal vs. Scruggs et al., Exrs, etc., N. B. R. 102. JURISDICTION. Residence or carrying on of business in the district for six months is a jurisdictional fact, and the petition must contain an allegation showing it. But, upon an application for a discharge, the creditors may show that the alleged ground of jurisdiction did not exist. In a proceeding against a copartnership the court must acquire jurisdiction over all the members of the firm in order to have jurisdiction over any of them. Where the petition against a copartnership alleged as the ground of jurisdiction that all the members of the firm had resided in the district for the necessary period, the fact that one of such members had not so resided defeats the jurisdiction of the court as respects the entire case. Beals et al., N. B. R. 107. COMPOSITION. In re Oliver B. A resolution of composition was adopted in this case, by which the creditors agreed to accept notes of a new firm to be composed of two members of the old firm and such other person or persons, if any, as they might associate with them, with a fresh capital of at least twenty thousand dollars, which, if borrowed, should not be withdrawn until the composition was paid. The new firm was formed of all the members but one of the old firm, with the capital required, and a deed of release was signed by the creditors. The capital had been borrowed and was repaid soon after. The new firm paid the first and second installments of the composition, but stopped payment on the third. A day or two before this the case had been dismissed. Held, that the dismissal should not be vacated and the case sent back into bankruptcy, because (1), creditors of the new firm could not prove their debts or be paid in this proceeding, and (2), because the remaining partner, himself innocent, lost his opportunity, by the discharge, of seeing that the composition was faithfully and fully carried out. In re Ewing & Co., N. B. R. 109. MERCHANT. A saloon-keeper who purchases liquors and cigars in tities, and some on credit, and sells them at retail for cash and on credit, is a merchant or tradesman within the meaning of the seventh subdivision of Section 5110. In re Benson Sherwood, N. B. R. 112. SET-OFF. The bankrupt was extensively engaged in manufacturing flour and storing grain in an elevator attached to its mill. Defendant, prior to the bankruptcy, and in ignorance of the insolvency of the corporation, purchased a storage receipt which had been issued by it, and subsequently demanded a delivery of the grain, which was refused, In an action brought by the assignee to recover money of the bankrupt which the defendant had in his possession at the time of adjudication. Held, that the value of the grain so converted might be set-off. Where the set-off is founded on a duty which the plaintiff owes the defendant, the wrongful act can be waived and a set-off is proper; but where the cause of action is a tort, then the lawful act cannot be waived. McCabe, Assignee, etc. vs. Winship, N. B. R. 113. PROVABLE DEBTS. Provable debts created by fraud are included in and bound by a composition in bankruptcy. An injunction to restrain the prosecution of an action against the bankrupt in a State court, during the pendency of a composition, is proper where installments of the composition have been tendered to the creditors, and the bankrupt is not permitted to plead the composition as a bar to the action. In re Shafer & Wesselhoefft, N. B. R. 116. EXEMPTION. The interest of a tenant in common, not exceeding five thousand dollars in value, in the dwelling-house and land actually occupied by him as a homestead is, by the Nevada Constitution and Laws, exempt from forced sale. In re Swearinger & Lamar, N. B. R. 138. |