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 (Snrtifll Hauj i^rlynol ffiibtary 
 
Cornell University Library 
 KF 178.A13 
 
 The year book of jurisprudence for 1880 
 
 3 1924 022 834 521 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022834521 
 
THE 
 
 YEAE BOOK 
 
 OP 
 
 JURISPEUDENOE 
 
 FOB 
 
 18 8 O. 
 
 BY 
 
 BENJAMm VAUGHAN ABBOTT. 
 
 A COMPEND OF THE MOST RECENT STATUTES, LEADING CASES, 
 AND GENERAL INFORMATION UPON THE 
 PROGRESS OF THE LAW. 
 
 
 BOSTON: 
 
 LITTLE, BROWN, AND COMPANY. 
 
 1880. 
 
Entered according to Act of Congress, in the year 1880, 
 
 By Benjamin Vaughan Abbott, 
 In the Office of the Librarian of Congress at Washington. 
 
 University Press: 
 John Wilson and Son, Cambridge. 
 
PREFACE. 
 
 The general purpose of the Year Book is to acquaint the 
 lawyer with the most recent matters in the law, which he may- 
 need through the year just commencing. It exhibits Constitu- 
 tional Amendments ; also, the substance of recent Acts of 
 CoNGEESS and State Laws deemed important ; also selected 
 Cases (digested) from the superior courts of both America and 
 England, especially all which involve progress in the law, or 
 changes in procedure, and are of general (not local) application ; 
 an outline of any new and valuable Text Books ; and brief 
 sketches of important novelties in jurisprudence. In short, it 
 aims at supplying, in form for somewhat permanent use, what- 
 ever information may aid the practitioner to keep abreast with 
 Tirogress. 
 
 WHAT "TEAK" IS EMBEACED. 
 
 Doubt has been felt which of the "years" should be covered. 
 
 here are several : the calendar year, commencing January 1st ; 
 
 e fiscal year, beginning July 1st ; the agricultural year, dating 
 
 )m the spring, &c. What may be called the " business year " 
 
 . • running from midsummer to midsummer — has been chosen. 
 
 e materials are gathered during the lawyer's working year ; 
 
 printing is done in his vacation ; and the volume is offered as 
 
 u,iiy as may be in the fall. And it is compiled with constant 
 
 •^w to meet the wants of the year to come. 
 
 CONTENTS OF THIS VOLUME. 
 
 The present volume, however, runs somewhat backward of 
 the past year, and exhibits many earlier matters. The chief 
 reason has been to connect it, advantageously to the reader, 
 with standard compilations, as a current supplement to them. 
 
iv PREFACE. 
 
 Constitutional Amendments. The government published a com- 
 pilation (by Ben: Peelet Poore) of the State constitutions to 
 1877. The Year Book takes up the series from that date ; and 
 is a supplement (so far as a digest may be one to a reprint in 
 full) to Poore's compilation. Besides consulting published in- 
 formation, application has been made direct to the various 
 Secretaries of State ; and the compiler proffers thanks for the 
 courteous and full answers which have been received. 
 
 Ads of Congress. All the general public acts were embraced 
 in the Revised Statutes, — this compiler having been one of the 
 commissioners by whom the draught was prepared. A second 
 edition, of official authority, has since been published, bringing 
 the collection down to the expiration of the Forty-fourth Con- 
 gress. The Year Book presents the substance of all later acts 
 deemed of general interest ; and will serve as a supplement to 
 the second edition of the Revised Statutes. Thanks are due to 
 the State Department at Washington for early copies of the Acts 
 of 1880 ; and the reason why many of these appear without 
 citation of the volume of the laws is that they were stereotyped 
 before the volume appeared. 
 
 State Session Laws. There being no specific volume in this 
 field which the Year Book can offer to continue, it commences, 
 speaking generally, with the most recent sessions of the several 
 legislatures. Let it not be supposed that all the statutes are 
 given, or even indexed. The editor has looked chiefly for en- 
 actments which may have general interest to the profession at 
 large. The entire volume would not contain, even in the most 
 condensed form, all the legislation of a year. 
 
 State and Federal Decisions. The compiler conducted the re- 
 cent revision of the United States Digest, and continued it by 
 annual volumes through 1878 ; when he resigned the charge to 
 essay the present undertaking. The Year Book takes up the 
 reports from the beginning of 1879, and is, as it were, a supple- 
 ment to the Digest, so far as a careful, extended selection .of 
 cases can be satisfactory. Those who desire to see all the de- 
 cisions are respectfully referred to the United States Annuals. 
 The Year Book presents — it is hoped — all which are of gen- 
 eral application ; all which attract attention by any features of 
 
PREFACE. V 
 
 importance, novelty, or progress. For the reasons that decisions 
 of the national courts apply everywhere, and New York deci- 
 sions are widely considered, and that the compiler has become 
 specially conversant with these through labors in compiling a 
 National Digest and a New York Digest, and in preparing a 
 number of volumes of the reports themselves, he has given them 
 some prominence ; but hopes that the progressive jurisprudence 
 of the States generally is fairly represented. Thanks are due 
 to James H. McKenkey, Clerk of the United States Supreme 
 Court, for copies of some opinions in advance of the United 
 States Reports, which are given as " Opinions in Clerk's Office." 
 
 English Reports. The current English reports have been ex- 
 amined, and a selection is presented of such as seem especially 
 instructive on the progress of the law, or are of evident applica- 
 tion in this country. Fisher's Digest to 1870, and Fisher's New 
 Digest, 1870-1880, give the Year Book its starting-point for 
 English decisions. 
 
 Definitions. The compiler lately prepared a Law Dictionary, 
 founded chiefly upon the discussions to be found in the reported 
 cases, upon the meanings of words. Like material in the current 
 reports, has been collected j the title Definitions in the Year 
 Book is a supplement to Abbott's Law Dictionary. 
 
 Text Books. Limited space has been given to a mention, un- 
 der each author's name, of the more important new text books, 
 and of the commencement of any new series of reports. 
 
 LITERART METHODS. 
 
 The matter is in three grades. 1. An editorial account, in 
 large type (long primer), of whatever is of commanding interest 
 in recent progress. 2. In smaller type (bourgeois), carefully 
 drawn digests of all decisions deemed valuable. 3. Under the 
 caption "Minor Decisions," a very concise resume of the salient 
 points in a multitude of less important cases. By the devices 
 of omitting parties' names, making few paragraphs, dropping all 
 superfluous words, and employing an abbreviation instead of 
 repeating the title, the matter placed under this head is so com- 
 pressed as to give about twice the usual number of decisions per 
 
vi PKEPACE. 
 
 page. The abbreviation may at first seem obscure; but the 
 reader will soon perceive that the single letter, in black type, 
 which recurs under " Minor Decisions," stands for the title or sub- 
 ject of the article. Thus if the subject is " Abatement," a. stands 
 always for the word "Abatement; " if the subject is "Assault," 
 a. represents "Assault; " and so onward through the successive 
 titles. 
 
 Some of the paragraphs have been published in the journals 
 of the year. And it was necessary — else the volume would 
 have been confessedly incomplete — to reproduce some Federal 
 decisions and acts of Congress also embraced in a former Digest 
 volume by the same author ; this explanation applies chiefly to 
 the earlier titles. 
 
 BENJ. VAUGHAN ABBOTT. 
 New York, November, 1880. 
 
YEAR BOOK 
 
 FOR 
 
 18 80. 
 
 ABATVBOlVjrENT. It has heretofore 
 been usually treated as a question of 
 intention. Three recent decisions open 
 the way for contending that it is some- 
 times a question of law ; that specific 
 facts maj' constitute abandonment irre- 
 spective of intent. 
 
 Resumption of specie payments maj- 
 probably supersede usefulness of the 
 gold banks ; accordingl}' an act of Con- 
 gi-ess allows those banks to abandon 
 that organization and business, and be- 
 come converted into ordinary currenc}' 
 banks. See infra^ act of Feb. 14, 1880. 
 
 Noteworthy laws in behalf of a hus- 
 band or wife, or a child, abandoned, 
 have been passed in Iowa, Massachu- 
 setts, California, and Pennsylvania. 
 
 The important principle that the as- 
 sured in marine policies must hereafter 
 give prompt notice of abandonment in 
 all cases where they desire to recover 
 for a constructive total loss, even when 
 circumstances maj' indicate that the 
 notice cannot be of an}' practical value 
 to the underwriters, seems settled, for 
 English law, by a carefull}' reasoned 
 
 Cross-keferences. — Abandonment. When 
 abandoniiieut of liusbantl or wife is cause of di- 
 vorce, see Divorce. Attorney, pliysician, or sur- 
 geon abandoning case, ATTOJiNEv; Physician; 
 SuHOEON. Desertion by soldiers or sailors, Ahmy; 
 Navy. Kailway fla2:nian abandoned his post, and 
 tlie consequences, Kailkoad/ 
 
 One niaylose title to chattel by abandoning it, 
 CiiATTEi.. Effect of abandoning an easement, 
 homestead, or pre-eniptioner's claim, Easemem'; 
 
 decision of the Court of Appeal. 
 infra, L. R. 3 C. P. D. 467. 
 
 See 
 
 Abandonment of child. Any minor 
 children abandoned by their parents may 
 be sent to any incorporated Home for the 
 friendless by the mayor of the town where 
 such Home is located, or by any justice of 
 the peace in such town, or by the judge of 
 any court of record ; and such Home shall 
 be the legal guardian of children so re- 
 ceived. Iowa Ads 1878, 164, ch. 176. 
 
 Deserted children under five years of age 
 may be placed in charge of the Society for 
 the Prevention of Cruelty, &c. Provisions 
 for returning them to parents. Act of April 
 1, 1879, 18 Mass. Laws, N. s. 524. 
 
 Hampden Co. Children's Aid Society and 
 N. H. Soc. to have same authority. Mass. 
 Laios 1880, 131 ; N. H. Laws 1879, 335. 
 
 Of gold-banking. Any national gold 
 bank may (by the proceedings authorized 
 by Rev. Stat. § 5154, for conversion of 
 State banks) " cease to be a gold bank, 
 and become such an association as is au- 
 thorized by § 5133," " for cariying on the 
 business of banking." Its certificate of 
 organization shall bear date of its original 
 organization as a gold bank. Act of Con- 
 gress of Feb. 14, 1880. 
 
 Homestead; Public Lands. Surrender of leased 
 premises, Landlord. Who owns an abandoned 
 mine, Mine. When a vessel is "derelict," be- 
 cause abaudoned, Derelict. Consequences of 
 abandoning vessel as worthless, SuipriNG. Aban- 
 doning reumants to insurers, Insurance. 
 
 Abandonment of highway, Hiohway; of rail- 
 road route or lands taken for road but not needed, 
 Kailkoad. 
 Suits for abandoned or captured property, Wak. 
 
ABANDONMENT. 
 
 Of homestead. In proceedings to se- 
 cure a privilege of homestead, the proof 
 showed tliat the owner of the land became 
 desirous to remove on account of his wife's 
 health ; and he was advised he could bar- 
 gain for another place, and remove to it, 
 and then sell the old one, and with the 
 proceeds pay for the new one, and that so 
 doing would not forfeit the privilege as to 
 the fund, and the new homestead. He 
 commenced to do so, but after his removal 
 to the new home an attachment was levied 
 on the old one. Held, that the removal 
 was an abandonment, and the privilege 
 was lost. The exemption law (of Texas) 
 does not provide an exemption for proceeds 
 of a homestead because they are to be 
 devoted to the purchase of a substitute. 
 Supreme Ct. 1878, Whittenberg v. Lloyd, 
 49 Tex. 633. 
 
 Of husband or wife. Under 1 Rev. 
 Stat. 1876, .553, — providing redress for 
 married women abandoned by their hus- 
 bands, — -a wife complained that her hus- 
 band treated her with continuous and gross 
 cruelty, involving refusal to allow her to 
 have any food in his home, and compelling 
 her to leave and seek a home elsewhere, or 
 starve. Held, that this could not be deemed 
 a case of abandonment of the wife by the 
 husband. "Abandonment" in such a 
 statute is the act of wilfully leaving the 
 wife, with the intention of causing a pal- 
 pable separation; and it implies actual 
 desertion of the wife by the husband. 
 Compelling the wife to leave cannot con- 
 stitute abandoning her, though it may 
 entitle her to redress on the ground of 
 cruel treatment. Supreme Ct. 1878, Stan- 
 brough V. Stanbrough, 60 Ind. 275. 
 
 To constitute an abandonment of a 
 spouse, the separation must be against 
 his or her consent; assent to the depart- 
 ure deprives it of the legal character of 
 abandonment. Where husband and wife 
 quarrelled, and the wife left her husband's 
 home to reside elsewhere, and he made no 
 objection nor efforts to induce her to return, 
 thougli he knew her place of ^bode, which 
 was near his, but by his conduct made it 
 difficult for her to return, — Held, that he 
 could not claim a divorce for abandonment. 
 Chancery, 1877, Taylor u. Taylor, 28 N. J. 
 E(j. 207. 
 
 A complaint by a wife alleged tliat she 
 had formerly conveyed her inherited lands 
 
 to her husband; that he had wasted large 
 sums in gambling and riotous living; that 
 she had left him and returned to live with 
 her mother,, and was without means of 
 support; and prayed that a reconveyance 
 of some of the lands might be decreed. 
 Held, that she had abandoned him, not he. 
 her; and that, no fiaud in the original con- 
 veyance being charged, the court could not 
 grant relief. Supreme Ct. 1878, Noe v. 
 Noe, 13 Hun (N. F.), 436. 
 
 Mrs. Leonard sued a surgeon for mal- 
 practice in treating her broken arm so un- 
 skilfully that it was rendered stifi and 
 useless. She brought the action in the 
 names of her husband and herself, and 
 alleged in the complaint, as a reason why 
 he did not prosecute the action, that he had 
 abandoned her and gone to some place un- 
 known to her. Held, that, under the law 
 in force when her suit was brought (2 Rev. 
 Stat. 1876, 36), providing that when a mar- 
 ried woman is a party her husband must 
 be joined with her, unless the action con- 
 cerns her separate property or is between 
 her and her husband, the abandonment did 
 not (though under a later law of March 
 25, 1879, see Husband, &c., it would) 
 excuse from joining the husband; and that 
 the complaint was demurrable for defect 
 of plaintiffs, though not for insufficiency. 
 Supreme Ct. 1879, Barnett v. Leonard, 66 
 Ind. 422. 
 
 When the husband wilfully deserts the 
 wife, she may, without applying for a 
 divorce, maintain in the District Court an 
 action against him for permanent support 
 and maintenance of herself, or of herself 
 and children. During the pendency of 
 such action, the court may, in its discretion, 
 require the husband to pay, as alimony, 
 any money necessary for the prosecution of 
 the action, and for support and mainten- 
 ance. Cal. Civ. Code, ch. 298, am"d 
 March 20, 1878. 
 
 A wife abandoned, deserted, or driven 
 from home by her husband, may sue her 
 husband or any other person without a 
 trustee or next friend, and may transfer 
 any evidence of debt, as if she were sole; 
 and is liable for costs as other plaintiffs. 
 Pa. Lam 1879, 126. 
 
 Of iiiSHi-ed property. An abandon- 
 ment transfers the insurable interest of 
 assured, so far as it is a s\ibject of the 
 policy ; it cannot transfer the interest of 
 
ABANDONMENT. 
 
 assured any further than that interest is 
 covered by the policy. Wliere the interest 
 covered by the policy is the whole vessel, 
 a total abandonment of the entire interest 
 of assured, who is sole owner, will transfer 
 the whole vessel. A notice by owner of 
 vessel to insurance company that "I do 
 hereby abandon to said company " the ves- 
 sel in question, followed by acceptance of 
 the abandonment by the company and pay- 
 ment of the loss, was held, under the cir- 
 cumstances, to have wholly devested such 
 former owner's title, so that he was not en- 
 titled to defend a subsequent libel against 
 her, for repairs. 2d Circ. (N. Y.) 1878, 
 Mills II. The Mary E. Perew, 15 Blalchf. 
 58; 6 Reporter, 293. 
 
 To entitle the insured in a marine policy 
 to recover for a constructive total loss, he 
 must, promptly upon receiving reliable in- 
 formation of the injury the property has 
 suffered, notify the underwriters that he 
 abandons. If he omits this, the right to 
 claim a constructive total loss is waived. 
 The courts will not enter into an inquiry 
 whether such notice would or would not 
 have been useful to the underwriter; it is 
 his right. Ct. of Appeal, 1878, Kaltenbaoh 
 V. Mackenzie, L. B. 3 C. P. D. 467; 4 
 Aap. Mar. Cas. 39; aff'g 4 Asp. Mar. Cos. 
 lo. 
 
 Abandonment is not peculiar to marine 
 insurance; but is a part of every contract 
 of indemnity. Wherever claim is made for 
 an absolute indemnity, there must be an 
 abandonment on the part of the claimant 
 of all his right in respect of that for which 
 he is to receive indemnity. In marine in- 
 surance, whether the claim is for an actual 
 or a constructive total loss, if there is any 
 thing to abandon, abandonment must take 
 place. Notice of abandonment is not re- 
 quired, except under contracts of marine 
 insurance. And it is not merely a means 
 of enabling the underwriter to search for 
 and preserve the thing, but is a condition 
 precedent to the validity of a claim to re- 
 covei, imported into the contract as usually 
 made, on account of the peculiarity of 
 marine insurance, that losses may occur 
 in any distant place and will usually 
 be communicated to the insured by his 
 agents in charge of the thing, but may 
 remain unknown to the underwiiter in- 
 definitely, unless the insured is put under 
 an obligation to communicate it. Because | 
 
 this would give the insured an unfair ad- 
 vantage, the rule has been established that 
 he must give notice of abandonment, or 
 show competent excuse for omission. And 
 the reason of the rule requires that he 
 must give notice promptly, after he has 
 sufficient information of the circumstances 
 and extent of the loss to enable him to 
 make his election. He is not bound to 
 give it at the first moment of hearing; but 
 as soon as he has reliable and sufficient in- 
 formation he must decide whether to aban- 
 don, and must take steps to communicate 
 his decision. Even if the first news of the 
 loss brings intelligence that the master has 
 made a sale upon necessity, so that only 
 the proceeds of the sale are in question, and 
 formal notice of abandonment may seem an 
 idle ceremony; the rule requires that it 
 should be given. IPe.r Bkett, L. J.] II). 
 
 There are two reasons for the rule re- 
 quiring notice. 1. When the assm-ed has 
 once elected to treat the loss as total, the 
 underwriters ought to have means of keep- 
 ing him to his election ; he should tell them 
 at once what he has decided, and not keep 
 it a secret in his own mind to see if there 
 will be a change of circumstances. 2. The 
 thing may, in various ways, be profitably 
 dealt with; the underwriters ought to have 
 early opportunity to do what, in their 
 opinion, is best to make the most they can 
 oiit of whatever is abandoned. [Per Col- 
 ton, L. J.] Th. 
 
 Of invention. Nicholson, in 1847, in- 
 vented a new and useful improvement in 
 wooden pavements, and filed in the patent 
 ofiice a caveat of his invention. He put 
 down, in 1854, as an experiment, his 
 wooden pavement on a street in Boston, 
 where it was exposed to public view and 
 travelled over for several years. It proved 
 successful, and, Aug. 7, 1854, he obtained 
 a patent therefor. It was contested on the 
 ground that laying the sample in the open 
 street for public use was an abandonment. 
 Held, that the patent was valid. Use of 
 an invention made by the inventor in good 
 faith, for the purpose of testing its opera- 
 tion, ascertaining defects and maturing 
 improvements, is not a public use which 
 debars from obtaining a patent. The facts 
 that he does not find need to make improve- 
 ments; that the use is long continued; 
 that it is on premises not owned by in- 
 ventor; that it is open to public inspection, 
 
ABANDONMENT. 
 
 and the public incidentally derive benefit 
 from it, — make no difference. So long as 
 he does not voluntarily allow others to 
 make it and use it, and so long as it is not 
 on sale for general use, he keeps the in- 
 vention under his own control, and does 
 not lose his title to a patent. If, indeed, 
 he allows his machine to be used by other 
 persons generally, either with or without 
 compensation, or if it is, with his consent, 
 put on sale for such use, then it will be in 
 public use and on public sale, within the 
 meaning of the law. Supreme Ct. 1877, 
 Elizabeth v. Pavement Co., 97 U. S. 126. 
 
 In an action for infringement of a patent 
 for corset steels, it appeared that more than 
 two years before applying for a patent the 
 inventor made a pair of steels and after- 
 ward another pair for a lady to whom he 
 was engaged to be married, and who wore 
 them mitil they were worn out; also that 
 he made a third pair for another lady. 
 Held, that this was a use of the invention 
 which amounted to an abandonment. It 
 was not a use for experiment, or a use in 
 private; but a practical use of the com- 
 pleted article. No secrecy was maintained 
 or enjoined. It was a disposal of the 
 article for the general use of the recipient. 
 The effect of section 7 of the act of 
 March 3, 1839 (5 Stat, at L. 354), is to re- 
 quire that an inventor shall not permit his 
 invention to be used in public at a period 
 earlier than two years prior to his applica- 
 tion for a patent, under the penalty of 
 having his patent rendered void by such 
 use. Consent and allowance by the in- 
 ventor are not necessary to such invalidity. 
 But, afariinrl, consent to a use in public, 
 not followed by an application for a patent 
 within two years afterwards, makes the 
 patent, when granted, invalid. 2c/ Circ. 
 {N. Y.) 1878, Egbert i>. Lippmanu, 15 
 BLalchf. 295; 14 Pat. Off. Gaz. 822. 
 
 Although the circumstances of the in- 
 ventor and the nature of the invention 
 may have required that it be tested by 
 others, still, under the defence of adverse 
 public use, it is somewhat difficult for a 
 court to qualify, by a supposed intention 
 not declared at the time, the act of tlie in- 
 ventor who sells the patented article on 
 two occasions, apparently in the ordinary 
 course of trade. But to constitute an 
 abandonniput which impairs a patent by 
 use in public, the use must liave been of 
 
 the very improvement patented. Where it 
 was of a less perfect article, not merely a 
 colorable variation, no dedication results, 
 although such article may embody features 
 in common with what was patented there- 
 after. \st Circ. {Mass.) 1878, Draper v. 
 Wattles, 16 Pat. Off. Gaz. 629. 
 
 Of land rights. " When a pre-emp- 
 tion, homestead, or timber-culture claimant 
 shall file a written relinquishment of his 
 claim in the local land-office, the land cov- 
 ered by such claim shall be held as open to 
 settlement and entry, without further 
 action on the part of the the commissioner 
 of the general land-office." Act of Con- 
 gress of May 14, 1880. 
 
 A person interested in a location which 
 had been made of a land certificate with- 
 drew the field notes pertaining to the sur- 
 vey from the general land-office, apparently 
 with the intention of procuring coiTection 
 of certain defects or eiTors, for the purpose 
 of pei-fecting the title. But they were not 
 returned until long (sixteen years) after, 
 after a location of another certificate on 
 the same lands, by another pei-son. Held, 
 that the withdrawal and delay amounted 
 to an abandonment of the first claimant's 
 location, whatever might have been his in- 
 tention. Supreme Ct. 1879, House v. Tal- 
 bot, 51 Tex. 462. 
 
 As railway companies acquire not the 
 absolute fee of lands taken for their road 
 by their compulsory powers, but a right to 
 use them, there may be an abandonment 
 by long non-user, of a portion not needed, 
 such as will enable the adjoining owner to 
 acquire it by adverse possession. Leaving 
 a strip outside the permanent boundary 
 fence of the roadway was held such an 
 abandonment. Ch. Div. 1S7S, Norton t'. 
 Loudon & North Western Ry. Co., L. R. 9 
 Ch. D. 623; alf'd L. It. 13 C/i. D. 268. 
 
 Of oil-ivells. Ownere and operatoi-s of 
 oil lands required to plug their wells when 
 left or abandoned, so as to exclude all fresh 
 water from the oil-bearing rock, and pre- 
 vent the flow of oil or gas into the fresh 
 water. I'enaltj' for neglect. Owners of 
 adjoining property authorized to act if 
 well-owner does not. N. Y. Laws 1879, 
 295, ch. 217. 
 
 Of trade-mark. W., one of the part- 
 ners in a tobacco factory formerly located 
 at Durham, N. C, sold out his interest in 
 the business, its Irade-niarks, &c., removed 
 
ABANDONMENT. —ABATEMENT. 
 
 from the place, and abandoned the manufac- 
 ture of tobacco. Subsequent assignees of the 
 business continued and extended it, selling 
 their tobacco under the name of Durham 
 smoking tobacco, and placing a figure of a 
 Durham short-horn bull on their parcels. 
 Under this trade-mark their goods gained 
 great celebrity. W. , eight years after aban- 
 doning the business, resumed it at Lynch- 
 burg, Va., and used the name Durham 
 and the figure of the head of a short-horn 
 bull as his trade-mark. Held, that he could 
 be enjoined. Conceding his original right 
 to the trade-mark Durham, he had lost it 
 by eight years' disuse, and by his removal; 
 especially as the use by him, at Lynch- 
 bm-g, of the name Durham would mis- 
 lead the public to suppose his goods wei'e 
 the tobacco of the plaintiffs manufactured 
 at Durham, N. C. Ath Circ. {Va.) 1878, 
 Blackwell v. Dibrell, 3 Hugh. 151; 17 Am. 
 L. Reg. N. s. 516. 
 
 Licensees under a proprietor of a trade- 
 mark may lose their rights by disregarding 
 the territorial limits prescribed by the 
 license for their sales, or by relinquishing 
 the use of the mark in their business, and 
 adopting another of their own designing. 
 \sl Circ. (^Me.) 1878, Manhattan Medi- 
 cine Co. V. Wood, 14 Pat. Off. Gaz. 519. 
 
 Minor Decisions on Abandonment. 
 Permanent appropriation by the State of 
 canal course to sewer pui-poses is an a. of 
 the right to the waters previously used as 
 feeders: 33 Ohio St. 492. A. of cause by 
 attorney may be justified by non-payment 
 of fees due in that suit, but not by non- 
 payment of other demands: 8 Brad. {III.) 
 248. Removing to another county and 
 voting there is an a. of a homestead: 88 
 ///. 199. It is not an a. of a homestead to 
 remove for a temporary purpose, such as to 
 educate children: 50 Tex. 269; or on ac- 
 count of ill-health: 19 Bank. Reg. 382; 
 4 Laic §• Eq. Reporter, 684. A. of home- 
 stead does not transfer the exemption, but 
 extinguishes it: 90 III. 474. It is not a. of 
 invention to delay applying for patent: 98 
 U. S. 31; 15 Pat. Off. Gaz. 608; or suing 
 infringers: 16 Pat. Off. Gaz. 906. Separa- 
 tion of husband and wife by mutual agree- 
 ment is not an a.: 49 Tex. 333. Wife 
 abandoned elsewhere cannot remove to 
 
 Kings County and there prosecute her hus- 
 band under Laws 1871, ch. 395: 14 Hun 
 (N. Y.), 181. Sale of goods in parcels 
 bearing a label is an a. of right to enter 
 that label for copyright: 14 Blatch. 263. 
 Issuing new execution without anything to 
 connect it with previous one is a. of levy : 
 87 Pa. St. 109 ; mere withdrawal of watch- 
 man is not: 8 Cent. L. J. 185. Stopping 
 work on building during unpropitious 
 season is not a. of mechanic's lien : 28 N. 
 J. Eq. 304. A. of military post at Fort 
 Logan, Mont. T., authorized: Act of Con- 
 gress of May 8, 1880. Offering no evi- 
 dence in support of a plea is an a. of that 
 defence: 64 Ind. 388. Pre-emptor's not 
 returning field-notes of survey to general 
 land-office within a year is not a. of his 
 pre-emption claim: 50 Tex. 161; neither 
 is leaving settlement on public lands on 
 account of ravages by grasshoppers: Act 
 of Congress of June 1, 1879, 20 Stat, at L. 
 83. For purchaser at a tax sale or sheriff's 
 sale to release by a compromise his money 
 claims, may be an a. of his purchase: 65 
 Ind. 120. 
 
 ABATEMENT. Death of either party 
 to divorce suit, pending appeal, does not 
 abate it so absolutely as to prevent plain- 
 tifi's attorney from enforcing his claim to 
 an allowance for expenses awarded by the 
 judgment appealed from. When there is 
 an appeal from a judgment which simply 
 denies a divorce, the death of either party, 
 pending an appeal from such judgment, 
 abates the action absolutely; for there is 
 no one who can legally have any further 
 interest in the cause. But if the judgment 
 grants a divorce, or if it determines one 
 way or the other an issue of nullity of mar- 
 riage, the effect of it may be to change the 
 descent of property ; and there would be 
 reason for allowing the action to be re- 
 vived and prosecuted, in order to protect 
 the interests of persons whose rights of 
 inheritance might be dependent on the 
 marriage. Likewise so much of a judg- 
 ment as directs the husband to pay an 
 allowance to the wife creates rights of 
 property which are not devested by her 
 death, but the action may be continued in 
 the name of her administrator for the 
 collection of the amount. Supreme Ct. 
 Downer v. Howard, 44 Wis. 82. 
 
 Abatement of demand for duties on internal I State tax, Tax; of legacy, Legacy; of nuisance, 
 revenue tax, see Duties; Iktisesal Revbkue; for | Nuisasce. 
 
6 
 
 ABATEMENT. 
 
 The death of the husband does not abso- 
 lutely abate a husband's action for loss of 
 his -wife's services through injury to her 
 person. A married woman, passenger on 
 a street railroad, was injured while alight- 
 ing from the car, through the negligence 
 of the persons in charge. Her husband 
 brought suit for his loss of services, and 
 medical expenses. Pending the suit he 
 died, when the administrator applied to 
 continue it; which the court below allowed. 
 Held, correct. Section 1 of 2 Kev. Stat. 
 447, preserves from abatement^by death not 
 only actions for direct injuries to property, 
 but all actions for injuries to property, 
 rights or interests, except such as are enu- 
 merated in section 2. Among the excep- 
 tions is, any action on the case for injuries 
 to the person of the plaintiff ; but there is 
 no exception of an action for a wrong done 
 to the property rights or interests of the 
 plaintiff by means of an injury to a thii'd 
 person. The wrong done in the case at 
 bar was injury to the person of plaintiff's 
 wife, rendering her unable to serve him, and 
 involving him in expenses for medical treat- 
 ment. This was a wrong affecting the pe- 
 cuniary rights and interests of the husband ; 
 and his death should not prevent his repre- 
 sentatives from prosecuting an action com- 
 menced by him for reimbursement. Ct. of Ap- 
 peals, 1879, Cregin v. Brooklyn Cross Town 
 E. R. Co., 56 How. Pr. 465; aff'g s. c. id. 32. 
 
 A cause of action against a stockholder, 
 to enforce a statutory obligation to con- 
 tribute towards restoring impaired capital, 
 survives his death, against his personal 
 representatives. They take the stock form- 
 ing part of his estate, subject to any lia- 
 bility which existed on account of it ; and 
 if the stockholder, when he died, was liable 
 to pay a demand in virtue of his ownership 
 of shares, his executor or administrator is 
 equally liable to do so. Ct. of Appeals, 
 1879, Chase v. Lord, 6 Ahb. N. Cas. 258; 
 rev'g s. c. 16 Hun, 369. 
 
 Bankruptcy. Adjudication in bank- 
 ruptcy does not abate suits previously 
 commenced by bankrupt. In an action 
 pending in a State court, for money re- 
 ceived, defe^idant iiled a supplemental plea 
 showing that plaintiff had been adjudi- 
 cated a bankrupt and an assignee had 
 been appointed, and claiming that the 
 right of action had thus become vested 
 in the assignee. Held, that the bank- 
 
 ruptcy was not available to defendant 
 to defeat the action. While the Federal 
 courts have exclusive jurisdiction in bank- 
 ruptcy, the State courts have concurrent 
 jurisdiction of ordinary suits such as the 
 one at bar, and this is not devested by any- 
 thing in the bankrupt law. That law en- 
 titles an assignee to come in and prosecute 
 any suit by the bankrupt, already pending, 
 and to collect the demand as assets ; if, 
 however, he does not seek to come in, but 
 permits the action to be prosecuted in the 
 name of the bankrupt, the defendant has 
 no interest to object, nor any right to com- 
 pel him to substitute his name as plaintiff. 
 Supreme Ct. 1878, Thatcher v. Rockwell, 
 4 Col. 375. 
 
 After a suit in equity in a State court 
 filled to redeem certain securities had pro- 
 ceeded to a final decree upon default and 
 an order for an accounting, the defendant 
 was adjudicated a bankrupt and an assignee 
 appointed. The assignee made no appli- 
 cation to be substituted as defendant, and 
 the complainant proceeded to take the ac- 
 count, and obtained an order for payment 
 to him of certain moneys in court, towards 
 the amount shown by the accounting to be 
 due. Held, that the assignee was bound 
 by the accounting and order. The adju- 
 dication and assignment did not abate the 
 suit in the State court. They gave the as- 
 signee the right to be admitted to defend ; 
 but if he did not choose to do this, the 
 State court could proceed. There is nothing 
 in the bankrupt law which sanctions the 
 proposition that it abates all judicial pro- 
 ceedings in State courts the moment either 
 party to them is adjudged a bankrupt. 
 Chancery, 1879, Esterbrook Steel Pen Co. 
 V. Ahern, 31 N. J. Eg. 3; over'g s. c. 30 
 Id. 341. 
 
 Bankruptcy of one of defendants jointly 
 and severally liable does not prevent pro- 
 ceeding against other defendant, even 
 without bringing in the trustee. Chan- 
 cery, 1877, Lloyd v. Dinsmore, L. it. 7 Ch. 
 D. 398. 
 
 Corporations. The National Life Ins. 
 Co., incorporated by an act of Congress, 
 commenced business in Indiana without 
 complying with the conditions prescribed 
 by the law of the State to be observed by 
 foreign insurance companies desiring to do 
 business within the State; and it made a 
 loan, and took a note and mortgage there- 
 
ABATEMENT. 
 
 for. In a suit to foreclose the mortgage, 
 the borrower pleaded the omission of the 
 company to comply with the State laws. 
 Held, that this was a good plea in abate- 
 ment. In chartering an insurance com- 
 pany, Congress acts only as the legislature 
 of the District of Columbia. It has not 
 power, as the legislature of the United States, 
 to create corporations to carry on insurance 
 in the various States. The company in 
 question ought, therefore, to be deemed a 
 foreign insurance company within the pro- 
 visions of a State law regulating such com- 
 panies coming within the State. By the 
 law of Indiana applicable, the note and 
 mortgage were not void, but a suit upon 
 them, brought before the compliance of 
 the company with their requirements, ^s 
 prematurely brought, and must abate. Su- 
 preme Ct. 1878, Daly i;. National Life Ins. 
 Co., 64 /nf/. 1. 
 
 On an indictment in the District Court 
 of the United States for the Southern Dis- 
 trict of New York, the defendant inter- 
 posed a plea in abatement which averred 
 that forty-eight persons were summoned as 
 grand jurors; that the names of such per- 
 sons were not drawn by the clerks, as re- 
 quired by the rules ; that one of the grand 
 jurors was a non-resident; and that several 
 of them were not possessed of the proper 
 property qualifications. It did not aver 
 that the accused had sustained any preju- 
 dice. Held, on demurrer, that the plea 
 was bad. 
 
 1. The adoption by Congi-ess of the 
 State statute abrogating the right to chal- 
 lenge the array has by implication taken 
 away the right to raise the objection in any 
 form, whether by plea in abatement or 
 otherwise. 
 
 2. Where there is no averment of prej- 
 udice, such irregularities are to be disre- 
 garded, under Rev. Stat. § 1025. 
 
 3. There is no rule of law for district 
 courts within New York that forty-eight 
 fit jurors must be summoned to attend, out 
 of whom to form a grand jury. 
 
 4. The fact that individual grand jurors 
 lacked the qualifications of residence and 
 property required by law cannot be received 
 as ground of abatement of the indictment; 
 for it would practically allow any offender 
 to postpone and prevent the trial of the 
 issue guilt. 2d Circ. (N. F.) 1876, United 
 States y, Halloran, 14 Blatch. 1. 
 
 KinoT Decisions on Abatement. 
 
 Plaintiff's right to prosecute action for 
 a personal injury abates absolutely by 
 death of plaintiff before final judgment 
 lien, after new trial ordered but not had: 
 60 Ga. 120. Death of another person of 
 same name with plaintiff was held not an 
 a., though the circumstances were peculiar: 
 60 Ga. 131. A right of action for wrong- 
 ful dismissal from an ofiice of profit does 
 not abate by plaintiff's death: 8 lie- 
 porter, 747. Death of plaintiff in ejectment 
 is not an absolute a., but action may be 
 revived by representatives: 61 Ga. 77. 
 Death of defendant in ejectment abates 
 that action; a new right arises against the 
 heir: 40 Mich. 351. Death of defendant 
 in an action to restrain waste is an a.. 15 
 Hun, 14. Death of guardian abates pro- 
 ceedings to compel him to account: 87 III. 
 54. Death of a judgment creditor does not 
 preclude his representatives from prosecut- 
 ing proceedings supplementary to execu- 
 tion: 56 HoiB. (N. F.) Pr. 276. When 
 appeal from conviction abates by death of 
 offender, the judgment stands good for the 
 costs : 5 Oreg. 328 ; to contrary, 5 Tex. App. 
 450. Plaintiff's becoming insane just be- 
 fore trial is matter of a., and plea must 
 be verified: 51 Tex. 165. Pendency of a 
 suit in a State court is not ground for a 
 plea in a. to a suit for the same matter in 
 a Federal court: 99 U. S. 168. Non-join- 
 der of co-promisor or obligor as defendant 
 is ground of a., not of nonsuit: 69 Me. 59; 
 Id. 451. 
 
 Affinity between a grand juror and 
 defendant cannot be pleaded in a. of in- 
 dictment; for there is no presumption of 
 prejudice: 1 Lea (Term.), 671. Naming 
 Zachary as Zachariah, in indictment, is 
 ground of a.: 59 Ala. 61. Previous in- 
 dictment for murder is not an a. of subse- 
 quent one : 4 Tex. App. 155. 
 
 Plea of an agreement to extend the time 
 for paying the demand in suit, or to settle 
 and discontinue the action, is in a., not in 
 bar: mill. 91; 45 Win. 675. Plea that 
 defendant has been sued out of his county 
 is not in a., but to secure a substantial 
 right: 88 III. 296. Plea in a. is not amend- 
 able like plea to the merits: 3 Brad. (III.) 
 197. Under Iowa Code, if one of the ac- 
 tions is dismissed before plea of a. in the 
 other is determined, the plea is not sus- 
 tained: 49 Iowa, 183. Pleading to the 
 
8 
 
 ABDUCTION. — ABORTION. 
 
 merits waives a prior plea in a. : 55 Miss. 
 101 ; 62 Ind. 127 ; so a plea of not guilty 
 or a general continuance waives a. of in- 
 dictment: 6 Baxt. (Term.) 511; 1 Lea 
 (Tenn.), 274. 
 
 ABDUCTION. An obscurely worded 
 statute of North Carolina declares it a crime 
 punishable by imprisonment to abduct or 
 entice away, or conspire to abduct or 
 entice away, any child under 14 years of 
 age, living with parents, kinsmen, or 
 guardians, or living at school : provided the 
 accused is not a nearer blood relative to 
 the child than is the person from whom 
 the child is taken. N. C. Sess. L. 1879, 
 Ch. 81. 
 
 ABORTION. The much-discussed 
 question, What detective measures may 
 be employed in reference to the offence 
 of producing abortion and kindred 
 crimes? has illustration in a recent 
 circuit court decision in Missouri 
 (stated more fully under Post-Office) . 
 A physician in St. Louis was sus- 
 pected of dealing, through the mails, 
 in immoral and prohibited articles, and 
 a detective prepared a letter to him, 
 asking if he could furnish an article for 
 a use described. This letter was dated 
 from a place in Georgia, was written 
 and signed in a lady's hand and name, 
 and, through aid of the St. Louis post- 
 ofBce clerks, was stamped and delivered 
 as if it had come from Georgia. Back 
 came an answer, addressed as the note 
 of inquiry was signed, sajang : "I have 
 what you desire, price $10." The St. 
 Louis post-offlce clerks, instead of 
 forwarding the letter to the fictitious 
 address in Georgia, gave it to the 
 detective, and he instituted a prosecu- 
 tion. The court quashed the indict- 
 ment, on the ground that, although the 
 accused was morally guilty, a violation 
 of the law was not made out ; his 
 answer could not give the prohibited 
 information to any one but the detec- 
 tive who wrote the inquiry ; and giving 
 information to a detective, actuallj- in 
 aid of his police work, though not so 
 intended, is not punishable. 
 
 The killing an unborn child and the 
 producing an abortion on the mother, 
 though done by the same act and means, 
 are distinct offences. Elder was indicted 
 for unlawfully administering medicine 
 and using instruments to produce a mis- 
 carriage of a woman named. He pleaded 
 a former acquittal, setting forth that he 
 had been previously indicted for the mur- 
 der of a certain child unborn, of the same 
 woman, by use of instruments to produce 
 a miscarriage, and averring that the acts 
 alleged in the two indictments were the 
 same. Held, that the former acquittal 
 was not a bar to the second prosecution, 
 because the offences were distinct. The 
 true rules are (citing many authorities) : — 
 
 1. When the facts constitute but one 
 offence, though divisible into parts, a final 
 judgment on a charge of one part will bar 
 a prosecution for another part. Thus, an 
 acquittal of stealing a portion of property 
 will bar a subsequent charge of stealing 
 another portion, the larceny of all having 
 been committed by the same act and by the 
 same owner. 
 
 2. When the facts constitute two or 
 more offences, wherein the lesser offence is 
 necessarily involved in the greater, — as 
 an assault is involved in an assault and 
 battery with intent to commit a felony, 
 and as a larceny is involved in a rob- 
 bery, — and when the facts necessary to 
 convict on a second prosecution would ne- 
 cessarily have convicted on the first, then 
 the first prosecution to a final judgment 
 will be a bar to the second. 
 
 3. But when the same facts constitute 
 two or more offences wherein the lesser 
 offence is not necessarily involved in the 
 greater, and the facts necessary to convict 
 on a second prosecution would not neces- 
 sarily have convicted on the first, then the 
 first prosecution will not be a bar to the 
 second, although the offences were both 
 committed at the same time and by the 
 same act. 
 
 The case at bar falls under the third 
 rule. The offence of procuring an abor- 
 tion is not included in the offence of killing 
 the child. They are committed against 
 different persons, and are different in fact 
 and intent. The facts necessary to convict 
 on one indictment would not convict on the 
 other. It is not a sound rule that a person 
 can be only once convicted on the same 
 
ACCESSARY. — ACCOMPLICE. 
 
 facts. Supreme Ct. 1879, State v. Elder, 
 65 Ind. 282. 
 
 UinoT Decisions on Abortion. 
 
 Proof that accused had in his possession, 
 previous to death of victim, instruments 
 appropriate for producing a. is admissible 
 against him : 126 Afass. 40. In prosecution 
 for manslaughter by producing a., opinions 
 of physicians as to cause of death may be 
 given : 5 Oreg. 73. And there is no rule 
 that the offence must be established to 
 absolute moral certainty: Proof beyond a 
 reasonable doubt is sufficient: lb. And 
 proof that the victim made prior attempt 
 upon herself is no defence, unless it con- 
 tributed to her death : lb. 
 
 ACCESSARY is one' guilty of a felony, 
 not by personal participation, but by ad- 
 vising or counselling another to commit it: 
 18 Am. L. Beg. N. S. 101. Concealing 
 knowledge that another intends to commit 
 a felony does not render one an accessary 
 before the fact: 7 Tex. App. 301. 
 
 ACCIDEJfT. A vessel left port well 
 manned, but during the voyage the captain 
 and crew, except the second mate, were 
 taken sick with yellow fever. This pre- 
 vented maintaining a lookout, and the 
 want of a lookout led to a collision. Held, 
 that this was a case of inevitable accident. 
 2d. Circ. (N. Y.) 1879, Brauer v. The South- 
 ern Home, 8 Reporter, 389. 
 
 There is a difference between the mean- 
 ing of the expressions "inevitable acci- 
 dent" . and "irresistible, superhuman 
 cause;" the latter is equivalent to "act 
 of God." Clay County u. Simonsen, 1 Dak. 
 403. 
 
 ACCOMPLICE. The important de- 
 cisions lately reported are upon the 
 right of an accomplice who testifies 
 as state's evidence, to have a remis- 
 sion of punishment. They explain that 
 prosecuting officers should not bargain 
 with an accomplice on the subject, but 
 may ascertain what testimony he can 
 give, telling him that he is not com- 
 pellable to testify, but that if he does 
 so voluntarily and fully, he will, by 
 settled usage, receive some clemency. 
 His testifj'ing is not a legal bar to 
 further proceedings against him ; but, 
 if convicted, he must be recommended 
 
 to mercy, and the Executive should, 
 without hesitation, give him such re- 
 mission of punishment as may be 
 proper under the circumstances. See 
 infra, 41 N. J. L. 15 ; 99 U. S. 594. 
 
 Who is an accomplice. A crime not 
 wilful does not admit of accomplices. In 
 a quarrel between several drunken men, 
 one of them attempted violently to take a 
 pistol from another, and a third assisted 
 the attempt. The pistol exploded in the 
 struggle, killing its owner. Held, that if, 
 under the circumstances, the offence of the 
 one who began the struggle was only invol- 
 untary manslaughter, the one who assisted 
 could not be convicted of aiding and abet- 
 ting. There can be no aider or abettor 
 in committing involuntary manslaughter. 
 An aider and abettor is one who assists 
 another in the accomplishment of a common 
 design or purpose. He must be aware of, 
 and consent to, such design or purpose. If 
 none exists, there can be no aiding or 
 abetting. Supreme Ct. 1879, Adams v. 
 State, 65 Ind. 565. 
 
 A detective is not an accomplice. A 
 detective entered the service of one sus- 
 pected of acquiring cattle by fraudulently 
 changing the marks branded upon them, 
 and continued to assist him in his cattle 
 dealings until he saw him change the 
 brand of another owner upon a beeve, into 
 his own. Held, that the testimony of the 
 detective did not require corroboration. 
 One who participates in an offence, with- 
 out guilty intent to aid its perpetration, 
 and simply in the capacity of a detective 
 and to ascertain the truth of suspicions 
 against the accused, does not stand in the 
 light of an accomplice. , Ct. of Appeals, 
 1880, Wright v. State, 7 Tex. App. 574; 
 s. p. Berry v. People, 77 N. Y. 588. 
 
 A statute punishing the principal speci- 
 fically, — as, if any person shall shoot and 
 wound another, with intent to kill, he shall 
 be punished, &c. ; or, if any person shall 
 rob another, he shall be punished, &c., — 
 should not be construed as embracing per- 
 sons not actually participating in the crime, 
 although present, and aiding and abetting 
 its commission. Supreme Ct. 1878, Ward 
 V. Commonwealth, 14 Bush (Ky.), 233. 
 
 An accomplice who testifies is entitled 
 to mercy. Long practice in English and 
 
10 
 
 ACCOMPLICE. 
 
 American courts has established the prin- 
 ciple that, when an accomplice is received 
 by the court as a witness against his fel- 
 lows, and makes an ingenuous and full 
 disclosure, there is an implied promise 
 that he will be recommended to mercy. 
 He has an equitable claim to such a recom- 
 mendation. It cannot be withheld without 
 violating an established practice; and, 
 when granted, it has invariably been con- 
 sidered a sufficient reason for making some 
 remission of punishment. Instead of a 
 mere recommendation to mercy, the court 
 has power, in a proper case, to oi'der the 
 accomplice to be acquitted at the trial, for 
 the purpose of qualifying him as a witness, 
 or to assent to the entering of a nolle 
 prosequi, or to accept from him a plea of 
 guilty in an inferior degree. Supreme Ct. 
 1879, State v. Graham, 41 N. J. L. 15. 
 
 Huuter hired Graham to kill Armstrong, 
 the act of homicide being committed in 
 Hunter's absence. Graham was used as 
 state's evidence, but without any specific 
 engagement as to what favor should be 
 shown him ; and, on his testimony, Hunter 
 was convicted and executed. On applica- 
 tion by the attorney-general foi' advice from 
 the court, — Held, that it was not proper, 
 under the circumstances, to enter a nolle 
 prosequi ; but the prisoner, unless he would 
 proffer some plea of guilty which the court 
 would accept, should be tried on the indict- 
 ment found, which was for murder in the 
 first degree, and, if convicted, should be 
 sentenced, with a recommendation to 
 mei-cy. Some remission of punishment 
 should undoubtedly be accorded to a 
 state's evidence ; to what extent is an 
 executive question. Ih. 
 
 Note. After this decision Graham was 
 brought to the bar of the court to plead to 
 the indictment. He pleaded guilty of 
 murder in the second degree. The court 
 accepted the plea, and he was sentenced to 
 impi'isonment for twenty years. A pardon 
 was refused, and in 1S80 he was serving 
 out his terra. 
 
 That one has testified as state's evi- 
 dence is not a good plea in bar to an action 
 for a penalty against him incurred by the 
 offence. One sued in debt for penaltie.f 
 for conspiring to defraud the government 
 of internal revenue tax on certain spirits 
 pleaded that he and others had been in- 
 dicted, and certain property prosecuted in 
 
 condemnation proceedings for the con- 
 spiracy in question; that an agreement 
 had been made between the prosecution 
 and the defendant that, if the defendant 
 should testify frankly and truthfully in 
 those proceedings, &c., no new proceeding 
 should be instituted against him; and that 
 defendant had faithfully testified as agreed. 
 Held, that the demurrer was bad on de- 
 murrer. The universal usage is, that an 
 accomplice examined against his associates 
 will not afterwards be prosecuted for the 
 same offence, if he acts in good faith and 
 testifies fully and fairly. But the facts do 
 not give him any plea in bar of an indict- 
 ment, nor are they available on his trial. 
 They give merely an equitable title to the 
 mercy of the Executive. The United 
 States district attorney has no power to 
 bind the United States by a contract with 
 an accomplice that, if he will testify against 
 his associates, he shall not be prosecuted 
 for his participation in the crime, still less 
 that he shall be discharged from civil lia- 
 bility to a penalty or a forfeiture. The 
 discretion to show favor to the accomplice 
 is with the President. Supreme Cl. 1878, 
 Whiskey Cases (United States v. Ford), 
 99 U. S. 594. 
 
 By modern practice, whenever the testi- 
 mony of an accomplice is desired, the pub- 
 lic prosecutor will grant the accomplice an 
 interview, with the understanding that any 
 communications he may make to the prose- 
 cutor will be strictly confidential. Inter- 
 views for the purpose mentioned are for 
 mutual explanation, and do not absolutely 
 commit either party; but if the accomplice 
 is subsequently called and examined, he is 
 equally entitled to a recommendation for 
 Executive clemency. Promise of pardon is 
 never given in such an interview, nor any in- 
 ducement held out beyond what the before- 
 mentioned usage and practice of the courts 
 allow. The prosecutor, in such a case, 
 should explain to the accomplice that he 
 is not obliged to criminate himself, and 
 inform him just what he may reasonably 
 expect in case he acts in good faith, and 
 testifies fully and fairly as to his own acts 
 in the case and those of his associates. 
 When he fulfils these conditions, he is 
 equitably entitled to a pardon, and the 
 prosecutor, and the court, if need be, when 
 fully informed of the facts, will join in 
 such a recommendation. Modifications of 
 
ACCOMPLICE. — ACCOUNT. 
 
 11 
 
 the practice doubtless exist in jm-isdictions 
 where the power of pardon does not exist 
 prior to conviction ; but every embarrass- 
 ment of that sort may be removed by the 
 prosecutor, as in the absence of any legis- 
 lative prohibition, he may nol. pros, the 
 indictment, if pending, or advise the pris- 
 oner to plead guilty, the prisoner reserving 
 the right to retract his plea and plead over 
 to the merits if his application for pardon 
 shall be unsuccessful. Where the power 
 of pardon exists before conviction as well 
 as after, no such difficulties can arise; as 
 the prisoner, if an attempt is made to put 
 him to trial in spite of his equitable right 
 to pardon, may move that the trial be 
 postponed, and may support his motion by 
 his own affidavit, when the court may 
 properly insist to be informed of all the 
 circumstances. Power, under such cir- 
 cumstances, is vested in the court, in a 
 proper case, to put off the trial as long as 
 may be necessary, in order that the case 
 of the prisoner may be presented to the 
 Executive for decision. lb. 
 
 Minor Decisions on Accomplice. 
 
 Several persons who unite to do an un- 
 lawful act are criminally liable for each 
 others' acts furthering the common design, 
 and for entire offence: 86 III. 243, 60 Ind. 
 308 ; 60 Oreg. 210. Caring forfamily of thief, 
 to aid him to dispose of stolen property, is 
 aiding and abetting the larceny: 48 loioa, 
 221. Going, armed, with persons bent on 
 an affray indicates complicity in a homi- 
 cide which they commit: 38 Mich. 117. 
 One who aids another to resist an officer is 
 not liable for murder in the first degree, 
 because the principal kills the officer, unless 
 the aider participated in the attempt to 
 kill: 67 Afo. 604. 
 
 One of several persons who united to do 
 an unlawful act may be convicted on testi- 
 mony of another : 60 Ind. 308. And declara- 
 tions by one may be proved against another, 
 if made in furtherance of the common de- 
 
 Acconnt. Accounts of officers, see Offi- 
 cer, and titles of particular officers; of persons 
 in fiduciary relations. Attorney; Executor; 
 Guardian; Trust, &o.; of partners. Partner- 
 ship. 
 
 Application of statute of limitations to accounts. 
 Limitations. Reference of action involving long 
 account, Reference. 
 
 Accounting by administrator, executor, guar- 
 dian, or trustee, see Executor; Guardian; 
 Trust. 
 
 sign; not otherwise: 16 Hun, 94, 31 Gratt. 
 468. An a., although joined in the indict- 
 ment, is competent for the prosecution, if 
 not on trial when called: 38 Mich. 744. 
 He is not competent for defence: 4 Tex. 
 57. Independent of statute, a convic- 
 tion on uncorroborated testimony of a. is 
 legal. 65 Ind. 269; 4 Tex. App. 239. 
 Texas statute requires that he be corrobo- 
 rated: 4 Tex. App. 239; Id. 251; 7 Id. 
 635. By Alabama statute, a conviction of 
 misdemeanor, but not one of felony, may 
 be had on uncorroborated testimony of a. 
 58 Ala. 117. Only that part of testi- 
 mony of a. which connects the principal 
 with the commission of the offence needs 
 corroboration: 59 Ala. 104; 58 Id. 355; 
 4 Tex. App. 239; 5 Id. 163; 6 Id. 23; T Id. 
 640. Corroboration is not necessary of 
 testimony implicating persons not on trial: 
 4 Tex. App. 292. Testimony of one to 
 whom accused declared his intention of 
 committing a crime, and who merely con- 
 cealed what he knew, does not need cor- 
 roboration; he is not an a. 7 Tex. App. 
 301. One a. cannot be used to corroborate 
 another : 7 Tex. App. 465 ; nor can a. 
 corroborate himself : 7 Tex. App. 664. 
 What corroboration of a. is competent and 
 sufficient: 11 S. C. 262; 4 Tex. App. 239; 
 Id. 292; 6 Id. 501; 7 Id. 457; Id. 640. 
 Credibility of a. is for the jury: 53 Cal. 
 601 ; 65 Ind. 269 ; and judge should not cau- 
 tion them that by a law no longer in force 
 an a. was no longer incompetent: 64 Ind. 
 473. The rule that testimony of a. needs 
 corroboration does not apply where the 
 witness — here a paramour in alleged 
 adultery — does not come as an a., but 
 appears only in obedience to process and 
 denies the criminality charged: 71 N. Y. 
 137, 152. 
 
 ACCOUNT. It is only against persons 
 sued as accountable for public money that 
 treasury transcripts are evidence. Defend- 
 ant was sued for money alleged to have 
 been paid to him by mistake of the dis- 
 
 Acknowledgment of deed, Deed; of mort- 
 gage, Mortgage. Acknowledgment or admission 
 as estoppel or evidence, Estoppel; Evidence. 
 Acknowledgment of debt to bar statute of limita- 
 tions. Limitations. 
 
 Act of bankruptcy. Bankruptcy; of Congress 
 or legislature. Statute; of public or corporate 
 officer. Municipal Corporation; Cokporatio.n ; 
 and titles of particular corporations. 
 
 Actuary. Of insurance company, Insur- 
 
 AUCE. 
 
12 
 
 ACCOUNT. — ACCOUNTING. 
 
 buvsing officers of the government. The | 
 records in the treasury did not sliow any 
 transactions between defendant and the 
 department directly, all payments to de- 
 fendant having been made by paymasters 
 in the army. But the prosecution offered 
 a certified transcript, from books in the 
 second auditor's office, of accounts made 
 from vouchers furnished by these pay- 
 masters, and purporting to show in what 
 manner they had disposed of the public 
 moneys placed in their hands. Held, 
 that the transcript was properly excluded. 
 Items in the account of a paymaster, alleg- 
 ing that he had made payments to defend- 
 ant, were not sufficient to charge defendant. 
 2d Circ. (N. Y.), 1879, United States v. 
 Radowitz, 8 Reporter, 263. 
 
 AVhen plaintiff in action on an account 
 shall set forth in complaint that the amount 
 claimed is due on an account verified by 
 affidavit, stating the amount and the time 
 ■when due, and shall also file an itemized 
 statement of the account, verified by the 
 affidavit of a person who would be a com- 
 petent witness on the trial, that the ac- 
 count is true and correct, and the amount 
 due and unpaid, the account so verified 
 shall be received in evidence as if proved 
 by deposition, unless, within the time for 
 pleading, defendant files a counter-affi- 
 davit. Ala. Laws, 1879 (Jan. 16), 154. 
 
