Page:Federal Reporter, 1st Series, Volume 3.djvu/90

CLAEK V. EWING. bc �tiff, fix his damages at a reasonable, but not an unreasonablû or excessive, sum. �The use of the alley way by the proprietors, and tbeir ten- ants, customers and employes, as a way for hauling fuel and carrying earth excavated by said proprietors, however exten- sive this use may bave been, would not impose upon defend- ant any duty of warning the public or plaintiff of the pres- ence of the excavation therein. The defendant's liability, if it exists, must be based upon satifactory proof that the alley way had been used by the public. �Upon the question of defendant's negligence the burden of proof is upon the plaintiiî. Upon the question of contribu- tory negligence on the part of plaintiff the burden of proof is upon the defendant. �The defendant having acquired the right to make the exca- vation upon the land of Dr. Wharton, under the written con- tract in evidence, is to be considered the proprietor of said excavation, for the- purposes of this suit. The fact that it was not on his own land neither iacreases nor diminishes his liability. ���CtARK V. EwiNG, Assignee, �(District Court, 1^. D. Illinois. ,1880.) �1. BAHKBnPTCT— Action by AssiauEE — JurnsDicrioN op State Court. A State court has jurisdiction of an action brought by au assignee in bankruptcy to collect the assets of the bankrupt. �Act of June 22, 1874, j 2, (amendment of the bankrupt law,) con- Btrued. �Rev. St. 4 711, construed. �Kidder v. Eorrobin, 72 N. T. 159, followed. �QooàHch V. WiUon, 119 Mass. 429, followed. �Blodgett, D. J. This is a bill in equity for relief upon the facts stated in the bUl, which are substantially as follows: On or about April 28, 1873, George M. Arnold and George Sisson were adjudged bankrupts by the district court of this ����