HUGHES v. DUNDEE Monreaon cr TRUST INVESTMENT co. 47
O0. v. McCarthy, 96 U. S. 267, Mr. Justice SWAYNE, in speaking of
an attempt of the railway company on the hearing in the supreme
court to excuse itself for the non-performance of a contract to carry
certain cattle on the ground that the act would have been a violation
of the Sunday law of West Virginia, when it appeared that on the
trial in the court below it had relied on the fact that it was impossi-
ble to forward the cattle on Sunday for the want of cars, said:
" This point was an after-thought, suggested by the pressure and exigen-
cies of the case. Whe1·e a party gives a reason for his conduct and decision
touching anything involved in a controversy, he cannot, after litigation has
begun, change his ground, and put his conduct upon another and different
consideration. He is not permitted thus to mend his hold. He is estopped
from so doing by a settled principle of law."
On the whole, I am of the opinion that the demurrer to this reply
is not well taken, and should be overruled; and it is so ordered.
HUGHES v. Dummm Monrescn & TRUST INVESTMENT Co. (Three ,
Cases. Nos. 1,066, 1,069, 1,197.)
(Oaircud Court, D. Oregon. July 12, 1886.) n
Dmnr, J. These three caseswere argued and submitted withthe
foregoing one. In No. 1,066 the plaintiff claims $5,651.03, with in-
terest from January 1, 1882, for making 347 other certificates of title
for said trust company.
In 1,069 he claims $5,890, with interest from the same date, for
making 297 certificates of title for the defendant.
In 1,197 he claims $8,839, with interest from January 30, 1880,
for services in paying out and delivering for said trust company
$262,866, on 322 loans made by it before that time.
In each of these cases the defendant pleads the judgment in the
former action between the parties as a bar, to which the plaintiff t
makes the same replies. The questions arising on the motion to
strike out portions of the replication, and the demurrers to the re-
plies therein, are the same as in 1,056, and are disposed of accord-
ingly for the reasons therein given.