 Minor Decisions on Account. 
 Although an account rendered is not 
 conclusive, it is admissible, and may be 
 treated as a final settlement: 4 Col. 28.5. 
 Judgment on a. settles all items outstand- 
 ing when judgment was rendered: 47 Iowa, 
 650. Where a. of daily sales is, by agree- 
 ment, rendered and payable monthly, each 
 a. is a separate demand; and recovering 
 on one does not preclude suing on an- 
 other: 9 Neb. 109. Laborer's rendering 
 bill for services on building, not agreed to 
 by owner, does not preclude recovering a 
 larger sum: 76 N. Y. 50. Plaintiff cannot 
 read a charge in his own books against 
 defendant, of money advanced, upon mere 
 testimony of his book-keeper that he made 
 the charge as he was directed: 15 Hun (N. 
 K), 470. Entries made on a slate during 
 the day's work, and copied into the books 
 at night, maybe received: 18 Hun (N. Y.), 
 44-3. Party whose day-book has been re- 
 ceived is not entitled to corroborate it by 
 
 his ledger: 86 III. 161. Act of April 2, 
 1874, renders sworn a. only prima facie 
 evidence; defendant may rebut it: 51 Tex. 
 296. Periodic a. of sales rendered by 
 commission merchant to consignor, and 
 unobjected to until suit brought, is, pre- 
 sumably correct: 87 III. 556. An a. by 
 stockbroker of his sales of collaterals for 
 call loan should be objected to in less than 
 four months: 10 Phila. 375. Bank must 
 make clear proof of fraud or mistake, to 
 be allowed to withdraw a credit it has given 
 a depositor in his pas.s-book, after the a. 
 has been several times balanced: 76 N. Y. 
 G19. Averring that a bill for services was 
 rendered, and was, after some months, re- 
 turned, but without objection, is not aver- 
 ment of a stated a.: 67 Mo. 4-30. A 
 debtor's retaining a counterpart of a con- 
 tract on which the creditor had indorsed a 
 statement of a. in which compound inter- 
 est on the items was included does not 
 bind the debtor to pay compound interest. 
 18 Hun {N. Y.), 452. 
 
 ACCOUNTING. Bill for a. lies between 
 tenants in common where one has received 
 more than his share of profits of joint cul- 
 tivation: 59 Ala. 587. But not where one 
 has simply cultivated without hindering 
 the other: 15 Hun (N. Y.), 317. Where 
 law requires officer to render account and 
 books to his successor, demand before suit 
 for a. is unnecessary: 1 Dak. 403. When 
 trustee of association has sold his own 
 property to it at over-valuation, a bill for 
 a. lies by bona fide subscribers to the stock, 
 to recover their shares of the fraudulent 
 profits thus made; and all pei-sons inter- 
 ested are proper parties: 75 N. Y. 504. 
 Bill for a. between partners may be sus- 
 tained without prayer for dissolution, and 
 may be defended by proof of misconduct 
 of complainant warranting a notice of dis- 
 solution given: 2 Pearson (Pa.). 137. 
 Where answer admits defendant was liable 
 to account, but alleges a settlement and 
 discharge, court should (under Code prac- 
 tice) try issue as to settlement before or- 
 dering a.: 82 N. C. 111. Under equity 
 practice it may decree an account; 81 
 N. J. Eg. 39. Bill for a. does not lie to 
 adjust distribution among several judg- 
 ment creditors of a gross sum their at- 
 torney has received from the judgment 
 debtor in compromise of all the judgments, 
 equity does not take every account: 58 
 
ACCOUNTING. — ADMIRALTY. 
 
 13 
 
 Ala. 475. Bill founded on fraud cannot, 
 on failure to prove fraud, be prosecuted as 
 ordinary bill for a. : 29 N. J. Eq. 174. If 
 complainant's delay in suing will prevent 
 doing justice, a. should be denied: 30 N. 
 J. Eq. 137. Creditor of manufacturing 
 corporation cannot sue at law a stock- 
 holder who is also a creditor upon a de- 
 mand for which stockholders are individu- 
 ally liable; an accounting in equity is 
 necessary: 72 N. Y. 100. One employed 
 for a share of profits should not sue in 
 equity for an a. to recover his compensa- 
 tion for he is not a partner ; but at law, 
 and may, on the trial, prove the state of 
 the account: 72 N. Y. 430. That all part- 
 ners have united in a general assignment 
 for creditors bars suit by one against the 
 others for partnership a. ; for it vests the 
 entire assets in the assignee: 58 How. 
 (N Y.) Pr. 464. Remedy for mismanage- 
 ment by assignee in insolvency is not by 
 bill for a., but by proceedings under stat- 
 utes governing assignees : 2 Pearson 
 (Pa.), 61. 
 
 ADMIRALTY. The results of the 
 long series of decisions which has de- 
 veloped the notable expansion of the 
 jurisdiction, and established that the 
 grant of admiralty powers in the con- 
 stitution is not to be construed as 
 subject to the restrictions imposed in 
 English jurisprudence at the date of 
 the constitution, but the Federal juris- 
 diction extends over all waters of the 
 United States which are actually navi- 
 gable, whether found so by their origi- 
 nal character, or made so by artificial 
 improvement, and embraces all torts 
 committed upon such waters, and all 
 contracts which are to be executed up- 
 on them, or relate immediately to mari- 
 time services and transactions, stand 
 unchanged. The limits of the juris- 
 diction are to be ascertained, according 
 to the most recent explanations of the 
 supreme court on the subject, neither 
 by English nor by Continental views 
 
 alone ; but from the Federal laws and 
 decisions, and the early usages of the 
 States. See infra, 95 U. S. 68. Thus 
 the law stood down to the close of 
 1878. No new decisions enlarging this 
 view are noted ; the adjudications du- 
 ring the past j'ear or two are of only 
 minor importance. 
 
 A decision of the admiralty branch 
 of the high court of justice, refusing to 
 arrest a United States ship of war on 
 demand for salvage, will be noticed 
 with interest. See infra, L. R. 4 Proh. 
 D. 39. 
 
 Various decisions have established that 
 the admiralty jurisdiction of the district 
 courts is not limited to the particular sub- 
 jects over which the admiralty courts of 
 the parent country exercised jurisdiction 
 when our constitution was adopted ; and, 
 upon the other hand, that it does not ex- 
 tend to all cases which would fall within 
 such jurisdiction according to the civil 
 law and the practices and usages of conti- 
 nental Europe; but its nature and extent 
 must be determined by the laws of Con- 
 gress and the decisions of the supreme 
 court, and by the usages prevailing in the 
 courts of the States at the time when the 
 Federal constitution was adopted. Su- 
 preme Ct. 1877, Exp. Easton, 95 U. S. 68. 
 
 A suit for wharfage is within the juris- 
 diction. The jurisdiction in cases of con- 
 tract is indeed limited to matters which 
 are maritime, but it extends to all con- 
 tracts, claims, and services of that charac- 
 ter; such as bottomry bonds, contracts for 
 carriage of goods or passengers, pilotage, 
 consortship, surveys of vessels damaged by 
 perils of the sea, claims of material men 
 and workmen for the outfit or repair of 
 ships belonging to foreign nations or other 
 States, and the wages of mariners. Wharf 
 accommodation is indispensable for ships 
 and vessels of every description. Without 
 piers or wharves, commerce and navigation 
 could not be conveniently or safely prose- 
 cuted. They will not be constructed un- 
 less their proprietors are allowed to enforce 
 
 Admiralty. As to recovery in admiralty or I ralty jurisprudence over Collision, Salvage, 
 under a State law for negligence causing death and Shipping, see those titles. 
 on the high seas, see Death. Course of admi- Adoption. Of child, Parent. Of agent's act, 
 
 Peincipal. 
 
14 
 
 ADMIRALTY. — ADULTERATION. 
 
 reasonable charges for their use ; and the 
 engagement to pay these charges is clearly 
 a maritinie contract for which (if the ves- 
 sel is foreign or belongs to another State) 
 a maritime lien arises, and a remedy in 
 admiralty should be accorded. lb. 
 
 It makes no difference, as to allowing 
 the remedy in admiralty, whether the ves- 
 sel is employed in the carrying trade or 
 the fisheries ; whether she has motive pow- 
 er of her own, or is a barge or canal-boat 
 depending on towage; whether the wharf 
 accommodation sued for is given at the 
 port where she receives cargo or at that 
 where she delivers it; or whether the en- 
 gagement to pay is an express promise to 
 pay an agreed price or a contract merely 
 implied, from her use of the wharf, to pay 
 what it may be reasonably worth. Ih. 
 
 If the law of the State declares a vessel 
 subject to a lien for wharfage, that lien 
 may be enforced by suit in rem in the dis- 
 trict court, lb. S. P. Brock v. The John 
 M. Walsh, 24 Int. Rev. Rec. 207; The 
 J. H. Starin, 15 Blaichf. 473, and 45 Conn. 
 585. 
 
 Admiralty will not. arrest a war- vessel 
 of a friendly nation. In January, 1879, 
 the frigate Constitution, a public vessel of 
 war of the United States, having become 
 stranded in British waters, on her way 
 from Havre to New York, salvage assist- 
 ance was asked in her behalf from the 
 owner of the tug Admiral, of Cowes. The 
 tug rescued the frigate. £200 was prof- 
 fered for salvage; but the owner of the 
 tug demanded £1,500. This demand be- 
 ing refused, he made application in the 
 court of admiralty for an arrest of the 
 fiigate upon a libel for salvage. Held, 
 that the arrest must be denied. Ships of 
 war belonging to a nation with whom 
 Great Britain is at peace are exempt from 
 the civil jurisdiction of her courts. If a 
 foreign State asks or consents that the 
 court of admiralty should, by way of ar- 
 bitration, determine damages in collision 
 or award in salvage, it may be done ; but 
 if she refuses to waive her privilege, the 
 court cannot issue compulsory process 
 against her property. It must be left to 
 the foreign government to remunerate sal- 
 vors, taking her own course to ascertain 
 the value of the services. Cl. of Admirally., 
 1879, The Constitution, L. U. 4 Prub. D. 
 39. 
 
 Kinor Decisions in Admiralty. / 
 The district court sitting in admiralty 
 has jurisdiction to redress a forcible taking 
 possession of a vessel: 8 Ben. 429; or a 
 felonious conversion of an Erie canal- 
 boat's cargo: 8 Ben. 150; or an injury to 
 a workman on board through negligent 
 stowage of cargo or navigation of vessel: 
 2 Fed. Reporter, 241; Id. 600; or for death 
 (caused through fault or neglect) of pas- 
 senger: 5 Saiu. 484; 18 Am. L. Reg. 624; or 
 mariner: 23 Int. Reo. Rec. 384; but not of 
 a seizure of property made on land: 99 
 U. S. 372 ; or of suit for injury to a struc- 
 ture on a pier run into by bowsprit of a 
 vessel; for such injury is not done on 
 the water: 8 Ben. 547; or of a demand for 
 compensation for storage on land of ves- 
 sel's sails and cordage: 2 Fed. Reporter, 
 393. Under its general power of devising 
 methods of trying causes, it may turn a 
 suit m personam into one in rem : 8 Ben. 
 321. 
 
 ADTJITEKATIOK. Legislation upon 
 the adulteration of provisions, produce, 
 &c., throughout the United States has 
 generally consisted in imposing penal- 
 ties for the act or the sale, but has left 
 the mode of detection and proof to the 
 operation of general rules (as in La. 
 Laws, 1880, 23, No. 20; see infra). 
 Several of the States have had laws 
 declaring "adulteration" an offence, 
 and imposing the punishment of fine 
 and imprisonment. England has for 
 some j-ears maintained legislation in- 
 volving a different principle, — author- 
 izing a censorship or inspection of 
 provisions in market, and official an- 
 alj'sis of suspected samples. Wisconsin 
 has, during 1880, enacted a law of this 
 description. Its provisions are simpler 
 than those of the English prototj-pe. 
 It creates a public analj-st, and author- 
 izes municipal authorities, or purcha- 
 sers, to submit to his examination 
 samples of the goods of dealers sus- 
 pected of adulteration, and makes the 
 analyst's report evidence of the char- 
 acter of the merchandise in a prosecu- 
 tion under the law. As legislation of 
 this character becomes extended, there 
 
ADULTERATION. 
 
 15 
 
 are a number of English decisions which 
 will acquire interest here. 
 
 The English Sale of Food and Drugs Act 
 of 1875 (Stat. 38 & 39 Vict ch. 63, § 6), 
 provides, that " no person shall sell to the 
 prejudice of the purchaser any article of 
 food ' ' which is not of the quality de- 
 manded, and authorizes a public analyst 
 by whom any article of food on sale may 
 be officially examined and its quality cer- 
 tified. Iloyle, who was an inspectoi of 
 nuisances for the locality, asked at a shop 
 for milk, for wliich he paid out of moneys 
 provided for the purpose by the local au- 
 thorities. The milk, upon being analyzed, 
 ^as found adulterated, and the seller was 
 sued for the penalty. He objected that 
 the purchaser was in no way prejudiced by 
 the sale; and on that ground the magis- 
 trate refused to convict. Held, error. A 
 purchase by an officer acting in execution 
 of the law ought to be regarded like a pur- 
 chase by a customer. The fact that the 
 price is paid out of public money should 
 make no difference. If a purchaser gets 
 an article inferior to that which he de- 
 mands, and for which he pays, then he is 
 " prejudiced." The purpose of the statute 
 was to prevent or punish the fraudulent 
 sale of an article adulterated so as to be of 
 inferior quality to that paid for; and the 
 object of inserting the words "to the pre- 
 judice, &c.," was to prevent the absurdity 
 that a dealer might be technically puni.sh- 
 able under the act for selling an article of 
 superior quality. They are used to show 
 that the offence intended is, not simply 
 giving a different, but giving an inferior 
 thing. The prejudice intended is the gen- 
 eral prejudice of customers. Q. B. 1879, 
 Hoyle c. Hitchman, /-. 11. 4 Q. B. D. 233, 
 When the buyer knows what he is buy- 
 ing he canuot be considered prejudiced by 
 adulteration. An inspector visited a bar- 
 room and asked for whi.skey, which was 
 furnished to him, and was found watei-ed. 
 But it was proved that large-type notices 
 were conspicuously posted in the room: 
 " All spirits sold here are mixed." Held, 
 a good defence. The statute should not 
 be applied to cases where both parties well 
 know what i,s purchased. It was intended 
 for clandestine adulterations. Posting the 
 notices as proved is equivalent to affixing 
 
 a label to the bottle, which is distinctly 
 allowed as a defence, by the law. Q. H. 
 1878, Sandys v. Small, L. R. 3 Q. B. D. 
 449. 
 
 A quantity of liquor was bought by a 
 police officer at an inn, by the direction of 
 an inspector of weights and measures, on 
 suspicion of being adulterated, and for the 
 purpose of an inspection on that account. 
 The act imder which the case proceeded 
 required the party purchasing for such a 
 purpose to state to the seller, among other 
 things, that it was his intention to have 
 an inspection made by the "public ana- 
 lyst." This purchaser told the seller that 
 he meant to have the liquor analyzed, 
 but did not say " by the public ana- 
 lyst." Defendant objected that by reason 
 of this omission the penalty was not in- 
 curred. Plaintiff argued that it would be 
 practically impossible to enforce the law 
 if so strict a compliance with its terms, as 
 to notification of intention, were required. 
 Held, on gi'ound of convenience, as well as 
 by teiTns of statute, that, as the act was 
 penal, the notification required was a con- 
 dition precedent to prosecution, and that 
 the plaintiff could not recover. Exch. 
 1878, Barnes v. Chipp, L. R. 3 Ex. D. 176. 
 
 Appointment of State analyst of food, 
 drinks, and drugs authorized. State boards 
 of health and vital statistics, medical offi- 
 cers of health, inspectors of weights and 
 measures, boards of supervisors or trustees, 
 may, at the cost of their respective corpora- 
 tions, purchase samples of any food, drinks, 
 or drugs offered for sale within their sev- 
 eral jurisdictions, and submit the same to 
 the analyst, who thereupon shall make cer- 
 tified report of such analysis to such per- 
 son submitting the same. Effect of report 
 prescribed. Any person purchasing any 
 article with the intention of submitting it 
 to analysis shall give notice to seller. 
 Seller refusing to part with such ai-ticle 
 subject to fine Wis. Laws 1880 (March 
 27), 289, ch. 252, 
 
 An act of March 3, 1880, iiunishes adul- 
 terating food, or selling it knowing it to be 
 adulterated; selling tainted provisions or 
 stale vegetables ; slaughtering for food, and 
 offering for sale, unhealthy cattle, hogs, or 
 sheep; also carriers discharging at any de- 
 pot, wharf, or landing, within any city iu 
 the State, &c., any diseased cattle, swine, 
 or sheep. La. Laws 1880, 23, No. 20. 
 
16 
 
 ADULTERY. — ADVERSE POSSESSION. 
 
 ADULTERY. A State law punishing 
 move severely adultery between a white 
 person and a negro is not invalid: 58 Ala. 
 190. Mere agreement of a man and 
 woman to commit a. is not indictable ; it 
 cannot be prosecuted as a conspiracy: /(/. 
 390. Occasional acts do not violate a 
 statute against " living together in a.": 5 
 Tex. App. 447; 6 IiJ. 158. On a trial for 
 a. , the other person implicated is a compe- 
 tent witness for the prosecution: 51 Vl. 
 291; but not for the defence: 4 7"ex. App. 
 57. On trial of a man for a. the husband 
 of the woman is competent for the prose- 
 cution : 5 IiJ. 447. The confessions by one 
 of the implicated persons are not evidence 
 against the other, unless made in the lat- 
 ter's presence: 58 Ala. 390. Requisites 
 of marriage certificate offered to prove 
 that one of the parties implicated in al- 
 leged a. was married: 89 Mich. 208; 51 
 Vl. 291. 
 
 ADVANCEMENT. Presumption that 
 transfer from father to child was an ad- 
 vancement may be repelled by proof ; as, 
 by his contemporaneous declarations that 
 he intended an absolute gift: 31 Graft. 
 (Fa.) 84; or by proof that lands were 
 given in payment for services: 61 Ind. 85. 
 Whether child is competent to testify in 
 his own behalf en question of a. : 89 III. 
 205; 61 Ind. 85. That the child did not 
 accept the transfer as an a. makes no dif- 
 ference; the acts and intent of the father 
 govern: 59 Ga. 206. An a. in lands should 
 be valued as of the time when the child 
 conmienced possession and enjoyment; not 
 of the date of the (subsequent) formal con- 
 veyance: 89 III. 205. A policy taken out 
 and paid for by a father, on his own life, 
 for benefit of daughter, held an advance- 
 ment which ought to be charged at the 
 value of the policy at the time of the fath- 
 er's death: 10 8. f. 110. Annuities set- 
 tled on children 'by way of a. should be 
 valued as of date of his death: L li. 8 Ck. 
 D. 136. Slaves given before emancipation 
 ■ to a child cannot be counted as an a. 
 \vhere the father died after emancipation : 
 11 S.C. 36. Child does not take as " heir" 
 in respect to- an a. of lauds: SO III. 205. 
 Grandchild is not chargeable with a. made 
 to his parent: 62 Ind. 295. 
 
 Adultery. As a ground of divorce. DivoiirK. 
 Adverse Fossession. Its elTcct to avnid n 
 conveyance made by an owner out of possession, 
 
 ADVERSE POSSESSION. The final 
 decision of the Supreme Court of Mis- 
 sissippi in the litigation between Jef- 
 ferson Davis and the executors and 
 devisees of his brother, Joseph E., 
 over the title to "Brierfield" (Davis 
 V. Bowniar, 55 Miss. 671), maj' well 
 be deemed a cause celebre in the law of 
 adverse possession. All parties con- 
 ceded that fifty years or so ago the 
 lands in question were the property of 
 Joseph E., being part of a larger tract 
 undeniablj- owned b}- him, about four 
 thousand acres in extent, wild, and 
 considered worth near the government 
 price of $1.25 per acre. About 1833- 
 35 the father of the two brothers died, 
 and Jefferson married a daughter of 
 Gen. Taylor ; resigned a commission 
 as lieutenant in the arm}-, and came to 
 live, temporarih' at least, at the place 
 of Joseph. At this time he had little 
 or no property, though he held some 
 small claim against Joseph for a larger 
 share of the paternal estate than he 
 had received. There was no dispute 
 in the litigation but that, after some 
 short residence in his brother's family, 
 a tract of nearl3- a thousand acres was 
 set apart for Jefferson's use and home ; 
 that he christened it " Briei-fleld Place," 
 made it for many years his residence ; 
 and, as he graduall^"^ attained means, 
 expended large suras in building upon 
 and improving it. Joseph, meantime, 
 dwelt upon the remaining three thou- 
 sand acres, which he named " Hur- 
 ricane Place." Wliether Brierfield 
 was an absolute gift to Jefferson, or 
 whether he was onlj' allowed, as a 
 favor, from year to year, to reside up- 
 on it, was the question in the suit. 
 It is a remarkable feature of the ease 
 that, between two men long-lived, con- 
 versant with afftiirs, and familiar with 
 both the value and the methods of 
 assurance of one's title, the ownership 
 Dkkd. To bar an action by the true owner, Lnil- 
 
 TATIONS. 
 
ADVERSE POSSESSION. 
 
 17 
 
 of this large and valuable homestead 
 should have been allowed to rest, 
 through a generation, in uncertainty. 
 Yet, after examining a score of wit- 
 nesses, and poring over as many 
 documents, no direct legal evidence of 
 the title could be found. JetTerson 
 produced no deed, but claimed the 
 land upon proof that he had lived up- 
 on it, and that Joseph had always said 
 it was Jefferson's. The defendants 
 relied upon proof that Jefferson had 
 constantly spoken and acted as if the 
 place were Joseph's. A majority of 
 the court considered the preponder- 
 ance of the doubtful and conflicting 
 mass of evidence, to sustain the claim 
 of Jefferson. 
 
 The opinion holds that, to acquire 
 title b^- possession, two things must 
 concur : occupancy and claim of title ; 
 and neither is effectual without the 
 other. The occupancy must be ac- 
 companied by claim of title, and if it 
 was commenced b}' permission from 
 the true owner it cannot, through length 
 of time, become adverse, but its per- 
 missive origin gives tone and charac- 
 ter to all subsequent acts, and tlie 
 presumptions are in favor of the hold- 
 ing being subordinate. But an entry, 
 if open and notorious, is not required 
 to be under a deed. There may be a 
 parol gift of land which will ripen by 
 long possession into a perfect title. 
 An entry under a gift, although in a 
 popular sense permissive and friendly, 
 is, legally- speaking, adverse and hos- 
 tile ; that is to say the occupant enters in 
 assertion of ownership in himself. The 
 mere acts and declarations of the par- 
 ties may well suffice to show that the 
 occupant of lands entered as donee, 
 and not as tenant at will ; and if this is 
 established by preponderance of proof, 
 a possession sufficiently distinct and 
 long will give title. 
 
 It was not conceded that Jefferson 
 had continuously been in the active 
 occupancy and management of Brier- 
 
 field. On the contrary, there was 
 abundant evidence that during the long 
 period while Jefferson was absent from 
 home in filling various posts of service 
 under the United States, was in Con- 
 gress, in the Mexican war, in the Cab- 
 inet, &c., Joseph managed the place, 
 attended to its wants and repairs, paid 
 taxes, and the like, and the defendants 
 claimed that these acts showed his 
 ownership. But Jefl'erson explained 
 them by saying that whatever Joseph 
 did was done as Jefferson's agent, and 
 he produced letters, drafts, and orders, 
 which the latter had signed "Jeffer- 
 son Davis, by J. E. Davis," enough to 
 give strong corroboration to this view. 
 Declarations by Joseph to the like 
 effect were proved. It was shown that 
 soon after Jefferson and Miss Taylor 
 were married, one of the daughters of 
 Joseph made use of some taunts to the 
 new Mrs. Davis, to the effect : Your 
 husband is worth nothing, and is de- 
 pendent on my father. Mrs. Ta3'lor 
 applied to Joseph to know the truth as 
 to this. Also a brother-in-law of the 
 Davises had occasion to address a like 
 inquirj' to Joseph as to Jefferson's 
 ownership. Joseph answered both 
 these questions by saj-ing that he had 
 given Brierfleld outright to Jefferson ; 
 the impression given being that he had 
 done so partly in compensation of his 
 brother's share in the patrimonial es- 
 tate, partlj' from fraternal affection, 
 and partly to influence him toward 
 settling down steadilj- at home. 
 
 It came about in 1863 that officers 
 of the Freedmen's Bureau, under con- 
 fiscation laws then operative, seized 
 both Brierfleld and Hurricane for the 
 treason of their owners ; the one broth- 
 er being then in Virginia acting as 
 President of the Confederate States, 
 and the other a refugee in Alabama. 
 Joseph was pardoned, and application 
 was made to have both plantations 
 restored to him as owner, which was 
 granted. It was shown that Jefferson 
 
18 
 
 ADVERSE POSSESSION. 
 
 concurred in — nay, even advised — 
 the application being made in tliis 
 form, and the defendants contended 
 that this proved Joseph's ownership. 
 But Jefferson explained, and tlie court 
 has accepted the explanation, that 
 Joseph, in thus doing, merely took 
 advantage of the outstanding record- 
 title in himself to recover Brierfield for 
 his brother, the applicant being less ob- 
 noxious to the confiscation laws than 
 the real owner. There was good 
 "reason to conceal from the Federals 
 any right that Jefferson Davis had to 
 the land." The opinion says that fic- 
 titious claims and conve3'ances of prop- 
 erty among adherents of unsuccessful 
 rebellions, in. order to save it from 
 confiscation, have marked the history 
 of all ages and nations'; and that 
 neither the sternest historians or most 
 austere moralists have regarded them 
 as dishonorable. 
 
 The general result was a decree es- 
 tablishing the claim of Jefferson to the 
 land, or rather to the proceeds of it ; 
 f»r among other complications in the 
 suit it appeared that Joseph had, to- 
 wards the close of his life, sold and 
 convej-ed the property, as if his own, 
 to one Montgomery. The plaintiff's 
 bill, however, did not attack the pur- 
 chaser's title, but expressed willing- 
 ness to ratify the sale, and sought only 
 to recover the purchase-money. 
 
 It is not impossible for a tenant in com- 
 mon to affect the estate ot his cotenants 
 by adverse possession. The presumptions 
 are that the relations of joint-owners are 
 amicable; that acts of either are for the 
 benefit of all ; and that the occupancy of 
 one is in subordination to the common 
 ownership. But these presumptions may 
 be repelled. A deed by one tenant con- 
 veying the whole property to a third pei-- 
 son is clearly an act in disseisin of the 
 other tenant; and, if recorded, has the 
 necessary publicity to be the foundation 
 of a title by adverse possession. The fact 
 that the grantee had notice of the true 
 
 state of the title does not prevent his 
 possession from being adverse or from 
 ripening. The general theory of adverse 
 possession is that it is tortious in its ori- 
 gin, but for reasons of public policy is 
 protected by statute after it has continued 
 a stated length of time. Ct. of Errors, 
 1879, Foulke v. Bond, 41 N. J. L. 527, 
 537. 
 
 Vacant, unimproved sea-beach may be 
 the subject of adverse possession. The 
 possession must always be open and noto- 
 rious, must be of a character to apprise 
 any true owner of the occupant's claims; 
 but residence, cultivation, enclosure, or im- 
 provements are not indispensable. The 
 question is one of fact and intent; whether 
 the party claiming adversely has uninter- 
 ruptedly maintained' a possession corre- 
 spondent to the nature of the property, 
 and sufficient in degree and length to meet 
 the requirement of the law. lb. 
 
 The plaintiffs claimed title to the fore- 
 shore lying between the high and low 
 water mark of the Clyde, a tidal, naviga- 
 ble river, in front of their uplands. The 
 foreshore contained 750 acre^, and extend- 
 ed about five miles along one side of the 
 river, and about two miles along the other, 
 and was entirely unenclosed. The titles 
 for the bai'onies contained no express grant 
 of the foreshore, and did not specify the 
 boundaries either of the baronies or the 
 component parts thereof. The plaintiffs 
 founded their claim of title on the ground 
 that, coupled with their title, they had ex- 
 ercised from time immemorial acts of pos- 
 session over the foreshore. The acts of 
 possession relied on were the pasturing of 
 cattle on the sea-greens, the regular cut- 
 ting of reeds and sea-weeds, taking sand 
 and stone for building purposes, and gen- 
 erally using and permitting to be used, 
 the lands in controversy for all the pur- 
 poses for which lands of that description 
 could be used. Held, that these acts of 
 possession for the prescriptive period 
 gave a right of property in the foreshore. 
 Kvei-y act shown, in such a case, to have 
 been done on any part of that tract by the 
 barons or their agents, which was not law- 
 ful unless the barons were ownere of the 
 spot on which it was done, is evidence that 
 they were in possession as owners of that 
 spot; no one such act is conclusive; and 
 the weight of each act as evidence depends 
 
ADVERSE POSSESSION. - ALIBI. 
 
 19 
 
 on the circumstances; one very important 
 circumstance being, whether the act was 
 such and so done that those who were 
 interested in disputing the ownership 
 would be aware of it; and all that tends to 
 prove possession as owners of parts of the 
 tract tends to prove ownership of the whole 
 tract, provided there is such a connnon 
 character of locality as raises a reasonable 
 inference that if the barons possessed one 
 part as owners they possessed tiie whole; 
 the weiglit depending on the nature of the 
 tract, what kind of possession could be 
 had of it, and what the kind of possession 
 proved was. House of Lords, 1879, Lord 
 Advocate v. Lord Blantyre, L. R. 4 App. 
 Cos. 770. 
 
 Minor Decisions on Adverse Possession. 
 The doctrine of adverse possession is 
 strictly construed, and clear proof re- 
 quired: 40 Mich. 538; 44 Wis. 111. A. p. 
 cannot begin to operate against any one 
 until the title by which he claims has be- 
 come complete: 38 Mich. 316. Accepting 
 lease from third person, or long occupancy 
 without taking deed, cannot render posses- 
 sion taken by purchaser under contract of 
 sale adverse to vendor: 67 Mo. 50; 14 
 W. Va. 561. One allowed to enter upon 
 mortgaged lands on agreeing to pay the 
 mortgage does not hold adversely to mort- 
 gagee : 67 Mo. 502. One who enters upon 
 land under owner's promise to devise it to 
 him does not hold adversely to heirs of 
 owner: 67 Mo. 590. Mere occupancy by 
 trustee cannot be adverse to beneficiary; 
 trust must be openly disavowed: 69 ilfo. 
 617. Heirs of one devisee may hold ad- 
 versely to other devisees and their heirs: 
 81 N. C. 118. Heirs may have a. p. 
 against co-heirs : 88 Pa. St. 150. Possession 
 is never adverse when taken under circum- 
 stances which import it subordinate to a 
 superior title: 14 W. Va. 561. Exclusive 
 occupancy by one of two tenants in com- 
 mon, while the other is under age, does 
 not bar the latter: 49 Iowa, 466. Convey- 
 ance of entire property by one tenant in 
 common, and occupancy under the deed, 
 juay give title by a. p. to the other : 51 
 loioa, 353; but see 67 Mo. 74; 81 N. C. 
 114. A claim of title openly asserted in 
 good faith may render possession adverse; 
 a paper title is not necessary: 61 Ala. 25; 
 86 III. 35. Devise of lands by a mere 
 
 popular name, " the M mills," may be 
 color of title, if the boundaries of the lands 
 are well known: 81 N. C. 405. A deed 
 formally complete, but defective in incep- 
 tion may be color of title: 4 Baxl. (Tenn.) 
 The general rule requires enclosure of land 
 susceptible of it; exceptions are allowed of 
 mines, quarries, &c. ; but merely, cutting 
 timber on wild land is not a. p. . 1 Lea 
 (Tenn ), 741. A. p. of wild land extends 
 no further than claimant's actual occu- 
 pancy and -improvement, unless he enters 
 under paper title describing his claim by 
 metes and bounds; then it may extend to 
 the entire tract described: 90 III. 577; 60 
 Ind. 383; 68 Mo. 400; Id. 597; 41 N. J. L. 
 527. Platting and paying taxes on city 
 lots not an a. p. : 50 Iowa, 422. A. p. 
 must be peaceable; if disputed and inter- 
 rupted by acts of true owner it is inopera^ 
 tive: 53 Cal. 135; 40 Mich. 538. A. p. 
 is not interrupted by mere negotiation to 
 buy the title: 40 Mich. .595; 68 Mo. 164. 
 In some States a sufficient a. p. vests ab- 
 solute title: 47 Iowa, 445; 68 Mo. 360. 
 Sufficient a. p. is title to sustain eject- 
 ment: 68 Mo. 84; on a demand for land 
 damages from a railroad: 69 Mo. 157. 
 Effect of possession according to a bound- 
 ary line run by consent of adjoining own- 
 ers, but erroneously: 48 Iowa, 78; 68 Mo. 
 84; Id. 164; 44 Wis. 96. 
 
 ADVERTISEMENT. To paint, print, or 
 in any manner, place upon any stone, rock, 
 tree, &c., any character, letter, or device 
 referring to or advertising any thing, de- 
 clared punishable by fine and imprison- 
 ment, also by penal damages, — posting 
 advertisements on one's own premises ex- 
 cepted. Col. Laws Jan. 27, 1879, 142. 
 
 Minor Decisions on Advertisement. 
 
 Necessity of formal proof that a. was 
 really authorized by person in whose name 
 it appears: 41 Mich. 116; 88 Pa. St. 89. 
 Publishing notice of a sale is not a "pro- 
 ceeding " within a rule staying proceedings 
 to enforce a decree: 40 Mich. 232. Under 
 a statute directing a notice to be adver- 
 tised " for four successive weeks," the 
 notice is completed on the fourth publica- 
 tion, although four full weeks have not 
 elapsed: 13 W. Va. 440. 
 
 ALIBI. The defence of an alibi re- 
 quires satisfactory proof that it was im'pos- 
 sible for the prisoner to have been at the 
 
20 
 
 ALIEN. — ALTERATION. 
 
 place of the crime at the time it was com- 
 mitted, because he was elsewhere; but the 
 impossibility need not be proved with 
 higher certainty than is required as to 
 other like facts. Supreme Ct. 1877, John- 
 son V. State, 59 Ga. 142. See also State v. 
 Northrup, 48 Iowa, 583. 
 
 ALIEN. The statutes of California 
 (see infra) forbidding aliens incapable 
 of becoming electors, from participat- 
 ing in the fisheries, or in vocations for 
 which a license is required, have been 
 pronounced by the United States cir- 
 cuit court void in their application to 
 the Chinese residents. It is probable 
 that to exclude the Chinese was a prin- 
 cipal motive in the passage of the laws ; 
 but the circuit court declares it impos- 
 sible to say that under them the Chi- 
 nese would enjoy the same privileges 
 as are enjoyed by the subjects of the 
 most favored nation, which the Burlin- 
 game Treaty requires ; or that the 
 State does not deny^ to its Chinese resi- 
 dents that equal protection of the laws 
 which the 14th amendment secures. 
 There is an objection not specially 
 concerning the Chinese : women can- 
 not in California be electors ; hence 
 these laws would forbid all foreign- 
 born women not j-et made citizens, not 
 only from selling fish, but also from 
 engaging in any business or occupation 
 requiring a license. The same conse- 
 quence, apparent!}', would follow as to 
 boj's under twenty-one. See Chinese. 
 
 No license to transact any business or 
 occupation shall be granted or issued by 
 the State or any municipality to any alien 
 not eligible to become an elector. Cal. 
 Laws 1880 (April 12), 192, ch. 102. 
 
 Aliens incapable of becoming electors 
 prohibited from fishiug, or taking any fish, 
 lobster, shrimps, or shell-fish, for puipose 
 of sale. Cat. Laws 1880 (April 23), 388, 
 ch. 226. 
 
 ALTERATION. Maker is not liable 
 upon a raised note. A maker was re- 
 quested to and did sign a note, which, as 
 
 presented to him, was for $10, with a 
 blank before the " 10." The payee altered 
 it to " 110," and procured it to be dis- 
 counted for that amount. Held (reviewing 
 many conflicting authorities), that the 
 bank could not recover. Such facts do 
 not raise an estoppel. Nor do they, stand- 
 ing alone, amount to negligence; they ■ 
 amount only to failing to anticipate and 
 prevent the crime of forgery. Nor do they 
 warrant applying the rule that the inno- 
 cent person who has placed it in the power 
 of another to do a wrong should suifer 
 rather than an entire stranger; for this 
 rule has not been and cannot be carried to 
 the extent of making one person civilly 
 liable foi- the crime of another. It is lim- 
 ited to liability for fraudulent acts. Nor 
 does the necessity of sustaining confidence 
 in negotiable paper warrant compelling a 
 person to perform a contract he never 
 made, merely because some other person 
 has committed a forgery. Supreme Ct. 
 1879, Knoxville Nat. Bank v. Clark, 51 
 Iowa, 264. 
 
 A person received a bill of exchange in 
 which there was a blank left for the draw- 
 er's name, with a request that he would 
 accept it for accommodation of his corre- 
 spondent. He signed the acceptance and 
 sent the bill back. The correspondent, 
 however, returned it to him without using 
 it. He then left it in his desk, which was 
 unlocked; and it was taken therefrom by 
 some person unknown, and the name of a 
 drawer inserted in the blank, and was sold 
 to a bond fide purchaser for value. Held, 
 that the signer of the acceptance was not 
 liable. He never accepted the bill which 
 the plaintiff purchased. Such circum- 
 stances do not raise an estoppel; for the 
 supposed acceptor has not done any thing 
 to warrant the purchaser in buying the 
 bill. Nor do they warrant imputation of 
 negligence; for the acceptor did not owe a 
 duty to any person in respect of the bill, 
 which was omitted. Ci. of Appeal, Baxeu- 
 dale V. Bennett, 40 L. T. Rep. N. S. 23; 
 19 Alb. L. J. 372. 
 
 Cancelling the alteration may restore the 
 original instrument. A note was executed 
 by two persons as makers, one of whom, 
 however, was only surety. After it was 
 executed, and while it was in the hands of 
 
 Alien, As to citizenship and naturalization, see Citizen. Alimony. Divokce. 
 
ALTERATION. — ANIMAL. 
 
 21 
 
 the payee, it was altered by his consent, 
 by adding the words " ten per cent in- 
 terest." These words were, however, sub- 
 sequently erased; and the note was then 
 sold to a purchaser in good faith and for 
 value. Held, that he could recover. The 
 note, as discounted by plaintiff, expressed 
 .the precise contract originally intended by 
 the parties. There was, therefore, no ob- 
 jection to the.enforcement of it, except that 
 public policy restricts, in some cases, the 
 enforcement of an altered contract, not- 
 withstanding I'estoration ; but this should 
 not be pressed so far as to defeat the rights 
 of an innocent purchaser for value. The 
 mere fact that the note, when offered to 
 him, must have borne an apparent era^ 
 sure does not charge him with notice of an 
 alteration avoiding the instrument; for 
 it does not indicate that the alteration 
 was made after delivery, or that it was 
 material; and it does not give the buyer 
 notice of any adverse equity. Supreme 
 Cl. 1879, Shepard v. Whetstone, 51 Iowa, 
 437. 
 
 Alterations in a deed by interlineation, 
 apparently in the handwriting of the 
 grantor, tending only to cure imperfec- 
 tions in the description, and accordant 
 with the purpose of the deed, should be 
 presumed to have been made before de- 
 livery. This being not disproved, they 
 raise no unfavorable presumption against 
 the grantee. The rule is that such altera- 
 tions made before or concurrently with the 
 acknowledgment of execution are parts of 
 the deed, and operate as if the matter had 
 been incorporated in the original writing. 
 But if made subsequently, although by 
 the grantor, and with the consent of the 
 grantee, the legal estate in the lands, the 
 description of which they perfect, will not 
 pass by them without a new acknowledg- 
 ment or proof by attesting witness. The 
 date of making the interlineation, when 
 evidence to repel the presumption is given, 
 is for the jury. Supreme Cl. 1878, Sharpe 
 V. Orme, 61 Ala. 263. 
 
 Under statutes requiring a sworn plea 
 against a written instrument, if a deed is 
 filed bearing alterations, and there is no 
 sworn plea, the deed should be presumed 
 genuine. No evidence explaining the al- 
 teration is necessary to be produced on the 
 the trial. Supreme Ct. 1879, Fitch v. Boy- 
 er, 51 Tex. 336. 
 
 Minor Decisions on Alteration. 
 Adding the words " with interest," or, 
 "with half legal interest" to a note is a 
 material a., and avoids it: 74 N. Y. 307; 
 56 Ala. 157. Adding " annually " to the 
 interest clause of a note is not material : 39 
 Mich. 182. Inserting in non-negotiable note 
 words to render it negotiable is material, 
 and, as between the parties, discharges the 
 maker, if unauthorized: 57 Ala. 379. Fill- 
 ing blanks with words which the court 
 would insert by way of construction is not 
 a material alteration : 51 /owa, 473. Pen- 
 cil-marking margin of note with date when 
 it will probably be paid is not material: 
 66 Ind. 331. That signature to note had 
 been torn off and reattached is sufficiently 
 explained by proof that the tearing was 
 done ignorantly by a little child : 66 Ind. 
 1. Belief of person making a material a. 
 that it would benefit the adverse party does 
 not prevent its vitiating: 69 Mo. 429. A. 
 of bill of sale, after the sale has been com- 
 pletely executed by delivery, payment, &c., 
 cannot devest buyer's title. 50 Iowa, 130. 
 
 AMOS. Fifty Years of the English Con- 
 stitution: 1830-1880. By Sheldon Amos. 
 
 An historical sketch (founded on lec- 
 tures by the author) of modern progress of 
 constitutional ideas in the policy and gov- 
 ernment of Great Britain. 'It discusses 
 the composition of parliament; privileges 
 and order of proceedings; home legisla- 
 tion; government of dependencies; foreign 
 affairs; the sovereign; ministers as related 
 to the crown and to parliament ; and present 
 views of the liberty of the subject. Am. 
 ed. by Little, Brown, & Co. 
 
 Political and Legal Remedies for 
 
 War. Harpers. See War. 
 
 AMMAL. That several of the mid- 
 western States have found occasion, 
 during recent years, to restrict or pro- 
 hibit the introduction, within their bor- 
 ders, of Texas or Cherokee cattle, is 
 familiarly known. The Supreme Court 
 of Illinois has now held such a law of 
 that State void, for assuming to regu- 
 late commerce. See Commerce. A 
 similar question may arise as to such 
 laws as that of Virginia of 1879, infra. 
 Several of the States have legislated 
 during the year or two past upon the 
 subject of cruelty to animals. See 
 
22 
 
 ANIMAL. 
 
 Cruelty. The act passed by Arkansas 
 in 1879 has been pronounced by Mr. 
 Bergh, in his report, as president of the 
 Amer. Society P. C. A. for 1880, as 
 "the most perfect one in existence." 
 It should, however, by all means be 
 compared with an extended and syste- 
 matic statute passed in New Jersey, 
 March 11, 1880, since Mr. Bergh's re- 
 port was read. An act passed in Mis- 
 sissippi follows very, closely the Ar- 
 kansas law. 
 
 Title. Where a mare with foal was sold 
 on condition that she should remain the 
 property of the seller until performance of 
 certain engagements by the buyer, her colt 
 foaled after expiration of the time limited 
 for performance of the condition (it not 
 having been performed), was held the 
 property of the seller, notwithstanding it 
 was not specified in the memorandum of 
 lien required by the statute. Supreme Ct. 
 1878, Clark v. Hayward, 51 Vt. 14. 
 
 Where a mare was sold and delivered on 
 condition that the title should remain in 
 the seller until the payment of the price, 
 her colt, foaled before payment, was lield 
 the property of the seller. Supreme Ct. 
 1876, Elmore v. Fitzpatrick, 56 Ala. 400. 
 
 Estrays may be sold. The Mich, act of 
 March 27, 1867 (Comp. L. ch. 59), author- 
 izes animals running at large in the high- 
 way to be seized, and, upon notice by a 
 justice, &c., sold at auction; the fees and 
 expenses to be paid out of the proceeds, 
 and any surplus retained for one year for 
 the owner. A sale made under this act 
 was contest<?d. Held, that the law was 
 not unconstitutional as devesting rights of 
 property without due process of law, but 
 was a legitimate remedy for a public griev- 
 ance. Supreme Ct. 1878, Campau i;. Lang- 
 ley, 39 Mich. 451. 
 
 A statute imposing a tax upon dogs, 
 requiring a collar and badge, and directing 
 unlicensed dogs at large to be killed, is not 
 unconstitutional as invading rights of prop- 
 erty, but a necessary precaution against a 
 public gi'ievance. Supreme Ct. 1880, Mow- 
 ery v. Salisbury, 82 N. C. 175. 
 
 Lien. New statutes of Iowa and Vir- 
 ginia give agisters, livery-men, herders, 
 &c., a lien on animals in their charge for 
 
 their keep. Iowa Laws 1880 (March 10), 
 21, ch. 25; Va. Laws 1879 (Feb. 8), 76, 
 ch. 84. 
 
 Injuries to. The proprietors of a ceme- 
 tery planted yew-trees in connection with 
 the hedge or wall so near their boundary- 
 line that, as in course of years they grew, 
 they projected over the meadow-land ad- 
 joining, belonging to another owner. In 
 course of time a person hired the meadow 
 bounded by the cemetery, and pastured his 
 horse there. The horse, while feeding in 
 the meadow, ate leaves from the branches 
 of the yew-tree projecting over it, and, 
 these being poisonous, died. His owner 
 knew that his horse was feeding in the 
 meadow, but had no knowledge of the 
 existence of the yews. Held, that the pro- 
 prietors of the cemetery were liable. If 
 they chose to cultivate poisonous trees so 
 near their boundary, they were bound at 
 least to trim them or restrain them from 
 growing over their neighbor's land in such 
 manner as to attract his beast; and the 
 neglect to do so was actionable negligence. 
 The tenant of the pasture was not bound 
 to examine beyond its bounds to see that 
 nothing deleterious was growing there. 
 Exch. 1878, Crowhurst v. Burial Board, L. 
 R. 4 Ex. D. 5. 
 
 Injuries by. Upon the trial of an action 
 against the proprietor of a park, to recover 
 for injuries sustained by plaintiff from an 
 attack by a male deer which, with other 
 deer, was permitted to roam in the park, 
 and which, as the declaration charged, 
 the defendant knew was dangerous, evi- 
 dence was introduced to show that the park 
 was open and accessible to visitors; that 
 plaintiff was in the habit of visiting it, 
 and, being lawfully there, was attacked 
 by the buck and severely injured; that she 
 had often seen deer — about nine in num- 
 ber, three of whom were bucks, tlie oldest 
 four years old — running about on the 
 lawn, and persons playing with them; and 
 that she had there seen the sign, " Beware 
 of the buck;" that the park contained 
 about eleven acres ; that notices were put 
 up in the park, a year or two before, cau- 
 tioning visitors not to tease or worry the 
 deer; that she had no knowledge or belief, 
 prior to the attack upon her, that the deer 
 were dangerous, if not disturbed. Experts 
 testified that in their opinion the male 
 deer, at the season when the injury was 
 
ANIMAL. 
 
 23 
 
 sustained, was a dangerous animal. Held, 
 that a motion to dismiss the action, non- 
 suit the plaintiff, and to direct the jury to 
 return a verdict for the defendant, was 
 properly denied. People may keep ani- 
 mals, but if the animal is of a wild and 
 savage species, the owner is, as a general 
 rule, liable for any mischief which it may 
 do to others. If the creature is of a tame 
 kind, such as a horse or a dog, its owner 
 may let it run at large, and is not liable 
 for a single hurtful act unless he had 
 knowledge that such mischief might be 
 expected from it. But in respect to wild 
 animals, though they may be lawfully 
 kept, as curiosities for instance, the pro- 
 prietor is bound to know their sava^ 
 character, and must keep them caged or 
 chained. If he allows them to run loose 
 where the general public have a right to 
 go, and they do injury to persons who are 
 without fault themselves, who have not 
 given them any provocation, he must pay 
 damages. It is no answer to say that he 
 did not think his beasts would do such 
 mischief; he is bound to know that they 
 very probably will, and to take precautions 
 accordingly. Supreme Ct. 1878, Spring Co. 
 V. Edgar, 99 U. S. 645. 
 
 The owner of a bull is liable for its in- 
 juring a wayfarer while it is being led 
 (without adequate control) along a high- 
 way. On a trial of this sort, plaintiff proved 
 that he was walking in a city street when 
 he heard cries for help; and on reaching 
 the spot he saw a man lying on his back in 
 the middle of the street, holding a rope 
 attached to a ring in the nose of a bull, 
 and the bull attempting to gore him. The 
 plaintiff approached; but, before he at- 
 tempted to render aid, the bull broke loose, 
 rushed towards the plaintiff, and, as he 
 was running away, tossed and gored him. 
 The man leading the bull was the servant 
 of the defendant, its owner. There was 
 not evidence that the bull was remarkably 
 vicious, or that the manner of leading him 
 was gi-ossly defective. Held, that a verdict 
 for the plaintiff must be sustained. Al- 
 though, in order to recover, the plaintiff 
 must prove that the bull was known to 
 defendant to be a dangerous animal when 
 led through the street in the manner de- 
 scribed, and that the manner of leading 
 was negligent in view of the beast's pro- 
 pensities, yet proof of anything especially 
 
 vicious in the individual was not necessary. 
 The jury might find for plaintiff if it is 
 matter of common knowledge, so that de- 
 fendant knew or ought to have known it, 
 that a bull is an excitable and powerful 
 animal, and that if he should become ex- 
 cited while led or driven through a street, 
 he might become dangerous and uncontrol- 
 lable by a single person provided only with 
 a rope. Supreme Ct. 1879, Linnehan v. 
 Sampson, 126 Mass. 506. 
 
 One who keeps a ferocious dog is liable, 
 as its owner, for injuries done by it. Neg- 
 ligence in the keeping is not necessary to 
 constitute a cause of action ; and contribu- 
 tive negligence, as ordinarily defined, is 
 not a defence. Ct. of Appeals, 1878, Lynch 
 V. McNally, 73 N. Y. 347. 
 
 The owners of a manufactory kept a 
 ferocious bloodhound as a watch-dog. He 
 was usually kept fastened during the day- 
 time, and was loose at night to run within 
 the enclosed yard surrounding the factoi-y. 
 To chain and unchain this dog was the 
 usual duty of the foreman. MuUer was 
 employed by the owners of the establish- 
 ment as a night-watchman. It was one of 
 his duties to open the gate every morning 
 to admit the workmen; and to do this 
 required that he should pass from the door 
 of the factory across a corner of the yard 
 to reach the gate. The foreman was accus- 
 tomed to notify Muller when the dog was 
 loose. On one morning, however, this 
 notice was neglected; and Muller, suppos- 
 ing that the dog had been tied up, crossed 
 the yard, and while doing so was attacked 
 by the dog and severely bitten. Held, that 
 he was entitled to damages from the own- 
 ers. Whoever keeps a ferocious animal is 
 bound, at his peril, to keep him securely, 
 confined. The rule that a master is not 
 liable to one servant for injuries occasioned 
 by the negligence of another cannot be 
 invoked in such a case ; for the utmost risk 
 which the servant injured assumes by tak- 
 ing the employment is the risk of injuiy 
 from a ferocious dog kept properly con- 
 fined. Ct. of Appeals, 1878, Muller v. 
 McKesson, 73 N. Y. 195. 
 
 Proof and measure of damages in action, 
 against owner of mongrel bull for allowing 
 it to get thoroughbred cow with calf, — see 
 Crawford v. Williams, 48 Iowa, 247. 
 
 The owner of domestic or other animals 
 not naturally inclined to commit mischief. 
 
24 
 
 ANIMAL. — APPEAL. 
 
 such as dogs, horses, and oxen, is not lia- 
 ble for any injury committed by them to 
 the person or property of another, unless it 
 can be shown that he previously had notice 
 of the mischievous propensity of the ani- 
 mal, or that he was chargeable with negli- 
 gence; and it is, in general, necessary, in 
 an action for an injury committed by such 
 animals, to allege and prove a scienter. 
 Thus, where plaintiff's stallion, while be- 
 ing exhibited on the street, commenced 
 backing towards a stallion owned by de- 
 fendant, standing fifty or sixty feet away, 
 and when he was near enough, the latter 
 turned and kicked him, causing injuries 
 from which he died ; and the defendant's 
 horse was kind and manageable, and was 
 in charge of a prudent keeper, while plain- 
 tiff's was vicious, and in the hands of an 
 incompetent person. Held, that defend- 
 ant was not liable. Supreme Ct. 1878, 
 Mareau v. Vanatta, 88 III. 132. 
 
 Public regrulations. The act of Feb. 1, 
 1879, to protect the grazing-lands of Col- 
 orado from the stock of non-residents, pre- 
 scribes at length and in detail the terms 
 and conditions upon which non-residents 
 of the State may keep and herd, for graz- 
 ing purposes, domestic animals within the 
 State. Col. Laws 1879, 180. 
 
 Act of May 1, 1879, enables the gover- 
 nor of Pennsylvania to make proclamation 
 whenever pleuro-pneumonia exists among 
 the cattle in any county, warning all per- 
 sons having cattle affected, &c., to seclude 
 them, and all infected places to be quaran- 
 tined; and to prescribe regulations, give 
 directions to sheriffs, and employ medical, 
 &c., services, such as are adapted to pre- 
 vent the disease from spreading, and to 
 suppress it. Pa. Laws 1879, 38, No. 35. 
 
 Bringing cattle into Virginia between 
 March 10 and October 10 in each year 
 forbidden (with specified exceptions) until 
 they have been inspected and pronounced 
 free from disease. Appointment of in- 
 spectors of cattle authorized. Their powers 
 and duties declared. Penalties upon own- 
 ers, drovers, carriers, &c., for violating the 
 act, prescribed. Va. Laws 1879 (April 2), 
 339, ch. 70. 
 
 AKSON. Principles of the law of con- 
 tract. By William R. Anson. With 
 American notes, by O. W. Aldrich. 
 
 APPEAL. In actions for money, the 
 amount of the judgment rendered below 
 
 is, presumably, the criterion for determin- 
 ing the jurisdiction of the supreme court, 
 and unless it exceeds |.5,000 an appeal 
 does not lie. If jurisdiction is invoked 
 because of the collateral effect a judgment 
 may have in another action, affirmative 
 proof must be made that the judgment 
 conclusively settles the rights of the parties 
 in a matter actually in dispute, the sum or 
 value of which exceeds $5,000, exclusive 
 of interest and costs. Supreme Ct. 1877, 
 Troy V. Evans, 97 U. S. 1. 
 
 The supreme court will not entertain 
 an appeal from a decree of the circuit court 
 which has been entered in accordance with 
 the mandate of the supreme court upon a 
 previous appeal; as there is nothing to 
 review but the previous decision of the 
 supreme court. If such an appeal is 
 taken, however, it will, upon the applica- 
 tion of the appellee, examine the decree 
 entered, and if it conforms to the man- 
 date, dismiss the case with costs. If it 
 does not, the case will be remanded with 
 appropriate directions for the correction of 
 the error. The same rule applies to writs 
 of error. But this is not intended to inter- 
 fere with any remedy the parties may have 
 by mandamus. Supreme Ct. 1878. Stew- 
 art V. Salamon, 97 U. S. 361. 
 
 The supreme court wiU not dismiss an 
 appeal duly taken and prosecuted in the 
 name of a corporation party to the suit by 
 direction of its trustees, upon a motion of 
 persons who are strangers to the suit but 
 claim to have bought a major part of the 
 stock since the decree to be reviewed was 
 rendered. The directors are the proper 
 authority to direct the conduct of a suit 
 by or against a corporation. Supreme Ct. 
 1878, Railway Co. v. Ailing, 99 U. S. 463. 
 
 Since the act of Congress of Feb. 16, 
 1875 (18 Stat, at L.), 315, to facilitate 
 disposition of causes in supreme court, 
 the finding of facts by the circuit court in 
 an admiralty cause is conclusive ; and the 
 duty of the supreme court on appeal is 
 confined to revision of questions of law 
 duly presented by exceptions. Supreme 
 Ct. 1878, The Abbotsford, 98 U. S. 440. 
 
 Original exhibits filed (in an equity 
 cause) in the court below should not be 
 transmitted to the supreme court on an 
 appeal, unless an examination of them as 
 originals is needful for a determination of 
 the appeal. Proper practice when they 
 
APPRENTICE. — ARMY. 
 
 25 
 
 have been Unadvisably received. Supreme 
 Ct. 1879, Craig i>. Smith, 100 U. S. 225. 
 
 APPRENTICE. A general act regulat- 
 ing apprentices; how they maybe bound 
 out; form and contents of indenture; rela- 
 tive rights and duties of the parties ; penal- 
 ties for misconduct; and other matters 
 incidental to the relation. Nev. Laws 
 1879 (Mar. 8), 93, ch. 93. 
 
 AQUEDUCT. An aqueduct company 
 organized to, supply a city with water, and 
 undertaking with the city to furnish a 
 supply for the use of the fire department, 
 does not therefore become liable to a per- 
 son whose house is burned bp reason of 
 want of water for the fire-engines, upon a 
 mere averment of the duty and the neglect. 
 To sustain such an action, facts must be 
 shown to establish a duty towards plain- 
 tiff. What averments are needful. Ct. 
 of Errors, 1878, Nickerson u. Bridgeport 
 Hydraulic Co., 46 Conn. 24. 
 
 Neither city nor aqueduct company is lia- 
 ble to house-owner for destruction of house 
 by fire, on the ground that the city under- 
 took by its fii-e department to extinguish 
 fire, and the water coiftpany undertook to 
 furnish water therefor, but they did not 
 do so. Supreme Ct. 1879, Foster v. Water 
 Co., 3 Lea (Tenn.), 42. See Alb. L. J. 124. 
 ARMY. The doctrine of the supreme 
 court, that the municipal laws and tri- 
 bunals of the seceded States continued 
 in force and authority during the war 
 of 1861-65, and judgments rendered 
 were obligatory, except as respects 
 what tended to promote the resistance 
 to the national authority, is familiar. 
 Two recent cases establish an import- 
 ant limitation : that members of the 
 national forces serving within any State 
 were not amenable to the local laws or 
 tribunals, civil or criminal, but only to 
 the military law as administered by the 
 United States authority. Misconduct 
 by an officer or soldier of the army of 
 the United States, attached to a force 
 occupying seceded territorj^, did not 
 expose him to punishment or damages 
 imposed by the State authorities. See 
 infra, 97 U. S. 509 ; 100 U. S. 158. 
 
 A statute restrictive of employment 
 of the army, which has given rise to 
 much political discussion, is 20 Stat, at 
 L. 152, infra. 
 
 Regulations. The army regulations 
 made in 1861, and confirmed by Congress 
 in 1866, do not control an express statu- 
 tory provision enacted in 1870, and still 
 found in the Revised Statutes. History 
 and operation of the regulations. 1877, 
 Morrison v. United States, 13 Ct. of CI. 1 ; 
 afi'd 96 U. S. 232. 
 
 Officers' authority. One who has ad- 
 vanced money to a military officer in com- 
 mand, to be used for purposes not author- 
 ized by law, and afterwards repudiated by 
 government, does not stand in the position 
 of having advanced money to the use and 
 benefit of the national government. 1877, 
 De Cells v. United States, 13 Ct. of CI. 
 117. 
 
 Discharge. The President directed that 
 H., an officer of the army in the line, should 
 be transferred (under 16 Stat, at L. 318, 
 § 12) to the list of supernumeraries, and 
 mustered out; and H. accepted the one 
 year's pay directed by the statute to be 
 given to officers so transfei-red, though he 
 made a protest. Held, that the acceptance 
 of the pay was conclusive upon H. that he 
 was within the terms of the law; and 
 he could not afterwards contest the validity 
 of his discharge. The protest could not 
 make any difference in the effect of the 
 voluntary acceptance of the pay. 1877, 
 Hildeburn v. United States, 13 Ct. of CI. 
 02. 
 
 If an officer in the army, suffering from 
 physical disease and mental depression, 
 tenders his resignation, and the command- 
 ing officer's attention is called to his possi- 
 ble insanity, and he retains the resignation 
 for a time and then transmits it with a 
 recommendation that it be accepted, it 
 must be presumed that he passed upon the 
 question of the resigning officer's sanity. 
 The courts cannot re-examine the question 
 and find that he was not of sane mind and 
 incompetent to resign. And if the Presi- 
 dent acts on the resignation and appoints 
 a successor, who takes the office, the loss 
 must fall on the officer who caused it, not- 
 
 Appointment of officers, see Officer; of agents, Pkincipal and Agekt ; of representatives and 
 trustees, Executor; Guardian; Trust. 
 
26 
 
 ARMY. 
 
 withstanding his insanity. It is very true 
 that a contract entered into by such a 
 person can only in exceptional cases be en- 
 forced; and that no force would be know- 
 ingly given by an executive officer, or by 
 the law advisers of an executive depart- 
 ment, to a resignation tendered in a state 
 of insanity; and that if a resignation of- 
 fered under such circumstances should be 
 accepted without knowledge of the facts, 
 the inadvertence would be rectified as far 
 as possible when the facts became known. 
 But insanity is no protection in the courts 
 against liability for the direct and proxi- 
 mate consequences of acts of an insane 
 person which are not in the nature of con- 
 tract. As between two parties alike inno- 
 cent of intent to cause injury, the law says 
 that the party by whose act the injuiy 
 comes shall be the suiferer, without regard 
 to the intent or capacity of intent to cause 
 it. 1878, Blake v. United States, 14 Ct. 
 of CI. 463. 
 
 Criminal liability. Soldier of an army 
 of occupation is not amenable to the local 
 criminal law. In March, 1865, when East 
 Tennessee was occupied by the United 
 States forces as a military district, a 
 soldier in the union army, named Cole- 
 man, was guilty of the murder of a woman 
 of Tennessee, for which he was promptly 
 arraigned for trial before a court-martial, 
 was tried according to military f oims, con- 
 victed, and sentenced to be hanged. For 
 reasons not known the sentence was not 
 executed. In 1874 he was found within 
 the rehabilitated State of Tennessee. Mili- 
 tary law and forces having now been long 
 withdrawn, the State authorities arrested 
 him, and put him upon trial for the same 
 murder before the criminal court of Knox 
 County. The prisoner, both by plea to the 
 indictment and by application to the 
 U. S. circuit court for a habeas corpus, 
 interposed the objection that this was a 
 second trial for the same offence of which 
 he had before been convicted. But the 
 State criminal court held that murder com- 
 mitted by a soldier in the Federal military 
 service stationed in Tennessee was no less 
 punishable under the laws of the State, and 
 in its courts, because it was also cogniz- 
 able by a court-martial under U. S. laws; 
 and convicted and sentenced the prisoner. 
 On writ of error from the supreme court, — 
 Held, that there is a difference between the 
 
 authority of military courts in time of 
 peace, and during war or rebellion. While 
 the armies of the Union occupied the terri- 
 tory of a southern State as an enemy's 
 country, the officers and soldiers were not 
 amenable to the laws or the courts of the 
 subjugated State; not because of any act of 
 Congress on the subject, but from the 
 nature of war, which negatives the possi- 
 bility of jurisdiction being exercised by 
 the tribunals of the one country over per- 
 sons engaged in the military service of the 
 other, for offences committed while in such 
 service. It would be incongruous and ab- 
 surd to perBiit an officer or a soldier of an 
 invading army to be tried by his enemy, 
 whose country he had invaded. While 
 Tennessee was in the military occupation 
 of the United States, the laws of the State 
 for punishment of crime were continued in 
 force for the protection of her own people 
 only, and did not apply to the invading 
 army. It is quite possible that one act may 
 be a double crime by reason of violating 
 both the law of the Union and of a State; 
 but in this instance Coleman did not vio- 
 late the State law, because he was not sub- 
 ject to it. Supreme Cl. 1878, Coleman v. 
 Tennessee, 97 U. S. 509. 
 
 Section 30 of the act of March 3, 1863 
 (12 Stat, at L. 731), for enrolling and call- 
 ing out the national forces, did not make 
 the jurisdiction of the military tribunals 
 over the offences therein designated, when 
 committed by persons in the military ser- 
 vice of the United States, and subject to 
 the articles of war, exclusive of that of 
 such courts of the loyal States eis were open 
 and in the undisturbed exercise of their 
 jurisdiction. But when the territory of 
 the States which were banded together in 
 hostility to the national government, and 
 making war against it, was in the military 
 occupation of the United States, the tri- 
 bunals mentioned in that section had, 
 under the authority conferred thereby, and 
 under the laws of war, exclusive jurisdic- 
 tion to try and punish offences of every 
 grade committed there by persons in the 
 military service. And officers and soldiers 
 of the army of the United States were not 
 subject to the laws of the enemy, or amen- 
 able to his tribunals for offences committed 
 by them during the war. They were an- 
 swerable only to their own government, 
 and only by its laws, as enforced by its 
 
ARMY. 
 
 27 
 
 armies, could they be punished. The 
 prisoner was therefore ordered to be de- 
 livered to the Federal authorities for pun- 
 ishment. 76. 
 
 CiTil liability. An officer of an army 
 of occupation is not amenable to the local 
 civil jurisdiction. In 1862 and 1863 Neal 
 Dow, then brigadier-general in the U. S. 
 forces, was in command of forts on the 
 Mississippi River below New Orleans ; after 
 the city was occupied by U. S. forces under 
 General Butler, and he had proclaimed 
 martial law, declaring, however, that 
 " civil causes between parties would be re- 
 ferred to the ordinary tribunals." During 
 this condition a city com't of New Orleans 
 entertained a civil suit against Dow for 
 alleged unlawful acts of a force under his 
 command in ravaging a plantation and 
 appropriating the private property of its 
 owner there found. Dow was personally 
 served, but made no appearance or answer. 
 Judgment was rendered against him by 
 default; and on this judgment the present 
 action was brought in the U. S. circuit 
 court for the district of Maine, wherein 
 defendant resided. The substance of the 
 defence was that the New Orleans court 
 had no jurisdiction to render the judgment 
 in question, for the reason that the city 
 at the time was a part of the country in 
 insurrection against the government of 
 the United States, and making war 
 against it, and was only held in subjec- 
 tion by its armed forces. The judges 
 differed, and the cause went before the 
 supreme com-t on a certificate of division 
 of opinion. 
 
 Held, that the defence was good. The 
 civil war, though between different por- 
 tions of the same nation, was accompanied 
 by the general incidents of an international 
 war. It was waged between people occu- 
 pying different territories, separated from 
 each other by well-defined lines. It at- 
 tained proportions seldom reached in the 
 wars of modern nations. The insui'gent 
 States united in an organization known as 
 the Confederate States, by which they 
 acted through a central authority guiding 
 their military movements; and to thera 
 belligerent rights were accorded by the 
 Federal government. The people of the 
 loyal States on the one hand, and the peo- 
 ple of the Confederate States on the 
 other, became enemies to each other, and 
 
 were liable to be dealt with as such with- 
 out reference to their individual opinions 
 or dispositions. Commercial intercourse 
 and correspondence between them were 
 prohibited, as well by express enactments 
 of Congress as by the accepted doctrines of 
 public law. The enforcement of contracts 
 previously made between them was sus- 
 pended, partnerships were dissolved, and 
 the courts of each belligerent were closed 
 to the citizens of the other, and its territory 
 was, to the other, enemy's country. When, 
 therefore, our armies marched into the 
 country which acknowledged the authority 
 of the Confederate government, — that is, 
 into the enemy's country, — their officers 
 and soldiers were not subject to its laws, nor 
 amenable to its tribunals for their acts. 
 They were subject only to their own gov- 
 ernment, and only by its laws, adminis- 
 tered by its authority, could they be called 
 to account. The reasons which demand 
 their exemption from criminal prosecutions 
 [7 Cr. 589 ; 97 U. S. snpra] apply to civil 
 proceedings. There would be as much 
 incongi'uity, and as little likelihood of 
 freedom from the irritations of the war, in 
 civil as in criminal proceedings prosecuted 
 during its continuance. In both instances, 
 from the very nature of war, the tribunals 
 of the enemy must be without jurisdiction 
 to sit in judgment upon the militai'y con- 
 duct of the officers and soldiers of the in- 
 vading army. It is manifest that if officers 
 or soldiers of the army could be required 
 to leave their posts and troops, upon the 
 summons, of every local tribunal, on pain 
 of a judgment by default against them, 
 which at the termination of hostilities 
 could be enforced by suit in their own 
 States, the efficiency of the aimy as a hos- 
 tile force w^ould be utterly destroyed. And 
 the position of the invading belligerent is 
 not affected, nor is his relation to the local 
 tribunals changed, by the fact that his 
 occupation and domination of any portion 
 of the enemy's country is temporary. As 
 a necessary consequence of such occupation 
 and domination, the political relations of 
 its people to their former government are, 
 for the time, severed. But, for the protec- 
 tion and benefit of the people and of others 
 not in the military service, the municipal 
 laws are generally allowed to continue in 
 force, and to be administered by the ordi- 
 nary tribunals as they were administered 
 
28 
 
 ARMY. 
 
 before the occupation. But this is not 
 done, for the protection or the conti-ol of 
 the occupying army, its officers or soldiers. 
 These remain subject to the laws of war, 
 and are responsible for their conduct only 
 to their own government, and the tri- 
 bunals by which those laws are adminis- 
 tered. Supreme Ct. 1879, Dow v. Johnson, 
 100 U. S. 158. 
 
 The condition of New Orleans and of 
 the district connected with it, at the times 
 of the seizure of the property of the plain- 
 tiff and the entry of the judgment against 
 Dow, was not that of a country restored to 
 its normal relations to the Union, by the 
 fact that they had been captured by our 
 forces and were held in subjection. The 
 country was under martial law; and its 
 armed occupation gave no jurisdiction to 
 the civil tribunals over the officers and 
 soldiers of the occupying army. The juris- 
 diction which the district court was au- 
 thorized to exercise over civil causes be- 
 tween parties, by the proclamation of 
 General Butler, did not extend to cases 
 against them. It was not for their con- 
 trol in any way, or the settlement of com- 
 plaints against them, that the court was 
 allowed to continue in existence ; but for 
 the administration of law between the in- 
 habitants of the occupied country. If 
 private property there was taken by an 
 officer or a soldier of the occupying army, 
 acting in his military character, when, by 
 the laws of war, or the proclamation of the 
 commanding general, it should have been 
 exempt from seizure, the owner could have 
 complained to that commander, who might 
 have ordered restitution, or sent the offend- 
 ing party before a military tribunal, as 
 circumstances might have required, or he 
 could have had recourse to the national 
 government for redress. On a hostile 
 seizure thus made, in the exercise of a 
 claimed belligerent right, the city court 
 had no authority to adjudge, lb. 
 
 This doctrine of non-liability to the tri- 
 bunals of the invaded country for acts of 
 warfare is as applicable to members of the 
 Confederate army, when in loyal States, 
 as to members of the National army when 
 in the insurgent States. The officers or 
 soldiers of neither army could be called to 
 account civilly or criminally in those tri- 
 bunals for such acts, whether those acts 
 resulted in the destruction of property or 
 
 the destruction of life; nor could they be 
 required by those tribunals to explain or 
 justify their conduct upon any averment 
 of the injured party that the acts com- 
 plained of were unauthorized by the neces- 
 sities of war. It is entirely true that the 
 military should be kept always in subjec- 
 tion to the law : that the law alone should 
 govern ; but the law which is to govern an 
 army invading an enemy's country is not 
 the civil law of the invaded country, but 
 military law, — the law of war. lb. 
 
 Army contracts.. An army transpor- 
 tation train being delayed, a quaiiermaster 
 sent wagons to assist in hastening forward 
 the supplies. Held, that the service was 
 voluntary if made without the contractor's 
 request, and could not be charged to him. 
 Ct. of Claims, 1877, Kihlberg ». United 
 States, 13 Cl. of CI. 148. 
 
 An army transportation contract pro- 
 vided that the contractor should be paid 
 according to distance as ascertained by the 
 chief quartermaster, and weight as shown 
 by certificate of the officer receiving the 
 supplies. The chief quartermaster deter- 
 mined the distance by inquiries through 
 correspondence; and the receiving officer 
 certified what weight of goods was deliv- 
 ered to him; and payment was made to 
 the contractor upon these data. He then 
 sued in the court of claims for more pay; 
 upon proof, (1) that the quarteimaster's 
 computation of distance travelled was too 
 small; was actually less than an air line 
 between the two points ; and (2) that por- 
 tions of the supplies were lost on the way, 
 without his fault, by leakage and shrink- 
 age, so that the weight, as certified by the 
 receiving ofiicer, was too low. Held, that 
 he was not entitled to anything on either 
 ground. Under the contract, the quarter- 
 master's decision was conclusive on the 
 question of distance, and the contractor 
 was not entitled to freight except on what 
 he delivered. Supreme Cl. 1878, Kihlberg 
 V. United States, 97 U. S. 398. 
 
 Where an army transportation contract 
 provides that payment shall be " accoi'ding 
 to the actual distance travelled," the bur- 
 den is on the party disputing the distance 
 provisionally paid for to show the actual 
 length of the route travelled, and, if there 
 be a choice of routes, to show by what 
 routes trains actually travelled. Ct. of 
 Claims, 1877, Shrewsbury v. United States, 
 
ARMY.— ASSAULT. 
 
 29 
 
 13 Ct. of CI. 183; Stuart u. United States, 
 Id. 190. 
 
 Where a military officer in an emergency 
 impresses a wagon-train against the con- 
 sent of the owner, who protests and refuses 
 to sign bills of lading, but performs the re- 
 quired service, an implied contract arises 
 under amend. 5 of the constitution — that 
 private property shall not be taken for pub- 
 lic use without just compensation. And 
 where such owner sues in the court of 
 claims upon this implied contract, the gov- 
 ernment cannot set up that he was a sub- 
 contractor, and the contract void, under the 
 statute forbidding the transfer of public 
 contracts (Rev. Stat. § 3737). Ct. of 
 Claims, 1878, Mason v. United States, 14 
 Ct. of CI. 59. 
 
 Recent statutes. Rank of inspector- 
 general to be brigadier-general. Act of 
 Dec. 12, 1878, ch. 2, 20 Stat, at L. 257. 
 
 Regulations of and restrictions on ap- 
 pointments and promotions in the army. 
 Act of June 18, 1878, ch. 263, § 3, 20 Slat. 
 alL. 150, § 13; Id. 151. 
 
 Women not to accompany troops as 
 laundresses. Act of June 18, 1878, ch. 
 283, § 5, 20 Stat, at L. 150. 
 
 Military headquarters, except army head- 
 quarters, to be in government buildings or 
 barracks. Act of June 18, 1878, ch. 263, 
 § 6, 20 Slat, at L. 150. 
 
 Regulations as to credits for longevity 
 pay and retirement; as to retired list; as 
 to supplies of fuel and forage; and as to 
 officers' quarters and commutation for 
 quarters. Act of June 18, 1878, ch. 263, 
 §§ 7, 8, 9, 20 Slat, at L. 150. 
 
 "It shall not be lawful to employ any part 
 of the army of the United States as a 
 posse comitatus, or otherwise, for the pur- 
 pose of executing the laws, except iij such 
 cases and under such circumstances as such 
 employment of said force may be expressly 
 authorized by the constitution or by act of 
 Congress; and no money appropriated by 
 this act shall be used to pay any of the ex- 
 penses incurred in the employment of any 
 troops in violation of this section; and any 
 person wilfully violating the provisions of 
 this section shall be deemed guilty of a 
 misdemeanor, and on conviction thereof 
 shall be punished by fine not exceeding 
 
 Assault. As to various crimes including vio 
 lence to the person, see tlieir appropriate titles: 
 Abortiox; Homicide ; Rape, Ike. Principles of 
 
 •110,000, or imprisonment not exceeding 
 two years, or by both such fine and im- 
 prisonment," Act of June 18, 1878, 20 
 Stat, at L. 152, ch. 263, § 15. 
 
 ARREST. Under Laws 1867, ch. 375, 
 an officer of the American Society for the 
 Prevention of Cruelty to Animals, who has 
 been duly designated by the sheriff of a 
 county by a general authority, may execute 
 the law by arresting offenders found violat- 
 ing it, without first obtaining a warrant 
 from a magistrate. The statute does not 
 require a distinct appointment from the 
 sheriif for each arrest; each agent once 
 designated is authorized to continue to act 
 until his appointment is revoked. Ct. of 
 Appeals, 1878, Davis v. American Soc. P, 
 C, A., 75 N. Y. 362. 
 
 ARSON. Fire set in rooms occupied by 
 A, in a tenement-house, may be laid as set 
 " in the house of A.: " 19 Hun (N. Y.), 
 383. Proof of an attempt by prisoner, just 
 previous to the burning, to fire the same 
 building is competent to show intent: 87 
 Pa. St. 299. Verdict must find the degree : 
 53 Cal. 627. 
 
 ARTESIAN WELLS. A bounty of $2 
 per foot after the first 500, authorized to be 
 paid to whoever shall sink an artesian well ~ 
 in Nevada. Nev. Laxus 1879 (March 5), 
 82, eh. 86. 
 
 ASSAULT. The touching need not be 
 malevolent. For a man to put his arm 
 lustfully around the neck of another man's 
 wife, without her consent or some special 
 excuse, is an indictable assault and battery. 
 "Beating," in the definition of battery, 
 includes any unlawful imposition of the 
 hand or arm. To touch a virtuous wife in 
 the way of illicit love is a greater outrage 
 than to touch her in anger ; and is equally 
 a breach on. the peace. It is violence, 
 though proceeding from lust instead of 
 from rage, Supreme Ct. 1878, Goodrum v. 
 State, 60 Ga. 509, 
 
 Minor Decisisns on Assault. 
 
 Division into degrees : 1 Dak. T. 197. 
 Firing gun loaded with powder only, with- 
 in a distance of twenty steps, held, an a. : 
 61 Ga. 582. Picking up a stone to throw, 
 without offer to throw it, is not an a. ; an 
 offer to strike is the lowest degree of vio- 
 
 criminal law apph'ing to assault in common with 
 otlier offences, Cri.me. Self-defence in homicide, 
 Self-Defea'ce. 
 
30 
 
 ASSAULT. — ASSIGNMENT. 
 
 lence indictable ; 82 N. C. 549. Brandish- 
 ing gun without aiming it, not an a. : 7 
 Tex. App. 75. What violence is justifiable 
 in expelling intruder from one's house : 82 
 N. C. 554. Indictment for a. must (under 
 Indiana statute) allege present ability to do 
 injury; alleging discharge of a pistol loaded 
 with powder and ball at and against a 
 person is not enough : 67 Ind. 401. In- 
 dictment for assault and battei-y must 
 allege not merely an unlawful touching, 
 but (under statute) that it was in a rude, 
 insolent, or angry manner : 67 Ind. 401. 
 Assault and battery and affray must not be 
 charged in separate counts ; but there may 
 be conviction of assault and battery under 
 properly-drawn count for affray : 33 Ark. 
 176. 
 
 Indictment for a. with intent to commit 
 rape need not aver that woman was not de- 
 fendant's wife : 53 Cal. 600. Charge of 
 "intent to rape," instead of "to commit 
 rape," sustained : 53 Cal. 629. If there 
 was assault with intent, and resistance at 
 the outset, accused may be convicted of a. 
 with intent to ravish, though the woman 
 afterwards yielded, so that there was no 
 rape ; 50 Iowa, 189. A. with intent to 
 ravish is misdemeanor; and accused may 
 be convicted of simple a. ; that he is 
 charged or sentenced as if it were a felony 
 makes no difference : 82 N. C. 681. A. 
 with mtent to rape does not include at- 
 tempt to commit rape; conviction for the 
 last under indictment for the first is bad : 
 7 Tex. App. 569. A. with deadly weapon 
 IS misdemeanor, not felony ; and convic- 
 tion is not appealable to supreme court ; 
 53 Cal. 427 Indictment that defendant, 
 having present ability, feloniously dis- 
 charged a pistol, loaded, &c., towards, at, 
 and against P., with intent to kill P., is 
 good as charging a. with intent, &c. ; not 
 a. and battery only ■ 62 Ind. 428 ; 64 Ind. 
 340. In a violent attempt to murder, the 
 a and battery involved is merged in the 
 felony; and a verdict on the first charge 
 will not bar a prosecution for the felony, 
 though it will bar a conviction thereon for 
 the misdemeanor : 66 Ind. 223. A. with 
 intent to commit malicious shooting is 
 
 Assignment, Matters relative to form of scaled 
 assignments, as such, sec Deed. Some mattcvs 
 as to fraud, in assignments, as towards creditors, 
 Fraudulent Conveyance. Transfer by in- 
 dorsement; Bills AND Notes. 
 
 felony ; requisites of indictment : 7 Baxt. 
 (Tenn.) 160. Proof of a simple or aggra- 
 vated a. is competent under indictment 
 for intent to murder ; that includes them : 
 7 Tex. App. 15. Proof of drunken man 
 firing pistol in the direction of a person 
 without hitting him will not support 
 charge of a. with intent to murder if it may 
 have been done in mere bravado : 7 Tex. 
 App. 627. 
 
 ASSIGNMENT. The repeal — taking 
 effect Sept. 1, 1878 — of the bankrupt 
 law (see Bankedptcy) has revived the 
 operation of some portions of State 
 laws affecting assignments for benefit 
 of creditors, as well as Stat« insolvent 
 laws. The relation of the two topics 
 is such that thej' are treated together, 
 under Insolvency. Below are deci- 
 sions on assignment in its general sense 
 of a transfer of title. 
 
 Under Iowa Code § 2525, a right of action 
 is assignable, notwithstanding it would, at 
 common law, die with the person : 50 Iowa, 
 497. A demand against a director, for 
 injury to coi'poration by his making a 
 fraudulent sale to it, involves property 
 rather than personal tort, and is assign- 
 able ; 6 Mo. App. 338. Words of trans- 
 fer indorsed on a certificate may be sus- 
 tained, in equity, as an a., although not an 
 indorsement within the law merchant, be- 
 cause coupled with a restrictive condition, — 
 hei-e "subject to all legal claims. " : 8 Be- 
 porter, 741. There may be title to a note 
 by a. without indorsement : 50 Iowa, 450. 
 Distinction between authority to depositary 
 to pay and a. of the fund : 127 Mass. 34. 
 Marking parcel of bills with a depositor's 
 name and "private," unknown to him, 
 and delivering it to the assignee for the 
 depositor, does not reserve the money 
 from the bank's general a. : 39 Mich. 742. 
 Assent of contractor that employer should 
 retain part of the sum due to cover ma- 
 terial men's claim, held, an a. : 6 Mo. 
 .4pp. 67. Until acceptance, a bill of ex- 
 change is not an a. of the fund : 6 Mo. 
 
 Attempts. To commit crimes, generally. 
 Crimes J to commit tlie specific crimes, see tlieir 
 titles. 
 
 Trying to embrace maiTied woman, punishable, 
 p. 2D. 
 
ASSIGNMENT. — ATTORNEY. 
 
 31 
 
 App. 505. A writing " I assign " the 
 amount of a life policy, held testamentary; 
 and not usable in evidence as an a. : 88 
 Pa. St. 111. Assigning land note carries, 
 as an incident, vendor's right to resort to 
 the land as security if he retained the 
 title as security ; not if he held only a 
 vendor's lien ; and re-assignment restores 
 the security to him : 33 Ark. 77. A. of 
 note which is voidable for alteration car- 
 ries any right of the payee to recover upon 
 the original consideration : 9 Neb. 1. A. 
 of a lien, here a lien for a city assessment, 
 gives the assignee whatever priority the 
 assignor had : 88 Pa. St. 21. Whether a. 
 of notes for price of land passes vendor's 
 lien: 7 Baxt. (Term.) 545; Id. 586. 
 Transfer of note secured by mortgage car- 
 ries the security : 47 Wis. 261. Wife held 
 estopped to deny a. of policy taken out in 
 her favor on her husband's death, where 
 she had received a part of the insurance 
 money through the assignee : 8 Reporter, 
 613. A., fraudulent towards creditors, is 
 yet operative between parties ; not because 
 it passes title, but because neither can claim 
 by his own fraud : 50 Md. 560. Adding 
 "with recourse" to words of assignment 
 renders the assignor liable in the light of a 
 guarantor : 87 Pa. St. 485. One who buys 
 property subject to a mortgage cannot, 
 when he pays the mortgage, take an a. and 
 enforce it against the mortgagor : 87 Pa. 
 St. 491. Recorded assignment of mort- 
 gage is not affected by a. subsequently 
 made, fraudulently, to a third person, by 
 mortgagee ; the record was notice : 31 N. 
 J. Eq. 409; see Id. 536. A statute au- 
 thorizing assignee to sue in his own name 
 does not give him rights of holder of a 
 negotiable ; he takes subject to equities : 
 33 Ark. 709. The fact that an assignee 
 of a claim has received an official voucher 
 for it in his own name will not enable him 
 to sue on it in the court of claims : 13 Cl. 
 of Cl. 217. 
 
 ASSOCIATION. "White, a market-gar- 
 dener, visited the seed-store maintained by 
 the trustees of the Shakers, to purchase 
 " large Bristol cabbage " seed. The clerk 
 in charge sold to him a quantity of seed 
 which was described, in the sales-catalogue 
 and in the bill of parcels, by that name. 
 When planted, however, it would not pro- 
 duce Bristol cabbages, but yielded worth- 
 less plants. The purchaser then sued upon 
 
 a breach of warranty. Held, (1) the trus- 
 tees of the society were authorized, by im- 
 plication from their authority to sell seed, 
 to sell it by a descriptive name, and such 
 sale imported a warranty that it was of the 
 kind described and was free from any 
 latent defect arising from the mode in 
 which it was cultivated ; (2) whether the 
 seed was " Bristol cabbage," within the 
 warranty depended upon whether it would 
 produce Bristol cabbages. Ct. of Appeals, 
 1877, White v. Miller, 71 N. Y. 118. 
 
 White, as a member of the New York 
 Open Board of Stock Brokers, sold, on 
 account of Baxter, certain stocks, de- 
 liverable at any time within a year. The 
 rules of the board gave either party to such 
 a sale the right to call upon the other 
 for margins to meet fluctuations' in the 
 market ; constituted an arbitration com- 
 mittee to settle differences, and prescribed 
 suspension of members in default. The 
 buyers called for a margin ; whereupon 
 Baxter promised White that, if he would 
 not furnish the margin or appear before 
 the committee, Baxter would indemnify 
 him from all loss, and would, if he should 
 be suspended, compensate him for loss of 
 business. White complied, and was sus- 
 pended. Held, that there was a sufficient 
 consideration for the promise, viz. : the 
 injury sustained by the promisee, and that 
 Baxter was liable. It was not necessary 
 that he should have any actual interest in 
 the controversy or be beneflted by the re- 
 fusal he requested. Ct. of Appeals, 1877, 
 White V. Baxter, 71 N. Y. 254. 
 
 Religious, benevolent, or literary associ- 
 ations owning land enabled to sell or 
 mortgage it upon application to circuit 
 court. Va. Laws 1879 (March 3), 161, 
 ch. 181. Id. 347, ch. 76. 
 
 ATTORNEY. When the government 
 ertrploys an attorney, at an agTeed compen- 
 sation, to collect a debt, reserving the right 
 to terminate the agreement at any time, 
 and the attorney negotiates a settlement of 
 the debt, and the government subsequently 
 accepts and receives the fruit of this ar- 
 rangement, doing nothing in the matter 
 except receiving the money, the attorney 
 will be deemed to have performed his part 
 of the agreement though it may have been 
 terminated before the money was paid 
 over. Ct. of Claims, 1877, Mellen v. United 
 States, 13 Cl. of Cl. 71. 
 
82 
 
 ATTORNEY. 
 
 The fiduciaiT' relation of attorney of 
 defendant in foreclosure continues until 
 confirmation of sale. If, therefore, the 
 attorney bids in the property, he may be 
 adjudged trustee for his client, unless he 
 can affirmatively show that the latter was 
 not injured. 9th Circ. (Oreg.) 1879, Man- 
 ning 17. Hayden, 7 Reporter, 424; 13 West. 
 Jur. 318. 
 
 The liability of an attorney for negli- 
 gence is to his client, not to third persons. 
 An attorney was employed by one claiming 
 to be owner of a city lot, to examine and 
 certify his title. The attorney made the 
 examination and certified that the title was 
 good; in doing so, however, he neglected 
 to observe a duly recorded conveyance im- 
 pairing the title, so that the certificate 
 given was untrue. The supposed lot-owner 
 placed the certificate in hands of brokers to 
 negotiate a loan ; and on the faith of it and 
 of a trust deed of the lot, a savings bank 
 made a loan, which it lost, when fore- 
 closure was brought, through failure of the 
 title in consequence of the deed which the 
 attorney overlooked. No fraud or collu- 
 sion was imputed to the attorney; but on 
 the ground of neglect only the savings 
 bank sued him for its loss. Held, that he 
 was not liable. It is well settled that an 
 attorney may be liable to his client for 
 negligence or war^t of reasonable care and 
 skill in examining a title; whether the er- 
 ror occurs in respect to the title of property 
 purchased or in the covenants of title in- 
 serted in the conveyance of property sold. 
 But in order that such a liability may 
 arise, there must be some privity of con- 
 tract between the parties to enable the 
 plaintiffs to maintain the action ; if the at- 
 torney was never retained or employed by 
 the parties injured, and never rendered any 
 service at their request or in their behalf, 
 he cannot be held liable to them for any 
 negligence or want of reasonable care, 
 skill, or diligence in giving to his client an 
 erroneous certificate. The obligation of 
 the attorney is to his client and not to a 
 third person [17 C. B. n. s. 194]; and the 
 right of action depends entirely upon the 
 question between whom the relation of 
 principal and agent, client and attorney, 
 subsists. Indeed it is not generally true 
 that every one who suffers a loss from the 
 negligence of another can maintain a suit 
 thereon; on the contrary, the limit of the 
 
 doctrine relating to actionable negligence 
 is, that the person occasioning the loss 
 must owe a duty, arising from contract or 
 otherwise, to the person sustaining such 
 loss. In the present case the bank never 
 employed the attorney to search the records, 
 examine the title, or make the report; he 
 never performed any such service at their 
 request or in their behalf; they never paid 
 him anything for the service he did perform 
 in respect to that transaction ; nor is there 
 any evidence tending to show any privity of 
 contract between them and the defendant, 
 within the meaning of the law as ex- 
 pounded by the decisions. [See dissenting 
 opinion.] Supreme CI. 1879, Savings 
 Bank v. Ward, 100 U. S. 195. 
 
 To be privileged, a communication be- 
 tween counsel and client must be lawful, 
 and must relate to the business and interest 
 of the client, and be within the scope of pro- 
 fessional duty. Srd Circ. {Pa.) 1879, Re 
 Cole, 8 Reporter, 105. 
 
 An attorney was employed by a husband 
 to prosecute a suit for divorce. The wife 
 was willing to aid the proceeding, and was 
 induced, by the attorney's false represen- 
 tations, to spend the night in the same 
 room with him at a hotel ; upon testimony 
 to which, by agents employed by the at- 
 torney, the latter entered a judgment of 
 divorce. Held, that, placing the most fav- 
 orable construction possible upon the facts, 
 he had colluded with the wife to manufac- 
 ture evidence by which the divorce might 
 be procured; and that this was misconduct 
 which justified an order striking him from 
 the roll. Ct. of Appeals, 1879, Matter of 
 Gale, 75 N. Y. 526. 
 
 Attorney who receives money for his 
 client and fails within six months, and 
 without sufficient reason, to pay it over, 
 declared punishable by fine and disbarring. 
 He may testify on his' own behalf on his 
 trial. W. Va. Laws 1879 (March 8), 153, 
 ch. 177. 
 
 minor Decisions on Attorney. 
 Attorney employed to collect has not au- 
 thority to compromise: 53 Ca/. 28. Ana. 
 lias not implied authority to direct sheiifiE 
 to carry on execution debtor's business, on 
 wliich he has levied, at client's risk: 53 
 Cal. 003. A. of depositary, sued for de- 
 posit has not implied authority to bind 
 client by admissions as to how deposit was 
 
ATTORNEY. —BAILMENT. 
 
 33 
 
 destroyed: 53 Cal. 735. Release given by 
 a. of judgment belonging to client, with- 
 out latter's knowledge or consent, is in- 
 operative: 87 Pa. St. 243. A. for one 
 party in a negotiation cannot receive com- 
 pensation from the other: 53 Cal. 372. 
 Partnership between an a. and an unli- 
 censed person will not enable them to sue 
 jointly for compensation for professional 
 services: 3 Col. 304. Silent acquiescence 
 in proceedings of a. held a sufficient em- 
 ployment to waiTant his recovering com- 
 pensation : 7 Baxt. (Tenn.) 539. Gantt's 
 Dig. § 3622, is but declaratory of former law 
 of lien of a.; does not impair it: 33 Ark. 
 238. A. prevented from serving by act of 
 client may recover whole agreed compen- 
 sation, less a deduction for what loss he 
 must have incurred in fulfilling: 33 Ark. 
 545. That a judgment becomes dormant 
 and is revived by a second a. does not de- 
 vest the lien of the one who recovered it: 
 
 60 Ga. 216. , Nature and extent of lien on 
 judgment: 12 R.I. 550. A. for adminis- 
 trator, who conducts proceedings to pro- 
 cure administrator's sale, cannot buy at 
 the sale: 33 Ark. 576. Payment of fee is 
 not needful to render communication pri- 
 vileged; that a. was consulted as such, and 
 was entitled to charge, is enough: 33 Ark. 
 762. Taking money by a. from defendant, 
 for himself, on consenting to discontinu- 
 ance, severely condemned: 12 R. I. 94. 
 A. who signs bail-bond in violation of rule 
 of court is liable on the bond and punish- 
 able for contempt: 64 Ind. 454. For for- 
 gery of an affidavit in a cause, a. may be 
 disbarred without waiting for criminal 
 prosecution for forgery: 64 Ind. 461. Court 
 has not implied power to disbar on its own 
 motion, but must proceed upon accusation, 
 pursuant to Rev. Stat. 1876, § 780: 66 Ind. 
 531. How decision disbarring an a. may 
 be reviewed: 64 Ind. 493. 
 
 B. 
 
 BAILMENT. An incorporated com- 
 pany entered into a contract with A, the 
 owner of letters-patent for an explosive 
 compound called " dualin," whereby he 
 undertook to manufacture it, as required 
 by the company from time to time, in 
 quantities sufficient to supply the demand 
 for the same and aU sales produced or 
 effected by the company. The contract 
 provided that all goods he manufactured 
 should be consigned to the company for 
 sale, and all orders he received should be 
 transferred to it to be filled ; that the com- 
 pany should furnish him the raw materials 
 needed to manufacture in quantities suffi- 
 cient to supply the demand created by the 
 company, or should advance the money ne- 
 cessary to purchase them, — the said ad- 
 vances and the cost of such materials to be 
 charged to him against the manufactured 
 goods to be by him consigned to the com- 
 
 Baggage. Liability of carriers generally, see 
 Caeeiek. Of railroad companies or carriers by 
 water, Railroad; Shipping; Steamboat. Of 
 railroad company to passenger robbed of govern- 
 ment bonds; aiid to Russian countess for verj' 
 costlj' laces, Cakkier. Of carrying company for 
 baggage lost in dfawing-room car, or stolen from 
 baggage-room after passenger had suiTendered 
 
 3 
 
 pany. Certain of the materials which had 
 been furnished him under the contract, and 
 others which he had purchased with money 
 advanced by the company, were seized 
 upon an execution sued out on a judgment 
 against him in favor of a third party. The 
 company then brought this action to re- 
 cover for the wrongful conversion of the 
 materials so seized. Held, that the de- 
 livery of them by the company to A did not 
 create a bailment, but that, upon such de- 
 livery, they, as well as those purchased by 
 him with the money so advanced, became 
 his sole property, and, as such, were sub- 
 ject to the execution. Supreme Ct. 1877, 
 Powder Co. v. Burkhardt, 97 U. S. 110. 
 
 Forty-four record-books, some deeds, 
 mortgages, and other papers of a county 
 having been stolen, the county officers de- 
 posited $3,500 in the hands of A, upon 
 condition that it should, upon the return of 
 
 check, Railroad. Of innkeeper for baggage of 
 guest, Inn. His lien on it, Inn. 
 
 Bailment. For liabilities of bailees for trans- 
 portation, see their speciiic names: Carrier; Ex- 
 press; Railroad; Shipping, &c. 
 
 BaUot. The Maine count in 1879 ; other cases of 
 contested elections ; the Delaware registration law; 
 new laws in New York, &c.. Election. 
 
34 
 
 BAILMENT. —BANKING. 
 
 the stolen property, be paid to the person 
 causing the return. It was also stipulated 
 that the failure to " deliver some small 
 paper or papers " should not invalidate the 
 agreement. Within the time limited, A 
 received a paper, signed by the deputy- 
 sheriff of the county, acknowledging the 
 receipt of the record-books, " also papers 
 and small index-books." He thereupon 
 paid the money to the person presenting 
 the receipt. The county then brought suit 
 against A to recover the money, alleging 
 that some of the books were, upon their 
 return, in such a damaged condition as to 
 be rendered comparatively worthless, and 
 that he had, therefore, not performed his 
 contract. Held, that A, being a simple 
 bailee of the money deposited in his hands, 
 without compensation, was not, in the ab- 
 sence of bad faith on his part, responsible 
 for the condition of the property at the 
 time of its return. Supreme Court, 1877, 
 Eldridge v. HiD, 97 U. S. 92. 
 
 BAEEB. The Laws relating to Quaran- 
 tine of Her Majesty's Dominions at Home 
 and Abroad, and of the Principal Foreign 
 States, including the Sections of the " Pub- 
 lic Health Act," 1875, which bear upon 
 Measures of Prevention. By Sir Sherston 
 Baker. London. 
 
 Comprises nine chapters. Seven are de- 
 voted to history of British and Colonial 
 quarantine laws and regulations. The 
 eighth is devoted to treaties with foreign 
 powers in which the question of quarantine 
 is involved, and the ninth to the foreign 
 laws, including the regulations of New 
 Tork city, Boston, Philadelphia, Balti- 
 more, Richmond, Savannah, Charleston, 
 Mobile, and New Orleans. 
 
 BANKING. During the past few 
 years the State courts have in several 
 cases been called to consider whether 
 a national bank is exempt from liability 
 for a special deposit. The typical case 
 has been, of course, that a customer of 
 a bank, unaware of any difference be- 
 tween the powers of a national and 
 those of a state bank on the subject, 
 has carried his government bonds, in 
 a tin box, to the cashier, and asked 
 
 Banking. Principles of the law of corporations 
 applicable to haul's in common witli other kinds, 
 CoBroRATioN. Taxation of banks, particularly 
 
 that oflacial to have them kept in the 
 bank safe, perhaps adding a request to 
 have his coupons collected periodically 
 and the amount put to his credit. The 
 cashier has assented. But, at length, 
 the bonds having been stolen, the cus- 
 tomer's suit against the bank has been 
 met by the objection that the whole 
 transaction was ultra vires; receiving 
 special deposits not being one of the 
 powers conferred on national banks. 
 The State courts have been about 
 evenly divided on the question of al- 
 lowing this defence. The U. S. Su- 
 preme Court has now decided that it is 
 unsound ; that a national bank may be 
 liable for a special deposit. See infra, 
 100 U. S. 699. 
 
 Resumption of specie payments may 
 probably supersede usefulness of the 
 gold banks ; accordingly an act of Con- 
 gress allows those banks to abandon 
 that organization and business, and be- 
 come converted into ordinary currency 
 banks. See infra, Act of Feb. 14, 
 1880. 
 
 The subject of State taxation of na- 
 tional banks has continued to excite con- 
 troversy. The familiar rule prescribed 
 by the banking laws is that State tax- 
 ation of the shares of national banking 
 associations shall not be at a greater 
 rate than is assessed upon other 
 moneyed capital ; but instances fre- 
 quentlj' arise in which the arrangements 
 of the State for taxation, appear to the 
 managers of the national banks to vio- 
 late this rule. Thu?, under the Ohio Act 
 of AprU 12, 1877, the rules prescribed 
 by the local assessors and the State 
 Board of Equalization resulted in a sys- 
 tem of valuations bj- which real and 
 personal property was estimated at 
 about one third of true value, hut 
 moneyed capital at six tenths. The 
 U. S. supreme court has held (in two 
 very recent cases, more fuUy stated 
 
 National banks, Taxation. Savings banks, 
 Savinos Bank. 
 
 Abating action against stockholder, p. 6. 
 
BANKING. 
 
 35 
 
 under Taxation) that national banks 
 may be relieved by injunction in the 
 Federal courts against such an admin- 
 istration of State tax-laws. 
 
 Dealing's generally. While the rela- 
 tion of bank and depositor is in general 
 that of debtor and creditor, yet, under 
 special circumstances, as where money 
 is remitted expressly for the payment of a 
 specific demand, the relation may be that 
 of agency or trust, so that, on a suspension 
 of the bank before the money has been 
 properly applied, it wUl remain the de- 
 positor's property and not become assets 
 of the bank. 8ih Circ. (Mo.) 1879, St. 
 Louis V. Johnson, 9 Cent. L. J. 91 ; German 
 Am. Bank v. Third Nat. Bank, 18 Alb. 
 L. J. 252 ; 6 Reporter, 484. 
 
 A firm of bankers were employed as 
 agents to collect money and to remit 
 it to their employer; they received the 
 money in cash and wrote to their em- 
 ployer that the amount had been remitted: 
 it was, however, mingled with the cash of 
 the bank, and before the amount was 
 actually remitted the bank went into liqui- 
 dation. Held, that the money was part of 
 the general assets of the bank, and that the 
 employer was not entitled to be paid in 
 preference to other creditors. Chancery, 
 1879, Be West of England, &c. Bank, L. 
 R. 11 Ch. D. 772. 
 
 A bank is bound, before paying a check 
 drawn to order, to ascertain the genuine- 
 ness of the indorsement; and it cannot 
 sustain a chai'ge of the payment in the 
 drawer's account merely because he delays, 
 when the account is balanced, to examine 
 his pass-book and retm'ned checks promptly, 
 and to object. Welsh, a commission mer- 
 chant doing an extensive business, upon 
 presentation to him by his book-keeper, 
 who had charge of his produce and bank 
 books, of fictitious accounts of sales of the 
 property of a customer, signed checks for 
 the amounts, payable to the order of the 
 customer, which were delivered to the book- 
 keeper, who forged the indorsement of the 
 customer and put the checks in circulation. 
 They were paid by the bank, charged in 
 Welsh's pass-book, and returned, with the 
 other vouchers, to the book-keeper, upon 
 balancing the account, which was done 
 monthly. Welsh did not discover the fraud 
 
 or the forgeries until some months there- 
 after, and immediately upon making the 
 discovery notified the bank. In his action 
 to recover the balance of his deposit, 
 Held: 
 
 1. That the fact that he was deceived 
 into giving the checks by his book- 
 keeper did not make him responsible for 
 the subsequent fraud upon the bank, as his 
 acts did not in a legal sense contribute 
 thereto. 
 
 2. That he was not precluded from dis- 
 puting the right of defendant to charge the 
 checks to his account, because of the entry 
 thereof in the pass-books, their return with 
 the vouchers, and retention without object- 
 tion. Ct. of Appeals, 1878, Welsh v. Ger- 
 man-American Bank, 73 N. Y. 424. To 
 same effect, Thomson v. Bank of British 
 North America, 45 iV. Y. Superior Ct. 1; 
 Frank v. Chemical Nat. Bank, Id. 452. 
 
 In the case last mentioned, where deposi- 
 tor resisted the claim of the bank to charge 
 him with payments made on forged checks, 
 the evidence was conflicting, on the trial, as 
 to the existence and nature of alterations, 
 erasures, and tracings in the check and pass- 
 books, and on the forged checks. An occu- 
 list testified that a certain magnifying glass 
 was a correct one, and that it magnified 
 four times. The plaintifEs offered the glass 
 in evidence, and handed it to the referee, 
 and requested him to inspect and examine 
 with it the three checks that were produced 
 in evidence, and that were claimed to have 
 been forged, for the purpose of determining 
 whether or not the signatures upon these 
 checks were genuine. To all this, counsel 
 for the defendant objected, but the referee 
 overruled his objection, and used the glass, 
 and defendant's counsel excepted to the 
 decision of the referee, and also to his 
 action in using the glass. Held, that the 
 refei'ee occupied the position of a jury, in 
 determining the question as to the altera- 
 tions, &c., and he had the same right as a 
 jury to use a magnifying glass in the in- 
 vestigation of material objects. It was 
 proper for him to use the glass, if he could 
 see better with it. It was his duty as a 
 referee, in a case where alterations, eras- 
 ures and forgeries were claimed to exist, to 
 resort to the usual and proper agencies that 
 correctly add to or increase the power and 
 capacity of human vision, and consequently 
 of human judgment, in respect to the issues 
 
BANKING. 
 
 of fact that he was called upon to consider 
 and decide. 1879, Frank v. Chemical Nat. 
 Bank, 45 N. Y. Superior Ct. 452. 
 
 A bank customer drew his check for 
 ^8, in favor of B. or bearer, on his bankers. 
 The payee, or some other person, wrong- 
 fully altered the check to $80, took it to Ro- 
 ser and desired him to cash it; Roser took 
 it to the cashier of the bank; he said it 
 was good and would be paid during bank- 
 ing hours ; Roser then took it back to the 
 payee, paid him the money on it, and had 
 him indorse the check to Roser. The next 
 day, during banking hours, he presented 
 the check at the bank and received thereon 
 the raised amount, $80. Neither party had 
 any suspicion that the check had been 
 altered and raised. On discovering the 
 fraud the bankers sued Roser to recover 
 back the money as paid by mistake. Held, 
 that they were entitled to recover. If they 
 had paid the check on the first presentation 
 instead of then promising to pay it next 
 day, or had then certified it, and before dis- 
 covering the fraud had paid it, they could 
 clearly have recovered back. Or if they 
 had certified it and afterwards, before pay- 
 ment, discovered the fraud, they could not 
 have been compelled to pay it to Roser, 
 even if he had cashed it on faith of the 
 certificate; for such certificate is only an 
 agreement that the signature is genuine 
 and the drawer has a sufficient deposit. 
 The oral promise of the cashier to pay can- 
 not be allowed any higher operation to 
 bind the bank than his official certificate. 
 Supreme Ct. 1879, Parke v. Roser, 67 Ind. 
 500. See Grant v. Cropsey, 8 Net. 205. 
 
 Any banker, broker, or bank officer who 
 receives a deposit when the depositary is 
 insolvent, whereby the deposit is lost to the 
 depositor, is guilty of embezzlement punish- 
 able by fine of double the amount and by 
 imprisonment. The failure, suspension, 
 or involuntary liquidation of the banker, 
 bi-oker, banking company, or incorporated 
 bank, within thirty days from and after 
 the time of receiving such deposit, shall be 
 prima facie evidence of an intent to defraud 
 on the part of such banker, broker, or officer 
 of such banking company or incorporated 
 bank. III. Laws 1879 (Jan. 4.), 113, § 1. 
 See Iowa Laws 1880, 148, ch. 153. 
 
 Any banker, broker, or officer or agent 
 of any bank, who fraudulently converts to 
 his own use any property deposited with 
 
 him or with such bank, declared guilty of 
 larceny. Id. § 2. 
 
 Any savings bank loaning any deposit or 
 trust fund to any officer of such bank, 
 shall be considered to have forfeited its 
 franchise, or be liable to a fine of twice the 
 amount so loaned, at the discretion of the 
 court ; and the officer receiving such deposit 
 or trust fund shall be deemed guilty of 
 having obtained the same under false pre- 
 tences. No savings bank shall assume or 
 guarantee debts of other persons. Id. 
 §§ 3, 4. 
 
 Ifational banks. A national bank may 
 be liable for loss of a special deposit. The 
 cashier of the Carlisle National Bank ac- 
 cepted from a customer a package of gov- 
 ernment bonds, for safe-keeping, without 
 charge; and also, by the depositor's request, 
 exchanged the bonds for some of another 
 issue ; and collected and gave credit for the 
 proceeds of the coupons. All this was done 
 in the usual course of the cashier's deal- 
 ings, known to the directors. At length, 
 through negligence of the bank's officers, 
 the bonds were stolen; and the owner sued 
 the bank for the loss. The defence con- 
 tended that the receipt of the special de- 
 posit was ultra vires, and not vrithin the 
 cashier's authority. Held, that the bank 
 was liable. 
 
 1. The doctrine of ultra vires does not ap- 
 ply to protect a corporation from liability for 
 damages for a wrong which it or its officers 
 have committed. It is well settled that if 
 a bank be accustomed to take such deposits 
 as the one in question, aud the doing so 
 known and acquiesced in by the directors, 
 and the property deposited is lost by gioss 
 carelessness, a liability ensues in like man- 
 ner as if the deposit had been authorized 
 by the tenns of the charter. [Citing 17 
 Mass. 479; 62 Pa. St. 47; 72 id. 471. 79 id. 
 106; 26 Iowa, 562; 69 Mass. 605; 58 Ga. _ 
 369; and disapproving 47. Vt. 546; 5 Vt. 
 389.] 
 
 2. It cannot be said that a national bank 
 is without power to receive special deposits. 
 Rev. Stat. § 5228, declares that, after the 
 failure of a national bank, it shall not 
 prosecute banking business except, &c., 
 "to deliver special deposits." This im- 
 plies clearly that a national bank, as a pai"t 
 of its legitimate business, may receive such 
 "special deposits;" and this implication 
 is as effectual as an express declaration of 
 
BANKING. 
 
 37 
 
 the same thing would have been. The 
 phrase " special deposits," thus used, em- 
 braces deposits such as that in question. 
 Supreme Ct. 1879, National Bank u. Gra- 
 ham, 100 U. S. 699. 
 
 For a national bank to receive money on 
 deposit from one of two contracting parties, 
 upon an agreement that it is to be held by 
 the bank as security for the faithful per- 
 formance of the contract to the other party, 
 is not invalid ; and if the promisor and de- 
 positor does not perform this contract, the 
 promisee may recover the fund by action 
 against the bank. That a national bank 
 cannot become surety for the performance 
 of such a contract may probably be true. 
 But there is no such limitation upon the 
 power of banks authorized to receive de- 
 posits, as deprives them of power to take a 
 fund payable upon a contingency to some 
 person other than the depositor. So long 
 as the bank undertakes no more than to 
 pay over money deposited with it to the 
 person who may become entitled to receive 
 it, the transaction is not ultra vires. The 
 fact that the person who received back the 
 money, or the exact amount payable to any 
 claimant, is to be identified and ascertained 
 by subsequent inquiry, or even by a law- 
 suit, makes no difference. Ct. of Appeals, 
 1878, Bushnell v. Chautauqua County Nat. 
 Bank, 74 N. Y. 290. 
 
 A national bank is not authorized to 
 purchase or traffic in promissory notes, or to 
 acquire title to them, except by way of dis- 
 count or by lending money on the credit of 
 them. The maker of a note sued by a 
 national bank may show that the bank ac- 
 quired it by an ordinary "note-shaving" 
 purchase, without any loan or discount ; and 
 if this is established the bank has not such 
 ownership as, under Minnesota practice, 
 enables it to recover. Supreme Ct. 1877, 
 First Nat. Bank v. Pierson, 24 Minn. 140. 
 
 In Massachusetts, where the law of par- 
 ties does not require action on a note to be 
 brought by the beneficial ovnier, a national 
 bank holding a promissory note by indorse- 
 ment may sue in its own name, irrespective 
 of the objection that it was authorized, 
 under the national banking laws, to pur- 
 chase the note. The doctrine of ultra vires 
 does not prevent. The contract in suit is 
 the promissory note, the obligation of the 
 maker. In this the powers of the national 
 bank as a corporation are not in any way 
 
 involved; defect, if any, in the corporate 
 power does not in any way affect that obli- 
 gation. The contract said to be ultra vires 
 is the indorsement of the note to the bank. 
 The validity of this is not involved in the 
 suit, except as the title to the nflte is in- 
 volved. If it were needful (as in Minnesota, 
 which explains 23 Minn. 198; 24 Minn. 
 140) that the bank, in order to recover, 
 should be the real beneficial owner of the 
 note, it might well be that an objection to 
 its title founded on restrictions in the bank- 
 ing laws forbidding the purchase should 
 defend the action. But this is not, in 
 Massachusetts, required. There the holder 
 of a note can recover on it ; if another per- 
 son is owner, the holder recovers as trustee. 
 Hence, showing that the corporation has 
 exceeded its powers in buying the note 
 may expose it to proceedings for a for- 
 feiture, but does not defeat the action. 
 [9 Mass. 423; 16 Mass. 94.] Supreme Ct., 
 1878, National Pemberton Bank v. Porter, 
 125 Mass. 333. 
 
 The above decision reasserted ; and held, 
 that the purchase of the note by the bank is 
 entirely independent of the contract to pay 
 embodied in the note: whether the bank is 
 holding the note for itself or for another is 
 wholly immaterial to the defendant, except, 
 perhaps, where the bank is holding for 
 some one who could not enforce the note 
 against the defendant. Supreme Ct. 1879, 
 Atlas Nat. Bank !>. Savery, 127 Mass. 75. 
 
 The national banking law does not, even 
 by implication, forbid the national banks to 
 make a loan of money on real estate; or 
 annul any loan made by such bank; or re- 
 lease or discharge any deed of trust or 
 mortgage on real estate taken by the bank 
 to secure the payment of such loan. And 
 if the act of Congress plainly prohibited a 
 bank organized under it to take a deed of 
 trust or mortgage to secure a loan in any 
 case, or made it penal to do so, such a 
 provision could only be treated as intended 
 for the benefit of the government, which 
 might or might not, at its pleasure, enforce 
 the forfeiture; the security could not be 
 avoided by the borrower or his creditors. 
 Ct. of Appeals, 1879, Wroten v. Armat, 31 
 Gratt. (Va.) 228. 
 
 A executed a promissory note to B, 
 and, to secure the payment thereof, a deed 
 of trust of lands, which was in effect a 
 mortgage with a power of sale thereto an- 
 
38 
 
 BANKING. 
 
 nexed. A national bank, on the security 
 of the note and deed, loaned money to B., 
 who thereupon assigned them to the bank. 
 The note not having been paid at its ma- 
 turity, the trustee was, pursuant to the 
 power, proceeding to sell the lands, when 
 A filed his bill to enjoin the sale, upon the 
 ground that, by Rev. Stat. §§ .5136, 51.37, 
 the deed did not inure as security for a loan 
 made by the bank at the time of the assign- 
 ment of the note and deed Held, that 
 the bank was entitled to enforce the col- 
 lection of the note by a sale of the lands. 
 Supreme Ct. 1878, National Bank v. Mat- 
 thews, 98 U. S. 621. 
 
 Their corporate powers. A national 
 bank has not authority to lend its credit. 
 It cannot guarantee a borrower's obligation, 
 or give an accommodation di'aft. 4lh Circ. 
 (Va.) 1879, Seligman v. Charlottesville 
 Nat. Bank, 3 Hugli. 647 ; 25 Int. Rev. Rec. 
 385; Johnston u. Charlottesville Nat. Bank, 
 3 Hugh. 657; 25 Int. Reo. Rec. 385. 
 
 A national bank can guarantee notes 
 which it sells. The Manufacturers' Na- 
 tional Bank received notes from their maker 
 on the undertaking to negotiate them with 
 the People's Bank, and to apply the pro- 
 ceeds to cancel the debt of the maker to the 
 Manufacturers' Bank. Without any specific 
 authority, but according to the course of 
 business, the managing officers of the Manu- 
 facturers' Bank transmitted the notes to the 
 People's Bank in a letter, saying: " This 
 bank hereby guarantees the payment of 
 said note. ' ' The value of the notes was duly 
 charged and credited in accounts. They 
 were not paid at maturity; and the People's 
 Bank sued the Manufacturers' on the 
 guaranty. Held, that it was entitled to 
 recover. Rev. Stat. § 5136 enables any 
 national bank to exercise by agents all in- 
 cidental powers necessary to carry on the 
 business of banking, by discounting and ne- 
 gotiating promissory notes, &c. To hand 
 over with an indorsement and guaranty 
 is one of the commonest modes of trans- 
 ferring the secui'ities named. Undoubtedly 
 a bank might indorse "waiving demand 
 and notice " and would be bound accord- 
 ingly. A guaranty is a less onerous con- 
 tract than such an indorsement, and is 
 within the corporate power. And the pre- 
 sumption is that the officers were authorized 
 to exercise it on behalf of the bank; the re- 
 tention and enjoyment of the proceeds of 
 
 the transaction by the Manufacturers' Bank 
 constitute an effectual ratification. The 
 doctrine of ultra vires has no application 
 to such cases. U. S. Supreme Ct. 1879, 
 People's Bank v. Manufacturers' Nat. 
 Bank, 101 U. S. 181. 
 
 At the request of its debtor, a national 
 bank in Alabama gave him further time, 
 in consideration of his transferring, before 
 maturity, a negotiable note, as collateral 
 security, and paying in advance usurious 
 interest for the period of extension. The 
 note was so indorsed as to make the bank 
 a party to the instrument, responsible for 
 its due presentation, and for due notice of 
 non-payment. Held : 
 
 1. That while the transaction was in 
 part invalid for usury, it was in part 
 valid ; and the legal portion was sufficient 
 to sustain the contract of extension and 
 transfer, and to constitute the bank a holder 
 of the note for value. 
 
 2. That while the national-banking act 
 subjects the bank in such a case to liability 
 for taking usurious interest, it does not de- 
 clare the contract of indorsement void, 
 and, no such penalty being prescribed, the 
 courts cannot superadd it. Supreme Ct., 
 1879, Gates v. National Bank, 100 U. S. 
 239. 
 
 The provisions of U. S. Rev. Stat. §§ 
 5197, 5198 — limiting the rate of interest 
 which may be taken by national banks, 
 — apply, equally, to discounts of business 
 paper and of accommodation paper. They 
 operate to restrict the rate of discount on 
 all paper, business or accommodation, to 
 the rate of interest established by the 
 State law, or, if there is no such established 
 rate, then to seven per cent per annum. 
 Accordingly, where a national bank in 
 New York discounted business paper at 
 a higher rate than seven per cent, — Held, 
 that it was liable to the penalty imposed by 
 the act of Congress, although no limit was 
 prescribed by the State law to the rate of 
 discount which natural persons may take. 
 Cl. of Appeals, 1878, Johnson v. National 
 Bank of Gloversville, 74 N. Y. 329. 
 
 In a suit by a national bank against sU 
 the parties to a bill of exchange discounted 
 by it, to recover the amount thereof, the 
 assignees of the acceptor — the latter hav- 
 ing made an assignment for the benefit of 
 his creditors — cannot, having intervened 
 as pai-ties, set up by way of counter-claim 
 
BANKING. 
 
 39 
 
 or set-off that the bank, in discounting a 
 series of bills of their assignor, the pro- 
 ceeds of which it used to pay other bills, 
 knowingly took and was paid a greater rate 
 of interest than that allowed by law. The 
 law of Congress has prescribed, as a penalty 
 for such taking, that the person paying 
 such unlawful interest, or his legal repre- 
 sentative, may, in any action of debt 
 against the bank, recover back twice the 
 amount so paid, and he cannot resort to 
 any other mode or forin of procedure. 
 Supreme Ct. 1878, Barnet v. National 
 Bank, 98 U. S. 555. 
 
 For a national bank, upon discounting 
 a note, to take usurious interest, forfeits all 
 claim to even lawful interest; the bank 
 cannot claim interest for the period be- 
 tween the maturity of the note and a re- 
 covery upon it, any more than during the 
 running of the note. 3rd Circ. (_Pa.) 1880, 
 First Nat. Bank v. Stauffer, 1 Fed. Rep. 
 187. 
 
 Snits by or against national banks. 
 In cases within the national currency act, 
 the circuit courts have unconditional and 
 exclusive jurisdiction of all actions brought 
 by or against any national-banking asso- 
 ciation established in the district for which 
 the court is held, without regard to the 
 citizenship of the parties or the amount 
 involved in the case. Sd Circ. (Pa.) 
 1879, Mitchell v. Walker, 25 Int. Rev. Rec. 
 64; 7 Reporter, 425; Mitchell «. Butler, 25 
 Int. Rev. Rec. 185 ; 8 Reporter, 2-32. 
 
 A national bank is not authorized to in- 
 stitute a suit in a Federal court held out of 
 the district where the bank is established. 
 So held, where the amount was less than 
 $500. 8th Circ. (Kan.') 1880, St. Louis 
 Nat. Bank v. Brinkman, 1 Fed. Re- 
 porter, 45. See Courts. 
 
 In an action by the receiver of a na- 
 tional bank to enforce the liability of a 
 shareholder, it appeared that the date of 
 the defendant's subscription to the stock 
 was prior to May, 1866, when the receiver 
 was appointed ; that the comptroller of the 
 currency decided on June 28, 1876, that the 
 enforcement of this liability to its full 
 extent was necessaiy, and instmcted the 
 receiver accordingly ; and that this action 
 was thereupon brought. Held, that al- 
 though such decision and order of the 
 comptroller were necessary preliminaries 
 to a suit against the shareholder, yet, they 
 
 having been delayed without sufficient 
 apparent reason for more than six years 
 from the date of the subscription, the sta- 
 tute of limitations was a bar to the action. 
 3d Circ. (Pa.) 1879, Price v. Yates, 19 
 Alb. L. Jour. 295; 25 Int. Reo. Rec. 113. 
 
 It is only where no other rule is pre- 
 scribed by act of Congress that Rev. Stat. 
 § 721, makes State laws applicable as rules 
 of decision in Federal courts. The right of 
 a receiver of a national bank to bring a 
 suit in his own name to recover an assess- 
 ment laid on stockholders, for the purpose 
 of paying debts, grows out of the . pro- 
 visions of § 5234 of the Revised Statutes; 
 and therefore, §§ 111, 123 of the New York 
 Code of Procedure do not apply to the 
 case as rules of decision. S. Dist. of 
 N. Y. 1876, Stanton v. Wilkeson, 8 Ben. 
 357. 
 
 A party who, by way of pledge or col- 
 lateral security for a loan of money, accepts 
 stock of a national bank, which he causes 
 to be transferred to himself on its books, 
 incurs immediately liability as a stock- 
 holder, and he cannot relieve himself there- 
 from by making a colorable transfer of the 
 stock, with the understanding that at his 
 request it shall be retransferred. Supreme 
 Ct. 1878, National Bank v. Case, 99 U. S. 
 628. See also Davis v. Stevens, 20 Alb. 
 L. J. 490; 25 Int. Rev. Rec. 378; 8 Repor- 
 ter, 710. 
 
 A national bank which had so accepted, 
 and caused to be transferred to it, shares 
 of stock of another national bank, was, on 
 the latter becoming insolvent, sued as a 
 stockholder. Held, that a loan of money 
 by a national bank on such security is not 
 prohibited by law; and, if it were, the de- 
 fendant could not set up its own illegal act 
 to escape the responsibility resulting there- 
 from, lb. 
 
 Conversion. A gold bank may (by the pro- 
 ceedings authorized by Rev. Stat. § 5154, 
 for conversion of State banks) ' ' cease to 
 be a gold bank, and become such an as- 
 sociation as is authorized by § 5133," " for 
 carrying on the business of banking. " Its 
 certificate of organization shall bear date 
 of its original organization as a gold bank. 
 Act of Congress of Feb. 14, 1880. 
 
 State banks. Directors are not liable 
 to stockholders for losses unless there is 
 bad faith. The directors of a savings 
 bank elected a cashier, and allowed him to 
 
40 
 
 BANKING. —BANKRUPTCY. 
 
 continue in the active management of the 
 business through a period of twelve years. 
 He possessed, when he left it, a high char- 
 acter for integrity and business ability; 
 but during the last four or five years of 
 his holding ofl5ce he practised a series of 
 frauds, embezzling the funds and falsifying 
 the books, by which the bank sustained 
 large losses, the capital was greatly im- 
 paired, and the stock was rendered value- 
 less. The frauds and false entries might 
 easily have been detected on examination 
 by a skilful accountant; but the directors, 
 having confidence in the cashier, did not 
 order any such examination. The direc- 
 tors had no reason to suspect the mis- 
 management; the business of the bank was 
 carried on by the cashier with apparent 
 efficiency and accuracy ; all demands were 
 met and dividends regularly paid. In an 
 action on behalf of stockholders to hold 
 directors personally liable for the losses, — 
 Held, that proof of bad faith or of gross 
 negligence equivalent to it is necessary to 
 sustain such a suit. The directors of a 
 bank are not supposed to be selected for 
 their qualifications to supervise its business 
 in detail. The selection of a cashier known 
 to be of bad character or incompetent 
 would imply bad faith; but they have a 
 right to entrust the management to a man 
 universally regarded as honest and capable ; 
 and, if no circumstances arise to charge 
 them with knowledge of mismanagement 
 by him, they are not personally liable for 
 losses it may cause. Want of skill, or even 
 ordinary negligence, on their part is not a 
 ground of action. Ct. of Appeals, 1878, 
 Dunn V. Kyle, 14 Bush (Ky.), 134. 
 
 Numerous amendments made in the free 
 banking law of March 21, 1851, and amen- 
 datory acts; and several sections repealed. 
 Ohio Laws 1879 (April 24), 72. 
 
 Minor Decisions on Banking. 
 An employer's issuing to workmen tick- 
 ets payable in trade at his store, and mai-ked 
 " not transferable," does not violate a law 
 forbidding making paper to circulate as 
 money: 59 ^/a. 24. Charter power to sell, 
 buy, or receive or hold in trust, or ad- 
 vance money upon any kind of propeity, 
 does not authorize doing business as a bank 
 of discount: 77 iV. F. 64. General banking 
 powers include power to borrow money ; and 
 cashier's authority may arise by usage: 6 
 
 Mo. App. 333. Bank is chargeable with 
 president's knowledge of residence of in- 
 dorser of note discounted ; notwithstanding 
 president was absent on the day for send- 
 ing notice: 6 Afo. App. 543. It is not 
 negligence for ofiicers to entrust bank 
 messenger with safe-key and combination: 
 
 87 Pa. St. 419. Bank holding two notes 
 discounted for same dealer may apply 
 his balance, too small for both, to one 
 which is unindorsed; and indorser of 
 the other cannot complain: 127 Mass. 
 298. A depositor's giving his own check 
 to the bank, drawn to pay a debt to the 
 bank, is payment if he has funds; the bank 
 cannot refuse it: 87 Pa. St. 55. On a 
 question of priority between holders of 
 checks, &c., presented during same day, 
 courts must take notice of fractions of a day : 
 lOOtr. 5. 686. Entries in the customer's 
 pass-book are not conclusive on the bank; 
 errors may be shown : 88 Ml. 52. Whether 
 bill-holder can sue single stockholder to en- 
 force his individual liability (it being pro- 
 portioned to his stock) for dishonored notes 
 of the bank: 10 S. C. 263; 90 III. 213. 
 Certificate of controller of currency, that 
 national bank is authorized to do business, 
 &c. , is evidence against plea of nul tiel corp. : 
 91 III. 20. A mortgage on land given to 
 secure a loan by a national bank is not 
 saved by drawing it to an ofiicer of the bank 
 as nominal mortgagee : 87 111. 151. A 
 wife's indorsement of promissory note, 
 though charged against her separate estate, 
 is not a mortgage, but a personal security; 
 a national bank may take it: 73 N. Y. 
 260. National bank can take mortgage, or 
 an assignment of notes secured by trust 
 deed, on lands, as collateral for an ante- 
 cedent debt : 87 III. 602 ; 88 III. 352 ; but not 
 as a cover for buying land on speculation: 
 
 88 III. 352. National bank is not liable to 
 bill to recover back usury, under State 
 laws; it is only subject to act of Congress: 
 3 Lea (Term.), 40. State bank changing 
 to national continues liable to State tax 
 until conversion is completed: 2 Pearson 
 (Pa.), 503. Incorporated State banks sub- 
 ject to examination by the commissioners 
 under act of 1878: 53 Cal. 416. 
 
 BANKRUPTCY. The repeal of the 
 bankrupt laws, which took effect Sept. 
 1, 1878, seems to warrant omitting 
 from the Year Book decisions relating 
 
BANKRUPTCY. 
 
 41 
 
 to the procedure under the law, while 
 it appeai-s desirable to retain those 
 which relate to the effect of a dis- 
 charge, and to the rights and powers of 
 assignees in suing to collect the assets ; 
 for these must continue to be invoked 
 for a long time to come : their utility is 
 not impaired by the repeal. 
 
 Kepeal of the bankrupt laws. The 
 
 bankrupt law, approved March 2, 1867, 
 Rev. Stat. tit. 61, and the amendatory act 
 of June 22, 1871, and all acts in amendment 
 or supplementary thereto, or in explanation 
 thereof, repealed: provided, "That such 
 repeal shall in no manner invalidate or 
 afiect any case in bankruptcy instituted 
 and pending in any court prior to the day 
 when this act .shall take effect; but as to all 
 such pending cases and all future pro- 
 ceedings therein, and in respect of all 
 pains, penalties, and forfeitures which 
 shall have been incui-red under any of 
 said acts prior to the day when this act 
 takes effect, or which may be thereafter in- 
 curred, under any of those provisions of 
 any of said acts which, for the purposes 
 named in this act, are kept in force, and 
 all penal actions and criminal proceedings 
 for a violation of any of said acts, whether 
 then pending or thereafter instituted, and 
 in respect of all rights of debtors and 
 creditors (except the right of commencing 
 original proceedings in bankruptcy), and 
 all rights of, and suits by, or against 
 assignees, under any or all of said acts, in 
 any matter or case which shall have arisen 
 prior to the day when this act takes effect, 
 ... or in any matter or case which shall 
 arise after this act takes effect, in respect 
 of any matter of bankruptcy authorized by 
 this act to be proceeded with after said 
 last-named day, the acts hereby repealed 
 shall continue in full force and effect until 
 the same .shall be fully disposed of, in the 
 same manner .as if said acts had not been 
 repealed." Act of Congress of June 17, 
 1878, ch. 160, 20 Slat, at L. 99. 
 
 Title of assignee. The assignment in 
 bankruptcy relates back by operation of 
 law to the date of filing the petition, and 
 carries with it aU the property of the bank- 
 rupt on that day, so that no person can by 
 subsequent act defeat such title, or impose 
 any lien upon the property. 2d Circ. 
 
 (N. Y.) 1879, Sicard v. Buffalo, &c. Ry. 
 Co., 8 Reporter, 550 ; Supreme Ct. 1878, 
 Geisreiter v. Sevier, 33 Ark. 522. 
 
 A pecuniary claim in favor of the bank- 
 rupt against the United States government 
 will pass by assignment in bankruptcy. 
 Supreme Ct. 1878, Erwin v. United States, 
 97 U. S. 392 ; Phelps v. McDonald, 99 U. S. 
 298. 
 
 The right of an owner of cotton cap- 
 tured and sold by military forces of the 
 United States to recover, under the aban- 
 doned and captured property act, the pro- 
 ceeds paid into the treasury, is a right of 
 property, and passes by his assignment 
 in bankruptcy. Supreme Ct. 1878, Erwin 
 V. United States, 97 U. S. 892; 13 Ct. of 
 a. 49; Burke v. United States, 13 Ct. of 
 Ct. 231. 
 
 The assignee can either appear in the 
 court of claims and support his claim in 
 his own name, or he may sell and assign 
 the claim and the purchaser may sue in his 
 own name. 1877, Burke v. United States, 
 13 Ct. of Ct. 231. 
 
 The fact that, at the date of the petition 
 and assignment, a claim against government 
 had become outlawed, does not prevent it 
 from passing. The claim was nevertheless 
 property, though of uncertain value. It 
 was a claim for the proceeds of goods of the 
 possession of which the true owner had 
 been deprived by the action of the gov- 
 ernment. Whether this was done right- 
 fully or wrongfully does not affect the 
 character of the claim as property, though 
 it may affect its validity and value. Claims 
 for compensation for the possession, use, 
 or appropriation of tangible property con- 
 stitute personal estate equally with the 
 property out of which they grow, although 
 the validity of such claims maybe denied, 
 and their value may depend upon the un- 
 certainties of litigation, or the doubtful 
 result of an appeal to the legislature. A 
 demand of a bankrupt which is outlawed 
 must go to the assignee; for contingencies 
 may arise in many ways which wiU give 
 value to it. Demands against the gov- 
 ernment, if based upon considerations 
 which would be valid between individuals, 
 such as services rendered or goods taken, 
 are property, although there be no -court to 
 investigate and pass upon their validity, 
 and their recognition and payment may 
 depend upon the caprice or favor of the 
 
42 
 
 BANKRUPTCY. 
 
 legislature. Supreme Ct. 1878, Erwin v. 
 United States, 97 U. S. 392. 
 
 A British subject resident in this coun- 
 try, was duly declared a bankrupt, and 
 conveyance of his estate was made in usual 
 form to an assignee. At that time he had 
 a claim against the United States, of which 
 the commission organized under the treaty 
 between the United States and Great 
 Britain, of May 8, 1871 (17 Stat. 863), took 
 cognizance, and made an award for its 
 payment. Held, that the claim passed to 
 the assignee. Supreme Ct. 1878, Phelps w. 
 McDonald, 99 U. S. 298; 16 Bankr. Reg. 
 217. 
 
 Money paid by the United States pur- 
 suant to a decision of the Commissioners of 
 Alabama Claims, being reimbursement of 
 a ship-owner's losses sustained by the torts 
 of the insurgent cruisers, out of the fund 
 awarded by the Geneva arbitration for such 
 losses, belongs to an assignee in bankruptcy 
 of the owner ; and he may recover it from 
 the owner if it has been paid to him. 
 The claim to such money 16 in the nature 
 of a property right, and is assignable ; and 
 the act of Congress of Feb. 26, 1853, 
 — restricting the assignment of claims 
 against government, — does not apply to 
 assignments in bankruptcy. Supreme Ct. 
 1878, Leonard v. Nye, 125 Mass. 455. 
 
 The right of a stockbroker to member- 
 ship in the New York Stock Exchange 
 passes to his assignee in bankruptcy. Such 
 membership has pecuniary value; and, 
 practically, it is transferable. Nothing in 
 the rules of the exchange prevents an as- 
 signee from disposing of the bankrupt's 
 seat, subject to the condition which would 
 be imposed on a sale by the bankrupt 
 himself; viz., that his debts to other 
 members be first paid. The necessary co- 
 operation by the bankrupt in the transfer 
 may be enforced by an order of the district 
 court, requiring him to execute any instru- 
 ment necessary to the transfer. S. Disl. of 
 N. Y. 1880, Re Ketchum, 1 Fed. Reporter, 
 815. 
 
 After discharge granted, the bankrupt is 
 no longer subject to summary power of the 
 bankruptcy court, requiring him to ex- 
 ecute instruments auxiliary to such trans- 
 fer. S. Dist. of N. Y. 1880, Matter of 
 Nichols, 1 Fed. Reporter, 842. 
 
 Check which had been deposited with a 
 bank for collection, — Held, under the cir- 
 
 cumstances, not to have become its propertyj 
 so as to be part of its assets in bankruptcy; 
 but the full amount was ordered to be paid 
 to the depositor. E. Dist. of N.Y. 1875, 
 Matter of Havens, 8 Ben, 309. 
 
 Assignee's right of action. Refusal 
 of an assignee to prosecute for recovery of 
 property which the bankrupt has, prior to 
 the adjudication, fraudulently transferred, 
 though unjustifiable, does not give the 
 creditors a standing to maintain a suit for 
 that pui-pose. By the bankrupt law the 
 right of action vests in the assignee; and 
 it is only through instrumentality of the 
 assignee that property fraudulently con- 
 veyed can be reached and subjected to the 
 claims of creditors. Supreme Ct. 1878, 
 Glenny v. Langdon, 98 U. S. 20. 
 
 The assignees of a bankrupt are, however, 
 subject to the control and direction of the 
 proper court, and it may, for good cause 
 shown, compel them to take the requisite 
 steps for the full and complete protection 
 of the rights of his creditors, lb. 
 
 The statutory requirement, that all suits 
 by or against an assignee in bankruptcy 
 shall be brought within two years from the 
 time the cause of action accrued, relates 
 to suits by or against him with respect to 
 parties other than the bankrupt. Supreme 
 Ct. 1878, Phelps v. McDonald, 99 U. S. 
 298. 
 
 Purchasers from an assignee in bank- 
 ruptcy of property transferable to or vested 
 in him as such cannot maintain a suit in 
 equity asserting their title to such property 
 against persons claiming adverse rights 
 therein, if, at the time of the purcha.se, the 
 assignee's right of action was, under the 
 Rev. Stat. § 5057, barred by lapse of 
 time. Supreme Ct. 1878, Gifford v. Helms, 
 98 U. S. 248; Supreme Ct. 1878, Geisreiter 
 ». Sevier, 33 Ark 522. 
 
 Effect of discharge. An embarrassed 
 debtor having made a sale of goods with 
 intent to delay and defraud creditors, a 
 creditors' suit in chancery was brought to 
 set the sale aside, and in this suit the goods 
 were attached. The purchaser, he being a 
 defendant in the creditors' suit, gave a 
 bond with sureties, pursuant to State law, 
 and conditioned that he, claiming the 
 goods as his property, would pay the as- 
 certained value of them as expressed in the 
 bond, should he be cast in the suit, and they 
 be decreed to be subject to the attachment, 
 
BANKRUPTCY. 
 
 43 
 
 and liable thereunder to the satisfaction of 
 the debt sued for. Held : 
 
 1. His liability on the bond was not a 
 debt created by fraud within Rev. Stat. 
 § 5117, which provides that a debt created 
 by fraud shall not be barred by a dis- 
 charge in bankruptcy. 
 
 2. If the petition in bankruptcy was 
 filed after the execution of the bond, 
 and before the rendition of the decree 
 determining the right of property in the 
 goods, his liability was a contingent one, 
 which, under Rev. Stat. § 5068, was prov- 
 able against his estate in the proper bank- 
 rupt court. Supreme Ct. 1878, Wolf v. 
 Stix, 99 U.S.I. 
 
 The provision that a debt created by 
 fraud shall not be affected by a discharge 
 means actual, not constructive fraud. 
 Clearly it does not include such fraud as 
 the law implies from the purchase of prop- 
 erty from a debtor with the intent thereby 
 to hinder and delay his creditors in the col- 
 lection of their debts. And if it did, such 
 a purchase does not create a debt from the 
 purchaser to the creditors. The purchaser 
 does not subject himself to a liability to 
 pay to creditors the value of what he buys. 
 All the risk he runs is that the sale may 
 be avoided, and the property reclaimed for 
 their benefit. To come within this excep- 
 tion in the bankrupt act the debt must 
 be created by fraud. The debt in this 
 case was not' created by the purchase of the 
 goods, but by giving bond to pay their 
 value if the purchaser failed to sustain his 
 title. In this there was no fraud. lb. 
 
 But while the discharge of the purchaser 
 and principal in the bond, released him 
 from liability on it, it did not release his 
 sureties. The ground of the cases holding 
 that one bound as sm-ety for another to 
 pay any judgment that may be rendered in 
 a specified action wiU be released, if the 
 judgment is defeated by the bankruptcy of 
 the person for whom the obligation is as- 
 sumed, is that the event has not happened 
 on which the liability of the surety was 
 made to depend. Of this class of obliga- 
 tions are the ordinary bonds in attachment 
 suits to dissolve an attachment, appeal 
 bonds, and the like. But here the bond 
 was not givyen to dissolve the attachment. 
 That was issued against the property of the 
 debtor and owner of the goods; and in 
 order to get possession of the goods which 
 
 had been attached, and which the pur- 
 chaser and principal claimed as his own, 
 he subjected his bond to the operation of 
 the attachment which was to continue in 
 force, and took the goods away. In legal 
 effect he purchased the interest of the 
 creditors in the goods, and, with his sure- 
 ties, agreed to pay the creditors |10,000 if, 
 upon the trial of the suit in which the at- 
 tachment was issued, it should appear that 
 they had any interest to sell. In this ob- . 
 ligation the liability of the sureties was 
 made to depend, not upon the recovery of 
 a money judgment against the purchaser 
 and principal, but upon recovery of a 
 judgment that the title he acquired by his 
 purchase was void as against the attaching 
 creditors. The case stands precisely the 
 same as it would if the purchaser and his 
 sureties had entered into a contract with 
 the attaching creditors, in a form author- 
 ized by law, to take the goods from the 
 sherifi and pay $10,000, if on the trial it 
 should be determined that the attachment 
 was valid, and this was a suit on that con- 
 tract. Clearly, under such circumstances, 
 it could not be successfully contended that 
 the purchaser's bankruptcy released his 
 sureties. lb. 
 
 A claim of one obligor in a bond to save 
 retiring partner harmless from firm debts, 
 against his co-obligor, to be reimbursed for 
 payments made on the bond in excess of 
 his share, is provable as a contingent lia- 
 bility, in bankruptcy proceedings against 
 the co-obligor ; and therefore is barred by 
 his discharge. Supreme Ct. 1878, Fisher 
 V. Tifft, 12 R.I.m. 
 
 Discharge does not impair lien on bank- 
 rupt's property. Dixon, after several 
 judgments, some of which had been dock- 
 eted while others had not, had been re- 
 covered against him, conveyed his lands to 
 Green; he then filed a petition in bank- 
 ruptcy and in due course obtained a dis- 
 charge. Green reconveyed the land. 
 Both conveyances purported to be for val- 
 uable consideration. The judgment cred- 
 itors then sought to enforce their judgments 
 against the land; and Dixon prayed an 
 injunction to restrain their proceedings. 
 Held, that both docketed and undocketed 
 judgments stood on the same ground; and 
 that the discharge, while it released the 
 debtor personally, did not impair the lien 
 of either. The deed to Green, having al- 
 
44 
 
 BANKRUPTCY. 
 
 ■ways been treated as valid, prevented the 
 lands from becoming assets in bankruptcy 
 and passing to the assignee ; but they con- 
 tinued subject to the liens of the judg- 
 ments, unaffected by the bankruptcy. A 
 bankruptcy proceeding consists of two 
 branches. The bankrupt surrenders his 
 estate to the court, and becomes civililer 
 mortuus, as to it, from the filing of his pe- 
 tition. The estate comes to the court 
 charged by the bankruptcy lawwith all liens 
 which were resting upon it. The bank- 
 ruptcy proceeding then goes on, in one 
 branch as to the bankrupt, in the other 
 branch as to his estate and the liens upon 
 it. The law requires the bankruptcy 
 court to respect and discharge the liens 
 resting upon the estate, and contains noth- 
 ing implying that the estate shall be ex- 
 onerated from the liens. The bankruptcy 
 proceeding in the branch relating to the 
 bankrupt himself is purely personal, and 
 the discharge is purely a personal exonera- 
 tion of the bankrupt from the debts. Even 
 the assets which he brings into bankruptcy 
 are charged with all liens existing against 
 them, and if they are sold after his dis- 
 charge, and he becomes the purchaser of 
 such of them as are encumbered with liens, 
 he takes them subject to the liens of the 
 very debts from which he is personally dis- 
 charged. If this be so by the express 
 terms of the bankrupt law as to property 
 which he brings into the bankruptcy court, 
 how much more certainly is it so as to 
 property which, by fraud or contrivance, or 
 even by honest transfer, he has managed 
 not to surrender into bankruptcy. That 
 which he thus conveys away may be sub- 
 jected by State courts to liens encumbering 
 it. That which he brings into bankruptcy 
 will be subject to liens encumbering it by 
 the bankruptcy court. In either case the 
 lien in rem will stand and be enforced, 
 though the debt in personam be discharged 
 in bankruptcy. The language of the order 
 of discharge is that the bankrupt person 
 "be discharged from all debts which ex- 
 isted at the filing of his petition ; " not that 
 his estate be discharged from the lien of 
 those debts. Documents of this sort mean 
 only what they express, and are not con- 
 strued to operate beyond the strict effect of 
 their terms. When, therefore, a discharge 
 in bankruptcy declares that the said bank- 
 rupt is for ever discharged from debts and 
 
 claims due on the day of his petition, it re- 
 fers to him personally, and cannot be con- 
 strued to mean that his estate is discharged 
 from the liens which encumber it. E. Dint, 
 of Va. 1878, Dixon v. Barnum, 3 Hugh. 207. 
 See McAden v. Keen, 30 Gratl. (Fa.) 400. 
 
 A debt for city taxes is not provable in 
 bankruptcy ; nor are proceedings to enforce 
 it liable to be stayed on account of bank- 
 ruptcy proceedings. A tax is not a debt, 
 but an impost or charge levied by govern- 
 ment for support of the State and operat- 
 ing in invilum. Moreover, the bankrupt 
 law by clear implication excludes a tax. 
 Dist. ofN. J. 1880, Re Duiyee, 2 Fed. Re- 
 porter, 268. 
 
 A sheriff, being unable to pay county 
 moneys which he had officially collected, 
 made his note to the county commission- 
 ers for the sum due ; they accepted it and 
 gave him a receipt in full; it was not paid; 
 and the county recovered judgment upon 
 it. Thereafter the sheriff was discharged 
 in bankruptcy ; and resisted a subsequent 
 attempt to enforce the judgement on the 
 ground of the discharge. For the county 
 it was contended that the case was one of 
 a debt created by defalcation as a public 
 officer. Held, that the original liability in- 
 curred by the sheriff's failure to account 
 and pay over was undoubtedly for a defal- 
 cation, and if the proceeding were to en- 
 force that liability the discharge would not 
 protect him. But it was not; it was 
 founded upon the obligation created by the 
 promise to pay embodied in the note. 
 Whether the original obligation remained 
 in force or was extinguished by accepting 
 the note, was an immaterial question; for 
 the county had not sued upon the original 
 debt but upon the note. Now, a new se- 
 curity given for a fiduciary debt is not itself 
 fiduciary so as to be exempt. [49 Me. 312 ; 
 45 Ga. 489.] Supreme Cl. 1880, Wilkes 
 County V. Staley, 82 N. C. 395. 
 
 Minor Decisions on Bankrnptcy. 
 Doctrine of constructive notice of bank- 
 ruptcy proceedings to all the world, — 
 explained : 76 N. Y. 464. Assignment 
 pfesses property of the bankrupt whether 
 inventoried or not: 57 ^ /a. 492. It passes 
 a cause of action for deceitfully inducing 
 plaintiff to form partnership with defend- 
 ant, and contribute capital which was lost: 
 45 N. Y. Superior Ct. 56. It vests one 
 
BANKRUPTCY. — BETTING. 
 
 45 
 
 third of bankrupt's real property in his 
 ■wife, as if he had died; for it is a judicial 
 sale within act March 11, 1875: 2 Fed. 
 Reporter, 202. Assignee's sale of lands of 
 bankrupt does not devest right of dower: 
 87 Pa. St. 513. Assignee takes subject to 
 equities; and has no greater interest than 
 bankrupt had, except as to property at- 
 tached or fraudulently transferred: 2 Fed. 
 Reporter, 455. To attack a preference, as- 
 signee must show a case fully within the 
 statutory prohibition ; preferences are not 
 intrinsically immoral : 2 Fed. Reporter, 169. 
 Payment made by a deputy-collector of in- 
 ternal revenue to the collector, his princi- 
 pal, of United States money collected by 
 him, is not an unlawful preference: 3 Col. 
 43. State courts have jurisdiction of as- 
 signee's suit to recover assets of the bank- 
 rupt: 3 Lea {Tenn.'), 296; or of assignee's 
 suit to annul chattel mortgage of bankrupt 
 as a fraudulent preference, and compel as- 
 signee to account: 77 N. Y. 156; or to 
 recover back money which bankrupt wi-ong- 
 fully paid away to preferred creditor before 
 petition : 19 Hun (N. Y.), 622. A State 
 court has not jurisdiction of an action of 
 trover by assignee of a bankrupt, suing as 
 such : 59 (?a. 403. Time allowable for bring- 
 ing action between assignee and person 
 claiming adverse interest in assets: 76 
 N. Y. 359. Effect of judgment adverse to 
 assignee's suit to vacate deed of bankrupt, 
 upon claim of prior judgment creditor to 
 same relief: 69 Mo. 629. 
 
 Contingent liability of stockholder for 
 debts of bank, if not included in list of 
 debts, is not barred by discharge: 2 Fed. 
 Reporter, 897. Having proved a debt does 
 not bar a subsequent suit upon it, if debtor 
 was not discharged : 124 Mass. 99. Prov- 
 ing debt will discharge the lien of a State 
 judgment; and if this injures anindorser 
 or suiety, he is discharged so far as injured : 
 60 Ga. 52. Discharge of the principal in 
 the bond does not release a surety: 124 
 Mass. 219. Discharge does not release the 
 debtor's sureties on an appeal previously 
 taken by him in an action still pending: 
 71 N. Y. 466. When a composition is a 
 discharge: 124 ikfass. 497; W.300. A debt 
 which would not be barred by discharge is 
 not by composition : 124 il/o.ss. 493; iO N.J. 
 L. 83. Composition does not discharge lien 
 of attachment unless there is assignment: 
 69 Me. 353. Intendments in favor of sus- 
 
 taining composition as working a discharge: 
 71 N. Y. 20. Discharge bars action for con- 
 version of collateral securities ; this is not 
 a fraudulent or fiduciary debt: 77 N. Y. 
 427. For money collected by bank before 
 suspension it is not; for money collected 
 after, it is ; fiduciary debtor: 51 Tex. 129, 
 132. Discharge must be pleaded; it is not 
 ground of relief after judgment: 80 N. C. 
 329 ; 82 N. C. 173. How to show discharge 
 in defence of a State suit: 82 N. C. 409. 
 If bankrupt allows State court suit com- 
 menced after petition to proceed without 
 asking a stay, judgment against him is 
 valid and will not be discharged: 61 Ga. 
 58. Oral promise may revive discharged 
 debt: 33 Arh. 651; but an unequivocal 
 promise is needed: 90 III. 82 ; a part- 
 payment is not enough: 3 Bradw. (III.') 
 644. 
 
 BARRON. The Law of Chattel Mort- 
 gages. By John A. Barron; revised by 
 V. C. Blake. Toronto : Carswell & Co. 
 
 An annotation of the chattel-mortgage 
 acts of Canada (Rev. Stat. Ont. cb. 119, 
 and 43 Vict. ch. 15, Ont.). The notes 
 appear to embrace all the Canadian, and 
 many English and American cases. There 
 is an appendix of forms. 
 
 BAWDY-HOUSE. Any person who 
 shall keep a boat or other water-craft for 
 the purpose of prostitution on any of the 
 waters over which the State has jurisdic- 
 tion, declared guilty of felony punishable 
 by fine and imprisonment. III. Laws 
 1879 (May 31) 119. 
 
 BETTING. Conlin was sued upon a 
 note given by him for a trotting-park 
 premium, under these circumstances. Per- 
 sons interested in improving the breed of 
 horses formed an association to maintain 
 a trotting-course. The association offered 
 a purse of $600, divided into four parts, 
 one for each of the first four of the horses 
 which should run. A rule of the associa- 
 tion required that every person entering a 
 horse should pay an entrance-fee of ten per 
 cent. Conlin entered a horse, and was al- 
 lowed to give the note in suit for the $60. 
 His horse did not win, and he defended 
 upon the gi'ound that the arrangement was 
 substantially betting upon a horse-race. 
 Held, that the offering of a premium for 
 the swiftest horse, of a reward for the 
 finest animal, of a prize for the handsomest 
 baby or best story which shall be brought 
 
46 
 
 BETTING. — BILLS AND NOTES. 
 
 forward by various competitors, is not bet- 
 ting. The associations which make these 
 oiJers do not do so for the purpose of win- 
 ning if the competitors lose, but to en- 
 courage improvement. In any event of 
 the race the association pays the premium ; 
 and it is paid as a reward for high speed. 
 Nor is it betting for the association to 
 take an entrance-fee. This is not staked 
 upon the result of the trot; it is paid ab- 
 solutely at the outset, and whether the 
 horse loses or wins makes no difference. 
 In other words, the competitors pay the 
 entrance fees for the privilege of compet- 
 ing; the association pays a reward for 
 running; the two transactions are wholly 
 independent. Appellate Ct. 1878, Wilson 
 V. Conlin, 3 Bradw. {111.) 517. 
 
 The Indianapolis Trotting Association 
 offered premiums to the owners of horses 
 which should make the best time; and 
 when a winnersned for the purse they de- 
 fended on the grounds that the transaction 
 was a bet on a horse-race and contrary to 
 public policy. Held, that he was entitled 
 to recover. There is a clear distinction 
 between a wager or a bet, and a premium 
 or reward. In a wager or bet, there must 
 be two parties. In a premium or re- 
 ward, there is but one party until the act, 
 or thing, or purpose for which it is offered 
 has been accomplished. A premium is a 
 reward for some act done; a wager is a 
 stake upon an uncertain event. In a pre- 
 mium it is known who is to give before the 
 event; in a wager it is not known until 
 after. The two need not be confounded. 
 Nor are premiums offered for the best 
 horse, the best live-stock, &c. , objectionable 
 as contrary to public policy. Supreme Ct. 
 
 1878, Alvord v. Smith, 63 Ind. 58. 
 BILLS AND NOTES. Negotiability. 
 
 An instrument in form a promissory note 
 is not rendered non-negotiable because it 
 contains a stipulation to pay attorney's 
 fees if suit be instituted. &lh Circ. (Kan.) 
 
 1879, Ilowenstein v. Barnes ; 9 Cent. L J. 
 48; Heard v. Dubuque Bank, 8 Neb. 10. 
 
 To render a note negotiable, the amount 
 payable must be determinable from the 
 note itself, beyond any contingency. A 
 note payable to bearer contained, in ad- 
 dition to the agi-eennent to pay principal 
 and interest, a promise to pay an attorney's 
 commission of five per cent for collection, 
 " together with all taxes and charges in 
 
 the nature thereof," &c., immediately upon 
 their assessment. Held, that the note did 
 not possess the character of negotiable 
 paper. Irrespective of the provision for 
 an attorney's fee, the stipulation for pay- 
 ment of taxes rendered the amount to be 
 paid uncertain, and incapable of being as- 
 certained by any data obtainable from the 
 note. Sd Circ. (Pa.) 1878, Farquhar v. 
 Fidelity Ins., &c. Co., 18 Alb. L. J. 330; 6 
 Reporter, 676. 
 
 A statute declaring that bills of lading 
 shall be "negotiable by indorsement and 
 delivery " does not give validity to the title 
 of one who has purchased, even for value 
 and without notice, a biU of lading which 
 has been stolen. That is not a necessary 
 consequence of negotiability. Negotiabil- 
 ity is a technical term derived from usage 
 of merchants and bankers in transferring, 
 at fiirst bills of exchange and afterwards 
 promissory notes. At common law no con- 
 tract was assignable so as to give the as- 
 signee a right to sue it in his own name. 
 Bills and notes payable to order or bearer 
 were admitted as exceptions to this rule, 
 by adoption of the law merchant. The 
 transfer of them by indorsement and de- 
 livery is "negotiation," and the capability 
 of being thus transferred so as to give the 
 indorsee a right to sue in his own name is 
 what constitutes negotiability. Such trans- 
 fer of a bill or note is usually, though not 
 always, followed by other consequences; 
 such as liability of indorser upon demand, 
 dishonor, and notice; and exemption of the 
 instrument in the hands of any indorsee for 
 value, and before maturity, from defences 
 against the payee of which the indorsee 
 had no notice. So, also, if a note or bill re- 
 quiring only delivery to transfer it is lost 
 or stolen, a bona fide purchaser of it for 
 value acquires title as against the true 
 owner. But none of these consequences 
 are necessary attendants of negotiability 
 that may exist without them. The rule 
 that one who in good faith takes a stolen 
 bill or note for value acquires a good title, 
 is founded not in the negotiability of those 
 instruments, but in their peculiar character 
 as representatives of money. It is al- 
 lowed in order to sustain their usefulness 
 as a circulating medium. The reason does 
 not apply to bills of lading ; they are not 
 representatives of money, but symbols of 
 ownership of the goods named. If the 
 
BILLS AND NOTES. 
 
 47 
 
 goods themselves were lost or stolen, a sale 
 of them by the finder or thief, even to a 
 purchaser in good faith and for value, 
 would not devest the true title ; and a sale 
 of the paper symbol of ownership should 
 not have any higher effect than one of the 
 merchandise itself. If, indeed, the true 
 owner's carelessness has placed it in the 
 power of another to impose upon a pur- 
 chaser, he may be estopped to dispute the 
 ' latter's title. But a statute that should 
 make bare loss or theft of a bill of lading 
 operative to sustain a sale would be a great 
 innovation on the common law, and such 
 an effect should not be accorded by con- 
 struction. Supreme Ct. 1879, Shawu. Rail- 
 road Co., 101 U. S. 557. S. P. Branson v. 
 Heckler, 22 Kan. 610. 
 
 The payment to the thief or finder him- 
 self, of a negotiable note transferable by 
 delivery, will discharge the maker, provided 
 such payment was not made with knowl- 
 edge or suspicion of the infirmity of the 
 holder's title, or under circumstances which 
 might reasonably awaken the suspicions of 
 a prudent man. ?>lh Circ. (^Ark.) 1879, 
 Alexander v. Horner, 9 Cent. L. J. 111. 
 
 Purchaser for value. A creditor — 
 here, a national bank — who gives to his 
 debtor an extension of time in considera- 
 tion of receiving from him, by indorse- 
 ment, and before maturity, a negotiable 
 promissory note of a third person, is, by 
 the general commercial law, a holder of such 
 note for value, so as not to be subject to 
 equities available between the parties, of 
 which he had not notice when he took the 
 note. Supreme Ct. 1879, Gates v. National 
 Bank, 100 U. S. 239. S. P. Worcester 
 Nat. Bank v. Cheeney, 87 III. 602. 
 
 Taking a note as security for an ante- 
 cedent debt merely, may be deemed taking 
 for value. Customers of a bank who were 
 largely indebted to it, and had become in- 
 solvent, gave the bank a writing agreeing 
 that all their evidences of debt lodged with 
 the bank should be deemed pledged to it 
 for any and all their debts. There was no 
 agreement for an extension of time. On 
 a question whether the bank could claim 
 the position of bona fide purchaser for 
 value of certain notes which had been in- 
 dorsed to the bank as collateral to a loan 
 and were held by it as indorsee, among 
 these evidences of debt, or whether it held 
 them subject to the defence by the makers 
 
 that they were accommodation paper and 
 had been wrongfully diverted, — Held, that 
 it was a holder for value and entitled to be 
 protected against equities. [Citing 16 Pet. 
 1 ; and doubting 5 Johns. 56 ; 20 Id. 637 ; 
 on authority of 3 Kent Com. 81, note 6.] 
 
 It is well settled that, ir\ absence of stat- 
 ute to the contrary, this is the right of the 
 holder when he parts with actual value in 
 any manner, or relinquishes a right or as- 
 sumes an obligation, on faith of note. There 
 is conflict of opinion as to cases where the 
 note is transferred aa collateral security 
 merely, without other circumstances, for a 
 debt previously created. One of the grounds 
 upon which some courts of high authority 
 refuse, in such cases, to apply the rule is, 
 that transactions of that kind are not in the 
 usual and ordinary course of commercial 
 dealings. But this objection is not sustained 
 by the recognized usages of the commercial 
 world, nor by sound reason. The transfer 
 of negotiable paper as security for anteced- 
 ent debts, nothing more, constitutes a mate- 
 rial and increasing portion of the commerce 
 of the country. Such transactions have 
 become very common in financial circles. 
 They have grown out of the necessities of 
 business, and, in these days of great com- 
 mercial activity, they contribute largely to 
 the benefit and convenience of both debt- 
 ors and creditors. 
 
 Another ground upon which some courts 
 have refused to sanction the rule is, that 
 upon transfer of negotiable paper merely 
 as collateral security for an antecedent 
 debt, nothing is surrendered by indorsee, 
 — that to permit the equities between prior 
 parties to prevail deprives him of no right 
 or advantage enjoyed at the time of trans- 
 fer, imposes upon him no additional bur- 
 dens, and subjects him to no additional 
 inconveniences. This may be true in some, 
 but it is not true in most cases ; nor, in our 
 opinion, is it ever true when the note, upon 
 its delivery to the transferee, is in such 
 form as to make him party to the instru- 
 ment, and impose upon him the duties 
 which, according to the commercial law, 
 must be discharged by the holder of the 
 negotiable paper in order to fix liability 
 upon indorser. In the present case the 
 bank did not take the note in suit as a 
 mere agent to receive the amount due 
 when it suited the convenience of the 
 debtor to make payment. It received the 
 
48 
 
 BILLS AND NOTES. 
 
 note under an obligation, imposed by 
 the commercial law, to present it for pay- 
 ment, and give notice of non-payment, in 
 the mode prescribed by the settled rules of 
 that law. This undertaking of the bank 
 to fix the liabilities of prior parties, by 
 due presentation for payment and due no- 
 tice in case of non-payment, — an under- 
 taking necessarily implied by becoming 
 party to the instrument, — was a sufficient 
 consideration to protection from the equi- 
 ties existing between the other parties, of 
 which it had no notice. And, generally, 
 the transfer before maturity of negotiable 
 paper, though only as security for an an- 
 tecedent debt, and without express agree- 
 ment for indulgence, if so indorsed that 
 the holder becomes a party to the instru- 
 ment, is not an improper use of such paper, 
 and is as much in the usual course of com- 
 mercial business as its transfer in payment 
 of such debt; and the holder, if taking in 
 good faith and before maturity, is unaf- 
 fected by equities or defences between piior 
 parties, of which he had no notice. Su- 
 preme Ct. 1879, 'Brooklyn City, &c. R.R. 
 Co. V. National Bank of the Republic. 
 \_Opinion, in Clerk's office.^ 
 
 In a majority of the United States, and 
 in England, the law is settled that taking 
 a note as collateral security for a pre-exist- 
 ing debt is holding for value. 3d Circ. 
 (Pa.) Re Huddell, 1 Am. L. Rev. n. s. 
 503. And see Id. 504, n. 
 
 Whoever sues upon a promissory note or 
 bill of exchange after it has been wrong- 
 fully obtained or diverted from its purpose, 
 and fraudulently negotiated, is bound to 
 show affirmatively that he himself is a holder 
 in good faith and for value. If he received 
 it after maturity or with notice of the cir- 
 cumstances under, and purposes for which, 
 it was made, then, although he may have 
 paid value, he is not a honafide holder, and 
 therefore is not entitled to recover. Al- 
 though he received it before due, and with- 
 out notice of any fraud in its inception and 
 transfer, yet, if he took it for a precedent 
 debt and without parting with value, his 
 title is subject to all infirmities precisely as 
 if he had taken the paper after dishonor or 
 with knowledge of the circumstances ; this 
 is the well-established rule in New Yorlc and 
 England [15 Johns. 270; 9 Wend, 170; 20 
 Johns. 637; 1 Den. 583; .53 N. Y. 6!50; 49 
 N. Y. 286 ; 1 Paige, 131 ; 5 Bos. & P. 171 j 1 
 
 Barn. & Ad. 528; Chit. Bills, 248, 264, 274; 
 9 Barn. & C. 764]. But an innocent holder 
 of negotiable paper which he has received 
 in the usual course of trade, and for a 
 valuable consideration, although from a 
 person having no title or authority to trans- 
 fer it, will be protected against the claim 
 even of the true owner. CV. of Appeals, 
 1878, Comstock v. Hier, 73 N. Y. 269. 
 
 This doctrine, usually invoked where the 
 question is as to the right of the holder to 
 recover upon the instrument, is equally ap- 
 plicable where he has sold the instrument 
 and is sued to compel him to refund the 
 proceeds of the sale. If his acquisition of 
 the note was not such as to give him the 
 rights of a bona fide purchaser for value, 
 his transfer of it cannot cure the defects 
 in his title, but is a conversion. That he 
 may have acted in good faith and in igno- 
 rance of the true owner's rights makes no 
 difference; for one dealing with property 
 of others, although in the mistaken belief 
 that it is his own, acts at his peril, and 
 must answer to the true owner. A person 
 cannot fortify his title to property by 
 making sale of it; for the title to the pro- 
 ceeds will stand as did the title to the prop- 
 erty before the sale. lb. 
 
 Minor Decisions on Bills and Kotes. 
 
 Nature and regnisites. Designating a 
 bank where note shall be " negotiable and 
 payable " does not impairits negotiability: 
 51 Iowa, 257. Presumption is that note 
 was made, and bank at which it is payable 
 is, within the State: QZInd. 105. Writing 
 " given as collateral security " on margin 
 of note destroys negotiability: 127 Mass. 
 293. A note payable to " the trustees 
 of the M. church or their collector " is 
 not negotiable ; the collector is not named 
 as an alternative payee; but only as agent 
 of the trustees to receive the money: Id. 
 485. Note drawn to order is properly 
 called "negotiable," though it has not yet 
 been indorsed, and so is not fit to be nego- 
 tiated: 38 Mich. 299. Since 19 & 20 
 Vict. ch. 97, § 6, writing diawee's name 
 across face of bill is not an acceptance: 
 intent to accept must be expressed. L. R. 
 12 C. P. D. 136. 
 
 Original parties. One who at incep- 
 tion of note indorses it in blank to give it 
 credit with payee is liable as maker: 40 
 Mich. 337; Id. 555; 41 Mich. 196; 12 iJ. L 
 
BILLS AND NOTES. 
 
 49 
 
 270 ; 7 Oreg. 346 ; he is presumably maker : 
 127 Mass. 141; he is presumably iiidorser, 
 but maybe shown maker or guarantor: 61 
 Ind. 425; he is indorser by Stat. 1874, ch. 
 404: 127 Mass. 72; Id. 141. Liability in 
 Pennsylvania of such indorser: see 2 Pear- 
 son {Pa.), 28; Id. 30. One joint maker 
 signing for accommodation is released, like 
 a surety, by an extension of time to the 
 other: 40 AficA. 259. 
 
 Interpretation and effect. Bill of ex- 
 change unaccepted is not an assignment of 
 the fund: 6 Mo. App. 505. Check or 
 draft never operates as equitable assign- 
 ment uuless it specifies a particular fund : 
 71 N. Y. 325. Taking note, or renewal 
 note, from corporation does not affect 
 stockholder's right to demand that corpo- 
 ration shall be sued within one year from 
 original debt: 76 N. Y. 521. What grace 
 may be claimed, on draft, by acceptor: 9 
 Neb. 295. Grace on notes allowable in 
 Pennsylvania, 41 N. J. L. 29. 
 
 Yalidity. Between the parties, payee's 
 contemporaneous oral promise to surrender 
 note on performance of some other stipu- 
 lation by maker may be proved: 82 N. 
 C. 57. When the consideration for a note 
 is a contemporaneous oral promise, failure 
 to perform it is failure of consideration: 
 50 Iowa, 293; but a voluntary payment 
 is binding: 9 Neb. 152. Note given for 
 patent-right shown to be not useful enough 
 to be valid fails, as between the parties, 
 for want of consideration: 7 Baxt. (Tenn.) 
 418. Note given to procure discontinuance 
 of prosecution, void: Z9>Mich. 278. Check 
 given to officer in bankruptcy, for illegal 
 fees, may be valid in hands of bona fide 
 holder for value: 71 N. Y. 435. A 
 renewal note is tainted with usury in the 
 original, notwithstanding it is drawn pay- 
 able to a third person, and is transferred to 
 him by the lender: 76 N. Y. 196. A note 
 is void which a statute makes it a misde- 
 meanor to take, although statute does not 
 declare it void: 2 Pearson (Pa.), 250. Note 
 drawn payable two years " after treaty of 
 peace between the United States and the 
 Confederate States " is obligatory ; and ma- 
 tured two years after the close of the war : 51 
 Tex. 213. Note delivered on Sunday, void, 
 md cannot be ratified: 127 Mass. 123. A 
 lote drawn payable " on the election of 
 Hayes as president " is void; it is a mere 
 (yager on an election : 2 Bradw. (III.) 465. 
 4 
 
 A note for a bet on an election is illegal; 
 but collectible by a purchaser for value: 
 12 R. I. 293. 
 
 Transfers. Such notes only as are pay- 
 able in bank in Indiana are governed by 
 law merchant; plaintiff suing on note pay- 
 able in other State, though at bank, must 
 prove law of that State or submit to the 
 common law: 60 Ind. 128. Presumption 
 that note belongs to possessor extends to 
 unindorsed note: 82 N. C. 405. Notes may 
 be transferred by indorsement after, as well 
 as before, maturity ; but then, indorsee takes 
 subject to equities : 50 Md. 95. Indorsee 
 who receives note for collection cannot 
 transfer title to one having notice: 51 
 Iowa, 15. Transfer of check payable to 
 order by deliveiy, without indorsement, 
 passes it only as non-negotiable: 76 N. 
 Y. 352. No warranty against the defence 
 of usury is implied from a mere sale of a 
 promissory note ; unaccompanied by scien- 
 ter, indorsement, &c. -. 72 N. Y. 506. 
 
 Bights of purchasers. One who, with- 
 out reading, signs a paper which is a nego- 
 tiable note, on representations that it is 
 not, is liable to purchaser in good faith and 
 for value: 64 Ind. 120. A note given for 
 the price upon a sale with warranty for ten 
 years is collectible by a holder for value, 
 irrespective of the warranty: 51 io!«a, 561. 
 One who bought from secretaiy of a com- 
 pany its .note was held to be a bond fide 
 holder, &c., notwithstanding the note had 
 been indorsed by the payee without re- 
 course: 50 ibioa, 262. Presumption that 
 check was made on the day of its date may 
 be repelled; one who buys it soon after 
 it was delivered by the drawer has a good 
 title, notwithstanding it is dated back: 71 
 N. Y. 435. Giving one's own note (if it is 
 still held by the payee and seller) for the 
 price of a note bought does not make him a 
 purchaser for value: 75 N. Y. 91. Proof by 
 maker that note was made for accommo- 
 dation of indorser, and diverted by him, 
 throws burden upon plaintiff to show that 
 he bought for value without notice: 76 
 N. Y. 279. One who takes as collateral 
 security for pre-existing debt holds subject 
 to equities: 61 Ala. 147. 
 
 Liabilities of indorsers. Indorsing 
 without recourse does not affect the implied 
 warranty that the note is a genuine and 
 valid obligation of the maker: 22 Kan. 
 157. Rights and liabilities between in- 
 
50 
 
 BILLS AND NOTES. — BOND. 
 
 dorser and indorsee depend on law of place 
 where each indorsement is made: 39 i. T. 
 Rep. N. 8. 219. Notary's ignorance of 
 maker's death does not excuse demand on 
 administrator; and neglect discharges in- 
 dorser: 6 Mo. App. 153. Drawer of check 
 who has no funds in bank at time of pre- 
 sentation is not entitled to notice of non- 
 payment: 9 Neb. 205. As debtor's giving 
 creditor a check on an actual deposit is an 
 appropriation, creditor cannot renew his 
 demand on debtor without demand and re- 
 fusal: 7 Baxt. (Term.) 301. Demand of 
 ■note payable at bank must be made there, 
 not at maker's home, to charge indorser: 
 41 N. J. L. 29; and notary's asking 
 cashier for indorser's residence is due 
 diligence: Id. 225. Notary's mailing 
 notices of protest to one indorser, and his 
 Temailjng them to other indorsers, is good 
 jservice: i7 Iowa, U5. What language by 
 indorser waives the objection that he has 
 not been charged by due demand and 
 notice: 71 iV. F.M4. Indorsing in blank 
 under indorsement " waiving demand and 
 notice " adopts the waiver: 69 Me. 90. 
 Actual receipt of notice, by indorser, in 
 season, cures irregularity in mailing: 87 
 Pa. St. 379. There may be a recovery by 
 payee against indorser; as where the latter 
 intended to indorse for security of payee : 
 74 N. Y. 393. What ownership of notes 
 gives right to sue in one's own name: 74 
 JV. Y. 486. 
 
 BOND. A stipulation in a bond for an 
 obligor to pay a reasonable attorney's fee 
 in case a promissory note is not paid, or 
 other contract is not performed according 
 to its terms, and therefore the party entitled 
 to demand such performance is compelled 
 to enforce it by law, is unobjectionable. It 
 amounts only to an agreement to so far 
 reimburse the creditor the loss which he 
 may sustain by reason of the debtor's 
 failure to perform his contract to pay his 
 debt. 9th Circ. {Oreg.) 1879, Wilson Sew- 
 Jng-Machine Co. v. Moreno, 9 Cent. L. J. 
 225; 8 Reporter, 582. 
 
 The practice of New York State courts, 
 allowing one suit on a bond to be brought 
 against executor of a deceased obligor to- 
 gether with surviving obligors, may be fol- 
 lowed in a Federal court. A joint and 
 several bond may be put in suit, notwith- 
 standing death of one obligor, against his 
 administrator and the surviving obligor, j 
 
 And although the obligors were partners, 
 yet, the bond not being a partnership 
 debt, there is no necessity for exhausting 
 all remedy against the surviving partner 
 before proceeding against the administra- 
 tor. 2d Circ. (N. Y.) 1877, United States 
 V. Lawrence, UBlatchf. 229. S. P. United 
 States V. Tracy, 8 Ben. 1. 
 
 Suing in this manner does not convert 
 the liability into a joint one, or create 
 any obligation to show insolvency of sur- 
 viving obligors before judgment can be re- 
 covered against the executor. S. Dist. of 
 If. Y. 1875, United States v. Tracy, 8 
 Ben. 1. 
 
 Official bonds. If conditions in a bond 
 taken by an officer are distinct and sepa- 
 rable, the fact that he had not authority to 
 exact one of them will not prevent re- 
 covery for breach of another one. Supreme 
 Ct. 1878, United States v. Mora, 97 U. 8. 
 413. 
 
 A bond taken by the collector of the port 
 of New York, under regulations established 
 by the secretary of the treasury, from a 
 shipper and two sureties, in double the 
 value of the goods shipped, pursuant to 
 the act of May 20, 1862, § 3, 12 Stat 
 at L. 404, — which authorized the sec- 
 retary of the treasury to require reason- 
 able security that goods should not be 
 transported in vessels to any place under 
 insurrectionary control, nor in any way be 
 used in giving aid or comfort to the 
 enemy, and to establish such general reg- 
 ulations as he should deem necessary and 
 proper to carry into effect the pui-poses of 
 the act, — is a " reasonable security," such 
 as the section authorizes. From the exe- 
 cution of such a bond the presumption is 
 that it was voluntarily given. lb. 
 
 A bond voluntarily given to the United 
 States to secure the payment of a debt 
 or the performance of official duty, al- 
 though not prescribed by any statute on 
 the subject, is valid. Where, however, a 
 statute prescribes the penalties and con- 
 ditions of a bond, one given in a greater 
 penalty, or upon substantially other or dif- 
 ferent conditions, is, so far, illegal and 
 void. 9(A Circ. (Oreg.) 1879, United States 
 V. Humason, 25 Int. Rev. Rec. 208; 8iJe- 
 porter, 70. 
 
 The facts that, after an official bond was 
 executed, duties were imposed upon the 
 officer and principal obligor, additional to 
 
BOND. 
 
 51 
 
 those -which pertained to the office when 
 the bond was given, and that the officer 
 performed them, will not, if the chai-acter 
 of the office is not changed or the respon- 
 sibility of the officer for the original duties 
 is not inci-eased, discharge the sureties in 
 the bond from liability for the principal's 
 default in the original duties. Supreme 
 Ct. 1878, Gaussen ». United States, 97 U. 
 S. 581. 
 
 The treasury officers exacted from the 
 sureties of a defaulting officer more than 
 was justly due from the principal to the 
 government, through overlooking one de- 
 posit in his favor; and the sureties, under 
 threat of suit, paid the amount demanded. 
 Afterwards, the error being discovered, 
 the government refunded to the sureties 
 the excess. The principal, still later, 
 brought suit to recover the sum paid. 
 Held, that the whole matter of the mis- 
 take and overpayment lay between the 
 government and the sureties; the principal 
 was no party to it ; and the right to repay- 
 ment was theirs, not his. Ct. of Claims, 
 1878, Pope V. United States, 14 Ct. of CI. 
 446. 
 
 Corporate and negotiable bonds. The 
 bonds of counties and municipalities, such 
 as are ordinarily given in aid of railroads, 
 are securities which pass from hand to hand 
 with the immunity given by the common 
 law to bills of exchange and promissory 
 notes. The persons who execute and deliver 
 them — the officers of the county court, 
 in this instance — are the agents of the 
 municipal body authorizing their issue, 
 and not of the persons who purchase or re- 
 ceive them. If these agents exceed their 
 authority as to form, manner, detail, or 
 circumstance ; if they execute it in an ir- 
 regular manner ; it is the misfortune of the 
 town or county, and not of the purchaser; 
 the loss must fall on those whom they rep- 
 resent, and not on those who deal with 
 them. There must, indeed, be power, 
 which, if formally and duly exercised, will 
 bind the county or town. No bona fide^ 
 can dispense with this, and no recital can 
 excuse it. Thus, if the constitution or 
 the statute should peremptorily prohibit a 
 municipal body fi'om loaning its credit to, 
 or subscribing for stock in, a railroad cor- 
 poration, a subscription or a loan made 
 subsequently to the passage of the act 
 would give no right against the county, al- 
 
 though the bond Should recite that there 
 was such authority, and the purchaser 
 should pay full value in the belief of its 
 truth. The question generally is whetlier 
 the error alleged against the bonds arises 
 from an irregularity in the exercise of an 
 existing power, or whether there is total 
 want of authority to act. Supreme Ct. 
 1878, Daviess County v. Huidekoper, 98 
 U. S. 98. 
 
 Decisions of the supreme court agi'ee 
 that if a municipal body has lawful power 
 to issue bonds or other negotiable securities, 
 dependent only u^ou the adoption of cer- 
 tain preliminary proceedings, such as a 
 popular election of the constituent body, 
 the holder in good faith has a right to as- 
 sume that such preliminary proceedings 
 have taken place, if the fact be certified on 
 the face of the bonds themselves, by the 
 authorities whose primary duty it is to 
 ascertain it. [92 U. S. 484; 94 U. S. 104, 
 108 ; Id. 202 ; 16 Wall. 6.] And .bonds thus 
 issued are not, in his hands rendered in- 
 valid by the fact that the preliminary pro- 
 ceedings were so defective that a suit to 
 prevent the issue ought rightfully to be, 
 and, on appeal to the supreme court of the 
 State, ultimately was, sustained against 
 the county officers ; nor by the fact that the 
 bonds were issued after such a suit had 
 been brought, and were purchased by hold- 
 ers during its pendency. Supreme Ct. 1877, 
 Warren County v. Marcy, 97 U. S. 96. 
 
 A bona fide purchaser of municipal bonds 
 for a valuable consideration, who had no 
 actual notice of any defence which could be 
 set up against them, is not bound to look 
 further than to see that there was legisla- 
 tive authority for their issue, and that the 
 officers who were thereunto authorized have 
 decided that the precedent conditions upon 
 which it was allowed to be exercised have 
 been fulfilled. If such authority was con- 
 ferred, and such a decision made, the bonds 
 are valid obligations which he may enforce. 
 Supreme Ct. 1878, Block v. Commissioners, 
 99 U. S. 686. 
 
 The facts that the company (if ade facto 
 corporation when the subsoiiption was 
 made) had not been organized within the 
 time prescribed by its charter, and that, 
 when the bonds were issued, a suit to re- 
 strain the issue of them was pending, form 
 no defence to a suit on corporate bonds, if 
 the holder had no actual notice thereof, and 
 
62 
 
 BOND. 
 
 •was a purchaser of them for value before 
 thisy matured. Supreme Ct. 1877, Macon 
 County V. Shores, 97 U. S. 272. 
 ' The county court, pursuant to the assent 
 given by two thirds of the qualified voters 
 of a county in Missouri, at an election 
 therein, .subscribed for stock in a railway 
 company; the company afterwards con- 
 structed its road through the county ; and 
 the county exercised its rights as a stock- 
 holder, and issued its bonds to pay for the 
 stock. Held, that the bonds were not, in 
 the hands of a hona fide holder for value, 
 rendered void by the fact that, at the time 
 of such election, the company had not been 
 organized according to law. Supreme Ct. 
 1878, Daviess County v. Huidekoper, 98 
 U. S. 98. 
 
 Where the bonds were signed by the 
 town officers designated for that purpose 
 by the charter of the company, which au- 
 thorized the issue of the bonds, after the 
 requisite popular vote and the subscription, 
 — Held, that it was not necessary that the 
 board of auditors or the other corporate 
 authorities should participate in their issue 
 and delivery. Supreme Ct. 1878, Brooklyn 
 V. Insurance Co., 99 U. S. 362. 
 
 Where, pursuant to the authority vested 
 in him by the N. Y. act of May 18, 1869 
 (Laws 1869, ch. 907), and the amendatory 
 laws, the county judge renders judgment 
 declaring that the conditions have been 
 performed whereon a town in the county 
 can lawfully subscribe for shares of the 
 capital stock of a railroad company in that 
 State, and issue its bonds to pay therefor, 
 that judgment, until reversed by a higher 
 court, is conclusive. Supreme Ct. 1878, 
 Orleans v. Piatt, 99 U. S. 678; Lyons v. 
 Munson, Jd. 684. 
 
 His judgment in favor of the subscrip- 
 tion cannot be collaterally attacked in a 
 suit on the bonds, brought by a bona fide 
 holder for value of them against the town ; 
 and where it is recited in them, the town 
 is estopped from denying their validity. 
 Supreme Ct. 1878, Lyons v. Munson, 99 
 U. S. 684. 
 
 If a city issues bonds under its corporate 
 seal, and in accordance with its charter, 
 which empowers the council, with the sanc- 
 tion of a majority of voters attending an 
 election for the purpose, to borrow money 
 generally and to issue bonds therefor, and 
 the bonds recite upon their face that they | 
 
 are issued in accordance with certain or- 
 dinances of the city, the titles of which; 
 being quoted alone in the bonds, character- 
 ize the ordinances as providing for a loan 
 for municipal purposes, the city is es- 
 topped, in a suit upon the bonds by an 
 innocent purchaser for value, to set up that 
 the ordinances appropriated the money to 
 other purposes, and that the bonds are, 
 therefore, void. Supreme Ct. 1878, Hack- 
 ett V. Ottawa, 99 U. S. 86. 
 
 A city issued its bonds, engraved with 
 vignettes on bank-note paper, of various 
 denominations, ranging from ?! to 35100, 
 and having the form and appearance of 
 treasury notes of the United States or 
 bank-bills, and it paid them out to its 
 creditors for property sold, materials fur- 
 nished, and labor performed. It received 
 them for taxes and other dues, and to some 
 extent reissued them. They formed a con- 
 siderable portion of the circulating medium 
 of the city and vicinity. Under the au- 
 thority of a statute of the State, empower- 
 ing the city council of any city to issue bonds 
 for the purpose of extending the time of 
 paying its indebtedness, which it was un- 
 able to meet at maturity, the city passed 
 an ordinance providing for the redemption 
 of the bonds first described. A, the law- 
 ful holder of some of them, which had been 
 issued to other parties in payment of valid 
 claims against the city, and were overdue, 
 surrendered them to the city, and received 
 in lien of the amount due thereon bonds 
 for which the ordinance provided, and a 
 credit on the books of the city. The city 
 failing to pay, A brought suit against it. 
 A recovery was resisted, on the ground that 
 the bonds engraved on bank-note paper had 
 been issued in violation of law, and that 
 the surrender of them was not a valuable 
 consideration for the bonds and the credit 
 received by A. Held, that, whether the 
 original bonds were issued in violation of 
 law or not, — a point left undecided, — A 
 was entitled to recover. Supreme Ct. 1878, 
 iiittle Kock v. National Bank, 98 U. S. 
 308. 
 
 A statute authorizing a town to issue 
 bonds in aid of the construction of a rail- 
 road provided that the bonds should be 
 under the hands and seals of commission- 
 ers. They issued coupon bonds which 
 were not sealed, although their wording 
 showed that sealing was intended, and the 
 
BOND. — BRIDGE. 
 
 53 
 
 coupons were not sealed. Held, in a suit 
 on the coupon, that the bonds and coupons 
 were void. 2d Circ. (N. Y.) 1877, Avei^ 
 V. Springport, 14 Blatchf. 272. 
 
 A town had by vote directed the issue of 
 negotiable bonds, and procured lithographed 
 bonds with the signatures of the chairman 
 and clerk, with the date of June 1, 1871. 
 Before the bonds were actually signed the 
 clerk had resigned, and a new one had been 
 appointed. To save the expense of a new 
 lithograph the old clerk signed the bonds 
 and they were delivered by the chairman, 
 and were purchased by the defendant in 
 error. Held, that the town was estopped 
 from proving that the old clerk was not the 
 clerk when the bonds were actually signed. 
 Ith Circ. {Wix.) 1878, Weyauwegan v. Ay- 
 ling, 25 Int. Reo. Rec. 289. 
 
 Counterfeits. Brewster bought United 
 States bonds from Burnett; they were re- 
 deemed by the New York sub-treasurer, 
 conditionally; and Brewster received the 
 money for them; but shortly afterwards 
 they were returned from Washington to 
 the sub-treasury at New York as counter- 
 feits ; and an action was commenced by the 
 United States to recover from Brewster the 
 money he had received from the treasury. 
 He immediately commenced this action 
 against Burnett to recover back the price 
 he had paid the latter for the bonds. But 
 he was not in a position to tender back the 
 bonds, because they were held by the sub- 
 treasurer until he should refund the amount 
 to the treasury; and he was not in funds to 
 pay until he could collect from Burnett. 
 ffeld, that he could not be required to re- 
 turn the counterfeits to the seller before 
 recovering back the price; a counterfeit 
 bank-note is worthless, and an offer to re- 
 turn it would be an idle ceremony (12 
 Allen, 342; 23 Pick. 283); nor was it a 
 defence to the action that he had not suf- 
 fered any loss until actual repayment by 
 him to the United States. He was unques- 
 tionably liable to reimburse the United 
 States, and this liability was sufficient to 
 enable him to recover from Burnett. Su- 
 preme Ct. 1878, Brewster v. Burnett, 125 
 Maea. 68. 
 
 Minor Decisions on Bond. 
 Bond purporting to secure advances ex- 
 pressed to be made for the benefit of one 
 obligor only, held, void as against the 
 
 other for want of consideration: 38 Mich, 
 82. Surety who signs b. calling for prin«i- 
 pal's signature before him is not liable un- 
 til he signs: 39 Mich. 187; but this rule 
 rests on estoppel, and does not apply where 
 sureties signing make delivery with intent, 
 &c. : 41 N. J. L. 403. Omission of formal 
 conclusion, if apparently accidental, may 
 be supplied by construction: 51 Tex. 545. 
 Officer's b. given under threat of supe- 
 riors to declare office vacant and appoint 
 successor for want of b. is not invalid 
 for duress: 41 N. J. L. 394. B. for as- 
 sistant clerk of bank, held, not obliga- 
 torj' on sureties for embezzlement after he 
 was promoted, without their knowledge, 
 to be book-keeper: Id. 448. Buyer of 
 city b. must ascertain that the issue was 
 within the power of the authorities: 53 
 Cal. 247. Municipality estopped to deny 
 recitals in its b. against bonajide purchaser 
 for value: 97 U. S. 389; 99 U. S. 112; Id. 
 214; Id. 362; Id. 499; 7 Reporter, 101. B. 
 issued to railroad without authority from 
 town cannot be imposed on town by after- 
 act of legislature: 71 N. Y. 513. An in- 
 terest coupon on a town b. is an incident 
 and cannot be recovered if the b. is in- 
 valid: 51 Vt. 104. Right of action and 
 manner and extent of recovery on coup- 
 ons: 97 U. S. 272; Id. 374; 99 U. S. 362; 
 Id. 434; Id. 676. 
 
 BRADFORD. Journals say that one 
 of the only five copies in existence of 
 Bradford's laws — the earliest compila- 
 tion of New York Colonial laws, and 
 the first book printed within the prov- 
 ince — has been acquired by the State 
 Library at Albany. 
 
 BRIDGE. Bridging large streams de- 
 volves on county authorities and is a county, 
 not a road-district, charge: 82 N. C. 400. 
 Power of supervisors to authorize bridging 
 a navigable stream: 41 Mich. 453; and 
 requisites of petition : lb. ; and rights of 
 riparian owners of the banks affected: lb. 
 Statutory superintendent of construction 
 of b. may bind county for cost of extra 
 work: 67 Ind. 21. County b. is not liable 
 to mechanic's lien ; for it could not well be 
 enforced by a sale of the b. : 50 Iowa, 271. 
 Relative right of way between tug-boat 
 and schooner in passing draw-bridge: 127 
 Mass. 7. A toll-bridge is taxable as real 
 estate: 74 N. Y. 365. 
 
64 
 
 BUILDING. — BUSBEE. 
 
 BUILDINGt. An act "to provide for 
 the safety of persons attending public as- 
 semblies " prescribes stringent regulations 
 that any building let for any public as- 
 semblage shall be pi-ovided with ample 
 means for the safe and speedy egress of the 
 persons assembled, in case of an alarm. 
 Mich. Laws 1879 (May 24), 204, No. 226. 
 
 BUIIDING ASSOCIATION. Amort- 
 gage taken by a building association from 
 a shareholder, -which embodies an agree- 
 ment on his part to pay interest at the full 
 legal rate, and also a premium specified pro- 
 portioned to his stock, is usurious; the act 
 of 1872, ch. 178, does not protect it from 
 the charge of usury, for the legislature has 
 not power under Const, art. 3, § 57, to 
 enact a special law authorizing one class of 
 coi-porations to loan money at a higher rate 
 of interest than is allowed by the general 
 law. Cl. of Appeals, 1877, Citizen's Se- 
 curity, &c. Co. V. Uhler, 48 Md. 455. 
 
 Uinor Decisions on Bnilding Association. 
 
 Corporate power in Kansas to make 
 loans and to take mortgage security: 22 
 Kan. 624, 746, 751. Failure of association 
 to record its charter does not defeat its 
 right of action for moneys due it : 2 Pear- 
 son (Pa.), 343. Stockholder who had often 
 acted under by-laws was held estopped from 
 disputing validity of adoption: 48 Md. 
 461. Insolvency and receivership of asso- 
 ciation should release shareholder from 
 continuing to pay weekly dues and fines: 
 Id. 448. How liability of shareholder 
 should be determined and computed on in- 
 solvency of association: Id. 461. 
 
 BURGLARY. If upper rooms of a 
 building are occupied as a residence, the 
 lower rooms are a "dwelling-house," al- 
 though there be no communication between 
 them. An indictment for burglary in the 
 first degree charged a breaking and enter- 
 ing into the dwelling-house of F. K. and 
 J. L., who, it was stated, were partners 
 in business, under the firm name of K. & 
 L. It appeared on the trial that the per- 
 sons named in the indictment were copart- 
 ners, and, as such, occupied two adjoining 
 buildings, the lower stories of which opened 
 into each other, and were used for stores 
 for the business. In the upper rooms one 
 of the partners and other persons lived, and 
 
 they were there on the night of the btir- 
 glary. There was no internal communicar 
 tion between the stores and the upper 
 rooms, but to reach the latter it was neces- 
 sary to go into a yard fenced in and thence 
 upstairs. The prisoner broke into one of 
 the stores. Held, that the ownership of 
 the property was properly charged in the 
 indictment; and that the entry was into a 
 "dwelling-house," within the meaning of 
 the statute. But to constitute the offence 
 in such a case, there must be a dwelling- 
 house to which the store, room, or other 
 place entered belongs, as a part. Where 
 the room entered is severed from the rest 
 of the building by being let to a tenant 
 who does not sleep in it, and there is no in- 
 ternal communication with the rest of the 
 building, an entry therein is not an entry 
 into a dwelling-house. The provision of 2 
 Rev. Stat. 668, § 16, — that no building 
 shall be deemed a dwelling-house within 
 the meaning of the provisions relating to 
 burglary, unless the same be found joined 
 to, immediately connected with, and part 
 of a dwelling-house, — was intended to 
 mean no structure, itself a building sep- 
 arate from and independent of the dwell- 
 ing-house of the owner, i.e., uninhabited 
 out-houses, isolated from the dwelling. 
 Ct. of Appeals, 1878, Quinn v. People, 71 
 N. Y. 561. 
 
 BURKE. A Treatise on the Law of Pub- 
 lic Schools. By Finley Burke. 150 pp. 
 
 Appears chiefly intended for school offi- 
 cers and teachers ; but recites the reported 
 decisions quite fully. It discusses: Tax- 
 ation for public schools; Exemption of 
 school property; Condemnation of sites 
 for school-houses; Elections; School offi- 
 cers; School property; District meetings; 
 Teachers; Regulations; Corporal punish- 
 ment. 
 
 BUSBEE. A Digest of all the Criminal 
 Cases in the North Carolina Reports from 
 the Earliest Volume to Eighty-First, in- 
 clusive; together with Public Statutes of 
 North Carolina, concerning Crimes and 
 Punishments and Criminal Procedure. 
 Designed for those whose criminal prac- 
 tice is extensive, but " mainly for those 
 who only occasionally and reluctantly ap- 
 pear in criminal courts." By F. A. Bus- 
 bee, Raleigh. 
 
CALIFORNIA. 
 
 55 
 
 c. 
 
 CAIIFORNIA has adopted a new 
 eonstitution, ratified May 7, 1879 ; 
 which supersedes the constitution of 
 1849 and its amendments, 1857, 1862, 
 1871. No State constitution has won 
 more attention beyond the territorial 
 limits than this ; it embodies positions 
 of constitutional law which are novel 
 and . important. The following is a 
 digest of the new provisions it contains, 
 
 — nothing being said (for want of 
 space) about sections of the old con- 
 stitution which are repeated in the new, 
 
 — and all those likely to be of interest 
 outside the State are given in full. 
 The captions are the headings of di- 
 visions of the printed instrument in 
 Whitney & Co.'s pamphlet edition, — 
 " Our constitutions, old and new, side 
 by side ; " which is a model of an 
 inexpensive reprint of a State consti- 
 tution. 
 
 Declaration of Rights. " The State 
 of California is an inseparable part of the 
 American Union, and the constitution of 
 the United States is the supreme law of 
 the land." Cal. Const. 1879, art. 1, § 3. 
 
 " Witnesses shall not be unreasonably 
 detained, nor confined in any room where 
 criminals are actually imprisoned." Id. 
 art. 1, § 6, 1. cl. 
 
 " The right of trial by juiy shall be se- 
 cured to all, and remain inviolate ; but in 
 civil actions three-fourths of the juiy may 
 render a verdict. A trial by jury may be 
 waived in all criminal cases, not amounting 
 to felony, by the consent of both parties, 
 expressed in open court, and in civil ac- 
 tions by the consent of the parties, signified 
 in such manner as may be prescribed by 
 law. In civil actions and cases of mis- 
 demeanor the jmy may consist of twelve, 
 or of any number less than twelve upon 
 which the parties may agree in open court." 
 Id. art. 1, § 7. 
 
 " Offences heretofore required to be 
 
 California. Disabilities of aliens, in California, 
 Alieh ; of the Chinese, Chinese. 
 
 prosecuted by indictment shall be pros- 
 ecuted by information, after examina- 
 tion and commitment by a magistrate, or 
 by indictment, with or without such ex- 
 amination and commitment, as may be 
 prescribed by law. A grand jury shall ba 
 drawn and summoned at least once a year 
 in each county." Id. art. 1, § 8. 
 
 " Indictments found or information laid 
 for publications in newspapers shall be 
 tried in the county where such newspapers 
 have their publication office, or in the 
 county where the party alleged to be li- 
 belled resided at the time of the alleged 
 publication, unless the place of trial shall 
 be changed for good cause." Id. art. 1, 
 § 9, 1. cl. 
 
 "The legislature shall have power to 
 provide for the taking, in the presence of 
 the party accused and his counsel, of de- 
 positions of witnesses in criminal cases, 
 other than cases of homicide, when there 
 is reason to believe that the witness, from 
 inability or other cause, will not attend at 
 the trial." Id. art. 1, § 13, 1. cl. 
 
 " Private property shall not be taken or 
 damaged for public use without just com- 
 pensation having been first made to, or 
 paid into court for, the owner, and no right 
 of way shall be appropriated to the use of 
 any corporation other than municipal until 
 full compensation therefor be first made in 
 money, or ascertained and paid into court 
 for the owner, irrespective of any benefit 
 from any improvement proposed by such 
 corporation, which compensation shall be 
 ascertained by a jury, unless a jury be 
 waived, as in other civil cases in a court of 
 record, as shall be prescribed by law." 
 Id. art. 1, § 14. 
 
 " Foreigners of the white race or of Af- 
 rican descent, eligible to become citizens of 
 the United States under the naturalization 
 laws thereof, while hona fide residents of 
 this State, shall have the same rights in 
 respect to the acquisition, possession, en- 
 joyment, transmission, and inheritance of 
 property as native-born citizens." Id. art. 
 1, § 17. 
 
 Canal. Acquiring lands for, Emtnent Domainj 
 Abandonment of canal course, Abandonmekt. 
 
66 
 
 CALIFORNIA. 
 
 " No special privileges or immunities 
 • shail ever be granted which may not be 
 alteied, revoked, or repealed by the legis- 
 lature; nor shall any citizen or class of 
 citizens be granted privileges or immuni- 
 ties which, upon the same terms, shall not 
 be granted to all citizens." Id. art. 1, 
 §21. 
 
 Right of suffrage. " Every native male 
 citizen of the United States, every male 
 person who shall have acquired the rights 
 of citizenship under or by virtue of the 
 treaty of Queretaro, and every male nat- 
 uralized citizen thereof, who shall have 
 become such ninety days prior to any elec- 
 tion, of the age of twenty-one years, who 
 shall have been a resident of the State one 
 year next preceding the election, and of 
 the county in which he claims his vote 
 ninety days, and in the election precinct 
 thirty days, shall be entitled to vote at all 
 elections which are now or may hereafter 
 be authorized by law; provided, no native 
 of China, no idiot, insane person, or per- 
 son convicted of any infamous crime, and 
 no pei-son hereafter convicted of the em- 
 bezzlement or misappropriation of public 
 money, shall ever exercise the privileges of 
 an elector in this State." Id. art. 2, § 1. 
 
 Legislative department. Legislatures 
 to convene on first Monday of January 
 [instead of December]. Pay of members 
 limited to sixty days. "No bill shall be 
 introduced, in either house, after the ex- 
 piration of ninety days from the com- 
 mencement of the first session, nor after 
 fifty days after the commencement of 
 each succeeding session, without the con- 
 sent of two thirds of the members thereof." 
 Id. art. 4, § 2. 
 
 Members of assembly to be chosen bien- 
 nially; and on first Tuesday after first 
 Monday in November, unless otherwise 
 ordered by the legislature. Id. art. 4, § 3. 
 
 ' ' The senate shall consist of forty mem- 
 bers, and the assembly of eighty members," 
 to be elected by districts. Mode of rota- 
 tion of senators prescribed. Id. art. 4, 
 §5. 
 
 Division of State into forty senatorial 
 and eighty election districts, — directed. 
 How they shall be numbered. Apportion- 
 ment. Id. art. 4, § 6. 
 
 Mode of passage of bills prescribed 
 anew and more explicitly. Id. art. 4, § 15. 
 
 Provision that, when adjournment of leg- 
 
 islature prevents governor from returning 
 bill, it shall not become a law, " unless the 
 governor, within ten days after such ad- 
 journment (Sundays excepted), shall sign 
 and deposit the same in the office of the 
 secretary of state, in which case it shall 
 become a law in like manner as if it had 
 been signed by him before adjournment." 
 Governor authorized to veto one or more 
 items of appropriation of money without 
 vetoing entire bill. Proceedings thereon. 
 Id. art. 4, § 16. 
 
 " No money shall ever be appropriated 
 or dj^awn from the State treasury for the use 
 or benefit of any corporation, association, 
 asylum, hospital, or any other institution 
 not under the exclusive management and 
 control of the State as a State institution, 
 nor shall any grant or donation of property 
 ever be made thereto by the State." But 
 ' ' legislature shall have the power to grant 
 aid to institutions conducted for the sup- 
 port and maintenance of minor orphans, 
 or half orphans, or abandoned children, or 
 aged persons in indigent circumstances," 
 such aid to be gi-anted by a uniform rule, 
 and proportioned to the number of inmates, 
 and State to have the right to inquire into 
 the management of such institutions; mu- 
 nicipality providing for such persons to re- 
 ceive the same pi-o raid appropriations as 
 may be granted to such institutions under 
 church or other control. Id. art. 4, § 22. 
 
 The legislature shall not pass local or 
 special laws. 1. Regulating the jurisdic- 
 tion and duties of justices of the peace, 
 police judges, and of constables. 2. For 
 the punishment of crimes and misdemean- 
 ors. 3. Regulating the practice of courts 
 of justice. 4. Providing for changing 
 the venue in civil or criminal actions. 
 5. Granting divorces. 6. Changing the 
 names of persons or places. 7. Author- 
 izing the laying out, opening, altering, 
 maintaining, or vacating roads, highways, 
 streets, alleys, town plats, parks, ceme- 
 teries, graveyards, or public grounds not 
 owned by the State. 8. Summoning and 
 impanelling grand and petit juries, and 
 providing for their compensation. 9. Reg- 
 ulating county and township business, or 
 the election of county and township offi- 
 cers. . 10. For the assessment or collection 
 of taxes. 11. Providing for conducting 
 elections, or designating the places of vot- 
 ing, except on the organization of new 
 
CALIFORNIA. 
 
 67 
 
 counties. 12. Affecting the estates of de- 
 ceased persons, minors, or other persons 
 under legal disabilities. 13. Extending 
 the time for the collection of taxes. 14. 
 Giving effect to invalid deeds, wills, or 
 other instruments. 15. Refunding money 
 paid into the State treasury. 16. Releas- 
 ing or extinguishing, in whole or in part, 
 the indebtedness, liability, or obligation of 
 any corporation or person to this State, or 
 to any municipal corporation therein. 17. 
 Declaring any person of age, or authoriz- 
 ing any minor to sell, lease, or encumber 
 his or her property. 18. Legalizing, ex- 
 cept as against the State, the unauthorized 
 or invalid act of any officer. 19. Granting 
 to any corporation, association, or individ- 
 u^il any special or exclusive right, privilege, 
 or immunity. 20. Exempting property 
 from taxation. 21. Changing county seats. 
 22. Restoring to citizenship persons con- 
 victed of infamous crimes. 23. Regulat- 
 ing the rate of interest on money. 24. 
 Authorizing the creation, extension, or 
 impairing of liens. 25. Chartering or 
 licensing ferries, bridges, or roads. 26. 
 Remitting fines, penalties, or forfeitures. 
 27. Providing for the management of 
 common schools. 28. Creating offices, or 
 prescribing the powers and duties of of- 
 ficers in counties, cities, cities and coun- 
 ties, townships, election or school districts. 
 29. Affecting the fees or salary of any 
 officer. 30. Changing the law of descent 
 or succession. 31. Authorizing the adop- 
 tion or legitimation of children. 32. For 
 limitation of civil or criminal actions. 33. 
 In all other cases where a general law can 
 be made applicable. Id. art. 4, § 25. 
 
 Lotteries, &c., explicitly prohibited. 
 " The legislature shall pass laws to reg- 
 ulate or prohibit the buying and selling of 
 the shares of the capital stock of corpora- 
 tions in any stock-board, stock-exchange, or 
 stock-market under the control of any as- 
 sociation. All contracts for the sale of 
 shares of the capital stock of any corpora- 
 tion or association, on margin or to be de- 
 livered at a future day, shall be void, and 
 any money paid on such contracts may be 
 recovered by the party paying it by suit in 
 any court of competent jurisdiction." Id. 
 art. 4, § 26. 
 
 Rules forbidding division of congres- 
 sional districts by counties, &c., and for 
 forming them with reference to county 
 
 lines, prescribed more explicitly than be- 
 fore, /d. art. 4, §27. 
 
 Restrictions on general appropriation 
 bill. Id. art. 4, § 29. 
 
 "Neither the legislature, nor any county, 
 city and county, township, school district, 
 or other municipal corporation, shall ever 
 make an appropriation, or pay from any 
 public fund whatever, or grant anything 
 to or in aid of any religious sect, church, 
 creed, or sectarian purpose, or help to sup- 
 port or sustain any school, college, univer- 
 sity, hospital, or other institution controlled 
 by any religious creed, church, or sectarian 
 denomination whatever ; nor shall any grant 
 or donation of personal property or real 
 estate ever be made by the State, or any 
 city, city and county, town, or other mu- 
 nicipal corporation for any religious creed, 
 church, or sectarian purpose whatever ; pro- 
 vided, that nothing in this section shall 
 prevent the legislature granting aid pur- 
 suant to section twenty-two of this ar- 
 ticle." Id. art. 4, § 30. 
 
 " The legislature shall have no power 
 to give or to lend, or to authorize the giv- 
 ing or lending, of the credit of the State, 
 or of any county, city and county, city, 
 township, or other political corporation or 
 subdivision of the State now existing, or 
 that may be hereafter established, in aid of 
 or to any person, association, or corpora- 
 tion, whether municipal or otherwise, or to 
 pledge the credit thereof, in any manner 
 whatever, for the payment of the liabilities 
 of any individual, association, municipal 
 or other corporation whatever ; nor shall it 
 have power to make any gift, or authorize 
 the making of any gift, of any public 
 money or thing of value to any indi- 
 vidual, municipal or other corporation 
 whatever;" except grants of aid under § 
 22, supra. Id. art. 4, § 31. 
 
 " The legislature shall have no power 
 to grant, or authorize any county or muni- 
 cipal authority to grant, any extra compen- 
 sation or allowance to any public officer, 
 agent, sen'ant, or contractor, after service 
 has been rendered, or a contract has been 
 entered into and performed, in whole or in 
 part, nor to pay, or to authorize the pay- 
 ment of, any claim hereafter created against 
 the State, or any county or municipality of 
 the State, under any agreement or contract 
 made without express authority of law; 
 and all such unauthorized agreements or 
 
58 
 
 CALIFORNIA. 
 
 contracts shall be null and void." Id. 
 art. 4, § 32. 
 
 " The legislature shall pass laws for the 
 regulation and limitation of the charges 
 for services performed and commodities 
 furnished by telegraph and gas corpora- 
 tions, and the charges by corporations or 
 individuals for storage and wharfage, in 
 which there is a public use; and where 
 laws shall provide for the selection of any 
 person or officer to regulate and limit such 
 rates, no such person or officer shall be 
 selected by any corporation or individual 
 interested in the business to be regulated, 
 and no person shall be selected who is an 
 officer or stockholder in any such corpora- 
 tion." Id. art. 4, § 33. 
 
 " No bill making an appropriation of 
 money, except the general appropriation 
 bill, shall contain more than one item of 
 appropriation, and that for one single and 
 certain purpose to be therein expressed." 
 Id. art. 4, § 34. 
 
 Stringent provisions against attempts by 
 dishonest means to influence legislators, 
 and against legislators yielding to influence 
 of rewai'd or promise of one. Any person 
 may he compelled to testify in such case, 
 notwithstanding it may criminate himself; 
 but his testimony cannot be used against 
 him. Id. art. 4, § 35. 
 
 Executive department. Governor's 
 term to commence the first Monday after 
 the first day of January [instead of first 
 Monday of December]. Id. art. 5, § 2. 
 
 He must have been a resident of the 
 State, &c., for five years [instead of two]. 
 Id. art. 5, § 3. 
 
 Salaries of governor and chief adminis- 
 trative officers prescribed. Id. art. 5, § 19. 
 
 " The governor shall not, during his term 
 of office, be elected senator to the Senate of 
 the United States." Id. art. 5, § 20. 
 
 Judicial department. " The judicial 
 power of the State shall be vested in the 
 senate sitting as a court of impeachment, 
 in a supreme court, superior courts, jus- 
 tices of the peace, and such inferior courts 
 as the legislature may establish in any 
 incorporated city or town, or city and 
 county." Id. art. 6, § 1. 
 
 " The supreme court shall consist of a 
 chief justice and six associate justices. 
 The court may sit in departments and in 
 bank, and shall always be open for the 
 transaction of business. Thei'e shall be 
 
 two departments, denominated, respec- 
 tively, Department One and Department. 
 Two. ■ The chief justice shall assign three 
 of the associate justices to each depart- 
 ment, and such assignment may be changed 
 by hira fi-om time to time. The associate 
 justices shall be competent to sit in either 
 department, and may interchange with 
 each other by agreement among them- 
 selves or as ordered by the chief justice. 
 Each of the departments shall have the 
 power to hear and determine causes and 
 all questions arising therein, subject to 
 the provisions hereinafter contained in 
 relation to the court in bank. The pres- 
 ence of three justices shall be necessary 
 to transact any business in either of the 
 departments, except such as may be done 
 at chambers, and the concurrence of three 
 justices shall be necessary to pronounce 
 a judgment. The chief justice shall ap- 
 portion the business to the departments, 
 and may, in his discretion, order any 
 cause pending before the court to be heard 
 and decided by the court in bank. The 
 order may be made before or after judg- 
 ment pronounced by a department; but 
 where a cause has been allotted to one of 
 the departments, and a judgment pro- 
 nounced thereon, the order must be made 
 within thirty days after such judgment, 
 and concurred in by two associate justices, 
 and if so made it shall have the efEect to 
 vacate and set aside the judgment. Any 
 four justices may, either before or after 
 judgment by a department, order a case to 
 be heard in bank. If the order be not 
 made within the time above limited, the 
 judgment shall be final. No judgment by 
 a department shall become final until the 
 expiration of the period of thirty days 
 aforesaid, unless approved by the chief 
 Justine, in writing, with the concurrence 
 of two associate justices. The chief jus- 
 tice may convene the court in bank at 
 any time, and shall be the presiding jus- 
 tice of the court when so convened. The 
 concurrence of four justices present at the 
 argument shall be necessary to pronounce 
 a judgment in bank; but if four justices, 
 so present, do not concur in a judgment, 
 then all the justices qualified to sit in the 
 cause shall hear the argument; but to 
 render a judgment a concurrence of four 
 judges shall be necessary. In the deter- 
 smination of causes, all decisions of the 
 
CALIFORNIA. 
 
 59 
 
 court in bank or in departments shall be 
 .given in writing, and the grounds of the 
 decision shall be stated. The chief justice 
 may sit in either department, and shall 
 preside when so sitting, but the justices 
 assigned to each department shall select 
 one of their number as presiding jus- 
 tice. In case of the absence of the chief 
 justice from the place at which the court 
 is held, or his inability to act, the as- 
 sociate justices shall select one of their 
 own number to perform the duties and ex- 
 ercise the powers of the chief justice during 
 such absence or inability to act." Id. art. 
 6, §2 
 
 Mode of election of supreme court jus- 
 tices; and of their rotation, — pi-escribed. 
 Id. art. 6, § 3. 
 
 " The supreme court shall hare appellate 
 jurisdiction in all cases in equity, except 
 such as arise in justices' courts; also, in all 
 cases at law which involve the title or 
 possession of real estate, or the legality of 
 any tax, impost, assessment, toll, or muni- 
 cipal fine, or- in which the demand, ex- 
 clusive of interest, or the value of the 
 property in controversy, amounts to three 
 hundred dollars; also, in cases of forcible 
 entry and detainer, and in proceedings in 
 insolvency, and in actions to prevent or 
 abate a nuisance, and in all such probate 
 matters as may be provided by law ; also, 
 in all criminal cases prosecuted by indict- 
 ment, or information in a court of record 
 on questions of law alone. The court shall 
 also have power to issue writs of mandamus, 
 certiorari, prohibition, and habeas corpus, 
 and all other writs necessary or proper to the 
 complete exercise of its appellate juris- 
 diction. Each of the justices shall have 
 power to issue writs of habeas corpus to 
 any part of the State, upon petition by or 
 on behalf of any person held in actual 
 custody, and may make such writs return- 
 able before himself, or the supreme court, 
 or before any superior court in the State, 
 01' before any judge thereof." Id. art. 6, 
 
 Note. In the previous judicial organi- 
 zation there were, inferior to the supreme 
 court, district courts, county courts, and pro- 
 bate courts. (These no longer exist. The 
 new constitution substitutes for them the 
 superior courts. Their jurisdiction, defined 
 in the next section, substantially replaces 
 that of the three abrogated tribunals. 
 
 " The superior court shall have original 
 jurisdiction in all cases in equity, and in all 
 cases at law which involve the title or 
 possession of real property, or the legality 
 of any tax, impost, assessment, toll, or 
 municipal fine, and in all other cases in 
 which the demand, exclusive of interest 
 or the value of the property in controversy, 
 amounts to three hundred dollars, and in 
 all criminal cases amounting to felony, and 
 cases of misdemeanor not otherwise pro- 
 vided for; of actions of forcible entry and 
 detainer; of proceedings in insolvency; of 
 actions to prevent or abate a nuisance; of 
 all matters of probate ; of divorce and for 
 annulment of marriage, and of all such 
 special cases and proceedings as are not 
 otherwise provided for. And said court 
 shall have the power of naturalization, and 
 to issue papers therefor. They shall have 
 appellate jurisdiction in such cases arising 
 in justices' and other inferior courts in 
 their respective counties as may be pre- 
 scribed by law. They shall be always open 
 (legal holidays and non-judicial days ex- 
 cepted), and their process shall extend to 
 all parts of the State; provided, that all 
 actions for the recovery of the possession 
 of, quieting the title to, or for the en- 
 forcement of liens upon real estate, shall 
 be commenced in the county in which the 
 real estate, or any part thereof affected by 
 such action or actions, is situated. Said 
 courts, and their judges, shall have power 
 to issue writs of mandamus, certiorari, 
 prohibition, quo warranto, and habeas 
 corpus, on petition by or on behalf of any 
 person in actual custody in their respective 
 counties. Injunctions and writs of pro- 
 hibition may be issued and served on legal 
 holidays and non-judicial days." Id. art. 
 6, §5. 
 
 " There shall be in each of the organized 
 counties, or cities and counties of the State, 
 a superior court, for each of which at 
 least one judge shall be elected by the 
 qualified electors of the county, or city 
 and county, at the general State election." 
 Extended provisions for election of judges, 
 their rotation, organization and sessions of 
 the courts, &c. Id. art. 6, §§ 6-9. 
 
 " A cause in a superior court may be 
 tried by a judge pro tempore, who must 
 be a member of the bar, agreed upon in 
 writing by the parties litigant or their at- 
 torneys of record, approved by the court, 
 
60 
 
 CALIFORNIA. 
 
 and sworn to try the cause." Id. art. 6, 
 §8. 
 
 Removal of judicial officers authorized 
 and regulated. Id. art. 6, § 10. 
 
 Jurisdiction of justices of tlie peace con- 
 current with superior courts extended to 
 "cases of forcible entry and detainer, 
 where the rental value does not exceed 
 $:25 per month, and where the whole 
 amount of damages claimed does not ex- 
 ceed $200, and in cases to enforce and 
 foreclose liens on personal property when 
 neither the amount of the liens nor the 
 value of the property amounts to $300." 
 Id. art. 6, § 11. 
 
 Salaries of the justices and judges, pre- 
 scribed. Id. art. 6, § 17. 
 
 " The justices shall appoint a reporter 
 of the decisions of the supreme court, who 
 shall hold his office and be removable at 
 their pleasure. He shall receive an annual 
 salary not to exceed twenty-five hundred 
 dollars, payable monthly." Id. art. 6, 
 §21. 
 
 "No judge of a court of record shall 
 practise law in any court of this State 
 during his continuance in office." Id. art. 
 6, § 22. 
 
 " No one shall be eligible to the office of 
 justice of the supreme court, or to the 
 office of judge of a superior court, unless 
 he shall have been admitted to practice be- 
 fore the supreme court of the State." Id. 
 art. 6, § 23. 
 
 "No judge of a superior court nor of 
 the supreme court shall, after the first day 
 of July, one thousand eight hundred and 
 eighty, be allowed to draw or receive any 
 monthly salary unless he shall take and 
 subscribe an affidavit before an officer en- 
 titled to administer oaths, that no cause in 
 his court I'emains undecided that has been 
 submitted for decision for the period of 
 ninety days." Id. art. 6, § 24. 
 
 Militia. " All militaiy organizations 
 provided for by this constitution, or any 
 law of this State, and receiving State sup- 
 port, shall, while under aims either for 
 ceremony or duty, carry no device, banner, 
 or flag of any State or nation, except that 
 of the United States or the State of Cali- 
 fornia." Id. art. 8, § 2. 
 
 Education. A general diffusion of know- 
 ledge and intelligence being essential to pre- 
 serve the rights and liberties of the people, 
 the legislature shall encourage by all suit- 
 
 able means the promotion of intellectual, 
 scientific, moral, and agricultural improve- 
 ment. Id. art. 9, § 1. 
 
 Superintendents of schools for each 
 county (except, &c ) to be elected by its 
 electors. Id. art. 9, § 3. 
 
 Organization of public-school system and 
 powers of boards of education prescribed. 
 Id. art. 9, §§ 6, 7. 
 
 " No public money shall ever be appro- 
 priated for the support of any sectarian or 
 denominational school, or any school not 
 under the exclusive control of the officers 
 of the public schools ; nor shall any sectar- 
 ian or denominational doctrine be taught, 
 or instruction thereon be permitted, directly 
 or indirectly, in any of the common schools 
 of this State." Id. art. 9, § 8. 
 
 University of California recognized and 
 regulated anew. Its endowment to be pre- 
 served inviolate. "No person shall be 
 debarred admission to any of the collegiate 
 departments of the university on account 
 of sex." Id. art. 9, § 9. 
 
 State institntions and public build- 
 ings. Appointment, powers, compensa- 
 tion, &c., of prison directors, warden, &c. 
 Id. art. 10, §§ 1-5. 
 
 Convict labor shall not be let by contract, 
 but employed for the State. Id. art. 10, 
 §6. 
 
 Cities, counties, and towns. Exist- 
 ing counties recognized. Id. art. 11, § 1. 
 
 Restrictions on removal of county seats, 
 and on formation of new counties. Id. 
 art. 11, §§ 2, 3. 
 
 The legislature shall establish a uniform 
 system of county governments; and provide 
 laws by which any county may adopt town- 
 ship organization ; and laws for election or 
 appointment and compensation of county 
 officei-s. Id. art. 11, §§ 4, 5. 
 
 "Corporations for municipal purposes 
 shall not be created by special laws; but 
 the legislature, by general laws, shall pro- 
 vide for the incorporation, organization, 
 and classification, in propoition to popula- 
 tion, of cities and towns, which laws may 
 be altered, amended, or repealed. Cities 
 and towns heretofore organized or incor- 
 porated may become organized undei- sucii 
 general laws whenever a majority of the 
 electors voting at a general election shall 
 so determine, and shall organize in con- 
 formity therewith ; and cities or towns 
 heretofore or hereafter organized, and all 
 
CALIFORNIA. 
 
 61 
 
 charters thereof framed or adopted by 
 authority of this constitution, shall be 
 subject to and controlled by general laws." 
 Id. art. 11, § 6. 
 
 " City and county governments may be 
 merged and consolidated into one municipal 
 government, with one set of officers, and 
 may be incorporated under general laws 
 providing for the incorporation and organ- 
 ization of corporations for municipal pur- 
 poses. The provisions of this constitution 
 applicable to cities, and also those appli- 
 cable to counties, so far as not inconsistent 
 or not prohibited to cities, shall be appli- 
 cable to such consolidated government. In 
 consolidated city and county governments 
 of more than one hundi-ed thousand popu- 
 lation, there shall be two boards of super- 
 visors or houses of legislation." How 
 these shall be elected. Id. art. 11, § 7. 
 
 " Any city containing a population of 
 more than one hundred thousand inhabi- 
 tants may frame a charter for its own gov- 
 ernment, consistent with and subject to 
 the constitution and laws of this State." 
 Manner of doing this by popular election 
 of a board to prepare a charter, publica- 
 tion, popular vote upon it, and submission 
 of it to the legislature, presciibed. How 
 a charter shall be preserved; and how 
 amended. Id. art. 11, § 8. 
 
 Compensation of municipal officers not 
 to be increased, nor term extended. Id. 
 art. 11, § 9. 
 
 " No county, city, town, or other public 
 or municipal coi-poration, nor the inhabi- 
 tants thereof, nor the* property therein, 
 shall be released or discharged from its or 
 their proportionate share of taxes to be 
 levied for State purposes, nor shall com- 
 mutation for such taxes be authorized in 
 any form whatsoever." Id. art. 11, § 10. 
 
 " Any county, city, town, or township 
 may make and enforce within its limits all 
 such local, police, sanitary, and other re- 
 gulations as are not in conflict with general 
 laws." Id. art. 11, § 11. 
 
 " The legislature shall have no power 
 to impose taxes upon counties, cities, towns, 
 or other public or municipal corporations, 
 or upon the inhabitants or property thereof, 
 for county, city, town, or other municipal 
 purposes, but may, by general laws, vest in 
 the corporate authorities thereof the power 
 to assess and collect taxes for such pur- 
 poses." Id. art. 11, § 12. 
 
 " The legislature shall not delegate to 
 any special commission, private corporation, 
 company, association, or individual, any 
 power to make, control, appropriate, su- 
 pervise, or in any way interfere with, any 
 county, city, town, or municipal improve- 
 ment, money, property, or effects, whether 
 held in trust or otherwise, or to levy taxes 
 or assessments, or perform any municipal 
 functions whatever." Id. art. 11, § 13. 
 
 " No State office shall be continued or 
 created in any county, city, town, or other 
 municipality, for the inspection, measui'e- 
 ment, or graduation of any merchandise, 
 manufacture, or commodity ; but such 
 county, city, town, or municipality may, 
 when authorized by general law, appoint 
 such officers." Id. art. 11, § 14. 
 
 "Private property shall not be taken or 
 sold for the payment of the corporate debt 
 of any political or municipal corporation." 
 Id. art. 11, § 15. 
 
 " All moneys, assessments, and taxes be- 
 longing to or collected for the use of any 
 county, city, town, or other public or muni- 
 cipal corporation, coming into the hands of 
 any officer thereof, shall immediately be 
 deposited with the treasurer, or other legal 
 depositary, to the credit of such city, town, 
 or other corporation respectively, for the 
 benefit of the funds to which they respec- 
 tively belong." Id. art. 11, § 16. 
 
 "The making of profit out of county, 
 city, town, or other public money, or using 
 the same for any purpose not authorized by 
 law, by any officer having the possession 
 or control thereof, shall be a felony, and 
 shall be prosecuted and punished as pre- 
 scribed by law." Id. art. 11, § 17. 
 
 "No county, city, town, township, board 
 of education, or school district, shall incur 
 any indebtedness or liability in any man- 
 ner, or for any pui-pose, exceeding in any 
 year the income and revenue provided for 
 it for such year, without the assent of two 
 thirds of the qualified electors thereof, 
 voting at an election to be held for that 
 purpose, nor unless, before or at the time 
 of incurring such indebtedness, provision 
 shall be made for the collection of an an- 
 nual tax sufficient to pay the interest on 
 such indebtedness as it falls due, and 
 also to constitute a sinking fund for the 
 payment of the principal thereof within 
 twenty years from the time of contracting 
 the same. Any indebtedness or liability 
 
62 
 
 CALIFORNIA. 
 
 incurred contrary to this provision shall be 
 void." Id. art. 11, § 18. 
 
 " No public work or improvement of any 
 description whatsoever shall be done or 
 made, in any city, in, upon, or about the 
 streets thereof, or otherwise, the cost and 
 expense of which is made chargeable or 
 may be assessed upon private property by 
 special assessment, unless an estimate of 
 such cost and expense shall be made, and 
 an assessment, in proportion to benefits, 
 on the property to be affected or benefited, 
 shall be levied, ooUeoted, and paid into the 
 city treasurer before such work or improve- 
 ment shall be commenced, or any contract 
 for letting or doing the same authorized or 
 performed. In any city where there are 
 no public works owned and controlled by 
 the municipality, for supplying the same 
 with water or artificial light, any individ- 
 ual, or any company duly incorporated for 
 such purpose under and by authority of the 
 laws of this State, shall, under the direc- 
 tion of the superintendent of streets, or 
 other officer in control thereof, and under 
 such general regulations as the municipal- 
 ity may prescribe for damages and indem- 
 nity for damages, have the privilege of 
 using the public streets and thoroughfares 
 thereof, and of laying down pipes and con- 
 duits therein, and connections therewith, 
 so far as may be necessary for introducing 
 into and supplying such city and its inhab- 
 itants either with gas-light or other illu- 
 minating light, or with fresh water for 
 domestic and all other purposes, upon the 
 condition that the municipal government 
 shall have the right to regulate the charges 
 thereof." Id. art. 11. § 19. 
 
 Corporations. " Each stockholder of a 
 corporation, or joint-stock association, shall 
 be individually and personally liable for 
 such proportion of all its debts and liabili- 
 ties contracted or incurred, during the time 
 he was a stockholder, as the amount of 
 stock or shares owned by him bears to the 
 whole of the subscribed capital etock, or 
 shares of the corpoi'ation or association. 
 The directors or trustees of corporations 
 and joint-stock associations shall be jointly 
 and severally liable to the creditors and 
 stockholders for all moneys embezzled or 
 misappropriated by the officers of such cor- 
 poi'ation or joint-stock association, during 
 the term of office of such director or 
 trustee." Id. art. 12, § 3. 
 
 " AU existing charters, grants, franchi- 
 ses, special or exclusive privileges, under 
 which an actual and bona fide oi-ganization 
 shall not have taken place, and business 
 been commenced in good faith, at the time 
 of the adoption of this constitution, shall 
 thereafter have no validity." Id. art. 12, 
 
 §6- 
 
 " The legislature shall not extend any 
 franchise or charter, nor remit the forfei- 
 ture of any franchise or charter of any cor- 
 poration now existing, or which shall here- 
 after exist under the laws of this State." 
 Id. art. 12, § 7. 
 
 " The exercise of the right of eminent 
 domain shall never be so abridged or con- 
 strued as to prevent the legislature from 
 taking the property and franchises of in- 
 corporated companies and subjecting them 
 to public use the same as the property of 
 individuals, and the exercise of the po- 
 lice power of the State shall never be so 
 abridged or construed as to permit corpo- 
 rations to conduct their business in such 
 manner as to infringe the rights of individ- 
 uals or the general well-being of the State." 
 Id. art. 12, § 8. 
 
 " No coi-poration shall engage in any 
 business other than that expressly author- 
 ized in its charter, or the law under which 
 it may have been or may hereafter be or- 
 ganized; nor shall it hold for a longer 
 period than five years any real estate ex- 
 cept such as may be necessary for carrying 
 on its business." Id. art. 12, § 9. 
 
 " The legislature shall not pass any 
 laws permitting the leasing or alienation of 
 any franchise, so as to relieve the franchise 
 or property held thereunder from the lia- 
 bilities of the lessor or grantor, lessee or 
 grantee, contracted or incurred in the 
 operation, use, or enjoyment of such fran- 
 chise, or any of its privileges." Id. art. 
 12, § 10. 
 
 " No corporation shall issue stock or 
 bonds, except for money paid, labor done, 
 or property actually received, and all ficti- 
 tious increase of stock or indebtedness 
 shall be void. The stock and bonded in- 
 debtedness of corporations shall not be in- 
 creased except in pursuance of general law, 
 nor without the consent of the pereons 
 holding the larger amount in value of the 
 stock, at a meeting called for that purpose, 
 giving sixty days' public notice, as may be 
 provided by law." Id. art. 12, § 11. 
 
CALIFORNIA. 
 
 63 
 
 " In all elections for directors or mana- 
 gers of coi-porations, every stockholder shall 
 have the right to vote, in person or by 
 proxy, the number of shaves of stock 
 owned by him for as many persons as there 
 are directors or managers to be elected, or 
 to cumulate said shares and give one can- 
 didate as many votes as the number of 
 directors multiplied by the number of his 
 shares of stock shall equal, or to distribute 
 them, on the same principle, among as 
 many candidates as he shall think fit; and 
 such directors or managers shall not be 
 elected in any other manner, except that 
 members of cooperative societies formed 
 for agricultural, mercantile, and manufac- 
 turing purposes may vote on all questions 
 affecting such societies in manner pre- 
 scribed by law." Id. art. 12, § 12. 
 
 " The State shall not in any manner loan 
 its credit, nor shall it subscribe to, or be 
 interested in the stock of any company, 
 association, or corporation." Id. art. 12, 
 §13. 
 
 " Every corporation other than religious, 
 educational, or benevolent, organized or 
 doing business in this State, shall have and 
 maintain an office or place in this State for 
 i;he transaction of its business, where trans- 
 fers of stock shall be made, and in which 
 shall be kept, for inspection by every per- 
 son having an interest therein, and legisla- 
 lative committees, books in which shall be 
 recorded the amount of capital stock sub- 
 scribed, and by whom; the names of the 
 owners of its stock, and the amounts owned 
 by them respectively; the amount of stock 
 paid in, and by whom; the transfers of 
 stock; the amount of its assets and liabili- 
 ties, and the names and place of residence 
 of its officers." Id. art. 12, § 14. 
 
 " No corporation organized outside the 
 limits of this State shall be allowed to trans- 
 act business within this State on more fav- 
 orable conditions than are prescribed by 
 law to similar corporations organized under 
 the laws of this State." Id. art. 12, § 15. 
 
 "A corporation or association may be 
 sued in the county where the contract is 
 made or is to be performed, or where the 
 obligation or liability arises, or the breach 
 occurs; or in the county where the princi- 
 pal place of business of such corporation is 
 situated, subject to the power of the court 
 to change the place of trial as in other 
 cases." Id. art. 12, § 16. 
 
 " All railroad, canal, and other trans- 
 portation companies are declared to be 
 common carriers, and subject to legislative 
 control. Any association or corporation, 
 organized for the purpose, under the laws 
 of this State, shall have the right to con- 
 nect at the State line with railroads of 
 other States. Every railroad company 
 shall have the right with its road to inter- 
 sect, connect with, or cross any other rail- 
 road, and shall receive and transport each 
 the other's passengers, tonnage, and cars, 
 without delay or discrimination." Id. 
 art. 12, § 17. 
 
 "No president, director, officer, agent, 
 or employee of any railroad or canal com- 
 pany shall be interested, directly or indi- 
 rectly, in the furnishing of material or 
 supplies to such company, nor in the busi- 
 ness of transportation as a common carrier 
 of freight or passengers over the works 
 owned, leased, controlled, or worked by 
 such company, except such interest in the 
 business of transportation as lawfully flows 
 from the ownership of stock therein." Id. 
 art. 12, § 18. 
 
 "No railroad or other transportation 
 company shall grant free passes, or passes 
 or tickets at a discount, to any person hold- 
 ing any office of honor, trust, or profit in 
 this State; and the acceptance of any such 
 pass or ticket, by a member of the legis- 
 lature or any public officer, other than 
 railroad commissioner, shall work a for- 
 feiture of his office." Id. art. 12, § 19. 
 
 " No railroad company or other common 
 carrier shall combine or make any contract 
 with the owners of any vessel that leaves 
 port or makes port in this State, or with 
 any common carrier, by which combination 
 or contract the earnings of one doing the 
 carrying are to be shared by the other not 
 doing the carrying. And « henever a rail- 
 road corporation shall, for the purpose of 
 competing with any other common carrier, 
 lower its rates for transportation of passen- 
 gers or freight from one point to another, 
 such reduced rates shall not be again raised 
 or increased from such standard without 
 the consent of the governmental authority 
 in which shall be vested the power to regu- 
 late fares and freights." Id. art. 12, § 20. 
 
 " No discrimination in charges or facili- 
 ties for transportation shall be made by 
 any railroad or other transportation com- 
 pany between places or persons, or in the 
 
64 
 
 CALIFORNIA. 
 
 facilities for the transportation of the same 
 classes of freight or passengers within this 
 State, or coming from or going to any other 
 State. Persons and property transported 
 over any railroad, or by any other trans- 
 portation company or individual, shall be 
 delivered at any station, landing, or port, 
 at charges not exceeding the charges for 
 the transportation of persons and property 
 of the same class, in the same direction, to 
 any more distant station, port, or landing 
 Excursion and commutation tickets may 
 be issued at special rates." Id. art. 12, 
 §21. 
 
 "The State shall be divided into three 
 districts as nearly equal in population as 
 practicable, in each of which one railroad 
 commissioner shall be elected by the quali- 
 fied electors thereof at the regular guber 
 natorial elections, whose salary shall be 
 fixed by law, and whose term of office shall 
 be four years, commencing on the first 
 Monday after the first day of January next 
 succeeding their election. Said commis- 
 sioners shall be qualified electors of this 
 State and of the district from which they 
 are elected, and shall not be interested in 
 any railroad corporation, or other trans- 
 portation company, as stockholder, cred- 
 itor, agent, attorney or employee; and the 
 act of a majority of said commissioners 
 shall be deemed the act of said commis- 
 sion. Said commissioners shall have the 
 power, and it shall be their duty, to estab- 
 lish rates of charges for the transportation 
 of passengers and freight by railroad or 
 other transportation companies, and pub- 
 lish the same from time to time, with such 
 changes as they may make; to examine 
 the books, records, and papers of all rail- 
 road and other transportation Companies, 
 and for this purpose they shall have power 
 to issue subpoenas and all other necessary 
 process ; to hear and detei'mine complaints 
 against railroad and other transportation 
 companies, to send for persons and papers, 
 to administer oaths, take testimony, and 
 punish for contempt of their orders and 
 processes, in the same manner and to the 
 same extent as courts of record, and en- 
 force their decisions and correct abuses 
 through the medium of the courts. Said 
 commissioners shall prescribe a uniform 
 system of accounts to be kept by all such 
 corporations and companies. Any railroad 
 corporation or transportation company 
 
 which shall fail or refuse to conform to 
 such rates as shall be established by such 
 commissioners, or shall charge rates in 
 excess thereof, or shall fail to keep their 
 accounts in accordance with the system 
 prescribed by the commission, shall be 
 fined not exceeding twenty thousand dol- 
 lars for each offence, and every officer, 
 agent, or employee of any such corporation 
 or company, who shall demand or receive 
 rates in excess thereof, or who shall in any 
 manner violate the provisions of this sec- 
 tion, shall be fined not exceeding five 
 thousand dollars, or be imprisoned in the 
 county jail not exceeding one year. In all 
 controversies, civil or criminal, the rates of 
 fares and freights established by said com- 
 mission shall be deemed conclusively just 
 and reasonable, and in any action against 
 such corporation or company for damages 
 sustained by charging excessive rates, the 
 plaintiff, in addition to the actual damage, 
 may, in the discretion of the judge or juiy, 
 recover exemplary damages. Said com- 
 mission shall report to the governor, an- 
 nually, their proceedings, and such other 
 facts as may be deemed important. Nothing 
 in this section shall prevent individuals 
 from maintaining actions against any of 
 such companies. The legislature may, in 
 addition to any penalties herein prescribed, 
 enforce this article by forfeiture of charter 
 or otherwise, and may confer such further 
 powers on the commissioners as shall be 
 necessary to enable them to perform the 
 duties enjoined on them in this and the 
 foregoing section. The legislature shall 
 have power, by a two-thirds vote of all 
 the members elected to each house, to 
 remove any one or more of said commis- 
 sioners from office, for dereliction of duty, 
 or corruption, or incompetency; and when- 
 ever, from any cause, a vacancy in ofBce 
 shall occur in said commission, the gov- 
 ernor shall fill the same by the appoint- 
 ment of a qualified person thereto, who 
 shall hold office for the residue of the un- 
 expired term, and until his successor shall 
 have been elected and qualified." Id. art. 
 12, § 22. 
 
 The counties to compose the several rail- 
 road districts, until the legislature shall 
 otherwise prescribe, — designated. Id. art. 
 12, § 23. 
 
 Revenue and taxation. " All property 
 in the State, not exempt under the laws of 
 
CALIFORNIA. 
 
 65 
 
 the United States, shall be taxed in pro- 
 poition to its value, to be ascertained as 
 provided by law. The word 'property,' 
 as used in this article and section, is here- 
 by declared to include moneys, credits, 
 bonds, stocks, dues, franchises, and all 
 other matters and things, real, personal, 
 and mixed, capable of private ownership; 
 provided, that growing crops, property used 
 exclusively for public schools, and such as 
 may belong to the United States, this State, 
 or to any county or municipal corporation 
 within this State, shall be exempt from 
 taxation. The legislature may provide, 
 except in the case of credits secured by 
 mortgage or trust deed, for a deduction 
 from credits of debts due to bond fide resi- 
 dents of this State." Id. art. 13, § 1. 
 
 " Land, and the improvements thereon, 
 shall be separately assessed. Cultivated 
 and uncultivated land, of the same quality 
 and similarly situated, shall be assessed at 
 the same value." Id. art. 13, § 2. 
 
 Sectionized lands to be assessed by sec- 
 tions or fractions of sections. Id. art. 13, 
 
 §3. 
 
 " A mortgage, deed of trust, contract, or 
 other obligation by which a debt is secured, 
 shall, for the purposes of assessment and 
 taxation, be deemed and treated as an 
 interest in the property affected thereby. 
 Except as to railroad and other quasi pub- 
 lic corporations, in case of debts'so secured, 
 the value of the property affected by such 
 mortgage, deed of trust, contract, or obli- 
 gation, less the value of such security, shall 
 be assessed and taxed to the owner of the 
 property, and the value of such security 
 shall be assessed and taxed to the owner 
 thereof, in the county, city, or district in 
 which the property affected thereby is sit- 
 uate." 
 
 Mode of adjustment when one party has 
 paid tax, releasing the other, prescribed. 
 Id. art. 13, § 4. 
 
 " Every contract hereafter made, by 
 which a debtor is obligated to pay any tax 
 or assessment on money loaned, or on any 
 mortgage, deed of trust, or other lien, shall, 
 as to any interest specified therein, and as 
 to such tax or assessment, be null and 
 void." Id. art. 13, § 5. 
 
 " The power of taxation shall never be 
 surrendered or suspended by any grant or 
 contract to which the State shall be a 
 party." Id. art. 13, § 6. 
 6 
 
 " The legislature shall have the power to 
 provide by law for the payment of all taxes 
 on real property by instalments." Id. art. 
 13, §7. 
 
 Sworn statements of property to be re- 
 quired from taxpayers. Id. art. 13, § 8. 
 
 Organization and duties of State board 
 of equalization, prescribed. Id. art. 13, § 9. 
 
 Property to be assessed where situated. 
 " The franchise, road-^yay, road-bed, rails 
 and rolling-stock of all railroads operated 
 in more than one county in this State shall 
 be assessed by the State board of equaliza- 
 tion at their actual value, and the same 
 shall be apportioned to the counties, cities 
 and counties, cities, towns, townships, 
 and districts in which such railroads are 
 located, in proportion to the number of 
 miles of railway laid in such counties, 
 cities and counties, cities, towns, town- 
 ships, and districts." Id. art. 13, § 10. 
 
 Income taxes and poll taxes authorized. 
 Id. art. 13, §§ 11, 12. 
 
 Water and water rights. The use of 
 water for sale, rental, or distribution, de- 
 clared to be a public use and subject to 
 State control. Manner of determining and 
 collecting compensation. Id. art. 14, §§ 
 1,2. 
 
 Harbor frontages, &c. " The right of 
 eminent domain is hereby declared to exist 
 in the State to all frontages on the naviga- 
 ble waters of this State." Id. art. 15, § 1. 
 
 " No individual, partnership, or corpora- 
 tion, claiming or possessing the frontage or 
 tidal lands of a harbor, bay, inlet, estuaiy, 
 or other navigable water in this State, shall 
 be permitted to exclude the right of way to 
 such water whenever it is required for any 
 public pui-pose, nor to destroy or obstruct 
 the free navigation of such water; and the 
 legislature shall enact such laws as will 
 give the most liberal construction to this 
 provision, so that access to the navigable 
 waters of this State shall be always attain- 
 able for the people thereof." Id. art. 15, 
 §2. 
 
 " All tide lands within two miles of any 
 incorporated city or town in this State, and 
 fronting on the waters of any harbor, es- 
 tuary, bay, or inlet used for the purposes of 
 navigation, shall be withheld from grant or 
 sale to private persons, partnerships, or 
 corporations." Id. art. 15, § 3. 
 
 Land and homestead exemption. " The 
 holding of large tracts of land, unculti- 
 
CALIFORNIA. 
 
 vated and unimproved, by individuals or 
 corporations, is against the public interest, 
 and should be discouraged by all means 
 not inconsistent with the rights of private 
 property." Id. art. 17, § 2. 
 
 "Lands belonging to this State, which 
 are suitable for cultivation, shall be granted 
 only to actual settlers, and in quantities 
 not exceeding three hundred and twenty 
 acres to each settler, under such conditions 
 as shall be prescribed by law." Id. art. 17, 
 §3. 
 
 Amending and revising the constitu- 
 tion. A two-thirds vote in each house of 
 one legislature required, in order to a sub- 
 mission of amendments, to the people [in- 
 stead of a majority vote] in each house of 
 two successive legislatures. Mode of sub- 
 mitting more amendments than one. Id. 
 art. 18, § 1. 
 
 Mode of constituting a convention for 
 revising the constitution, prescribed anew. 
 Id. art. 18, § 2. 
 
 Tlie Chinese. The legislature shall 
 prescribe all necessary regulations for the 
 protection of the State, and the counties, 
 cities, and towns thereof, from the burdens 
 and evils arising from the presence of 
 aliens who are or may become vagrants, 
 paupers, mendicants, criminals, or invalids 
 afflicted with contagious or infectious dis- 
 eases, and from aliens otherwise dangerous 
 or detrimental to the well-being or peace of 
 the State; and to impose conditions upon 
 which such persons may reside in the State, 
 and to provide the means and mode of their 
 removal from the State, upon failure or re- 
 fusal to comply with such conditions ; pro- 
 vided, that nothing contained in this 
 section shall be construed to impair or limit 
 the power of the legislature to pass such 
 police laws or other regulations as it may 
 deem nece.ssary." Id. art. 19, § 1. 
 
 " No corporation now existing or here- 
 after formed under the laws of this State 
 shall, after the adoption of this constitu- 
 tion, employ, directly or indirectly, in any 
 capacity, any Chinese or Mongolian. The 
 legislature shall pass such laws as may be 
 necessary to enforce this provision." Id. 
 art. 19, § 2. 
 
 "No Chinese shall be employed on any 
 State, county, municipal, or other public 
 work, except in punishment for crime." 
 Id. art. 19, § 3. 
 
 "The presence of foreigners ineligible 
 
 to become citizens of the United States is 
 declared to be dangerous to the well-being 
 of the State, and the legislature shall dis- 
 courage their immigration by all the means 
 within its power. Asiatic coolieism is a 
 form of human slavery, and is for ever 
 prohibited in this State, and all contracts 
 for coolie labor shall be void. All com- 
 panies or corporations, whether formed in 
 this country or any foreign country, for the 
 importation of such labor, shall be subject 
 to such penalties as the legislature may 
 prescribe. The legislature shall delegate 
 all necessary power to the incorporated 
 cities and towns of this State for the re- 
 moval of Chinese without the limits of 
 such cities and towns, or for their location 
 within prescribed portions of those limits, 
 and it shall also provide the necessary leg- 
 islation to prohibit the introduction into 
 this State of Chinese after the adoption of 
 this constitution. This section shall be 
 enforced by appropriate legislation." Id. 
 art. 19, § 4. 
 
 Miscellaneous subjects. " The legis- 
 latm-e shall provide, by law, for the main- 
 tenance and efficiency of a State board of 
 health." Id. art. 20, § 14. 
 
 " Mechanics, materialmen, artisans, and 
 laborers of every class shall have a lien 
 upon the property upon which they have 
 bestowed labor or furnished material for 
 the value of such labor done and material 
 furnished; and the legislature shall pro- 
 vide, by law, for the speedy and efficient 
 enforcement of such liens." Id. art. 20, 
 §15. 
 
 " Eight hours shall constitute a legal 
 day's work on all public work." Id. art. 
 20, § 17. 
 
 " No person shall, on account of sex, be 
 disqualified from entering upon or pursuing 
 any lawful business, vocation, or profes- 
 sion." Id. art. 20, § 18. 
 
 " Elections of officers to be held on the 
 even numbered years ; and their terms to 
 commence on the first Monday after the 
 first day of January. Id. art. 20, § 20. 
 
 Schedule. Existing laws not inconsis- 
 ent, and rights, prosecutions, &c., saved, 
 notwithstanding adoption of the constitu- 
 tion. Id. art. 22, § 1. 
 
 Recognizances, obligations, fines, taxes, 
 penalties, and forfeitures due the State or 
 any municipality, likewise saved. Id. art. 
 22, § 2. 
 
CALIFORNIA. — CARRIER. 
 
 67 
 
 Certain courts abolished, and provisions 
 made for transfer of papers and proceed- 
 ings in them to new courts. Id. art. 22, 
 §3. 
 
 Directions for printing, promulgating, 
 and holding a popular election upon the 
 constitution; and pi'oclaiming its adoption. 
 Id. art. 22, § 4. 
 
 Effect of the constitntion on existing 
 statutes. The constitution of 1879 did 
 not immediately repeal or displace all stat- 
 utes of the State previously in force. It 
 repealed some, but it saved others. Its 
 effect upon various statutes is to be gath- 
 ered from schedule, § 1; the general rule 
 being that those statutes only are immedi- 
 ately abrogated which ai'e inconsistent 
 ■with provisions of the constitution not re- 
 quiring legislation to put them in force. 
 Former laws as to term of office of muni- 
 cipal, couiitj', or township officers are not 
 abrogated, but are, by art. 11, § 5, saved 
 until further legislation. The officers 
 whose terms must, by art. 20, § 20, com- 
 mence on the first Monday of January 
 following election, are the governor and 
 officers who constitute the executive de- 
 partment. Supreme Ci. 1879, Re Stuart, 
 53 Cal. 745. 
 
 CARRIER. The progi'ess towards 
 uniform views upon the right of car- 
 riers to limit their strict common-law 
 liabilitj', deserves attention. In past 
 years the decisions have been con- 
 flicting; but the confliA is gradually 
 harmonizing. There is a tendenc^s 
 after manj' 3-ears of discord, towaid 
 agreement. Some general propositions 
 can be stated which obtain as law in 
 most of the States, and are probably 
 winning universal assent. That there 
 maj' be a limitation of the liability is 
 now almost ever^'where conceded. The 
 questions of our time relate to ,the 
 manner and degree. They are chiefly 
 these : Is notice suflScient, or must the 
 customer assent? If assent is requi- 
 site, must this be explicit, or may it be 
 implied from silence or imputed from 
 
 Cancellation of an alteration may restore origi- 
 nal instrument : p. 20. 
 
 Carrier. Principles of bailment applicable to 
 carriers with other bailees, Bailment. Decisions 
 applicable more pai*ticularly to special classes, 
 
 circumstances ? May the entire double 
 liability of the company be restricted, 
 or is the privilege of limiting it con- 
 fined to that aspect of the carrier's re- 
 sponsibility in which he is viewed as 
 an insurer, leaving the liability for neg- 
 ligence, either of the principal or of 
 his agents and servants, to be in- 
 variably enforced according to strict 
 rules of law? The course of decision 
 in the United States supreme court is 
 understood to disallow a mere notice 
 or implied contract. The liability of 
 a carrying company- may be limited by 
 a contract ; but an explicit assent by 
 the customer is neeessarj' : neither 
 published advertisements, nor notices 
 posted in the offices, nor clauses in- 
 corporated in or indorsed on the receipt 
 given will protect the carriers, when the 
 controversy comes before a Federal 
 court, from the full common-law lia- 
 bility. Acceptance of a receipt with- 
 out objection is not enough, standing 
 alone, to bind the customer bj' ex- 
 emptions which may be indorsed upon 
 it. There must be a proper contract 
 bj' mutual assent. And the privilege 
 of contracting for a limitation is al- 
 lowed only within such limits as are 
 just and reasonable and consistent with 
 the general policj^ of the law ; thus, in 
 particular, even an explicit contract 
 that the company shall not be charge- 
 able for losses from negligence is not 
 enforceable against the customer. 
 
 The decisions in the courts of the 
 States appear to be substantially in ac- 
 cord with these views ; the positions 
 that a notice to the customer does not 
 aflfect his rights even if brought to his 
 knowledge, but he is entitled to com- 
 mit his property to a carrying company 
 for transportation under its public dutj' 
 as a carrier, if he chooses to do so ; 
 that he may, however, if some advan- 
 
 ExpBESs; Railroad: SmpriNc; to telep;raphinfr, 
 Telegkaph; to towage, Shipping; to carrying 
 the mail, Fost-office. Effect, between seller 
 and buyer, of sending goods by common cairier, 
 Sales.' 
 
68 
 
 CARRIEK. 
 
 tage, such as a lower rate, is given him, 
 bind himself bj' an assent to relieve the 
 company of a part of its risk ; and that 
 this assent will not operate to discharge 
 it from losses by negligence, — have 
 been taken more or less distinctly in a 
 number of adjudications. Alabama, Co- 
 lorado, Connecticut, Georgia, Illinois, 
 Indiana, Kansas, Kentucky, Louisi- 
 ana, Maine, Maryland, Massachusetts, 
 Michigan, Minnesota, Mississippi, Mis- 
 souri, Nebraska, New Hampshire, 
 North Carolina, Ohio, Pennsylvania, 
 Tennessee, Vermont, Virginia, are 
 stated in Mr. Lawson's recent and 
 trustworthy work (see Lawson), to 
 have substantially adopted such tenets. 
 In Iowa and Texas the courts would 
 be hindered or prevented from sustain- 
 ing even express contracts limiting the 
 liability, by statutes which forbid them. 
 West Virginia has long allowed these 
 limitations. That State did carry the 
 view so far as to sustain stipulations 
 against liability for negligence ; but the 
 decision to this effect (Baltimore, &c. 
 E. E. Co. V. Eathbone, 1 W. Va. 87) 
 is now overruled. In a recent case 
 (14 W. Va. 180, see Eailroad ; re- 
 asserted 15 W. Va. 812, Express), the 
 supreme court of the State has re-ex- 
 amined it, says that it was rendered 
 during the war, when few authorities 
 were accessible, and pronounces it 
 erroneous, and thus harmonizes the 
 law of that State with the weight of 
 opinion. The course of decisions in 
 New York has fluctuated. Early views 
 were adverse to allowing the carrying 
 companies any privilege of throwing off 
 the liability imposed by old English 
 law. Later cases continue to disallow 
 mere notice ; the assent of the customer 
 to the proposal to carry his goods at his 
 own risk must be obtained ; it may, how- 
 ever, be presumed from such circum- 
 stances as fairly imply it, for example, 
 from accepting a receipt containing a 
 limitation with full opportunity to under- 
 
 stand its terms, and without objecting. 
 By special contract, carrying companies 
 may protect themselves from any lia- 
 bility, including that for losses ascrib- 
 able to negligence of employees. The 
 company cannot absolve itself at all by 
 any act of its own agents merely ; but, 
 with the assent of the customer freely 
 given and fully proved, the limitation 
 may be carried to almost any extent. 
 The latter rule is, however, adminis- 
 tered with a good degree of strictness. 
 The court of appeals has declared that 
 special clauses in railroad contracts 
 ought always to be construed, if pos- 
 sible, as designed to embrace only losses 
 which are not attributable to negligence. 
 Every presumption is against an in- 
 tention to contract for immunity for 
 not exercising ordinary diligence in 
 the transaction of business. If, there- 
 fore, the language of the contract 
 admits of two constructions, that one 
 is firmly preferred which leaves the 
 company liable for losses accruing by 
 negligence, and exempts it from those 
 only which arise otherwise. This view 
 is carried very far in a recent case. 
 See infra, 71 N. T. 180. 
 
 There will sooner or later be a ne- 
 cessity for recognizing, with respect 
 to the great Arrying companies, ex- 
 ceptional cases in which the company 
 may be absolved, by special agreement, 
 from liability for negligence of em- 
 ploj-ees. It may well be said that the 
 probabilities are against such an ^ree- 
 ment ; that public policy would frown 
 upon it in a majority of cases ; that it 
 ought not to be sustained unless clearly 
 proved and justified by peculiar circum- 
 stances and adequate consideration; 
 and especially that it should be scrut- 
 inized for indications of any coercion 
 or advantage taken of the customer's 
 ignorance, inexperience, or haste. But 
 what is there in public policy to forbid 
 that a competent business man, ac- 
 quainted with the facts, and induced by 
 
CARRIER. 
 
 69 
 
 profit or economy, should assume the 
 risk of negligence of persons whom he 
 does not appoint or control? This is 
 involved in every fire and marine 
 insurance ; the company assumes the 
 risk of negligence of persons employed 
 bj' the property-owner. Sureties may 
 often be involved by the negligence of 
 those employed by the principal. Part- 
 ners are guarantors to those dealing 
 with the firm against each other's neg- 
 ligence. Let it be supposed that a 
 firm of bankers or brokers, under daily 
 necessity of transporting government 
 bonds between various cities, desire to 
 avail themselves of the transportation 
 facilities of the railroad and express 
 companies, but are willing, for econo- 
 my's sake, to assume all risks, includ- 
 ing fidelity, care, and skill of employees. 
 They might do this bj' buying stock in 
 those companies ; then, though charged 
 full price for the transportation, they 
 would receive a portion back in divi- 
 dends, by way of compensation for the 
 risk of negligence which they assume ; 
 and public policy would be in no respect 
 infringed. No reason is perceived why 
 the same thing may not be done by an 
 adjustment of the charges of the carry- 
 ing company. If the proper charge for 
 expense and risk together is equitably 
 split in two, if a fair deduction is made 
 in favor of the customer for his as- 
 suming the risk, and the carrier's 
 charge is limited to a lawful compen- 
 sation for the expense, if the facts are 
 fully and fairly understood, and the 
 customer makes the special contract 
 voluntarily, his engagement to bear 
 risk of negligence may deserve support 
 in the courts as much as any other con- 
 tract. 
 
 The question has long been recog- 
 nized as a perplexing one, how far the 
 carrier is chargeable with risks and 
 injuries incident to transportation of 
 animals as animals : those, for instance, 
 which result from hunger and thirst; 
 
 from fatigue, sweating, or sickness ; or 
 from the unruly temper, affright, or mis- 
 behavior, so to speak, of the beasts ' 
 themselves. It has been claimed that 
 all these perils are plainly cast upon the 
 carriers by the old-fashioned authorities 
 in English law, which use the language 
 that common carriers are liable for all 
 losses except those arising from the 
 " act of God or the king's enemies." 
 On the other hand it is contended that 
 this language was framed when ex- 
 tended transportation of live animals in 
 droves and herds, such as is now an 
 important branch of daily traffic, was 
 unknown, and that the old statements 
 of the rule are inappropriate to the new 
 line of business ; that the doctrine 
 ought to be restated with exceptions in 
 favor of the companies, adapted to the 
 growth and expansion of modern trade. 
 And such is the tone of recent de- 
 cisions : they indicate progress towards 
 the general result that unless limi- 
 tations of liability in the contract or 
 receipt introduce a special rule, the 
 carrier is not liable for death or de- 
 preciation of live-stock by such causes 
 as heat of weather, unless the loss is at- 
 tributable to the negligence of the per- 
 sons in charge of the train and yards ; 
 but that he is bound to provide suitable 
 appliances and attendance, and afibrd 
 time and facilities for feeding and wa- 
 tering, and other care required by them 
 as live animals. See 14 W. Va. 180 ; 
 68 Mo. 268 ; in Railroad. In other 
 words, the engagement is not merely 
 for carrying these creatures, but for 
 carrying them in a manner adapted to 
 their nature and needs ; but if the 
 manner of transportation makes reason- 
 able provision for their wants, the 
 carrier is not liable for a loss through 
 the susceptibility of the live organi- 
 zation to untoward influences of ex- 
 tremes of heat or cold, or unavoidable 
 dela3's. 
 
 There is one element in these cases 
 which distinguishes them from those in 
 
70 
 
 CARRIER. 
 
 which dead freight is involved, and that 
 is the suffering of sentient creatures. 
 The question does not lie wholly be- 
 tween owner and carrier ; government 
 may well decline, on grounds of pub- 
 lic policy, to sanction arrangements 
 which these two might be disposed to 
 make, if they will diminish the pre- 
 cautions and care which would other- 
 wise be taken. Modern and humane 
 views somewhat recognize animals as 
 directly entitled to legal protection. 
 This is understood to be the motive 
 underlying the familiar acts of Con- 
 gress punishing wanton neglect of live 
 animals on railroad journeys ; for the 
 penalty is imposed on owner and com- 
 pany alike, and ownership, or consent 
 of owner, is no excuse. On like prin- 
 ciples the courts may well strike out of 
 carrying contracts any stipulations 
 which would tend to relax care and 
 probability of kindly treatment. The 
 course of thought in the courts is 
 steadily toward the principle that the 
 animals themselves, as well as owners 
 and purchasers, are entitled to have 
 their journeys divested as far as 
 Ijracticable of causes of suffering or 
 disease. 
 
 Who are common carriers. In order 
 to subject a person — here the owner of a 
 towboat — to the rigorous liability of a com- 
 mon carrier because of his course of bus- 
 iness being such as to justify the belief on 
 the part of the public that he means to 
 carry for all, his conduct must amount to 
 a public offer to carry for all who tender 
 him such goods as he is accustomed to 
 carry. When this is the case, then those 
 •who tender him goods to carry accept 
 the offer, and he becomes bound. But 
 when he has not held himself out in such 
 way as to amount to an offer to carry for 
 all shippers, no one has a right to depend 
 upon him or to demand that, as a matter 
 of duty, he shall carry his goods, and he 
 may refuse, though he has room to spare, 
 and his charge for carriage be tendered. 
 If he is bound to carry for all who offer, 
 then he is a common — a public — carrier, 
 and for whatever he receives as a common 
 
 carrier, he .is bound in that character. 
 The duty to receive and then liability to 
 account are correlative, and a can'ier must 
 receive and transport in the same charac- 
 ter. A carrier of goods is not liable as a 
 common carrier, unless he was under a le- 
 gal obligation to accept the goods and 
 carry them, and would have been liable to 
 an action if, without reasonable excuse, 
 he has refused to receive them; and he 
 could not be liable for such an action, un- 
 less he had expressly and publicly offered 
 to caiTy for all persons indifferently, or 
 had, by his conduct and the manner of 
 conducting his business, held himself out 
 as ready to carry for all. Cl. of Appeals, 
 1879, Varblew. Bigley, 14 Bush (Ky.), 698. 
 And see Bamberg v. South Carolina E. E. 
 Co., 9 S. C. 61. 
 
 Mail contractors are not liable as com- 
 mon carriers to proprietors of letters, money, 
 &c., for losses. The government is earner 
 of the mails. It canies them by the aid of 
 agents with whom it contracts for the ser- 
 vice. Contractors for carrying the mail 
 are the agents of the government in the 
 business undertaken by them. The sender 
 of mail-matter has no contract with the 
 carrier of the mail-bag, and does not com- 
 mit his mail matter to him, but to the gov- 
 ernment, which has undertaken to receive, 
 carry, and deliver it. The contractor for 
 carrying the mail is neither a common car- 
 rier nor a private carrier, but is one of 
 the instruments of government whereby it 
 performs the function of transmitting mail 
 matter from place to place in execution of 
 this part of its business. Supreme Cl. 
 1877, Foster v. Metts, 55 Miss. 77. 
 
 So a rider or driver employed by a con- 
 tractor for carrying the mail is an assistant 
 and subordinate agent in the public service 
 of the government, and, although paid 
 and liable to discharge at pleasure by the 
 contractor, is not engaged in the private 
 service of the contractor. Hence, a con- 
 tractor for carrying the mail is not liable 
 to the loser for money stolen from the mail 
 by the rider or driver employed by him to 
 carry it. Ih. u- 
 
 Common-law liability for delay. In 
 an action against a common carrier for 
 damages occasioned by delay in the trans- 
 portation and delivery of cattle, the meas- 
 ure of damages is the difference betweeu 
 the market price of the cattle when they 
 
CARRIER. 
 
 71 
 
 arrive at their destination and the market 
 price when they should have arrived, to- 
 gether with compensation for the difference 
 between the shrinkage in weight actually 
 sustained by the cattle, and that which 
 would have occurred if there had been no 
 delay. Evidence is not admissible to show 
 that, between the time of their arrival and 
 the time when they were sold, a decline in 
 the market took place. Supreme Ct. 1879, 
 Glascock V. Chicago & Alton R. R. Co., 69 
 Mo. 589. 
 
 Tierney, at Albany, loaded a car with 
 cabbages for the New York market. He 
 obtained the usual way-bill or receipt, ^nd 
 took pains to see that the freight agent 
 placed upon the car a placard in these 
 words: "Perishable property; this car 
 must be run to New York by first train ; 
 in case of accident or defect of car, reload 
 and forward at once." Notwithstanding 
 this mandate, the car was allowed to lie 
 over at East Albany for two days, and 
 during this delay the cabbages were frozen. 
 The evidence showed, upon the whole, that 
 if the trip had been made promptly as 
 agreed, the freezing would not have oc- 
 curred, and that there was no extraordinary 
 disaster or casualty preventing punctual 
 transportation. The cause assigned for the 
 delay was that the freight business at the 
 time was unusually heavy ; that more cars 
 were arriving at East Albany than could be 
 forwarded ; and that, when the car in ques- 
 tion reached East Albany, it was switched 
 upon a side track, where it became blocked 
 by cars subsequently arriving, so that it 
 could not be moved until they were sent 
 forward. The East Albany freight agent 
 said that the reason why the car, notwith- 
 standing its placard, was not sent earlier 
 was, "because he could not get at it." 
 Held, that the company was liable. It was 
 its duty to transport the cabbages by their 
 first train, unless there was such a pressure 
 of property, likewise perishable, which had 
 arrived before as to make sending by first 
 train impossible. A general accumulation 
 of ordinaiy freight ought not to excuse 
 delay in forwarding perishable goods ; but 
 the general rule should be that, if a carrier 
 cannot transport all the property which he 
 has received, it is his duty to give a pref- 
 erence to that which is known to be per- 
 ishable, even over non-perishable property 
 which may have been earlier received. All 
 
 perishable property must be first forwarded 
 in order of its receipt; non-perishable 
 property naturally and properly waits until 
 the perishable has been sent. Ct. of Ap- 
 peals, 1879, Tierney v. New York Central, 
 &c. R. R. Co.,76iV. Y. 305. 
 
 If the common carrier is chargeable with 
 knowledge that the article carried is in- 
 tended for market, and unreasonably de- 
 lays its delivei-y, and there is a depreciation 
 in the market value of the article at the 
 place of consignment, between the time it 
 ought to have been delivered and the time 
 it was in fact delivered, such depreciation 
 will, ordinarily, constitute the measure of 
 damages. So held, when eggs were de- 
 layed, and spoiled in consequence. iSu- 
 preme Ct. 1877, Devereux v. Buckley, 34 
 Ohio St. 16. 
 
 — for safety of animals. Carriers are 
 not exempt from common-law liability in 
 respect to live-stock. It is very true that 
 the transportation of cattle and live-stock 
 by common carriers, by land, was unknown 
 to the common law when the duties and 
 responsibilities of common carriers were 
 fixed, making them insurers against all 
 losses and injuries not arising from the act 
 of God or of the public enemies; and that 
 these duties and responsibilities were then 
 fixed with reference to kinds of property 
 involving in their transportation much 
 fewer risks and of quite a different kind. 
 But the common-law rule was not confined 
 to the transportation of such articles as 
 common carriers were in the habit of trans- 
 porting at the time such rule became a part 
 of the law. The true view is that this rule 
 grew out of the nature of the business, and 
 was based upon considerations of public 
 policy by which it was thought necessary 
 that such business should be governed, out 
 of the fact that the carrier was entrusted 
 with the exclusive custody and control of 
 the goods. Supreme Ct. 1877, Bamberg v. 
 South Carolina R. R. Co., 9 S. C. 61. 
 
 In respect to the safe carriage and deliv- 
 ery of live animals there is, however, an 
 apparent exception, viz.: that the liability 
 of the carrier does not extend to injuries 
 caused by the peculiar character and pro- 
 pensities of the animals to themselves or 
 each other. But this exception is more 
 apparent than real, for the carrier was not 
 liable under the common-law rule for the 
 natural and ordinary decay of fruits and 
 
72 
 
 CARRIER. 
 
 vegetables, for the evaporation of liquids, 
 or for any other damage caused by the in- 
 herent infirmity of the article carried; and 
 likewise would not be liable under that rule 
 for damages occasioned by the inherent 
 character or propensities of animals, lb. 
 
 Delivery Iby carrier. By leaving goods 
 with a common carrier to be delivered to 
 the consignee without any qualification or 
 restriction, the consignor parts with the 
 goods and all control over them; and he 
 cannot, by a subsequent direction to the 
 carrier, prevent their delivery to ,the con- 
 signee, unless such facts are shown as will 
 justify the stoppage of the goods in transit. 
 Supreme Ct. 1879, Philadelphia & Reading 
 R. R. Co. V. Wireman, 88 Pa. St. 264. 
 
 C. 0. D. Rathbun & Co., at New York, 
 shipped merchandise to a purchaser at Troy 
 marked " C.O.D. $94.28." The agent of 
 the carriers, when making delivery of the 
 goods to the consignee, accepted his check 
 for the sum specified instead of cash. It 
 was drawn payable to the order of the sel- 
 lers of the goods. The agent sent the 
 check to the sellers, who received it with- 
 out objection ; and deposited it for collec- 
 tion; but it was returned protested. They 
 then sued the carrying company for dam- 
 ages for the failure to collect the sum 
 named. Held, that their unconditional 
 acceptance of the check was a waiver of the 
 requirement to collect cash, and a ratifi- 
 cation of the agent's act in receiving the 
 check. Whether or not the drawer of the 
 check had funds in the bank at the time 
 ■when the check was given was immaterial. 
 Ct. of Appeals, 1879, Rathbun v. Citizens' 
 Steamboat Co., 76 N. Y. 376. 
 
 Carriage of passengers and baggage. 
 Mad. Fraloff, a Russian subject, left home 
 to travel through Europe, Asia, Africa, and 
 finally, Amei'ica; and when, at length, she 
 reached this country, shebroughtsix trunks, 
 — they were common-looking ones, and well 
 worn ; but in them were packed, in great 
 variety, elegant and costly dresses, rich 
 jewelry, and very valuable laces. From 
 New York she started for Niagara Falls. 
 Her intention was to go from thence to 
 Chicago, San Francisco, New Orleans, Ha- 
 vana, and even Rio Janeiro, but for the 
 trip to" Niagara she carried only two of her 
 trunks, in one of them, however, were 
 packed the chief quantity of her laces ; they 
 were ancient, unique, and beautiful, and 
 
 valued by her at $200,000. Between Al- 
 bany and Niagara this trunk was broken 
 open and more than two hundred yards of 
 lace stolen. In her action against the car- 
 riers (a railroad company), the main con- 
 tention of defendants was that good faith 
 required the plaintiif , when delivering her 
 trunks to the agents of the carriers, to in- 
 form them of the peculiar character and 
 extraordinary value of the laces ; and that 
 her failure to do so, even though uninten- 
 tional, was, in law, a fraud on the carrier, 
 which should * prevent a recovery. And 
 defendants asked the judge to direct a ver- 
 dict in their favor on this ground, which 
 was refused. 
 
 Held, that the refusal was correct.* Car- 
 riers of passengers may, by specific regula- 
 tions, distinctly brought to the knowledge 
 of the passenger, and reasonable in their 
 character, and not inconsistent with any 
 statute or theiir duties to the public, pro- 
 tect themselves against liability as insurers 
 for baggage exceeding a fixed amount in 
 value, except upon additional compensa- 
 tion, proportioned to the risk. And in 
 order that such regulations may be practi- 
 cally effective, the carrier may rightfully 
 require, as a condition precedent to any 
 contract for the transportation of baggage, 
 information from the passenger as to its 
 value; and, if the value thus disclosed ex- 
 ceeds that which the passenger may reason- 
 ably demand to be transported as baggage 
 without extra compensation, the carrier, at 
 its option, can make such additional charge 
 as the risk fairly justifies. Moreover, the 
 carrier may be discharged from liability 
 for the full value of the passenger's bag- 
 gage, if the latter, by false statements, or 
 by any device or artifice, puts off inquiry as 
 to such value, whereby is imposed upon the 
 carrier responsibility beyond what it was 
 bound to assume in consideration of the 
 ordinary fare charged for the transporta- 
 tion of the person. But in the absence 
 of legislation limiting the responsibility 
 of carriers for tlie baggage of passengers ; 
 in the absence of reasonable regulations 
 upon the subject by the carrier, of which 
 the passenger has knowledge; in the ab- 
 sence of inquiry of the passenger as to 
 the value of the ai-ticles carried, under the 
 name of baggage, for his personal use and 
 convenience when travelling; and in the ab- 
 sence of conduct upon the pai't of the pas- 
 
CARRIER. 
 
 73 
 
 senger misleading the carrier as to the 
 value of his baggage, — the courts cannot, 
 as matter of law, declare that the mere 
 failure of the passenger to volunteer a dis- 
 closure of the value of his baggage is a 
 fraud upon the carrier, which defeats all 
 right of recovery. Supreme Ct. 1879, Rail- 
 road Co. V. Fraloff, 100 U. S. 24. 
 
 No distinct limit is prescribed by law for 
 the quantity or value of the articles which 
 a passenger may carry as baggage. It is 
 not accurate to say, as some of the cases 
 appear to, that a passenger may take, with- 
 out extra compensation, such articles 
 adapted to personal use as his necessities, 
 comfort, convenience, or even gratification 
 may suggest; and that whatever may be 
 the quantity or value of such articles, the 
 carrier is responsible for damage or loss to 
 them. Whether articles of wearing-ap- 
 parel, in any particular case, constitute bag- 
 gage, as that term is understood in the law, 
 for which the carrier is responsible as in- 
 surer, depends upon the inquiry whether 
 they are such in quantity and value as pas- 
 sengers under like circumstances ordinarily 
 or usually carry for personal use when 
 travelling. To the extent that articles car- 
 ried by a passenger for personal use exceed 
 in quantity and value such as are ordinarily 
 or usually carried by passengers of like 
 station and pursuing like journeys, they 
 are not baggage for which the carrier is by 
 general law responsible as insurer ; but he 
 is exempt from liability, not because the 
 passenger has not disclosed them, but be- 
 cause they are not properly baggage. . The 
 laces in question in the present case were, 
 concededly, part of the wearing-apparel of 
 the passenger. They were adapted to and 
 exclusively designed for her personal use 
 during the extended journey, and were not 
 merchandise, nor designed for any business 
 use. This being so, the question whether 
 they were such articles as passengers of 
 like station and under like circumstances 
 ordinarily cany for personal use, and to 
 subserve their convenience, gratification, 
 or comfort while travelling, was not a pure 
 question of law for the court, but a ques- 
 tion of fact for the jury. lb. 
 
 The contents of a travelling salesman's 
 trunk, consisting of samples of merchan- 
 dise, are not included in the implied un- 
 dertaking of a carrier to insure the safety 
 of baggage. But if the carrier takes the 
 
 property into his charge and puts it into 
 his warehouse for safe-keeping, he assumes 
 towards it the relation of an ordinary bailee 
 with all the responsibility attaching to that 
 relation under like circumstances. Penn- 
 sylvania R. R. Co. V. Miller, 10 Reporter, 
 88. 
 
 The liability of a carrier of passengers 
 to make good a loss sustained by the pas- 
 senger through a robbery committed dur- 
 ing the journey does not exceed in amount 
 the value which the passenger is entitled to 
 carry as baggage. Weeks arrived as pas- 
 senger on a train of the New York and 
 New Haven Railroad, at the Forty-second 
 Street depot in New York city. The cars 
 of the steam train were as usual, discon- 
 nected and drawn down town by horse 
 power. While the change was being made, 
 the car in which he was, was left standing in 
 the avenue unprotected by any employees. 
 Several persons who were not passengers 
 entered the car and committed a robbery 
 upon him, taking from his person a pack- 
 age of bonds of the value of $16,000. In 
 his suit against the company for damages, 
 the jury found that the company was 
 chargeable with negligence in failing to 
 provide any watch over the cars at the 
 time. Held, that conceding the company 
 to be liable to its passengers for a robbery 
 committed by strangers, the liability is 
 limited in amount to the value which the 
 plaintiff may reasonably carry as apparel 
 and baggage. Neither contract nor public 
 duty obliges a carrier of passengers to 
 transport merchandise or securities of great 
 value, concealed in the traveller's baggage, 
 or carried privately, and without notice 
 and extra compensation to the company. 
 The bonds must be considered, under the 
 circumstances, as catried by the passenger 
 at his own risk ; at least in the absence of 
 proof of actual connivance by the servants 
 of the company in the robbery. Ct. of 
 Appeals, 1878, Weeks v. New York, New 
 Haven, &c. R R. Co., 72 N. Y. 50. 
 
 Can-iers of passengers must not make 
 any discrimination for or against any hotel 
 or boarding-housekeeper, or baggage-man, 
 by excluding them, or their agents, servants, 
 or runners, from any public wharf or depot, 
 or other public place belonging to such com- 
 mon carrier, and to which others are ad- 
 mitted. N. C. Laws 1879 (March 5), 200, 
 ch. 108. See also Passenger. 
 
74 
 
 CARRIER. 
 
 Limiting liability by special contract. 
 
 For Uie United States the rule ia settled by 
 Railroad Co. v. Manufacturing Co., 10 
 Watt. 818, that the delivery by the carrier, 
 to the shipper, of a shipping receipt which, 
 upon its face, refers to conditions on the 
 back, defining the terms of the carrier's 
 responsibility, and its acceptance by the 
 shipper, does not constitute a special con- 
 tract between the shipper and carrier, by 
 which the liability of the latter is limited 
 by the conditions on the back of the re- 
 ceipt. No act on the part of the shipper, 
 short of an explicit agreement, will imply 
 an assent on his part to a contract proposed 
 by a carrier, modifying the liability of the 
 latter. That this decision conflicts with 
 many decisions of high authority in this 
 country and in England must be conceded ; 
 but the case furnishes a rule of plain and 
 certain application, and sweeps away many 
 fine and artificial distinctions which have 
 involved in confusion the whole doctrine of 
 notices and special contracts, as affecting 
 the rights and liabilities of common car- 
 riers. Some of these cases have turned 
 upon the point, whether the conditions in 
 a printed receipt were in small type or in 
 large, and whether the receipt was taken 
 deliberately or hurriedly. One case places 
 controlling emphasis upon the fact that the 
 receipt was taken by the shipper in a dimly- 
 lighted car, and holds that it was therefore 
 not a contract. [43 N. Y. 264.] Another 
 holds the receipt a contract, although taken 
 by a foreigner ignorant of the language in 
 which it was printed, and to whom no ex- 
 planation of its terms was vouchsafed. [64 
 Barb. 179. See also 21 N. Y. 543.] Thus, 
 while one man is absolved from obligation 
 because it maj' be inconvenient for him to 
 inform himself of the terms" of the pro- 
 posed contract, anotheris held. The theory, 
 of course, is, that assent to the proposed 
 contract is or is not implied from the cir- 
 cumstances of the transaction, but the 
 cases illustrate the utter uncertainty of the 
 test of assent, when one man, who is ig- 
 norant of the language of the proposed 
 contract, is presumed to assent, while an- 
 other is absolved because, from the type in 
 which it is printed, or the light by which 
 he is to read it, he cannot acquaint himself 
 with its terms without more or less incon- 
 venience. The rule held by the supreme 
 court of the United States is capable of 
 
 certain and easy application, and, if ad- 
 hered to, will go far to abrogate a class of 
 contracts to which, practically, the carrier 
 is the only party. 2d Circ. (iV. Y.) 1876, 
 Ayres v. Western R. R. Corporation, 14 
 Btatclif. 9. 
 
 In the absence of special circumstances, 
 acceptance of a bill of lading or transpor- 
 tation receipt, at the time of delivering 
 goods to a carrier, should be deemed an ac- 
 ceptance of its terms, and a contract on 
 the part of the shipper to abide by a limi- 
 tation of the carrier's liability as insurer. 
 The doctrine of 14 Blatchf. 9, may well be 
 limited to cases of a limitation indorsed 
 on the back, or otherwise not appearing by 
 the instrument. 2(/ Circ. (N. Y.) 1880, 
 Wertheimer v. Pennsylvania R. R. Co., 1 
 Fed. Reporter, 232. 
 
 A special contract between a common 
 carrier and a customer or shipper may ex- 
 onerate him from a liability for accidental 
 losses, but not for the consequences of a 
 lack of that degree of diligence to which 
 he is bound by the nature of his employ- 
 ment. He must continue responsible for 
 all damages occasioned by negligence or 
 misfeasance of himself or his servants. 
 Supreme Ct. 1877, Merchants' Despatch, 
 &c. Co. V. Cornforth, 3 Col. 280. S. P. 
 Chicago, &c. R. R. Co. «. Hale, 2 Bradvo. 
 (Itl.) 150; Capehart v. Seaboard, &c. R. E. 
 Co., 81 N. C. 438; Dillard v. L. & N. R. R. 
 Co., 2 Lea {Term.), 288; Maslin o. Balti- 
 more, &c. R. R. Co., 12 W. Va. 180; Brown 
 V. Adams Exp. Co., 15 W. Va. 812. 
 
 A special agreement between a common 
 carrier and a customer, imposing reason- 
 able limitations on the common-law lia- 
 bility is lawful; but one which purports, 
 when its terms are fairly construed, to 
 give the carrier an absolute and uncondi- 
 tional exemption from liability, will not be 
 enforced. A traveller by railway gave his 
 dog in charge of the train-men and took 
 and paid for the usual ticket, which con- 
 tained the condition : The company will 
 not be liable in any case for loss or damage 
 to any dog above the value of £5, unless a 
 declaration of its value is given, and extra 
 fare paid. The dog was lost without the 
 carrier's fault. Hetd, that the conditions 
 in the ticket did not prevent the owner 
 from recovering full value. They im- 
 ported an absolute and unconditional agree- 
 ment that the company should not be liable 
 
CARRIER. 
 
 75 
 
 in any event. Such a condition is neither 
 just nor reasonable [10 Ho. of L. Cas. 
 473; 32 L. J. (Q. B.) 2il]. Any«uch con- 
 dition must preserve the common law 
 liability of the carrier for gross negligence 
 or wilful misconduct or felony of servant. 
 A stipulation that the carrier will not be 
 responsible for loss resulting from accident, 
 without neglect or fault is valid and ob- 
 ligatory. Exchequer, 1880, Ashendon v. 
 London, Brighton, &c. Ey. Co. L. R. 5 
 Ex. D. 190. 
 
 In jurisdictions (such as New York) 
 where a common carrier is allowed to 
 limit his common-law liability as insurer 
 of the safety of the goods, by inserting a 
 special clause in the contract, a clause of 
 that character ought to be construed, if 
 possible, as meaning to embrace only losses 
 which are not attributable to the negli- 
 gence of the caiTJer or his servants. Every 
 presumption is against an intention to con- 
 tract for immunity for not exercising 
 ordinary diligence in the transaction of any 
 business. If, therefore, the language of 
 the contract admits of two constructions, 
 that one should be preferred which leaves 
 the carrier liable for losses accruing by 
 negligence, and exempts him only from 
 those arising otherwise. A railway receipt 
 for live-stock contained a stipulation to 
 release the company from all liability ' ' of 
 every kind and character whatsoever, for 
 or on account of or connected with any 
 damage or injury to, or the loss of, said 
 stock, or any portion thereof, from what- 
 soever cause arising." Held, that this 
 general language, if read in connection 
 with the circumstances, might well be 
 satisfied by limiting it to such extraor- 
 dinary liabilities as carriers sustain with- 
 out fault or negligence on their part ; and 
 did not exempt from negligent losses. Ct. 
 of Appeals, 1877, Mynard o. Syracuse, 
 Binghampton, &c. R. R. Co., 71 N. Y. 
 180. 
 
 Where a sealed or closed package is 
 presented, and the value is asked, and 
 the consignor refuses to disclose it, the 
 carrier has a right to limit its liability 
 to a fixed sum, and say that it will 
 undertake the . transportation on the as- 
 sumption that it is not worth over a 
 certain sum. A common carrier may 
 even, under the Dlinois statute — which 
 prohibits a common carrier from limiting 
 
 the common-law liability — require a ship- 
 per of goods to state the value which he 
 puts upon them, and stipulate that, in case 
 of loss, the liability of the carrier shall not 
 exceed the amount so fixed; and may say 
 that when the shipper refuses to disclose 
 the value, the liability of the carrier should 
 not exceed a certain amount. This is 
 equivalent to a special agreement between 
 the parties that, for the purpose of con- 
 tract of carriage, the value of the goods is 
 fixed at that sum. Qth Circ. {III.) 1880, 
 Mather v. American Exp. Co., 2 Fed. Re- 
 porter, 49. 
 
 An exception in a bill of lading, exempt- 
 ing a common carrier from liability for 
 " loss or damage on any article or property 
 whatever, by fire or other casualty, while 
 in transit, or while in depots or places of 
 transshipment," is applicable to goods 
 forcibly taken from the carrier, while in 
 transit, and burned by a lawless mob, where 
 such carrier was not guilty of any negli- 
 gence by which the efficiency of the ex- 
 ception was in any way impaired. Zd 
 Circ. {Pa.) 1880, Hall v. Pennsylvania R. 
 R. Co., 1 Fed. Reporter, 226. 
 
 A stipulation in a bill of lading, that in 
 case any claim for damage should arise for 
 loss of articles mentioned in receipt, while 
 ill transit or before delivery, the extent of 
 such damage or loss shall be adjusted be- 
 fore removal from the station, and claim 
 therefor made within thirty days to a 
 "trace agent" of the carrier, is an un- 
 reasonable provision which the courts will 
 not uphold. Supreme Ct. 1879, Cape- 
 heart V. Seaboard, &c. R. R. Co., 81i\r. C. 
 438. 
 
 A common carrier does not, by limiting 
 his common-law liability by special con- 
 tract, thereby become a private carrier; and 
 if loss is sustained, the burden of proof is 
 on him to show, not only that such loss 
 arose from a cause from which he was ex- 
 empted from responsibility by the terms 
 of his special contract, but also that it 
 arose from no negligence or misfeasance 
 of himself or his servants. Ct. of Appeals, 
 1879, Brown v. Adams Exp. Co., 15 W. 
 Va. 812. 
 
 Connecting lines. The fact that a 
 carrying company's receipt given for goods 
 to be forwarded by a connecting company 
 contained a stipulation that the company 
 engaging should not be liable as common 
 
76 
 
 CARRIER. — CEMETERY. 
 
 carriers for articles " after tiieir arrival at 
 the place of destination " was held not to 
 diminish the engaging company's liability 
 for goods lost after it had delivered them to 
 the connecting company. Place of desti- 
 nation in such a special agreement should 
 not be construed as meaning any place where 
 the carrier originally employed may deliver 
 the goods to a connecting carrier, but place 
 where the carriage is to terminate and the 
 goods are to be delivered as per address. 
 2d Circ. (iV. F.) 1876, Ayres v. Western 
 R. R. Corp., UBlatchf. 9. 
 
 Whenever any property is received by a 
 common carrier, to be transferred from one 
 place to another, within or without this 
 State, or when a railroad or other trans- 
 portation company issue receipts or bills of 
 lading in this State, the common carrier, 
 railroad, or transportation company, issuing 
 such bill of lading, shall be liable for any 
 loss, damage, or injury to such property, 
 caused by its negligence, or the negligence 
 of another common carrier, railroad, or 
 transportation company to which such 
 property may be delivered, or over whose 
 line such property may pass; and the 
 common carrier, railroad, or transpor- 
 tation company issuing any such receipt 
 or bill of lading shall be entitled to 
 recover, in a proper action, the amount 
 of any loss, damage, or injury it may be 
 required to pay to the owner of such 
 property, from the common carrier, rail- 
 road, or transportation company, thi-ough 
 whose negligence the loss, damage, or 
 injury may be sustained. AIo. Laws 1879 
 (June 11), 171. 
 
 " Any steamboat, canal, or railroad com- 
 pany doing the business of a common car- 
 rier within the limits of the State shall, 
 at the time of the delivery of any freight 
 shipped or transported over the line of such 
 company, furnish to the owner or consignee 
 thereof, or the agent of such owner or con- 
 signee, a bill plainly stating the class to 
 which said freight belongs, the weight 
 thereof, and the rate charged for trans- 
 porting the same." Va. Laws 1879 (April 
 2), ch. 334, 62. 
 
 Refusal to comply with the above en- 
 actment forfeits three times the freight 
 charges, and bars the carrier of any right 
 to receive charges or retain the goods ; and 
 the person implicated is punishable by 
 fine. Id. § 2, 3. 
 
 Minor Decisions on Carrier. 
 
 After delivery to c, shipper cannot 
 change consignee, if original consignee has 
 made advances : 2 Bradw. (IlL) 180. In- 
 serting exemption clause in receipt does not 
 protect c. ; customer's assent is necessary; 
 this is question for jury under the circum- 
 stances: 89 III. 43. If receipt for goods is 
 delivered to shipper before the goods have 
 gone, and he accepts it without objecting 
 to its contents, he cannot afterward assert 
 ignorance: 72 N. Y. 90. A stipulation 
 limiting the sum which the owner of prop- 
 erty transported may recover from the c, 
 if it is lost, will be enforced if reasonable: 
 otherwise not: 56 Ala. 368. C. who 
 agrees to carry package for a stated .sum, 
 without inquiry or misrepresentation as to 
 value, cannot demand more because value 
 was greater than he supposed: 74 N. Y. 
 125. That the property was marked in a 
 fictitious firm-name, under which shipper 
 was unlawfully doing business, is no de- 
 fence to his action against c. for loss 
 or damage: 72 N. Y. 196. What plea and 
 proof are sufficient to show defence of act 
 of God, — here an extraordinary storm : 6 
 Mo. App. 554. Cotton placed on pier, 
 held, at consignee's risk, where he had 
 notice and time to remove it: 8 Ben. 297. 
 Burden is on consignee claiming for break- 
 age to prove it attributable to c.'s negli- 
 gence: Id. 301. 
 
 CEMETERY. No city or town shaU 
 alienate, convey, or appropriate to any 
 other use than that of a burial ground any 
 tract of land which has been for more thaa 
 one hundred years used as a place of burial 
 of the dead, nor shall any portion of such 
 burial ground be taken for any public use 
 without special authority from the legislar 
 ture. Mass. Laws 1880 (March 29), 75, 
 ch. 153. 
 
 Cashier. Powers and duties of cashiers of 
 banks. Banking. Embezzlement of bank funds 
 by, Embezzlement. 
 
 Casualty. Entire crow sick with yellow fever 
 an " inevitable accident," p. 9. 
 
 Cattle. Are State laws restricting importation 
 of, valid, p. 21. Sale of, when astray, p. 22. In- 
 juries by, p. 23. Public rcgulatious, p. 24.- Li»- 
 bility of carrier of live-stock, p. 71. 
 
 Caveat, Patent. 
 
CENSUS. — CHATTEL MORTGAGE. 
 
 77 
 
 CENSUS. There is a peculiarity in 
 the legislation governing the census 
 taken during the season of 1880. In 
 former years, the taking of the national 
 census was governed by special laws 
 passed for successive instances. The 
 Revised Statutes proposed a permanent 
 law ; they provided that "if no other 
 law be passed providing for the ta:king 
 of any subsequent census, such census 
 shall be taken and completed according 
 to the provisions of this title ; " and 
 then prescribed a general system. But 
 for the census of 1880 an " other law " 
 was passed : act of Congress of March, 
 3, 1879, 20 Stat, at L. 473. It pre- 
 scribed a system in many and important 
 respects different from that stated in 
 the Revised Statutes, and declares 
 (I 24) " all laws and parts of laws in- 
 consistent with the provisions of this 
 act are hereby repealed ; and all cen- 
 suses subsequent to the tenth census 
 shall be taken in accordance with the 
 provisions of this act unless Congress 
 shall hereafter otherwise provide." 
 Should anj- questions for the judiciary 
 arise respecting the census of 1880, 
 they must be determined bj- the special 
 act of 1879. The title " Census" in 
 the Revised Statutes has no apphca- 
 tion. 
 
 CHARITY. In construing a grant or 
 devise for charitable uses, the intent should 
 prevail. If the terms of the instrument 
 express an intent to cut ofE the heir in fa- 
 vor of a charity indicated with sufficient 
 clearness, he will be cut off. If the terms 
 are too vague and indefinite to enable the 
 court to detect the charity intended, the 
 estate must follow the usual course of de- 
 scentr 8th Circ. {Mo.) 1879, Russell v. 
 Allen, 7 Reporter, 614. 
 
 A legacy "to build and support a public 
 school for the education of children," as the 
 law directs, given to an incorporated parish, 
 may be sustained as a charity. It was 
 never questioned that education is a proper 
 subject of a gift for charitable uses. And 
 this gift is not for the education of any 
 
 particular persons ; the expression embraces 
 all persons for whom the law designs that 
 schools shall be supported; therefore the 
 beneficiaries are sufficiently indefinite. Su- 
 preme Ct. 1878, Boxford Religious Society 
 V. Harriman, 125 Mass. 321. 
 
 A bequest to a church of the residuum 
 of testator's property, " to aid the mission- 
 ary, educational, and benevolent enter- 
 prises to which the church is in the habit of 
 contributing," may be sustained as a gift 
 to charitable uses. "Benevolent," stand- 
 ing alone, includes objects which are not 
 legal charities ; but in this context its sig- 
 nification is narrower. Ct. of Errors, 1879, 
 De Camp v. Dobbins, 31 N. J. Eq. 671. 
 
 For a fire company to employ part of 
 funds contributed by citizens to purchase 
 apparatus to be used in the extinguishment 
 of fires and preservation of property and 
 life for the purchase of a bell for fire 
 alarms, is a diversion of funds given to 
 charity. Common Pleas, 1876, Harrisburg 
 V. Hope Fire Co., 2 Pearson (Pa.), 269. 
 
 CHATTEL. A junk dealer, by fraud- 
 ulent collusion with the employees of a rail- 
 road corporation, obtained large quantities 
 of old iron , &c. , at much less than the actual 
 weight or value. On delivery it was thrown 
 indiscriminately on other heaps of old iron, 
 &c., belonging to him, so as to be indis- 
 tinguishable. Seld, that he must forfeit 
 the whole mass to the company, upon the 
 principle that if a party having charge of 
 the property of others so confounds it with 
 his own that the line of distinction cannot 
 be traced, all the inconvenience of the con- 
 fusion is thrown upon the party who pro- 
 duced it, and it is for him to distinguish 
 his own property or lose it. Ct. of Errors, 
 1878, Jewett v. Dringer, 30 N. J. Eq. 291. 
 
 CHATTEL MORTGAGE. In an action 
 of detinue brought to recover the posses- 
 sion of a horse, the proof showed that the 
 grantor of a bill of sale made as security 
 for a debt, which included, among other 
 things, the horse in question, had sent it 
 to a horse repository, where it was pur- 
 chased at public auction by the defendant. 
 The bill of sale described the grantor as 
 an "innkeeper and horse-dealer," and 
 gave him power, until default should be 
 made in payment of the principal or in- 
 terest, "to hold, make use of, and possess " 
 
 Chattel. Personal Peoperty ; Fixtukes. I law of mortgage applicable to mortgages of real 
 Chattel mortgage. For general principles of the | and personal property, Moktgage. 
 
78 
 
 CHATTEL MORTGAGE. — CHILD. 
 
 the goods comprised in it. It also con- 
 tained a covenant by the grantor not to 
 dispose of any of the goods without the 
 consent in writing of the grantee. Held, 
 that the legal effect of the bill of sale was 
 to give the grantor authority to dispose of 
 the goods in the ordinary course of his 
 trade , and that as the horse had been dis- 
 posed of by him in the ordinary course of 
 his business as a horse-dealer, the defend- 
 ant, who had purchased it without notice of 
 the bill of sale, had acquired a good title 
 to it. Common Pleas, 1880, Walker t. 
 Clay, 42 L. T. n. s. 369. 
 
 Neither public policy nor the laws of 
 Kansas render a mortgage of a stock of 
 goods, containing a stipulation that the 
 mortgagor may retain possession and con- 
 tinue sales, necessarily void. If the mort- 
 gage is duly registered, all the world has 
 notice of what is intended; and third per- 
 sons are not harmed. Such an arrange- 
 ment is liable to abuse, should be closely 
 scanned, and will be voidable when used 
 for a cover for wi'ong, or on proof that 
 creditors are actually defrauded. But it 
 cannot be adjudged void as matter of law. 
 Supreme Ct. 1879, Frankhouser v. Ellett, 
 22 Kan. 127. 
 
 S. P. in Texas, 3 Tex. Law J. 593 ; 1 ^m. 
 Law Rev. n. s. 539. And see Barkow v. 
 Sanger, 47 Wis. 500. 
 
 Minor Decisions on Chattel Mortgage. 
 
 Mortgage on all the live-stock of which 
 mortgagor may become owner during the 
 year, — sustained: 55 Miss. 376. A c. m. 
 which authorizes mortgagor to manufacture 
 and sell the stufp mortgaged, and use part of 
 proceeds, is void against other creditors: 
 90 III. 296. A c. m. on a merchant's stock 
 of goods is void towards creditors hindered 
 by it, where mortgagor continues in pos- 
 session, making sales: 80 N C. 161. A 
 c. m. on merchant's stock which allows 
 mortgagee to " use " it can only mean 
 " sell " it, and is void towards creditors 
 unless it reserves proceeds for them: 61 
 Ind. 11. A mortgage of fixtures and 
 stock is not void as to the fixtures, be- 
 
 CMld. For the relation of parent niul child, see 
 Paekxt. Of gn.nrdiiin and ward, Gu.vrdian. 
 Privileges and di^ab lilies of infants, Infant. 
 Apprenticing nilnor.i, Appkentice. Award of 
 custody of childrpn, on granting divorce, Divorce. 
 Kegligence of cliild, Negligence. 
 
 cause it allows the mortgagor to continue 
 sales of the stock : 69 Mo. 468, A c. m. 
 with power to continue sales, though void 
 against creditors, is valid between parties: 
 8 Neb. 373. Trust deed of stocks of goods 
 to secure future advances void towards 
 creditors, where grantor continued in pos- 
 session making sales, &c.: 4 Baxt. (Tenn.) 
 1. If c. m. does not reserve right to re- 
 tain possession and make sales, doing so 
 by mere consent of mortgagee is not fraud 
 per He . 45 Wis. 665. Lien of c. m. is 
 superior to landlord's lien for subsequent 
 rent due from mortgagor: 51 Iowa, 381. 
 
 CHILD. In order to make more 
 efficient provision against various forms 
 of ill treatment of children, the legis- 
 lature of New York in 1875 passed a 
 general law [^Laws 1875, ch. 130], 
 authorizing incorporation of societies 
 for the puipose of preventing cruelty 
 to children. Besides ordinary corpo^ 
 rate powers, these societies are author- 
 ized to prefer and prosecute complaints 
 for violation of any law relating to or 
 affecting children, and magistrates and 
 officers of police are directed to aid 
 such societies in the enforcement of 
 these laws. Under this act, several 
 societies have been formed in various 
 parts of the State. One in New York 
 city, of which Elbridge T. GeiTy is 
 now (Sept. 1880) president, has been 
 an active pioneer in the field. In 1876 
 the same legislature passed a somewhat 
 comprehensive law \_Laws 1876, ch. 
 122], restricting the vocations in which 
 children may be employed, and protect- 
 ing them against exposures. Ap- 
 parently it has been somewhat under 
 the example of these laws that, during 
 the past year or two, several of the 
 other States have passed laws and 
 have incorporated societies for pro- 
 tection of children. Those of Dela- 
 ware, New Jersey, and Pennsj-lvania 
 (abridged infra) arS especially note- 
 Abandonment of child, p. 1 Killing unborn 
 child a distinct offence from procuring abortion, 
 p. 8. Advancement to child, p. 16. Forcigii-borti 
 child in California restricted, p 20. Education of 
 children a charitv, p. 77. Nevada apprentice laWi 
 p. 25. 
 
CHILD. 
 
 79 
 
 worthy for comprehensiveness of their 
 provisions. 
 
 Age of discretion. The law fixes no 
 arbitrary period when the immunity of 
 childhood ceases and the responsibilities of 
 life begin. Fourteen is the general " age 
 of discretion." The courts may well pre- 
 sume that an infant above fourteen has 
 sufficient capacity to be sensible of danger 
 and this presumption will stand until over- 
 thrown by clear proof of the absence of 
 such discretion as is usual with infants 
 of that age. Supreme Ct. 1878, Nagle 
 V. Allegheny Valley R. R. Co., 88 Pa. St. 
 35. 
 
 New laws for protection. All parents, 
 and those who have the care of children, 
 shall bring them up in some honest and 
 lawful calling or employment, and instruct 
 them, or cause them to be instructed, in 
 reading, writing, English grammar, geo- 
 graphy, and arithmetic. And every parent, 
 guardian, or other person, having control 
 and charge of any child between eight and 
 fourteen years of age, shall cause such 
 child t» attend a public day school or other 
 school in which instruction is regularly and 
 thoroughly given in the branches of educa- 
 tion required to be taught in the public 
 schools, for at least sixty days in each con- 
 secutive twelve months, six weeks at least 
 of which attendance shall be consecutive, 
 or to be otherwise properly instructed for a 
 like period of time in each consecutive 
 twelve months in said branches of educa- 
 tion, unless the physical or mental condition 
 of the child is such as to render such at- 
 tendance or instruction inexpedient or 
 impracticable. Conn. Laws 1880 (March 
 9), 4, ch. 17. 
 
 Minor children abandoned by their pa- 
 rents may be sent to any incorporated home 
 for the friendless by the mayor of the town 
 where such " home " is located, or by any 
 justice of the peace in such town, or by 
 the judge of any court of record; and .such 
 " home " shall be the legal guardian of the 
 children so received by it. Iowa Laws 
 1878, ch. 176, p. 164. 
 
 Whoever shall wilfully cause or permit 
 any child to suffer, or shall inflict thereon un- 
 justifiable physical pain or mental suffering, 
 and whoever, having the care or custody of 
 any child, shall wilfully cause or permit such 
 child to be placed in such a situation that 
 
 its life may be endangered, or its health 
 shall be likely to be injured, shall be guilty 
 of a misdemeanor punishable by fine. Del. 
 Laws 1879 (March 18), 218, ch. 150. 
 
 The same act makes it unlawful to sell 
 or apprentice children, to receive such 
 children, or to dispose of or to employ such 
 minor children to beg, &c., or to employ 
 children in or about a brothel. Id. § 2. 
 
 Special provision is made for arrest and 
 trial of defendant, also for appointment of 
 guardians of children suffering from ne- 
 glect or cruelty; or for placing them in an 
 asylum. Id. §§ 3, 4. 
 
 An act to protect children from neglect 
 and cruelty, and relating to their employ- 
 ment, protection, and adoption, declares 
 that any person whatsoever who shall 
 cruelly ill-treat, abuse, or inflict unnecessary 
 cruel punishment upon any infant or minor 
 child, and any person having the care, cus- 
 tody, or control of any minor child, who 
 shall wilfully abandon or neglect the same, 
 shall be guilty of a misdemeanor and be 
 punishable by fine. Pa. Laws 1879 (June 
 11), 142, Ko. 151. 
 
 Punishment imposed for employing mi- 
 nors at certain vocations, such as rope- 
 walker, acrobat, gymnast, contortionist, or 
 rider; or at any obscene, indecent, or il- 
 legal exhibition or vocation; or at any 
 vocation dangerous to life or limb, or inju- 
 rious to health or retaining them in 
 brothels; or for hiring them for purposes 
 of mendicity; or for employing them in 
 dance-houses, or saloons where liquors are 
 sold; or for hiring them to work under- 
 ground. Id. §§ 2-5. 
 
 Provision made for the appointment of 
 guardians for, or for the adoption of, any 
 child ill-treated or deserted. Any duly 
 organized humane society, having for one of 
 its objects the protection of children from 
 cruelty, authorized to have its agents or 
 officers commissioned as police officers for 
 the purpose of making arrests for violations 
 of the law. W. §§7-12. 
 
 Other recent State statutes, similar in 
 subject-matter and general scope to the last 
 two above cited are Minn. Laws 1879 (Feb. 
 IS), 75, ch. 7; N. J. Laws 18S0, 124, 95; 
 Wis. Laws 1880 (March 15), 276, ch. 239. 
 
 " No license shall be granted for any 
 theatrical exhibition or public show in 
 which children under the age of fifteen 
 years, and belonging to the public schools, 
 
80 
 
 CHILD. — CHINESE. 
 
 are employed or allowed to take part as 
 performers on the stage in any capacity, or 
 where, in the opinion of the board author- 
 ized to grant licenses, such children are 
 employed in such a manner as to corrupt 
 their morals or impair their physical 
 health." Special permissions under Laws 
 1877, ch. 172, may still be given. Mass. 
 Laws 1880 (March 12), 43, ch. 88. 
 
 " No child under the age of ten years 
 shall be employed by any manufacturing 
 corporation in this State," under fine. 
 N. H. Laws 1879 (July 16), 340, ch. 21. 
 
 No minor child within this State, not 
 being a passenger, shall be allowed upon 
 the platform or steps of any railroad car 
 drawn by steam, or of any omnibus, street 
 car, or other vehicle drawn by horses. 
 Child violating the law may be arrested 
 and fined, and parents or guardians per- 
 mitting violation may be fined. N. Y. 
 Laws 1880 (June 25), 876, ch. 585. 
 
 CHINESE. At the time when the 
 Year Book commences, the supreme 
 court had recently decided that legisla- 
 tion in California assuming to restrict 
 immigration from China was void, be- 
 cause repugnant to the Burlingame 
 Treaty ; and because the passage of laws 
 which concern the admission of foreign 
 nations to our shores belongs, not to the 
 States, but to Congress, in virtue of 
 the power to regulate commerce. This 
 decision transferred the discussion of 
 such measures to Congress ; and during 
 the session of 1878-9, several bills 
 were considered. One was passed. It 
 was vetoed by the President, chiefly on 
 the ground that, without disputing the 
 abstract power of Congress, in a prop- 
 er case, to abrogate a treaty, our re- 
 lations with China were too important 
 and delicate to be sundered in a sum- 
 mary manner, and without notice or 
 diplomatic negotiation. The veto was 
 interposed March 2, 1879, on the eve 
 of the adjournment. 
 
 Meantime effort was continued on the 
 Pacific coast to devise measures of 
 legislation, and develop grounds of 
 constitutional right by which the gene- 
 ral object might be attained. At the 
 
 very time while Congress was in de- 
 bate over bills to restrict the immi- 
 gration, a constitutional conventioa 
 was in session in the State ; and its 
 work was submitted to the people and 
 ratified by them in May following, and 
 is now in force (see California). It 
 declares that no native of China shall 
 ever exercise the privileges of an elec- 
 tor. It devotes an entire article to the 
 Chinese by name, describing them as 
 aliens likely to be paupers, mendicants, 
 and criminals, and commanding the 
 legislature to impose conditions on their 
 coming or remaining, and to provide 
 for their removal if they will not com- 
 ply. No corporation may employ a 
 Chinaman ; no Chinese shall be em- 
 ployed on any public work ; their im- 
 migration is to be discouraged by law, 
 and all companies importing them are 
 to be subject to penalties ; cities and 
 towns are empowered to expel them. 
 And subsequently, in September, vnder 
 a law of 1877 providing for a popular 
 vote upon the question of permitting 
 Chinese immigration, an election was 
 held, and resulted, according to the 
 San Francisco journals, in a vote 
 of 154,638 against allowing it, to 
 883 only in its favor. Later discus- 
 sions and elections are said to indi- 
 cate some change in public feeling; 
 which has not yet, however, become 
 apparent in form of law. Oregon 
 maintained, and California and Ne- 
 vada passed laws forbidding, the em- 
 ployment of Chinese on corporate and 
 public works (see infra) ; and Cali- 
 fornia imposed farther restrictions. 
 These laws have in several instances 
 been questioned in Federal courts. One 
 of them, an impartial sanitary regula- 
 tion requiring a permit for, and im- 
 posing a license fee upon, exhumation 
 and removal of a corpse, has been sus- 
 tained (see infra, 2 Fed. ReporUr, 
 (i24) , though known to bear more oner- 
 ously on the Chinese than on other 
 races. Other laws, those authorizing 
 
CHINESE. 
 
 81 
 
 cutting the queues of Chinese con- 
 victs, forbidding the employment of 
 Chinese laborers, and restricting China- 
 men from engaging in fisheries, have 
 been, in the circuit courts, considered 
 void upon broad and general grounds 
 which, if sustained in the supreme 
 court, must have an important influ- 
 ence in controlling .future legislation of 
 the States affecting immigration. [See 
 infra, 5 Sawyer, 552 ; Id. 566; 1 Fed. 
 Reporter, 481 ; 2 Id. 733.J 
 
 Special legislation which imposes a de- 
 grading and cruel punishment upon a class 
 of persons entitled to the equal protection 
 of the laws is unconstitutional and void. 
 An ordinance of San Francisco declared 
 that every male person imprisoned in the 
 county jail, &c. should have the hair of his 
 head cut or clipped to a uniform length of 
 one inch from the scalp, &c. The ordin- 
 ance was enforced against the plaintiff, a 
 Chinaman. The loss of the queue is re- 
 garded as a disgrace by the Chinese, and, 
 according to their religious faith, is at- 
 tended with suffering after death. Held, 
 that the ordinance was unconstitutional and 
 void ; not only as inflicting cruel and un- 
 usual punishment, but also because, being 
 really directed against the Chinese espec- 
 ially it involved hostile and discriminating 
 legislation against a class, forbidden by 
 that clause of the 14th amendment, which 
 declares that no State " shall deny to any 
 person within its jui-isdiction the equal 
 protection of the laws." This inhibition 
 upon the State applies to all the instru- 
 mentalities and agencies employed in the 
 administration of its government; to its 
 executive, legislative, and judicial depart- 
 ments; and to the subordinate legislative 
 bodies of its counties and cities. The 
 equality of protection thus assured to 
 every one while within the United States 
 implies not only that the courts of the 
 country shall be open to him on the same 
 terms as to aU others for the security of 
 his person or property, the prevention or 
 redress of wrongs and the enforcement of 
 contracts, but that no charges or burdens 
 shall be laid upon him which are not 
 equally borne by others, and that in the 
 administration of criminal justice he .shall 
 6 
 
 suffer for his offences no greater or differ- 
 ent punishment. Wh Circ. (Cal.) 1879, Ho 
 Ah Kow V. Nunan, 5 Sawyer, 552. 
 
 Oregon Laws, 1872 (Oct. 16), 9, declared 
 that "it shall be unlawful to employ 
 any Chinese laborers on any street, or part 
 of street, of any city or incorporated town 
 of this State, or on any public works or 
 public improvement of any character, ex- 
 cept as a punishment for crime, and all 
 contracts which any person or corporation 
 may have for the improvement of any 
 such street, or part of street, or public 
 works or improvements of any character, 
 shall be null and void from and after the 
 date of any employment of any Chinese 
 laborers thereon by the contractor." This 
 law being in force, Baker & Co., a firm 
 of contractors for such works, put in a bid 
 for a job of $50,000 worth of work upon 
 street improvements in Portland, which 
 the city authorities advertised to put under 
 contract. Their bid was the lowest, and 
 they were entitled to the contract. It was 
 surmised that they were intending to era- 
 ploy Chinese laborers in doing the work; 
 and the city authorities refused to sign and 
 deliver the contract, unless the contractors 
 would give bonds that, in performing it, 
 they would comply with the law, and no 
 Chinese should be employed. Contractors 
 and taxpayers united in a suit for an in- 
 junction. Held : 
 
 1. The suit is not maintainable in its 
 present form, because the complainants are 
 not united in interest and cannot join in 
 such bill ; and because there is an adequate 
 remedy at law. 
 
 2. But the statute cannot, under the 
 Burlingame Treaty, be sustained. That 
 treaty recognizes the right of immigration, 
 and assures the Chinese of equal rights, 
 throughout the United States, with other 
 foreigners. A State cannot legislate so as 
 to interfere with the operation of this com- 
 pact. The treaty is the supreme law, and, 
 until it has been abrogated or modified, 
 the courts must enforce it. In agi-eeing 
 that the Chinese may become residents here, 
 it forbids any State to impose restraints 
 and limits upon the Ciiinese, as a race, in 
 respect to their labor and pursuits. The 
 right to reside here implies the right to fol- 
 low any lawful calling or pursuit open to 
 other foreigners. The question whether 
 the Chinese may wisely be allowed to come 
 
82 
 
 CHINESE. 
 
 and labor here without restraint is a serious, 
 one, but it belongs solely to the national 
 government, and is decided, for the time 
 being, by the treaty. While that stands, 
 no State can interfere. 9lh Circ. (Oreg.) 
 1879, Baker v. Portland, 5 Sawyer, 566. 
 
 A State law [Cal. Laws, 1878 (April 1), 
 1050] making it an offence to disinter and 
 remove from its place of burial the remains 
 of any deceased person without a permit, 
 and requiring payment of a fee for such 
 permit, is not, even when enforced to pre- 
 vent Chinese residents from removing to 
 their native land the corpses of persons of 
 their race, repugnant to the constitution of 
 the United States. It is not an interfer- 
 ence with the power of Congress to regu- 
 late commerce, for it does not bear upon 
 the exportation of bodies from the State, 
 but upon the exhumation and transporta- 
 tion of them within the State. It does not 
 discriminate against any particular race, 
 but bears on all alike ; if the Chinese, more 
 than others, desire to remove their deceased 
 to their native land, and are therefore more 
 extensively affected, this is not owing to 
 any provision of the law. It does not in- 
 volve taxing exports, for remains of de- 
 ceased persons are not " exports." It is a 
 sanitary regulation, fully within the police 
 powers of a State. 9th Circ. (Cal.) 1880, 
 Re Wong Yung Quy, 2 Fed. Reporter, 624. 
 
 Such law does not, in its application 
 to the Chinese, conflict with art 4 of the 
 Burlingame Treaty, which provides that 
 "Chinese subjects of the United States 
 shall enjoy entire liberty of conscience, and 
 shall be free from all disabilities or perse- 
 cutions on account of their religious faith 
 or worship. " Conceding that the religious 
 sentiment of the Chinese requires that they 
 shall remove the remains of their deceased 
 friends to China for final burial, there is 
 nothing in the law in question forbidding 
 or unduly obstructing the performance of 
 that rite or religious duty, and nothing 
 that does not equally apply to other aliens 
 and citizens. The law only requires that, 
 in the performance of that duty, proper pre- 
 cautions shall be taken not to endange^ 
 the health of the people among whom they 
 have elected to live, and have died, and once 
 been buried ; and the fee established is only 
 to liquidate the portion of expense of super- 
 vision and inspection imposed upon the 
 public resulting from the custom, lb. 
 
 Any officer, &c., agent, or contractor 
 of any corporation "who shall employ in 
 any manner or capacity, upon any work or 
 business of such corporation, any Chinese 
 or Mongolian," declared guilty of misde- 
 meanor punishable by fine and imprison- 
 ment. Exception of directors who dissent 
 from order for such employment. Increased 
 punishment for second, &c., offences. Cal 
 Penal Code, § 178, enacted Feb. 13, 1880. 
 
 Any corporation " that shall employ di- 
 rectly or indirectly, in any capacity, any 
 Chinese or Mongolian," punishable by flue 
 as for misdemeanor, and by forfeiture of 
 charter and franchises. Cal. Pen. Code, § 
 179, enacted Feb. 13, 1880. 
 
 Parrott, having been convicted in a State 
 court, under the act of Feb. 13, 1880, above 
 cited, and sentenced to imprisonment, sued 
 out a habeas corpus from the United States 
 circuit court to revise the sentence. Held: 
 
 1. The law in question (and the analog- 
 ous provisions of Cal. Const. 1879, art. 19, 
 §§ 2, 3, see California) is void because 
 repugnant to the Burlingame Treaty. The 
 provisions of that treaty recognizing immi- 
 gration of the Chinese, and declaring their 
 rights while residing in the United States, 
 are within the treaty-making power, and 
 are the supreme law. Any State constitu- 
 tion or law repugnant to them is void. The 
 privileges and immunities which, under 
 the treaty, the Chinese are entitled to enjoy 
 to the same extent as enjoyed by the sub- 
 jects of the most favored nation, are all 
 those rights which are fundamental, and 
 of right belong to citizens of all free gov- 
 ernments ; and among them is the right to 
 labor, and to pursue any lawful employ- 
 ment in a lawful manner. Property is 
 everything which has an exchangeable 
 value. Labor is property, and the right 
 to make it available is next in importance 
 to the right to life and liberty. 
 
 2. Such State legislation is also void be- 
 cause repugnant to the provisions of the 
 U. S. Const, amend. 14, which declares that 
 no State shall deprive any person of lite, 
 liberty, or property without due process of 
 law; and that no State shall deprive any 
 person within its jurisdiction of the equal 
 protection of the laws ; also to Eev. Stat 
 §§ 1977, 1978, passed in pursuance of the 
 14th amendment, and to give it effect 
 Chinese or Mongolians residing within the 
 jurisdiction of California are "persons 
 
CHINESE. — CIRCUIT COURT. 
 
 83 
 
 witliin the meaning of the term as used iin 
 these national laws. Discriminating legis- 
 lation by a State against any class of per- 
 sons, or against persons of any particular 
 race or nation, in whatever form it may be 
 expressed, deprives such class of persons, 
 or persons of such particular race or nation, 
 of the equal protection of the laws, and is 
 prohibited. And the prohibition applies 
 to all the instrumentalities and agencies 
 employed by a State in the administration 
 of its government; to its executive, legis- 
 lative, and judicial departments, and to the 
 subordinate legislative bodies of counties 
 and cities. 9th Circ. {Cat.) 1880, Re Par- 
 rott, 1 Ferl. Reporter, 481. 
 
 Irrespective of any rights of the Chinese 
 under the Burlingame Treaty, the law could 
 not be sustained because it is not a " rea- 
 sonable " exercise, in good faith, of the 
 reserved legislative power to alter and 
 amend the general laws under which cor- 
 porations in that State have been formed. 
 This objection would be equally good if 
 the proscribed class were Irish, Germans, 
 or Americans. Corporations have a con- 
 stitutional right to utilize their property by 
 employing such laborers as they choose, 
 and on such wages as may be mutually 
 agreed upon, and may stand firmly on 
 their own right to employ laborers of their 
 chooising, and on such terms as may be 
 agreed upon, subject only to such police 
 laws as the State may enact with respect 
 to them, in common with private individ- 
 uals. [Per Hoffman, J.] lb. 
 
 To participate in public fisheries is one 
 of the privileges secured by the Burlingame 
 Treaty. A law of California of April 12, 
 1880, forbids any license to transact any 
 business or occupation to be issued "to 
 any alien not eligible to become an elec- 
 tor;" and an act of April 23, 1880, pro- 
 hibits "all aliens incapable of becoming 
 electors " from taking any fish for pui-poses 
 of sale (see Alien). Ah Chong, a China- 
 man, having been convicted and sentenced 
 to imprisonment for fishing in San Pablo 
 Bay, and selling the fish caught, applied 
 to the United States circuit court, upon 
 habeas corpus, to be discharged, on the 
 ground that the imprisonment was in vio- 
 lation of the Burlingame Treaty, and of 
 the 14th amendment. Held [distinguishing 
 
 Circuit Court. Doctrine of courts generally. 
 Courts. Circuit courts of a State, Cocets. Ap- 
 
 94 U. S. 391], that the discharge must be 
 granted. The evident intent and the prac- 
 tical operation of these laws are to exclude 
 the Chinese from the fisheries within the 
 State and from licensed vocations, while 
 subjects of other nations are admitted. It 
 is impossible to say that, under such laws, 
 the Chinese enjoy the same privileges as 
 are enjoyed by the subjects of the most 
 favored nation, which the treaty requires, 
 or that the State does not deny to them 
 that equal protection of the laws which the 
 14th amendment secures. 9th Circ. {Cat.) 
 1880, Re Ah Chong, 2 Fed. Reporter, 733. 
 
 "No Chinaman or Mongolian shall be 
 employed, directly or indirectly, in any ca- 
 pacity on any public works, or in or about 
 any buildings, or institutions, or grounds, 
 under the control of this State." Nev. 
 Laws 1879 (March 6), 81, ch. 73, § 1. 
 
 ' ' No right of way, charter, or other priv- 
 ileges for the construction of any public 
 works by any railroad or other corporation 
 or association, except upon the express con- 
 dition that no Mongolian or Chinese shall 
 be employed on or about the construction 
 of such work in any capacity." Id. § 2. 
 
 An act to prevent slavery or involuntary 
 servitude, unless for the punishment of 
 crime, recites that all Chinese who come to 
 this coast arrive here under a contract to 
 labor for a term of years, and are bound 
 by such contract, not only by the supersti- 
 tions of their peculiar religions, but by 
 leaving their blood relations, fathers, 
 mothers, sisters, brothers, or cousins, as 
 hostages in China for the fulfilment of 
 their part of the contract; that such slave- 
 labor and involuntary servitude is op- 
 posed to the genius of our institutions, 
 to the prevailing spirit of the age, and 
 to humanity and Christianity, and de- 
 grades the dignity of labor which is the 
 foundation of Republican institutions ; and 
 that the constitution of Nevada forbids slav- 
 ery and involuntary servitude, unless for 
 crime; and enacts that no one shall collect 
 wages of the labor of such persons, and 
 that no employer of such persons shall pay 
 their wages to any third person as owner. 
 Nev. Laws, 1879 (March 8), 10.5, ch. 99. 
 
 CIRCUIT COURT. Original juris- 
 diction. Section 1 of the act of March 3, 
 1875, in providing that the circuit courts 
 
 of supreme court. Supreme 
 
 pellate jurisdiction 
 
 COUKT. 
 
84 
 
 CIRCUIT COURT. 
 
 shall have jurisdiction of suits "in which 
 there shall be a controversy between citi- 
 zens of different States," and § 2, which 
 uses similar language as to suits which 
 may be removed to the circuit court, 
 alike mean that when the controversy 
 about which the suit is brought is be- 
 tween citizens of different States, the 
 courts of the United States may take jur- 
 isdiction without regard to the position the 
 parties occupy in the pleadings as plaintiffs 
 or defendants. For the purposes of deter- 
 mining jurisdiction, the courts may con- 
 sider the real matter in dispute, and arrange 
 the parties on one side or the other of that 
 dispute. If in such an arrangement it ap- 
 pears that the persons on one side are all 
 citizens of different States from those on 
 the other, jurisdiction exists and the cause 
 may proceed. The language of the two 
 sections is substantially alike, and the con- 
 struction should be the same whether jur- 
 isdiction of a cause originally commenced 
 in the circuit court or brought there by 
 removal from a State Court, is in question. 
 Supreme Ct. 1879, Meyer v. Construction 
 Co.; 100 U. S. 457; Pacific R. R. of Mo. 
 V. Ketchum, 101 U. S. 289. See also 
 Girardey v. Moore, 3 Woods, 397. 
 
 To give a circuit court jurisdiction of a 
 cause, jurisdiction of which depends on 
 citizenship of parties, not on subject-mat- 
 ter, the citizenship should be in terms 
 alleged in the declaration or bill, or at 
 least shown distinctly by papers which are 
 legitimately and technically part of the 
 record. A mere averment that the par- 
 ties "reside in different States" is not 
 enough, and will not be aided by docu- 
 ments in the cause but not parts of the 
 record, which may show citizenship. The 
 provision of the 14th amendment, that per- 
 sons born or naturalized in the United 
 States shall be citizens of the State where 
 they reside, does not modify the established 
 rule requii-ing an affirmative averment of 
 the citizenship necessary to give jurisdic- 
 tion so far as to make a mere averment 
 that a person resides in a State equivalent 
 to an averment that he is a citizen of it : 
 for he may be an alien. Supreme Cl. 1878, 
 Robertson v. Cease, 97 U. S. 046. 
 
 It is not necessary, where a corporation is 
 a party to an action, for the allegations con- 
 ferring jurisdiction on the Federal courts 
 to appear in the caption of the petition. | 
 
 ^f the facts conferring jurisdiction are 
 in some form afBrmatively shown by 
 the record, this will be sufficient. The 
 caption of a petition was: "The Mexico 
 Southern Bank, a Corporation," plaintiff, 
 V. Townsend Reed, defendant, and con- 
 tained averments in the body of the peti- 
 tion that the plaintiff " is a corporation 
 organized under the laws of the State of 
 Missouri, and is engaged in the business 
 of banking in the city of Mexico, in said 
 State. ' ' Held, that the requisite citizenship 
 was sufficiently averred. Qlh Circ. {Ohio) 
 Mexico Southern Bank v. Reed, 25 Int. 
 Rev. Rec. 161; 8 Reporter, 7. 
 
 A bill in the nature of an original hill, 
 having for its object the review of proceed- 
 ings in the original cause in order to ascer- 
 tain whether the decree therein should be 
 impeached for fraud, may be brought in a 
 Federal court in which the decree was made, 
 irrespective of the citizenship of the parties. 
 6(A Circ. (Mich.) Osbom v. Michigan Air 
 Line R. R. Co., 25 Int. Rev. Rec. 250; 8 
 Reporter, 296. 
 
 A circuit court cannot take cognizance 
 of a bill to revise a judgment of a State 
 court and vacate it for defects of form. To 
 allow that court to assume jurisdiction of 
 proceedings merely tantamount to moving 
 to set aside a judgment, or prosecuting an 
 appeal or bill of review, would result in 
 giving it power to control the proceed- 
 ings in the State courts, or to take appellate 
 jurisdiction over them in all cases where 
 the parties are citizens of different States. 
 If the proceedings are tantamount to a bill 
 in equity to set aside a decree for fraud in 
 the obtaining thereof, then they constitute 
 an original and independent proceeding, 
 and may be [92 U. S. 10] within the cog- 
 nizance of the Federal courts. The dis- 
 tinction is that in case of the one class there 
 would be a mere revision of errors and 
 irregularities, or of the legality and cor- 
 rectness of the judgments and decrees of 
 the State courts; and in the other class, 
 the investigation of a new case arising upon 
 new facts, although having relation to the 
 validity of a previous judgment or decree, 
 or to the party's right to claim a benefit by 
 reason thereof Supreme Ct. 1878, Bai> 
 row V. Hunton, 99 U. S. SO. 
 
 Appellate jurisdiction. " The circuit 
 court for each judicial district shall have 
 jurisdiction of writs of error in all criminal 
 
CIRCUIT COURT. 
 
 85 
 
 cases tried before the district court where 
 the sentence is imprisonment or fine and 
 imprisonment, or where, if a fine only, the 
 fine shall exceed the sum of three hundi-ed 
 dollars ; and in such case a respondent feel- 
 ing himself aggrieved by a decision of a dis- 
 trict court may except to the opinion of the 
 court, and tender his bill of exceptions, 
 which shall be settled and allowed accord- 
 ing to the truth, and signed by the judge, 
 and it shall be a part of the record of the 
 case." Bail maybe taken if the suit is 
 allowed so as to operate as a stay. Act of 
 March 3, 1879, ch. 176, 20 Stat, at L. 354, 
 
 § 1- 
 
 " Within one year next after the end of 
 the term at which such sentence shall be 
 pronounced, and not after, the respondent 
 may petition for a writ of eiror from the 
 judgment of the district court in the cases 
 named in the preceding section, which peti- 
 tion shall be presented to the circuit judge 
 or circuit justice in term or vacation, who, 
 on consideration of the importance and dif- 
 ficulty of the questions presented in the 
 record, may allow such writ of error, and 
 may order that such writ shall operate as a 
 stay of proceedings under the sentence ; but 
 the allowance of such writ shall not so 
 operate without such order. The judg^ or 
 justice allowing such writ of error shall 
 take a bond with sufficient sureties that the 
 same shall be prosecuted to effect, and that 
 the respondent shall abide the judgment of 
 the circuit court thereon." Id. § 2. 
 
 Bemoral of causes. The provision of 
 act of March 3, 1875, that as respects any 
 suit of a civil nature at law or in equity, 
 pending in a State court, involving more 
 than $500, in which there shall be a contro- 
 versy between citizens of different States, 
 . . . either party may remove said suit in- 
 to the circuit court of the United States for 
 the proper district, — construed ; and held 
 to mean that when the controversy about 
 which a suit in the State court is brought 
 is between citizens of one or more States 
 on one side, and citizens of other States on 
 the other side, either party to the contro- 
 versy may remove the suit to the circuit 
 court without regard to the position they 
 occupy in the pleadings as plaintiffs or de- 
 fendants. For the purposes of a removal, 
 the matter in dispute may be ascertained, 
 and according to the facts the parties to 
 the suit arranged on opposite sides of that 
 
 dispute. If in such an arrangement it 
 appears that those on one side, being all 
 citizens of different States from those on 
 the other, desire a removal, the suit may 
 be removed. Supreme Ct. 1879, Removal 
 Cases, 100 U. S. 457. See also, supra, 
 Pacific R. R. V. Ketchum. 
 
 Jurisdiction is not lost, in a suit between 
 citizens of different States, because there 
 may be found in it, as necessary parties, 
 one or more defendants of the same State 
 with the plaintiffs or some of the plaintiffs. 
 Notwithstanding one of several defendants 
 is a citizen of same State with a plaintiff, 
 if others are not, and all the defendants 
 join in the petition for removal, an order 
 may be made. M Cm. (N. J.) National 
 Union Bank v. Dodge, 25 Int. Rev. Rec. 304. 
 
 It is, however, necessary that all the de- 
 fendants should join in the petition. A 
 petition by the non-resident defendants will 
 not suffice. Section 2 of the act of 1875 
 — which provides for the removal of all 
 suits in which there is a controversy be- 
 tween citizens of different States — only 
 authorizes " eitlier party " to file the peti- 
 tion, and the unifonn construction of the 
 word "party " in this connection has been 
 that it includes all the plaintiffs or aU the 
 defendants. Congress might have vested, 
 but in fact it did not vest, the power in one 
 of either to do it. The section only grants 
 the right of removal to one or more of 
 several plaintiffs or defendants, where there 
 is a suit in which there is a controversy 
 that is wholly between citizens of different 
 States, and which can be fully determined 
 as between them. lb. 
 
 The act of 1875 does not require, as a 
 condition of removal in all cases, that the 
 controversy should have arisen under the 
 laws, &c., of the United States. The true 
 construction is that the suit, to be remov- 
 able, must be of a civil nature, the amount, 
 exclusive of costs, must exceed $500, and 
 the suit must either be one ari.sing under 
 the constitution or laws or treaties of the 
 United States, or must be one in which 
 the United States is the plaintiff or the 
 petitioner, or one in which there is a con- 
 troversy between citizens of different States, 
 or one in which there is a controversy be- 
 tween citizens of the same State claiming 
 lands under grants of different States, or 
 one in which there is a controversy between 
 citizens of a State and foreign State's citi- 
 
86 
 
 CIRCUIT COURT. 
 
 zens or subjects. 2d Circ. N. Y. 1878, 
 Low V. Wayne County Sav. Bank, 14 
 Blatchf. 449. 
 
 Under act of Congress of March 3, 1875, 
 § 2, 18 Stat, at L. 470, a suit may be re- 
 moved from the State court into the circuit 
 court of the United States for the proper 
 district, when there are several controver- 
 sies in the same suit that are properly 
 severable in their character, on the appli- 
 cation of any one or more plaintiffs or de- 
 fendants actually interested in any one of 
 such controversies, and who may reside in 
 a State other than the one in which the 
 other party to the controversy resides, al- 
 though, in such suit, the court may thereby 
 take along with it jurisdiction of a contro- 
 versy between citizens of the same State. 
 7(A Circ. {Wis ) 1880, Sheldon v. Keokuk 
 N. L. P. Co., 1 Fed. Reporter, 789. 
 
 A suit brought by a corporation created 
 by an act of Congress is a suit arising un- 
 der the laws of the United States, within 
 the act of March 3, 1875, § 2, 18 Stat, at 
 L. 470, providing for removal of causes; 
 and it may be removed to the circuit court 
 by the defendant. So held of a suit 
 brought by the Union Pacific R. R. Co. 
 2d Circ. {N. F.), 1880, Union Pacific R. 
 R. Co. u. McComb, 1 Fed. Reporter, 799. 
 
 When an ofiicer, executing in a lawful 
 manner a law of the United States, meets 
 ■with resistance, and to overcome that re- 
 sistance uses necessary force, and, for such 
 use of force, is charged with crime against 
 the State, the case arises under the law 
 of the United States. Congress can give 
 criminal jurisdiction to the Federal courts 
 when a law of the United States is the 
 ground of defence, as well as when it is 
 the ground of accusation, blh Circ. (Oa.) 
 1878, Findley v. Satterfield, 7 Cent. L. J. 
 365: 7 Reporter, 6. 
 
 The provision of Rev. Stat. § 643, that 
 any suit or prosecution commenced in a 
 State court against a United States rev- 
 enue officer or person acting under author- 
 ity of one, on account of any act done under 
 color of his oSice or of any revenue law, or 
 on account of any right, title, or authority 
 claimed by him under any such law, may, 
 on petition of defendant, be removed to 
 the circuit court, is not unconstitutional. 
 Supreme Ct. 1879, Tennessee v. Davis, 100 
 U. S. 257. 
 
 The United States is a government with 
 
 authority extending over the whole terri- 
 tory of the Union, acting upon the States 
 and the people of the States. While limit- 
 ed in the number of its powers, it is, so far 
 as its sovereignty extends, supreme. No 
 State can exclude it from exercising them, 
 obstruct its authorized ofiicers against its 
 will, or withhold from it for a moment 
 the cognizance of any subject which the 
 constitution has committed to it. The 
 general government must cease to exist 
 whenever it cannot enforce the exercise of 
 its constitutional powers within the States 
 by the instrumentality of its officers and 
 agents. If, when thus acting within the 
 scope of their authority, they can be ar- 
 rested and brought to trial in a State court 
 for an alleged offence against the law of 
 the State, yet waiTanted by the Federal 
 authority they possess, and if the general 
 government is powerless to interfere at 
 once for their protection, — if their pro- 
 tection must be left to the action of the 
 State court, — the operations of the gen- 
 eral government may at any time be arrest- 
 ed at the will of one of the States. No 
 such element of weakness is to be found in 
 the constitution. lb. 
 
 The provision of the constitution declar- 
 ing that the judicial power of the United 
 States extends "to all cases in law and 
 equity arising under the constitution, the 
 laws of the United States, and treaties made, 
 or which shall be made, under their author- 
 ity," embraces alike civil and criminal 
 cases. Both are equally within that power. 
 And a case arises under that constitution, 
 not merely where a party comes into court 
 to demand something conferred upon him 
 by the constitution, a law of the United 
 States, or a treaty, but wherever its correct 
 decision as to the right, privilege, claim, 
 protection, or defence of a party, in whole 
 or in part, depends upon the construction of 
 either. It is in the power of Congress to 
 give the circuit courts of the United States 
 jurisdiction of such a case, although it may 
 involve other questions of fact or of law. 
 lb. 
 
 If the case, whether civil or criminal, be 
 one to which the judicial power of the 
 United States extends, its removal to the 
 Federal court does not invade State juris- 
 diction. On the contrary, a denial of the 
 right of the general government to remove, 
 take charge of, and try any case arising 
 
CIRCUIT COURT. 
 
 87 
 
 under the constitution and laws of the 
 United States, is a denial of its conceded 
 sovereignty over a subject expressly com- 
 mitted to it. It is a denial of a doctrine 
 necessary for the preservation of the ac- 
 knowledged powers of the government, lb. 
 
 A person who was, in a State court of 
 Tennessee, indicted for murder, applied for 
 removal of the prosecution to the circuit 
 court of the United States. In his pe- 
 tition he alleged that, although indicted 
 for murder, no murder was committed; 
 that he was a deputy collector of internal 
 revenue; that the killing for which he was 
 indicted was performed in his own neces- 
 sary self-defence while engaged in the dis- 
 charge of his duties as deputy-collector, 
 and while acting by and under the author- 
 ity of the internal revenue laws of the 
 United States; that it was his duty to 
 seize illicit distilleries and the apparatus 
 used for the illicit and unlawful distillation 
 of spirits ; and that while so attempting to 
 enforce said laws, as deputy-coUector as 
 aforesaid, he was assaulted and fired upon 
 by a number of armed men, and in defence 
 of his 'life he returned the fire, which was 
 the killing mentioned in the indictment. 
 Held, that the petition was in conformity 
 with the statute, and, upon being filed, the 
 prosecution was removed to the circuit court 
 of the United States for that district. lb. 
 
 On presentation to a State court of a 
 petition for the removal of a prosecution to 
 a circuit court, it is right and proper that 
 the State court should examine the petition 
 to see whether it is sufficient. The circuit 
 court has, however, the superior authority 
 to determine this question, and may assert 
 its jurisdiction by a proper process directed 
 to the State court. When this has been 
 done it becomes the duty of the State court 
 and its officers to yield obedience to such 
 process. 5th Circ. (La.) 1878, Exp. Wells, 
 3 Woods, 128. S. P. Cobb v. Globe Mut. 
 Life Ins. Co., S Hugh. 452. 
 
 Allegations in a petition for removal of 
 a cause under Rev. Stat. § 641, that a law 
 which is unobjectionable in its terms and 
 provisions is so administered by the State 
 officials as to secure a jury unfriendly to 
 the petitioner, do not warrant a removal. 
 The 14th amendment, in guaranteeing to 
 all persons an equal benefit of the laws, 
 only prohibits State legislation violating 
 such equal rights ; it is not directed against 
 
 infringements by individuals. And the 
 clause of Rev. Stat. § 641, giving the right 
 of removal to a person who is denied or 
 cannot enforce his rights, has reference to 
 a denial or impediment arising from some 
 State law, statute, regulation, or custom, 
 and not to obstructions wrongfully placed 
 in his way by individuals. lb. S. P. 11 
 S. C. 262; 82 i^. C. 492. 
 
 The States cannot legislate to prevent or 
 restrict the removal of causes to the Fed- 
 eral courts. Supreme Ct. 1878, Barrow v. 
 Hunton, 99 V. S. 80. 
 
 minor Decisions on Circoit Court. 
 
 Circuit judge has equal power with su- 
 preme court justice to act instead of dis- 
 abled district judge: 97 U. S. 146. C. C. 
 has jurisdiction of suit against State officer 
 for using his office to violate plaintiff's 
 constitutional rights: 8 Cent. L. J. S9S;.^ 
 25 Int. Rev. Rec. 160 ; not of suit between 
 citizens of a State to determine rights under 
 contract for use of patent: 99 U. S. 547. 
 If plaintiff holds absolute legal title, the 
 fact that he bought for tlie purpose of 
 suing in the c. c. does not defeat juris- 
 diction: 8 Rep., 329; Id. 548; 15 Bla. 343. 
 
 Suit to revise condemnation of lands to 
 public use may be removed from State 
 ooiirt to c. c. : 98 U. S. 403 ; not so an appli- 
 cation for probate of a will: 18 Alb. L. J. 
 353 ; 25 Int. Rev. Rec. 226 ; 6 Reporter, 357 ; 
 or proceedings supplementary to execu- 
 tion : 8 Reporter, 66. That plaintiff claims 
 title under a marshal's sale on a Federal 
 execution does not warrant his removing 
 the cause, unless the validity, &c., of the 
 judgment or sale is controverted: 3 Woods, 
 56. Trespass in which defendant justifies 
 under authority of a Federal law and judi- 
 cial proceeding is removable ; but defend- 
 ant should be confined to that defence : Id. 
 273. Removal under Rev. Stat. § 640, 
 does not depend on citizenship but on sub- 
 ject-matter and character of defendant: 
 Id. 308. 
 
 A cause may be removed as to only one 
 of several defendants : 7 Reporter, 740 ; 17 
 Am. L. Reg. n. 8. 376. A resident of the 
 District of Columbia is not a resident of a 
 State, who can ask for a removal: 25 Int. 
 Rev. Rec. 138; 7 Reporter, 553. Corpora- 
 tion of another State may apply for a re- 
 moval; its agent making the affidavit; 74 
 N. Y. 53. Louisiana retm'ning-board are 
 
88 
 
 CIRCUIT COURT. — CIVIL DAMAGE LAW. 
 
 State officers even when canvassing votes 
 for electors; and cannot claim removal of 
 suit for making false returns, under Rev. 
 Stat. § 643: 3 Woods, 124. When removal 
 is governed by citizenship as it existed at 
 the commencement of the suit; when by 
 the facts at the date of petition : 8 Reporter, 
 69; Id. 356; 3 Woods, 278; Id. 413; Id. 
 715; 76 N. Y. 207. Petition for removal 
 of cause must show that opposite party is 
 citizen of State in which suit was brought: 
 59 Ga. 512. How early in the progress of 
 the suit petition for removal of the suit 
 must be filed: 8 Reporter, 7; Id. 517; 3 
 Hugh. 234; whether and when it is allow- 
 able after appeal: 99 U. S. 539; 25 Int. 
 Rev. Rec. 360. Sufficiency of bond, since 
 act of 1875: 14 Blatchf. 269; 25 Int. Rev. 
 Rec. 360. No order in State court is neces- 
 sary to effect removal: 20 Alb. L. J. 229; 
 ^ 9 Cent. L. J. 286; 3 Hugh. 452; 5 Sawyer, 
 572 ; but State court may pass upon suffi- 
 ciency of application for removal of cause : 
 64 Ind. 360. Omission to file record in 
 Federal court within the prescribed time is 
 fatal: 3 Hugh. 452. 
 
 CITIZEN. The Treaty of Washington 
 of 1842, determining the boundary between 
 the United States (Maine) and the North 
 American possessions of Great Biitain, is 
 to be regarded as determining the true 
 boundary line in disputed territory betwe'en 
 the two nations. It confers the elective 
 franchise on British subjects who, at the 
 time of the treaty, resided on the disputed 
 territory relinquished to the United States 
 and now within the north-eastern portion 
 of Maine, if they elected to continue there, 
 although they have not been otherwise 
 naturalized. Persons born within this 
 ceded territory have the same elective 
 franchise as persons born within parts of 
 Maine to which the British government 
 never laid claim. Opinions of the Jus- 
 tices, 68 Me. 589; Id. 592. 
 
 To entitle an alien to naturalization, he 
 must show that he has behaved as a man 
 of good moral character during all his resi- 
 dence in this country. Conviction of a 
 crime committed since he came to this 
 country to reside will bar his application, 
 notwithstanding it occurred more than five 
 
 City, Municipal Corvoratiok. 
 Ab to lack of watov to extinRiiiah fire, p. 25. 
 Civil Damage. Laws liceiisinK or restricting 
 traffic iu intoxicating liquors, Liquok Sblling. 
 
 years previous to the application. • Qth Cire. 
 {Oreg.) 1878, Matter of Spencer, 18.4/6. 
 L. J. 153; 6 Reporter, 294. 
 
 minor Decisions on Citizen. 
 
 Court having any common-law jurisdic 
 tion, c. g. city court of Yonkers, N. Y. 
 can naturalize ; these need not be full com- 
 mon-law jurisdiction: 14 Blatchf. 223. 
 
 Proper mode of naturalizing ; what dec- 
 laration of intention and renunciation of 
 foreign allegiance are needful; and effect 
 of certificate as evidence : 24 Minn. 48. If 
 naturalization is not shown, alienage is pre- 
 sumed to have continued: 100 U. S. 483. 
 
 CIVIL DAMAGE LAW. Massachusetts 
 and Colorado, in 1879, passed civil 
 damage laws. That of Massachusetts 
 corresponds with that of New York, in 
 allowing an action for selling liquor 
 causing intoxication by which injury is 
 produced, notwithstanding the seller 
 had a license ; and in allowing an 
 action against the owner of a building 
 used for sale of liquor, as well as 
 against the person immediately respon- 
 sible for the sale, unless licensed. The 
 Colorado law is more restricted ; it is 
 applicable whether the sale is lawful or 
 unlawful ; but only where the selling is 
 to an habitual drunkard ; and not unless 
 the seller has been notified not to sell 
 to him ; and it does not extend to land- 
 lords. Col. Laws 1879 (Feb. 11), 92. 
 
 Constitationality. A civil damage law, 
 — even if it declares the owner of premises, 
 who leases them for liquor-selling, or know- 
 ingly allows them to be so used, bo be liable 
 for damages caused by a sale, irrespective 
 of his having authorized or cooperated in 
 it, — does not violate the constitutional rule 
 that private property must not be taken 
 without due process of law. The right to 
 make use of one's property is subject to 
 the exercise, by the legislature, of the police 
 power of the State. The legislature has 
 authority to restrict the traffic in intoxicat- 
 ing liquors as seems necessary to secure the 
 
 Civil Liability of amiy officer. Gen. Neal Dow, 
 for military appropriation of private property, m 
 New Orleans, during tlie rebellion, p. 27. Of at- 
 torney, on his erroneous certificate of a title, p- 32. 
 
CIVIL DAMAGE LAW. 
 
 89 
 
 general good, notwithstanding the regula- 
 tions imposed may involve some diminution 
 of the light of the individual to use his 
 property free of liability. Cleai'ly the State 
 can require the seller of liquor to take out 
 a license, and impose, as a condition of 
 granting one, that the licensee shall hold 
 himself liable for damages caused by his 
 sales. And the operation of the law as 
 toward a land-owner, though more extreme 
 than as toward a seller, is sustainable on 
 the ground that his property is not taken; 
 a limited and necessaiy restriction on its 
 use only is imposed. Ct. of Appeals, 1878, 
 -Bertholf v. O'Reilly, 74 N. Y. 509. 
 
 Bight of action. The right of a wife 
 to compensation under the civil damage 
 law extends only to the damage which she 
 has individually sustained in her person 
 and means of support. The actual damages 
 which she is entitled to recover are not 
 greater by reason of there being minor 
 children; and she cannot prove that there 
 were such children to enhance actual dam- 
 ages. But she may prove the number and 
 ages of her children, coupled with evidence 
 that the liquor-seller knew of them ; that 
 she notified him they were injured or en- 
 dangered by her husband's habits of drink- 
 ing ; and that he, notwithstanding, wantonly 
 continued to sell her husband liquor. These 
 facts, taken together, warrant exemplary 
 damages. Supreme Ct. 1878, Ward v. 
 Thompson, 48 Iowa, 588. 
 
 Although evidence that a wife bought 
 liquor for her husband is competent for her 
 suit under the civil damage law to show 
 that she assented or contributed to the in- 
 jury complained of, yet, if she shows that 
 her purchase was made under compulsion 
 of her husband, or in the reasonable hope 
 of restraining him from drinking more at 
 saloons, this is sufficient explanation. lb. 
 
 For wounded feelings and disgrace, a 
 wife cannot recover, unless they result from 
 actual injury to the person. But if there is 
 violent interference with the person, the 
 mental suffering resulting from it may be 
 considered in estimating damages. So held, 
 where the wife was repeatedly thrust out of 
 doors by the husband and kept out all 
 night. Ih. 
 
 To sustain an action under the civil dam- 
 age law (of New York) it is not neces- 
 sary to show an injury for which previous 
 laws allowed an action. The statute 
 
 creates a new cause of action, i. e., injury 
 to "means of support;" and allows a re- 
 covery for consequential as well as direct 
 injury. But where injui-y to means of sup- 
 port is the gravamen of the suit, plaintiff 
 must show that, in consequence of the in- 
 toxication of which he complains, his ac- 
 customed means of maintenance have been 
 diminished; that he has experienced actual 
 loss of support. In an action by a father 
 for causing intoxication of his minor son, 
 proof of loss of services through the son's 
 sickness, caused by the sale of liquor, wiU 
 not sustain a recovery unless coupled with 
 proof that the father was dependent on the 
 son's services for a part of his support. 
 Ct. of Appeals, 1878, Volans v. Owen, 74 
 N. Y. 526. 
 
 Minor Decisions on Civil Damage Law. 
 
 A c. d. 1. and a license law not incon- 
 sistent: 41 Mich. 475. A license to sell is 
 no protection against action under Ne- 
 braska law: 9 Nei. 304. Cause of action 
 under c. d. 1. is not assignable: 69 Me. 
 79. Counts for selling and for owning the 
 saloon are not distinct causes of action ; the 
 cause is contributing to the intoxication: 
 lb. Proprietor of business is liable for sale 
 made by bar-keeper; notwithstanding it 
 was_ made in violation of general orders, 
 and in ignorance that buyer was in the 
 habit of intoxication: 49 Iowa, 650. He 
 is liable for sales made by bar-keeper 
 within authority: 41 Mich. 475. 
 
 Where a drunken man, in flourishing a 
 pistol, shoots and wounds another, the 
 latter may recover from the liquor-seller: 
 86 III. 106. Record evidence of marriage 
 is not required in wife's action for selling 
 liquor to husband; reputation, declara- 
 tions, and conduct are enough: 9 III. 182. 
 Wife cannot recover from liquor-seller, 
 for threatening or vulgar language used by 
 husband; there must be personal, i. e., bod- 
 ily injury: 47 Iowa, 456. Two parents 
 cannot join in action for loss of support 
 through selling to their son ; their injuries 
 are different, and they must sue separately: 
 69 Me. 79. Wife and minor children may 
 join in action for selling to husband and 
 father; the action is for loss of support, 
 and if those entitled constitute one family 
 they may join in suing: 9 Neb. 304. That 
 the intoxication resulted in death does not 
 prevent an action ; there is then a loss of 
 
90 
 
 CIVIL DAMAGE LAW. — CIVIL EIGHTS. 
 
 support which is perjnanent: lb. How the 
 expectation of life and earnings may be 
 shown and damages estimated : lb. Defend- 
 ant is not entitled to a bill of particulars : 
 41 Mich. 475. How damages should be 
 awarded against two or more sellers whose 
 sales have contributed to cause the intoxi- 
 cation: 47 Iowa, 552; Id. 558. Exemplary 
 damages are recoverable for sales by agent, 
 if principal neglected to restrict them: 41 
 Mick. 475. Exemplary damages are not 
 recoverable; the judgment cannot be for 
 a greater sum than for the value of the 
 support lost : 9 Neb. 304. Exemplary 
 damages are recoverable: 50 Iowa, 34. 
 Sureties in a bond given on obtaining a 
 license are not liable for damages recov- 
 ered from the seller : 87 Pa. St. 168. 
 
 CIVIL RIGHTS. Mixed juries. 
 Strauder, a negro, being arraigned in a 
 court of West Virginia for the murder of 
 his wife, his counsel demanded a removal of 
 the trial to the United States circuit court. 
 The jury law of the State allowed only 
 " white male persons " twenty-one years of 
 age, and citizens, to be drawn as jurors. 
 The petition alleged this, and declared that, 
 by reason of his being a colored man and 
 having been a slave, petitioner had reason 
 to believe, and did believe, he could not 
 have the full and equal benefit of all laws 
 and proceedings in the State of West Vir- 
 ginia for the security of his person as is 
 enjoyed by white citizens, and that he had 
 less chance of enforcing in the courts of 
 the State his rights, in the prosecution, as 
 a citizen of the United States, &c. The 
 petition was denied, and the prisoner was 
 tried and convicted. The State court of 
 appeals affirmed the proceedings (in 11 W. 
 Va. 745), and the prisoner brought error, 
 to procure a review by the United States 
 supreme court. Held, that the petition 
 should have been granted. The 14th amend- 
 ment was designed to assure to the colored 
 race the enjoyment of all the civil rights 
 which under the law are enjoyed by white 
 persons, and to give to that race the pro- 
 tection of the general government, in that 
 enjoyment, whenever it should be denied 
 by the States. It not only gave citizenship 
 and the privileges of citizenship to persons 
 of color, but it denied to any State the 
 
 power to withhold from them the equal 
 protection of the laws, and authorized 
 Congress to enforce its provisions. And it 
 is to be construed liberally to carry .out 
 these purposes. In effect it requires that 
 the law in the several States shall be the 
 same for the black as for the white; that 
 no discrimination shall be made against the 
 colored race on account of their color. The 
 words of the amendment are, it is true 
 prohibitory, but they confer by necessary 
 implication a positive immunity, or right, 
 most valuable to persons of the colored 
 race, — the right to exemption from 
 unfriendly legislation against them distinc- 
 tively as colored ; exemption from discrimi- 
 nations, imposed by public authority, which 
 imply legal inferiority in civil society, les- 
 sen the security of their rights, and are 
 steps towards reducing them to the con- 
 dition of a subject race. A State law which 
 confines jury duty to white men involves 
 such a prohibited discrimination. The 
 very fact that colored people are singled 
 out and expressly denied by a statute all 
 right to participate in the administration 
 of the law, as jurors, because of theii 
 color, though they are citizens, and may be 
 in other respects fully qualified, is practi- 
 cally a brand upon them, affixed by the 
 law, an assertion of their inferiority, and 
 a stimulant to that race prejudice which is 
 an impediment to securing to individuals 
 of the race that equal justice which the 
 law aims to secure to all others. 
 
 Moreover the composition of juries is a 
 very essential part of the constitutional 
 right to trial by jury. The very idea of a 
 jury is a body of men composed of the 
 peers or equals of the person whose rights 
 it is selected or summoned to determine; 
 that is, of his neighbors, fellows, asso- 
 ciates, — persons having the same legal 
 status in society as that which he holds. It 
 cannot be said that, while every white man 
 is entitled to a trial by a jury selected from 
 persons of his own race or color, or, rather, 
 selected without discrimination against his 
 color, and a negro is not, the latter is equally 
 protected by the law with the former. Com- 
 pelling a colored man to submit to a trial 
 for his life by a jury drawn from a panel 
 from which the State has expressly excluded 
 
 Civil rights. Persons, and their natural rifthts, I Aliens in China, p. 20. Keeping animals, pp. 22, 
 Person. Rights of some particular classes, 23. Chinese in California, jip. 66, 80-83. Africans, 
 Chinese, Ihdiajj; Negko. I p. B5. Eemoval under civil rights law, p. 87. 
 
CIVIL RIGHTS. 
 
 91 
 
 every man of his race, because of color alone, 
 however well qualified in other respects, 
 is a denial to him of equal legal pro- 
 tection. There are some discriminations 
 in drawing jurors which are not forbidden 
 by the amendment. The selection may 
 be confined to males, to freeholders, to 
 citizens, to persons within certain ages, or 
 to persons having educational qualifica- 
 tions. Discrimination because of race or 
 color is forbidden. Supreme Ct. 1879, 
 Strauderu. West Virginia, 100 U. S. 303; 
 reversing 11 W. Va. 745. 
 
 Reynolds, a negro, was indicted in 
 a State court of Virginia for murder. 
 The jury law of the State did not in 
 terms exclude colored men from juries; 
 but it confided the selection of names for 
 the jury list to the county judge; and in 
 Patrick County, where Reynolds was put on 
 trial, the county judge did always and in- 
 tentionally exclude them. In some other 
 counties colored men were, in the dis- 
 cretion of the county judge, admitted to 
 serve. Counsel for Reynolds moved in 
 the State court that the venire be so modi- 
 fied as to allow one third to be negroes. 
 ,This application being denied, they filed a 
 petition praying a removal of the trial to 
 the United States circuit court. The pe- 
 tition showed, among other facts, that by 
 the laws of Virginia all male citizens be- 
 tween twenty-one and sixty years of age, 
 entitled to vote, are made liable to serve as 
 jurors; that this law allows the right, as 
 well as requires the duty, of the race to 
 which the petitioners belong to serve as 
 jurors ; yet that the grand jury who found 
 the indictment against them, as well as 
 the jurors summoned to try them, were 
 composed entirely of the white race;' that 
 petitioners had applied to the judge of the 
 court, to the prosecuting attorney, and to 
 his assistant counsel, that a portion of the 
 jury by which they were to be tried should 
 be composed in part of competent jurors of 
 their own race and color, but that this 
 right had been refused them; and that a 
 strong prejudice existed in the community 
 of the county against them, independent 
 of the merits of the case, and based solely 
 upon the fact that they are negroes, and 
 that the man they were accused of having 
 murdered was a white man, from which 
 fact alone they were satisfied they could 
 not obtain an impartial trial before a jm-y 
 
 exclusively composed of whites. Held, 
 that a case authorizing a removal was 
 not presented. The provisions of the 14th 
 amendment have reference to State action 
 exclusively, and not to action of private 
 individuals. It is the State which is pro- 
 hibited from denying to any person within 
 its jurisdiction the equal protection of the 
 laws, and the acts of Congress partially 
 enumerating what civil rights colored men 
 shall enjoy equally with white persons, 
 founded as they are upon the amendment, 
 are intended for protection against State 
 infringement of those rights. And Rev. 
 Stat. § 641, is even narrower than the 
 amendment ; as it only authorizes removal 
 before trial or final hearing. But the vio- 
 lation of the constitutional prohibitions, 
 when committed by the judicial action of a 
 State, may be, and generally will be, after 
 the trial or final hearing has commenced. 
 It is during (not before) the trial or final 
 hearing that the defendant is denied 
 equality of legal protection. Nor can he 
 know beforehand that the equal protection 
 of the laws will not be extended to him. 
 To judicial infractions of the constitutional 
 amendment after the trial has commenced, 
 § 641 has no application. It was not in- 
 tended to reach such cases ; they are left 
 to the revisory power of the supreme court. 
 
 The d&ial or inability to enforce in 
 the judicial tribunals of a State rights 
 secured to a defendant by any law provid- 
 ing for the equal civil rights of all persons 
 citizens of the United States, of which 
 § 641 speaks, is primarily, if not exclusively 
 a denial of such rights, or an inability to 
 enforce them, resulting from the consti- 
 tution or laws of the State, rather than a 
 denial made manifest during the trial of a 
 cause. 
 
 Now the Virginia jury law does not ex- 
 clude colored men from juries. If the offi- 
 cer to whom was entrusted the selection of 
 the persons from whom the juries for the in- 
 dictment and trial of the petitioners were 
 drawn, disregarding the statute of the 
 State, confined his selection to white per- 
 sons, and refused to select any persons of 
 the colored race, solely because of their 
 color, his action was a gross violation of the 
 spirit of the State's laws, as well as of the 
 act of Congress of March 1, 1875, which 
 prohibits and punishes such discrimina- 
 tion ; and he made himself liable to punish- 
 
92 
 
 CIVIL RIGHTS. 
 
 ment at the instance of the State and 
 under the laws of the United States. But 
 as this was a criminal misuse of the State 
 law, it cannot be said to have been such a 
 " denial or disability to enforce in the ju- 
 dicial tribunals of the State " the rights of 
 colored men, as is contemplated by the re- 
 moval act. When a statute of the State 
 denies the right of a party, or interposes a 
 bar to his enforcing it in the judicial tri- 
 bunals, the presumption is fair that they 
 will be controlled by it in their decisions , 
 and in such a case a defendant may affirm 
 on oath what is necessary for a removal. 
 Such a case is clearly within the provisions 
 of § 641. But when a subordinate officer 
 of the State, in violation of State law, 
 undertakes to deprive an accused party of 
 a right which the statute law accords to 
 him, it can hardly be said that he is 
 denied, or cannot enforce " in the judicial 
 tribunals of the State" the rights which 
 belong to him. In such a case it ought to 
 be presumed that those courts will redress 
 the wrong. If they do not ; if the rights 
 of the accused are actually denied by the 
 State tribunals ; their action may be cor- 
 rected afterwards by the revisory power of 
 the supreme court. Supreme Ct. 1879, 
 Virginia v. Rives, 100 U. S. 313; and see 3 
 Hugh. 559. 
 
 The denial of defendant's motion in 
 the State court that the venire be so modi- 
 fied that one third or some portion of the 
 jury should be composed of his own race, 
 was not a denial of a right secured to him 
 by any law providing for the equal civil 
 rights of citizens of the United States, or 
 by any statute, or by the 14th amendment. 
 A mixed jury in a particular case is not 
 essential to the equal protection of the 
 laws. It is a right to which any colored 
 man is entitled, that, in the selection of 
 jurors to pass upon his life, liberty, or 
 property, there shall be no exclusion of his 
 race, and no discrimination against them, 
 because of color. But that is a diffei-ent 
 thing from the claim preferred as of right, 
 and denied in the State court; viz., to have 
 the jury composed in part of colored men. 
 lb. 
 
 The provisions of the act of March 1, 
 1875. 18 Stat, at L. 336, to protect all 
 citizens in their civil and legal rights, that 
 " no citizen, possessing all other qualifica- 
 tions which are or may be prescribed by 
 
 law, shall be disqualified from service as 
 gi-and or petit juror in any court of the 
 United States, or of any State, on acconnt 
 of race, color, or previous condition of 
 servitude; and that any officer or other 
 person, charged with any duty in the 
 selection or summoning of jurors, who 
 shall exclude or fail to summon any citi- 
 zen for the cause aforesaid, shall, on 
 conviction thereof, be deemed guilty of a 
 misdemeanor, and be fined not more than 
 $5,000," are authorized by the 13th and 
 14th amendments of the constitution. The 
 inhibition contained in the 14th amend- 
 ment means that no agency of the State, 
 or of the officers or agents by whom her 
 powers are exerted, shall deny to any per- 
 son withm her jurisdiction the equal pro- 
 tection of the laws. Whoever, by virtue of 
 his public position under a State govern- 
 ment deprives another of life, liberty, or 
 property without due process of law, or 
 denies or takes away the equal protection 
 of the laws, violates that inhibition ; and 
 as he acts in the name of and for the State, 
 and is clothed with her power, his act it 
 her act. If this is not so, the inhibition 
 has no meaning, and the State has clothed 
 one of her agents with power to annul or 
 evade it. The 14th amendment was or- 
 dained to secure equal rights to all per- 
 sons. To render its purpose effectual, 
 Congress is vested with power to enforce 
 its provisions by appropriate legislation. 
 Such legislation must act, not upon the 
 abstract thing denominated a State, but 
 upon the persons who are its agents in the 
 denial of the rights which were intended 
 to be secured. Such is the operation of 
 the penal provisions of the act of March 1, 
 
 1875. Supreme Ct 1879, Exp. Vu-gmia, 
 100 U. S. 339; and see 3 Hugh. 576. 
 
 A State official, charged with the selec- 
 tion of jurors in the State courts, who in- 
 tentionally excludes all colored men from 
 juries drawn, such exclusion not. being 
 directed by the law, but ordered by him- 
 self in the exercise of the discretionary 
 power conferred on him, and being 
 prompted by race or color, is punishable 
 under the act. That he may be a judge 
 confers no exemption, lb. 
 
 Admission to the bar. A State lav 
 limiting the privilege of admission to the 
 bar to white male citizens [Md. Laws, 
 
 1876, 469, ch. 264, § 3] is not repugnant 
 
CIVIL RIGHTS. 
 
 93 
 
 to the Federal constitution. To practise 
 law is not one of the privileges and im- 
 munities belonging to citizens as such [16 
 Wall. 36; Id. 130]. Ct. of Appeals, 1877, 
 Matter of Taylor, 48 Md. 28. 
 
 Public schools. If public schools are 
 provided for colored children equally 
 good as those provided for the whites, no 
 violation of the 14th amendment is in- 
 volved in requiring the two races to attend 
 different schools. So long as the State 
 accords equal advantages to both races, the 
 manner in which pupils are classified and 
 schools are managed is left to State de- 
 cision. Equality of rights does not neces- 
 sarily involve identity of rights. 5th Circ. 
 (La.) 1878, Bertonneau v. Directors of 
 City Schools, 3 Woods, 177. 
 
 Conveyances. A colored woman board- 
 ed a steamer as a passenger and took her 
 position on the upper deck aft, which place 
 was assigned to the exclusive use of white 
 passengers. One of the officers of the 
 boat directed her to go to the lower deck, 
 which afforded substantially the same ac- 
 commodations as the upper, but was de- 
 signed especially for colored people. She 
 declined to go, and tendered the customary 
 fare, which was refused. She was informed 
 that unless she went below she would be 
 ejected from the boat at the next landing- 
 place, so she voluntarily left the boat at 
 such landing-place. Held, that she had no 
 cause of action for such exclusion. 5lh 
 Circ. (Ga.) 1879, Green v. The City of 
 Bridgeton, 9 Cent. L. J. 206. 
 
 Mixed marriages. A State may de- 
 clare intermarriage between a white per- 
 son and a negro punishable. Marriage is 
 not a mere contract within the civil-rights 
 laws giving all persons equal I'ight to make 
 and enforce contracts. And a law punish- 
 ing mixed marriages does not operate un- 
 equally on either race ; either party, white 
 or black , is alike punishable. Mamage is a 
 social status; and the subject of State legis- 
 lation. Whether any legislation to prevent 
 amalgamation of distinct races should ex- 
 ist in any State, is a question solely for the 
 legislature of that State. There was no 
 intention on the part of the States, in 
 adopting the recent amendments to the 
 Federal constitution, that the power of reg- 
 ulating marriage should be surrendered. 
 Those amendments were designed to secure 
 rights of a civil or political kind only; not 
 
 such as are merely social, much less those 
 of a purely domestic nature; the regula-- 
 tion of these still belongs to the States. 
 Supreme Cl. 1877, Green ». State, 58 Ala. 
 190 ; Hoover v. State, 59 Ala. 57. 
 
 So held, notwithstanding the statute im- 
 posed a penalty for violation upon the white 
 person, but none upon the negro, blh Circ. 
 (Tex.) 1879, Exp. Francois, 3 Woods, 367. 
 
 Rights of citizenship, even since the 14th 
 amendment, do not prevent a State from 
 forbidding whites and blacks to intermarry, 
 nor entitle a person convicted of violating 
 such prohibition to the privilege of a 
 Federal habeas corpus. Hence the Vir- 
 ginia statute prohibiting intermarriage of 
 whites and negroes is not repugnant to 
 the Federal constitution. 4(/i Circ. (Va.) 
 1879, Re Kinney, 3 Hugh. 9; 7 Reporter, 
 712. S. P. Kinney v. Commonwealth, 30 
 Gratt. (Va.) 858. 
 
 The rights which a person has as a 
 citizen of a State are those which pertain 
 to him as a member of society, and which 
 would belong to him if his State were not 
 one of the United States. Over such rights 
 the State has the usual powers belonging 
 to government. The rights which one has 
 as a citizen of the United States are such as 
 he has by virtue of his State being a mem- 
 ber of the Union, under the provisions of the 
 constitution. But the privilege of marry- 
 ing is not one of these. lb. 
 
 Judicial remedies. A State may estab- 
 lish different systems of law in different 
 parts. Enactments in Missouri giving the 
 St. Louis court of appeals exclusive juris- 
 diction of appeals in certain counties, and 
 allowing appeals from other counties only 
 to go up to the supreme court of the State, 
 are not void for violating that clause of the 
 14th amendment which prohibits any State 
 from denying to any person the equal 
 protection of the laws. That clause con- 
 templates the protection of persons, and 
 classes of persons, against unjust discrimi- 
 nations by a State; it has no reference to 
 territorial or municipal arrangements made 
 for different portions of a State. Each 
 State has full authority to make political 
 subdivisions of its territory for municipal 
 purposes, and to regulate local government 
 within them; including prescribing the 
 constitution of courts and the extent of 
 jurisdiction. Supreme Ct. 1879, Bowman 
 V. Lewis, Opinion in Clerk's Office. 
 
94 
 
 CIVIL RIGHTS.— CLAIM. 
 
 A State law that no person shall recover 
 from any city, &c., damages for injury 
 sustained through defect of highway if 
 such person injured was a resident of a 
 country by the laws of which such damages 
 are not recoverable [Me. Laws 1872, ch. 
 34], is void for conflicting with U. S. 
 Const, amend. 14, — which declares that 
 no State shall deny to any person within 
 its jurisdiction the equal protection of 
 its laws. Denial of a remedy cannot be 
 made to turn upon the law of a foreign 
 country. The State need not maintain a 
 law charging municipalities with liability 
 for defective highways, but if such a law 
 is maintained it must be available for the 
 protection of all persons similarly situated. 
 Supreme Ct. 1879), Pearson v. Portland, 
 69 Me. 278. 
 
 Minor Decisions on Civil Bights. 
 
 A State law punishing more severely 
 adultery between a white and a negro is 
 not invalid: 58 Ala. 190. A statute forbid- 
 ding a white man to play cards with any 
 slave or free negro must be deemed obso- 
 lete since emancipation: 3 Lea (Term..), 
 70. Exclusion of negro from railroad car ; 
 whether it was done on account of color 
 is question for jury: 86 Pa. St. 421. 
 
 CLAIM. Assignment of claim against 
 the United States. The act of Congress 
 of Feb. 26, 1853, 10 Stat, at L. 170, to 
 prevent frauds upon the treasury of the 
 United States, — which restricts assign- 
 ments of claims against government, — 
 applies only to cases of voluntary assign- 
 ment of demands, and does not embrace 
 transfers by operation of law. The passing 
 of claims to heirs, devisees, or assignees in 
 baniiruptcy is not within the evil at which 
 it aimed. Supreme Ct. 1878, Erwin v. 
 United States, 97 U. S. 392. 
 
 Although the assignment of a claim 
 against government may be void under 
 Rev. Stat. § 3477, yet, after the treasury 
 has ascertained the amount due, and paid 
 it to the assignee, the government cannot 
 reclaim the money from him. Supreme 
 Ct. 1878, McKnight v. United States, 98 
 U. 5.179; 13 Ct. of CI. 292 
 
 Compromises. Mellen, having claims 
 against the government upon accounts for 
 distinct services as attorney, corresponded 
 with the secretary of the treasury to obtain 
 
 payment of one of the accounts, and at 
 length wrote that he would accept the sum 
 offered by the secretary in compromise of the 
 balance claimed by him upon that account, 
 The secretary indorsed theaccount, referring 
 it to the first auditor for examination and 
 settlement, and specifying that the sum 
 was allowed in full of all claims of Mellen 
 against the government and that the letter 
 was accepted as a full release by claimant 
 of all indebtedness of the government to 
 him. No actual notice of this indorsement 
 was given to Mellen, but the accounting 
 officers sent him a simple draft for the snm 
 awarded, which he received. Held, thathe 
 was not barred from preferring a claim 
 upon another account for other services. 
 The secretary's indorsement, unless brought 
 to claimant's notice before his acceptance 
 of the money, was a mere ex parte memo- 
 randum, amounting at most to a direction 
 to a subordinate officer to procure a general 
 release before paying the money. It could 
 not extend the specific release of one in- 
 debtedness to a " full release of all in- 
 debtedness whatsoever." An official 
 memorandum of a secretary is not a matter 
 of record of which the public or persons 
 dealing with the department are bound to 
 take notice. 1877, Mellen u. United States, 
 13 Ct of CI. 71. 
 
 Manner of tailing testimony to be 
 used before a committee of either house of 
 Congress before which a private claim is 
 pending, prescribed in detail. Act of Feb. 
 3, 1879, ch. 40, 20 Stat, at L. 278. 
 
 Assignment and prosecution of claim 
 against a State. Any citizen of New 
 Hampshire who shall be the owner of any 
 claim against any of the United States of 
 America, arising upon a written obligation 
 to pay money issued by such State, which 
 obligation shall be past due and unpaid, 
 may assign the same to the State of New 
 Hampshire. The attorney-general is then 
 authorized to examine the claim and the 
 evidence ; and to bring suit in the name of 
 the State of New Hampshire, but at the 
 expense of the claimant. N. H. Lam 
 1879 (July 18), 357, ch. 42. 
 
 Whether a State has, by its legislature, 
 relinquished a claim or waived remedies for 
 fraud, is a question of legislative intent; 
 technical release is not necessary. Ct. of 
 Appeals, People v. Stephens, 71 N. Y- 
 527. 
 
CLAIM. — CODE. 
 
 95 
 
 minor Decisions on Claim. 
 
 Validity of claim determined, in a pe- 
 culiar case, for distillery meters manufac- 
 tured under order of treasury department, 
 but declined : 99 U. S. 286 , and where con- 
 tractor lost time awaiting decision of officer 
 as to construction of contract : 14 Ct. of CI. 
 84. Assignability of c. against govern- 
 ment; and effect of assignments: 94 U. S. 
 84; 9SId. 179. 
 
 Acceptance of payment held, a bar to c. 
 for any more, where mail contractors 
 sought additional pay for service on a 
 branch route: 13 Ct. of CI. 314; where a 
 contractor to cut wood sought pay for extra 
 travel: 14 Ct. of CI. 84; where a treasury 
 employee, after rendering bills and drawing 
 pay for week-days, asked extra pay for Sun- 
 days : Id. 2.56 ; where contractors received 
 payment of losses against which the gov- 
 ernment had indemnified them, on their 
 assurance that such payment would " fi- 
 nally close " their account: Id. 354; where a 
 contractor having an unliquidated claim for 
 damages for being hindered and delayed in 
 the work, gave a receipt in full for a sum 
 as being the amount awarded as damages : 
 Id. 508. 
 
 CLOUD ON TITLE. A tax will not 
 be vacated as a cloud upon the ground that 
 the law imposing it is unconstitutional: 77 
 JV. F. 542. Instrument creating a right 
 subordinate to plaintiff's title cannot be 
 vacated as a cloud: 74 N. Y. 437. 
 
 CODE. During 1879 the legislatures 
 of Colorado and Connecticut enacted 
 codes of procedure for civil actions sub- 
 stantially embodj'ing the reformed prac- 
 tice initiated by the New York Code of 
 Procedure. 
 
 Mississippi has enacted a revised 
 code of statutes, approved March 6, 
 1880, but taking effect Nov. 1. See 
 Mississippi. 
 
 In 1880 the legislature of New York 
 enacted " an act supplemental to the 
 Code of Procedure ; " passed May 6. 
 The history and nature of this act de- 
 . serve a brief statement. Commission- 
 ers appointed to revise the statutes 
 submitted to the New York legislature 
 
 a report on practice, embodying and 
 harmonizing the Code of Procedure, the 
 subsequent amendatory laws, and the 
 practice decisions ; with advisory sug- 
 gestions of improvements. Founded 
 on this report, an act was passed in 
 1876, named the Code of Remedial 
 Justice. It received much criticism, 
 culminating, in 1877, in a law renam- 
 ing the statute as the Code of Civil 
 Procedure, and making very numerous 
 amendments. The Code of Civil Pro- 
 cedure, thus originated, continued to 
 govern the practice as to all topics 
 which it embraced. It was, however, 
 confessedlj' not complete ; it embraced 
 only thirteen chapters of the original 
 scheme proposed by the commissioners, 
 while nine chapters were held open for 
 further examination and revision. The 
 act now passed has simply completed 
 the codification of the practice thus 
 commenced and two thirds established ' 
 four years previous. It has added the 
 sharply contested ' ' nine chapters " to 
 the thirteen which were enacted in 
 1876 and 1877 ; and the Code of Pro- 
 cedure, as an entirety, is now super- 
 seded by the Code of Civil Procedure. 
 The Code of Civil Procedure does 
 not involve a departure from the prin- 
 ciples upon which its predecessor was 
 founded. The characteristic features 
 of the New York practice of a genera- 
 tion past are preserved. The promi- 
 nent novelty of the new law is its 
 completeness. The former code cov- 
 ered the organization of courts and the 
 course of ordinary lawsuits in them ; 
 but many remedies, of which habeas 
 corpus, insolvency, administration of 
 estates, guardianship, and arbitrations 
 are familiar examples, were left to other 
 laws. These are now embraced within 
 the more comprehensive Code of Civil 
 Procedure. Moreover, the session 
 laws of the past thirty years abounded 
 in small enactments which affected the 
 
 Clyde. Case of adverse possession of sea-beach on the Clyde ; p 8. 
 
CODE. -COIN. 
 
 conduct of lawsuits, but were not tech- 
 nically engrafted on the Code ; these 
 are now embraced. But in respect to 
 the main subject-matter of the old law, 
 one may say that the new one enlarges 
 the system, harmonizes conflictmg sec- 
 tions and amendments, settles dis- 
 puted questions, enacts much that has 
 hitherto rested upon authoritj- of de- 
 cisions only, introduces additions and 
 alterations in detail, and is much more 
 extensive than its predecessor ; but it 
 is not in tone and character very dif- 
 ferent from the Code and the body of 
 special laws which in recent years have 
 governed civil practice in the State. 
 Apparently the changes introduced 
 which will be felt to be most radical 
 and important are in the provisions 
 governing procedure in surrogates' 
 courts. 
 
 In one aspect — it is one not very 
 obvious — the new law differs from the 
 old one. Apparently the framers of 
 the original code hoped to substitute 
 for the S3'stems of technical, strict 
 rules, and the conglomeration of pre- 
 cedents which had accumulated, an 
 outline guide, a system of principles of 
 procedure which might be followed and 
 applied with some fliexibilitj', some free- 
 dom of individual opinion, and without 
 burdensome subserviency to what might 
 have been done in other instances. 
 The courts would, it was thought, fol- 
 low the general sj'stem indicated, using 
 a sound discretion rather than search- 
 ing for a precedent. If this were the 
 anticipation it was not realized. From 
 the outset in 1848 and 1849, the judges 
 followed as closely as ever in each 
 other's footsteps ; lawyers searched as 
 diligently for a "case in point;" re- 
 ports of decisions on practice multiplied, 
 and interpositions of the legislature to 
 prescribe regulations for new questions 
 were constant, until, at the creation of 
 the Code of Civil Procedure, the civil 
 practice was only to be gathered com- 
 plete by research through about 400 
 
 volumes of statutes and reports. The 
 Code of Civil Procedure crystallizes 
 the results of the discussions of the 
 generation. It aims at providing a 
 system complete in detail ; prescribing 
 a rule that shall be explicit and satis^ 
 factorj' for all questions. 
 
 A commissioner to prepare a revised code 
 of the laws of the State made his report to 
 the legislature, by which it was adopted, and 
 his office was continued for the purpose of 
 incorporating in the code all laws passed 
 by the legislature then in session. The 
 enactment thus continuing the office pro- 
 vided that the provisions of the revised 
 code should become of force after a certain 
 proclamation by the governor. In the ex- 
 ecution of his duty of incorporating the 
 newly passed laws in his report, the commis- 
 sioner inserted one act which appeared in 
 the printed session laws, but in fact had not 
 been passed with the prescribed formalities. 
 The governor issued the prescribed procla- 
 mation, and the revised code, as a whole, 
 went into operation under it. Held, that 
 these proceedings did not give validity to 
 the act in question. The commissioner 
 was authorized to insert in his report only 
 the " laws " subsequently enacted. If the 
 act in question was not constitutionally 
 passed, it was not a law. Supreme Ct. 
 1876, Dane v. McArthur, 57 Ala. 448. 
 
 The general American doctrine of the 
 effect of codifications or revisions of the 
 laws upon the statutes as previously en- 
 forced, and how such compilations are to 
 be construed and administered, is consid- 
 ered at length in Bowen v. United States, 
 14 Ct. of CI. 162. 
 
 The repeal of the Dakota Criminal Code, 
 by act of 1868-69, and the revival of it by 
 act of 1872-73, are explained in People v. 
 Wintermute, 1 Bak. T. 63. 
 
 COIN. The following is the text of 
 the law, often discussed, under which 
 coinage of silver has reached its present 
 extent : — 
 
 " There shall be coined, at the several 
 mints of the United States, silver dollars 
 of the weight of four hundred and twelve 
 and a half grains Troy of standard silver, 
 as provided in the act of Jan. 18, 1837, on 
 which shall be the devices and superscrip- 
 
COI¥. — COLLISION. 
 
 97 
 
 tions provided by said act; which coins, 
 together with all silver dollars heretofore 
 coined by the United States of like weight 
 and fineness, shall be a legal tender, at 
 their nominal value, for all debts and dues 
 public and private, except where otherwise 
 expressly stipulated in the contract. And 
 the secretary of the treasury is authorized 
 and directed to purchase, from time to 
 time, silver bullion, at the market price 
 thereof, not less than two million dollars 
 worth per month, nor more than four mil- 
 lion dollars worth per month, and cause 
 the same to be coined monthly, as fast as 
 so purchased, into such dollars : . . . Pro- 
 vided, That the amount of money at any 
 one time invested in such silver bullion, 
 exclusive of such resulting coin, shall not 
 exceed five million dollars, and that nothing 
 in this act shall be construed to authorize 
 the payment in silver of certificates of de- 
 posit issued under the provisions of the 
 Revised Statutes, § 254." Act of Feb. 28, 
 1878, ch. 20, § 1, 20 Stat, at L. 25. 
 
 Further coinage of twenty-cent silver 
 , pieces prohibited. Act of May 2, 1878, 
 ch. 79, 20 Slat, at L. 47. 
 
 COLE. The Law and Practice as to the 
 Particulars and Conditions of Sale, with 
 notes and fonns, to which are added 
 "The Vendor and Purchaser Act, 1874," 
 and " The Real Property Limitation Act, 
 1874." By Richard Henry Cole. 94 pp. 
 London, 1879. 
 
 Intended principally for the use of coun- 
 try solicitors, auctioneers, and others con- 
 cerned as intending vendors or purchasers 
 of real property. 
 
 COLLISION. A revised code of ' 'Reg- 
 ulations for Preventing Collisions at 
 Sea," has been approved and adopted 
 by the leading maritime nations, and 
 took effect Sept. 1, 1880. It has been 
 officially adopted and promulgated for 
 the naval service of the United States 
 in so far as the navigation of naval ves- 
 sels outside of United States territorial 
 waterstis concerned. No act of Con- 
 gress has yet been passed to render 
 these regulations operative within the 
 waters of the United States ; over these 
 the subject is still regulated by Rev. 
 Stat. § 4,233. The friends of the 
 change anticipate that Congress will 
 7 
 
 soon adopt the new rules for internal 
 waters. 
 
 Below is the text of the new rules as 
 issued by the navy department. The 
 passages italicized are those in which 
 changes from the rules previously in 
 force are noticed. 
 
 Bevised International fiegolations. 
 Art. I. In the following rules every 
 steamship which is under sail and not 
 under steam is to be considered a sailing- 
 ship; and every steamship which is under 
 steam, whether under sail or not, is to be 
 considered a ship under steam. 
 
 Art. II. The lights mentioned in the 
 following articles, numbered 3, 4, 5, 6, 7, 
 8, 9, 10, and 11, and no others, shall be 
 cari'ied in all weathers from sunset to sun- 
 rise. 
 
 Art. III. A sea-going steamship, when 
 under way, shall carry: — 
 
 (a) On or in front of the foremast, at a 
 height ahore the hull of not less than twenty 
 feet, and if the breadth of the ship exceeds 
 twenty feet, then at a height above the hull not 
 less than such breadth, a bright white light, 
 so constructed as to show an uniform and 
 unbroken light over an arc of the horizon 
 of twenty points of the compass, so fixed as 
 to throw the light ten points on each side 
 of the ship, viz., from right ahead to two 
 points abaft the beam on either side, and 
 of such a character as to be visible on a 
 dark night, with a clear atmosphere, at a 
 distance of at least five miles. 
 
 (ft) On the stai'board side, a green light, 
 so constructed as to show an uniform and 
 unbroken light over an arc of the horizon 
 of ten points of the compass ; so fixed as to 
 throw the light from right ahead to two 
 points abaft the beam on the starboard 
 side ; and of such a character as to be visi- 
 ble on a dark night, with a clear atmos- 
 phere, at a distance of at least two miles. 
 
 (c) On the port side, a red light so con- 
 structed as to show an uniform and un- 
 broken light over an arc of the horizon of 
 ten points of the compass; so fixed as to 
 throw the light from right ahead to two 
 points abaft the beam on the port side ; and 
 of such a character as to be visible on a 
 dark night, with a clear atmosphere, at a 
 distance of at least two miles 
 
 (d) The said green and red side lights 
 
98 
 
 COLLISION. 
 
 shall be fitted with inboard screens pro- 
 jecting at least three feet forward from the 
 light, so as to prevent these lights from 
 being seen across the bow. 
 
 Art. IV. A steamship, when towing 
 a,nother ship, shall, in addition to her side 
 lights, carry two bright white lights in a 
 vertical line one over the other, not less 
 than three feet apart, so as to distinguish 
 her from other steamships. Each of these 
 lights shall be of the same construction 
 and character, and shall be carried in the 
 same position as the white light which 
 other steamships are required to carry. 
 
 Art. V. A ship, whether a steamship or 
 sailing-ship, when employed either in laying 
 or picking up a telegraph cable, or which, from 
 any accident, is not under command, shall at 
 night carry, in the same position as the white 
 light which steamships are required to carry, — 
 and if a steamship, in place of that light, — 
 three red lights in globular lanterns, each not 
 less than ten inches in diameter, in a vertical 
 line one over the other, not less than three feet 
 apart ; and shall by day carry in a vertical 
 line one over the other, not less than three feet 
 apart, in front of, hut not lower than, her fore- 
 mast head, three black balls or shapes, each 
 two feet in diameter. 
 
 These shapes and ligltts are to be taken by 
 approaching ships as signah that the ship using 
 them is not under command, and cannot there- 
 fore get out of the way. 
 
 The above ships, when not making any way 
 through the water, shall not carry the side 
 lights, but when making way shall carry them. 
 
 Art. VI. A sailing-ship under way, or 
 being towed, shall carry the same lights as 
 are provided by Art. III. for a steamship 
 under way, with the exception of the white 
 light, which she shall never carry. 
 
 Art. VII. Whenever, as in the case of 
 small vessels during bad weather, the gi-een 
 and red side lights cannot be fixed, these 
 lights shall be kept on deck, on their respec- 
 tive sides of the vessel, ready for use, and 
 shall, on the approach of or to other vessels, 
 be exhibited on their respective sides in 
 •sufficient time to prevent collision, in such 
 manner as to make them most visible, and 
 so that the green light shall not be seen on 
 the port side nor the red light on the star- 
 board side. 
 
 To make the use of these portable lights 
 more certain and easy, the lanterns con- 
 taining them shall each be painted outside 
 
 with the color of the light they respectively 
 contain, and shall be provided with proper 
 screens. 
 
 Art. VIII. A ship, whether a steamship 
 or a sailing-ship, when at anchor, shall 
 carry, where it can best be seen, but at 
 a height not exceeding twenty feet above 
 the hull, a white light in a globular lan- 
 tern of not less than eight inch* in diam- 
 ter, and so constructed as to show a clear 
 uniform, and unbroken light, visible all 
 round the horizon at a distance of at least 
 one mile. 
 
 Art. IX. A pilot-vessel, when engaged 
 on her station on pilotage duty, shall not carry 
 the lights required for other vessels, but 
 shall carry a white light at the mast-head, 
 visible all round the horizon, and shall 
 also exhibit a flare-up light, or Jtare-^p 
 lights, at short intervals, which shall never 
 exceed fifteen minutes. 
 
 A pilot-vessel, when not engaged on her 
 station on pilotage duty, shall carry lights 
 similar to those of other ships. 
 
 Art. X. (a)" Open fishing-boats, and 
 other open boats, when under way, shall 
 not be obliged to carry the side lights re- 
 quired for other vessels, but every such 
 boat shall, in lieu thereof, have ready at 
 hand a lantern with a green glass on the 
 one side and a red glass on the other side, 
 and on the approach of or to other vessels 
 such lantern shall be exhibited, in suffi- 
 cient time to prevent collision, so that the 
 green light shall not be seen on the port 
 side, nor the red lighten the starboard side. 
 
 (b) A fishing vessel and an open boat, 
 when at anchor, shall exhibit a bright white 
 light. 
 
 (c) A fishing-vessel, when employed in drift- 
 net fishing, shall carry on one of her masts tm 
 red lights in a vertical line one oeer the other, 
 not less than three feet apart. 
 
 (d) A trawler at work shall carry on one 
 of her masts two lights in a ver-tical line one 
 over the other, not less than three feet apart, 
 the upper light red and the lower green, and 
 shall also either carry the side lights required 
 for other vessels, or, if the side lights cannot 
 be earned, have ready at hand the colored 
 lights, asprovided in Art. VII., or a lantern 
 with a red and a green glass, as described m 
 paragraph (a) of this article. 
 
 (e) Fishing-vessels and open boats shall 
 not be prevented from using a flare-up iB 
 addition, if they desire to do so. 
 
COLLISION. 
 
 99 
 
 (/) The lights mentioned in this article are 
 substituted for those mentioned in the 12th, 
 I'dth, and lith articles of the conoention be- 
 tween France and England scheduled to the 
 Pritish Sea Fisheries Act, 1868. 
 
 (jr) All lights required by this article, ex- 
 cept side lights, shall be in globular lanterns so 
 constructed as to show all round the horizon. 
 
 Art. XL A ship which is being over- 
 taken by another shall show from her stern 
 to such last-mentioned ship a white light or 
 u, flare-up light. 
 
 Art. XII. A steamship shall be provided 
 with a steam-whistle or other efficient steam- 
 sound signal, so placed that the sound may 
 not be intercepted by any obstructions, and with 
 an efficient fog-horn to be sounded by a bel- 
 lows or other mechanical means, and also with 
 an. efficient bell. A sailing-ship shall be pro- 
 vided with a similar fog-horn and bell. 
 
 In fog, mist, or falling snow, whether by 
 day or night, the signals described in this 
 article shall be used as follows, that is to 
 say : — 
 
 (a) A steamship under way shall make 
 with her steam-whistle, or other steam- 
 sound signal, at intervals of not more than 
 two minutes, a prolonged blast. 
 
 (b) A sailing-ship under way shall make 
 with her fog-horn, at intervals of not more 
 than tioo minutes, when on the starboard tack 
 one blast, when on the port tack two blasts in 
 succession, and when with the wind abaft the 
 beam three blasts in successioti. 
 
 (c) A steamship and sailing-ship, when 
 not under way, shall, at intervals of not 
 
 ■ more than two minutes, ring the bell. 
 
 Art. XIII. Every ship, tohether sailing- 
 ship or steamship, shall, in a fog, mist, or 
 falling snow, go at a moderate speed. 
 
 Art. XIV. When two sailing-ships are 
 approaching one another so as to involve 
 risk of collision, one of them shall keep 
 out of the way of the other, as follows, 
 viz. : — 
 
 (a) A ship which is running free shall 
 keep out of the way of a ship which is 
 close-hauled. 
 
 (h) A ship which is close-hauled on the 
 port tack shall keep out of the way of a 
 ship which is close-hauled on the starboard 
 tack. 
 
 (c) When both are running free with 
 'the wind on different sides, the ship which 
 ■has the wind on the port side shall keep 
 out of the way of the other. 
 
 (d) When both are running free with 
 the wind on the same side, the ship which 
 is to windward shall keep out of the way 
 of the ship which is to leeward. 
 
 (c) A ship which has the wind aft shall 
 keep out of the way of the other ship. 
 
 Art. XV. If two ships under steam are 
 meeting end on, or nearly end on, so as to 
 involve risk of collision, each shall alter 
 her course to starboard, so that each may 
 pass on the port side of the other. 
 
 This article only applies to cases where ships 
 are meeting end on, or nearly end on, in such 
 a manner a,? to incolve risk of collision, and 
 does not apply to two ships which must, if both 
 keep on their respective courses, pass clear of 
 each other. 
 
 The only cases to which it does apply are, 
 when each of the two ships is end on, or nearly 
 end on, to the other ; in other words, to cases 
 in which, by day, each ship sees the masts of 
 the other in a line or nearly in a line with her 
 own; and, by night, to cases in which each 
 ship is in such a position as to see both the side 
 lights of the other. 
 
 It does not apply, by day, to cases in which 
 a ship sees another ahead crossing her own 
 cour.<!e, or, by night, to cases where the red 
 light of one ship is opposed to the red light of 
 the other, or where the green light of one ship 
 is opposed to the green light of the other, or 
 where a red light without a green light, or a 
 green light without a red light, is seen ahead, 
 or where both green and red lights are seen 
 anywhere but ahead. 
 
 Art. XVI. If two ships under steam 
 are crossing so as to involve risk of collision, 
 the ship which has the other on her own 
 starboard side shall keep out of the way of 
 the other. 
 
 Art. XVII. If two ships, one of which 
 is a sailing-ship and the other a steamship, 
 are proceeding in such directions as to in- 
 volve ri.sk of collision, the steamship shall 
 keep out of the way of the sailing-ship. 
 
 Art. XVIII. Every steamship, when 
 approaching another ship so as to involve 
 risk of collision, shall slacken her speed or 
 stop and reverse if necessary. 
 
 Art. XIX. In taking any course, author- 
 ized or required by these regulations, a steam- 
 ship under way may indicate that course to 
 any other ship which she has in sight by the 
 following signals on her steam-whistle, viz. ; 
 
 One short blaat to mean " / am directing 
 my course to stal-board." Two short blasts to 
 
100 
 
 COLLISION. 
 
 mean" J am directing my course to port." 
 Three short blasts to mean " I am going full 
 speed astern." 
 
 The use of these signals is optional ; but if 
 they are used the course of the ship must be in 
 accordance with the signal made. 
 
 Art. XX. Notwithstanding anything con- 
 tained in any preceding article, eveiy ship, 
 whether a sailing-ship or a steamship, over- 
 taking another, shall keep out of the way 
 of the overtaken ship. 
 
 Art. XXI. In narrow channels every 
 steamship shall, when it is safe and practic- 
 able, keep to that side of the fair-way or mid- 
 channel which lies on the starboard side of 
 such ship. 
 
 Art. XXII. Where, by the above rules, 
 one of two ships is to keep out of the way, 
 the other shall keep her course. 
 
 Art. XXIII. In obeying and construing 
 these rules, due regard shall be had to all 
 dangers of navigation, and to any special 
 circumstances which may render a depar- 
 ture from the above rules necessary in order 
 to avoid immediate danger. 
 
 Art. XXIV. Nothinayin these rules shall 
 exonerate any ship, ortaeiowner, or master, 
 or crew thereof, froie^^ consequences of any 
 neglect to cav^uligi^ior'^i^als, or of any 
 neglect to keep aJ^ft^E^|w;-o«^ or of the neg- 
 lect of anifi^iKEo^^^lighich may be required 
 by the ordinar^y^Slioi/of seamen, or by the 
 special circumstanceT/W the case. 
 
 Art. XXV. Notfyng in these rides shall 
 interfere with the operation of a special rule, 
 duly made by local authority, relative to the 
 navigation of any harbor, river, or inland 
 navigation. 
 
 Art. XXVI. Nothing in these rules shall 
 interfere with the operation of any special rules 
 made by the government of any nation with 
 respect to additional station and signal lights 
 for two or more ships of war, or for ships 
 sailing under convoy. 
 
 " Congress has not authorized the re- 
 peal or modification of the rules of the 
 road embraced in Rev. Stat. § 4233, and 
 the department accordingly has no au- 
 thority to declare the new rules binding on 
 the American commercial marine. This 
 department has, however, been officially 
 advised by the Department of State, that 
 in the event of difficulties occurring be- 
 tween American and British ships, that 
 would involve the submission of cases to 
 British courts, the decisiob would be ren- 
 
 dered according to the new rules. It is 
 pi-esumed that in the event of similar dif- 
 ficulties arising between vessels of this 
 country and those of any other that has 
 adopted the new rules, a similar disposition 
 would be made of such cases. Should 
 American vessels, however, while navigat- 
 ing foreign waters, conform to the new 
 regulations, such conformity would entail 
 no penalties on the return of an American 
 vessel to this country. ' ' \_From official letter 
 of Acting- Secretary French, of Treasury 
 Dept.'] 
 
 Injury from two Tcssels. A steamboat 
 collided with and sunk a schooner towed 
 by a tug. The owner of the schooner and 
 the owner of her cargo severally libelled 
 the steamboat and tug, both of which 
 were found to be in fault. Held, that each 
 libellant was entitled to a decree again.st 
 each of the offending vessels for a moiety 
 of his damages, and for interest and costs, 
 with a proviso that if either of said ves- 
 sels was unable to pay such moiety, then he 
 should have a remedy over against the 
 other vessel for any balance thereof which 
 might remain unpaid. Supreme Ct. 1877, 
 The City of Hartford, 97 U. S. 323. 
 
 Limit of liability. The owner of a 
 vessel injured by a collision is limited in 
 his recovery to the value of the offending 
 ship and her freight, immediately subse- 
 quent to the collision, and has no lien or 
 claim upon the insurance received by her 
 owner. At common law, and by the civil 
 law and the general law maritime, the 
 owner of a vessel is liable for damages oc-' 
 casioned by the negligence of the master 
 and crew, to the full extent of the injury 
 sustained. The ordinary rule of responsi- 
 bility of the principal for the acts of his 
 agent obtained long before the earliest 
 English act upon the subject, but a limit to 
 such liability grew up among the maritime 
 nations of Europe ; viz , that the owners 
 are not chargeable beyond the value of the 
 ship and the things that are in it. This 
 limit of liability was first incorporated in 
 the law of England in the reign of George' 
 II., and in that of the United States in 
 the year 1851 ; but the adjudications under 
 it have not been numerous. The absence 
 of English authority is probably due to 
 the fact that, by the law of England, the 
 liability of the owner is limited to the val- 
 ue of the offending ship immediately be- 
 
COLLISION. —COMMERCE. 
 
 fore the collision, that is, in her undamaged 
 state, while hy the American and Continen- 
 tal law, the measure of liability is deter- 
 mined by the value of the ship immediately 
 after the collision. In the United States 
 the case 8 Ben. 312, holds that the owner 
 is not liable in respect of the insurance 
 moneys. The Continental authorities are 
 full and explicit to the same effect. [Cit- 
 ing them.] E. Dist. of Mich. 1879, The 
 Peshtigo, 49 Cent. L. J. 285; 25 Int. Rev. 
 Sec. 361. * 
 
 Contributive negligence. For a blind 
 person to go about in public places, where 
 he receives injury, is not contributive neg- 
 ligence as matter of law ; , but the question 
 is for the jury whether under all the cir- 
 cumstances, including the lack of vision, 
 proper care was used. A man nearly 
 blind, with his wife, started one night to 
 cross the Buffalo River in a small scow. He 
 was able-bodied and familiar with the man- 
 agement of the boat at that part of the 
 river, and the two were accustomed to 
 cross daily, — he scuUing the boat, and she 
 giving directions as to the way. On the 
 occasion in question a steam-tug ran into 
 the boat, it was upset, and the wife was 
 drowned. In an action for damages it 
 appeared that the tug was negligently man- 
 aged, but the defence contended that the 
 circumstances showed contributive negli- 
 gence. Held, that the undertaking to 
 cross the river under the circumstances 
 could not be pronounced negligent as mat- 
 ter of law merely because the husband was 
 blind; but the question was for the jury on 
 a view of all the facts. Ct. of Appeals, 
 1878, Harris v. Uebelhoer, 75 N. Y. 169. 
 
 Minor Decisions on Collision. 
 Fictitious sale of steamboat does not 
 affect liability of original owners for sub- 
 sequent c. : 76 N. Y. 9. Recovery al- 
 lowed for injury to canal-boat from swell 
 of steamboat carelessly navigated; but 
 costs refused because of a month's delay in 
 demand: 8 Ben. 50. Sail-vessel must 
 keep out of the way of one close-hauled: 
 8 Reporter, 828. Steamer has the chief 
 duty of avoiding c. with sail- vessel: 14 
 Blatchf. 524; 8 Reporter, 390. Duties 
 of steam-vessels when approaching each 
 other: 8 Reporter, 297; Id. 487. Vessel 
 under way must avoid c. with one at 
 rest: 18 Alb. L. J. 151; 6 Reporter, 567. 
 
 ihe 
 Allowance 
 vessel: 14 
 
 Person corporally injurei 
 recover damages in admiral 
 vessel in fault: 3 Hugh. 641. 
 of expense of raising sunken 
 Blatchf. 497; 8 Ben. 312; for injury sus- 
 tained by the disabled ship in storm: 
 8 Ben. 510; of value of cargo of guano in- 
 jured: 14 Blatchf. 483; of interest: Id. 
 483 ; Id. 497. 
 
 COLORADO. Courts. Special terms 
 of circuit and district courts within Col- 
 orado authorized. How they shall be 
 notified, convened, and held. Northern, 
 Southern and Western divisions created 
 and defined. Jurisdiction and venue in 
 civil and criminal causes declared. Ap- 
 pointment of deputy clerks authorized. 
 District court in Southern and Western 
 divisions shall have concurrent jurisdiction 
 in civil causes with cii-cuit court. Terms 
 of circuit and district courts prescribed. 
 Act of Feb. 15, 1879, <ffi. 82, 20 Stat, at L. 
 292. Act of April 2p|lB80, Courts. 
 
 Election da3t*^:;-iepjgsentative from 
 Colorado to^^iM^^fesday next after the 
 first MondUiy in^g^amber. Act of June 
 11, 1878,^fe^^^,fta«. at L. 112. 
 
 COMMERcSr^&'arfage. A city own- 
 ing improved wharves and other artifi- 
 cial means which ^t has provided and 
 maintains, at its own cost, for the benefit 
 of those engaged in commerce upon the 
 public navigable waters of the United 
 States, is not prohibited by the national 
 Constitution from charging and collecting 
 from those using its wharves and facilities 
 such reasonable fees as will fairly remu- 
 nerate it for the use of its property [20 
 Wall. 577; 95 U. S. 80]. Wharfage dues 
 imposed in good faith, and to the extent 
 only of fair remuneration for wharf ac- 
 commodations furnished for convenience of 
 trade and commerce, not as a cover for in- 
 creasing the general revenue of the city, 
 are not objectionable as tonnage duties ; nor 
 are they an infringement of the commer- 
 cial power of Congress. Supreme Ct. 1879, 
 Packet Co. v. St. Louis, 100 U. S. 423 ; 
 Vicksburg v. Tobin, Id. 430. 
 
 A city cannot be authorized by State law 
 to impose wharfage fees upon vessels from 
 other States, landing at the port, while 
 authority to impose such fees upon vessels 
 from the same'State is withheld. Wharves 
 may be allowed to be used without charge, 
 or wharfage fees may be imposed, as the 
 
102 
 
 COMMERCE. —CONNECTICUT. 
 
 legislature and the city may judge best; 
 but the national constitution forbids a dis- 
 crimination against vessels on the mere 
 ground that they come from other States. 
 Supreme Ct. 1879, Guy v. Baltimore, 100 
 U. S. 434. 
 
 A tax laid by a State on the amount of 
 sales of goods made by an auctioneer is a 
 tax on the goods so sold. The statute of 
 Pennsylvania of May 20, 1853, modified 
 by that of April 9, 1859, requiring every 
 auctioneer to collect and pay into the State 
 treasury a tax on his sales, cannot be ap- 
 plied to imported goods in the original 
 packages, sold for the importer; for this 
 would involve the State's laying a duty on 
 imports and imposing a regulation on com- 
 luerce. Supreme Ct. 1878, Cook ;;. Penn- 
 sylvania,-97 U. S. 566. 
 
 A State law imposing an annual tax upon 
 peddlers of a specified article, — here upon 
 " all peddlers of sewing-machines and sell- 
 ing by sainple" [Tenn. Code, § 553, a, 
 subd. 43] , — which makes no discrimination 
 between articles produced by different 
 States, but applies alike to articles manu- 
 factured within the State and out, is not 
 ilnconstitutional. Supreme Ct. 1879, Ma- 
 chine Co. V. Gage, 100 U. 8. 676. 
 
 A State law imposing a license fee or a 
 tax upon sales of patent rights is void for 
 infringing the exclusive power of Congress 
 to pass patent laws. The national govern- 
 ment has made patent rights property, and 
 is bound to protect patentees and their as- 
 signees in the enjoyment of them. Any 
 State law which impairs the right to sell a 
 patent right is void. Supreme Ct. 1879, 
 State V. Butler, 3 Lea (Term.), 222. 
 
 The Illinois act to prevent the importa- 
 tion of Texas or Cherokee cattle into the 
 State, [Rev. Stat. 1874, 141], is liable to the 
 same constitutional objection of infringing 
 the exclusive commercial power of Congress 
 as was held [95 U. S. 465] by the supreme 
 court of the United States fatal to a simi- 
 lar law of Missouri. It must, therefore, 
 be held, in deference to the authority of 
 the supreme court [notwithstanding 58 III. 
 254], to be unconstitutional and void. 
 Supreme Ct. 1879, Salzenstein v. Mavis, 91 
 111. 391. 
 
 Congress. Powers of Congresg over various 
 subjects are explained under the several topics, 
 such as; Admikalty; Commeboe; Cobpora- 
 tio.n; District of Columbia; Patent; Tax. 
 
 The power of Congress to regulate com- 
 merce includes power to authorize erecting 
 a bridge over public navigable waters, no^ 
 withstanding it will to some extent ob- 
 struct navigation. And Congress may 
 devolve upon an ofiicer — here the secretary 
 of war — authority to settle or prescribe 
 the plan of a bridge, and give leave to pro- 
 ceed with its construction. Ct. of Appeals. 
 1879, People v. Kelly, 76 iV Y. 475 
 
 CONCEALED WEAPONS. A State law 
 prohibiting the carrying of an 'army pistol 
 except openly in the hand does not infringe 
 the light to bear arms ; it only regulates 
 the manner: 7 Baxt. (Tenn.) 57. Con- 
 struction of law restricting carrying of pis- 
 tols: Id. 105, 106. Proof of concealment 
 is essential; motive is immaterial: 65 Ind. 
 411. That lock of pistol was temporarily 
 out of order so that it could not be fired is 
 no defence: 61 Ga. 417. 
 
 CONGRESS. There is no implied agree- 
 ment on the part of the government to pay 
 fees or other compensation to persons re- 
 quired to attend before committees of either 
 house of Congress. Such attendance is not 
 by agreement, but is the submission of a 
 subject to a power of the government, and 
 which must be obeyed. 1878, LUley «. 
 United States, 14 Ct. of CI. 539. 
 
 CONNECTICUT. Since Poore's com- 
 pilation of the constitutions of the 
 States, Connecticut has adopted eight 
 additional articles to her constitution, 
 which are given below. 
 
 Connecticut, in 1879, adopted a Code 
 of Procedure, embodying substantially 
 the reformed practice introduced by the 
 New York Code of Procedure. See 
 infra, " The Practice Act." 
 
 Constitntional amendments. " In case 
 a new town shall hereafter be incorporated, 
 such new town shall not be entitled to s 
 representative in the general assembly un- 
 less it has at least 2,500 inhabitants, and 
 unless the town from which the major 
 portion of its territory is taken has also 
 at least 2,500 inhabitants, such new town 
 shall, for the purpose of representation 
 
 Nature of power to create corporations, Pj ^■ 
 How testimony may be taken to be used before 
 committees, p. 94. 
 
CONNECTICUT. — CONSPIRACY. 
 
 103 
 
 in the general assembly, be attached to 
 and be deemed to be a part of the town 
 fi-om which the major portion of its terri- 
 toiy is taken, and it shall be an election 
 district of such town for the purpose of 
 representation in the house of representa- 
 tives." Art. 18; adopted October, 1876. 
 
 Art. 4, § 2, and amendments, declared 
 applicable to future elections held on Tues- 
 day after first Monday of November. Art. 
 19; adopted October, 1876. 
 
 Judges of the courts of common pleas 
 and of the district courts shall be appoint- 
 ed for terms of four years. Judges of the 
 city courts and police courts shall be ap- 
 pointed for terms of two years. Art. 20 ; 
 adopted October, 1876. 
 
 Judges' of probate shall be elected by 
 electors residing in their respective dis- 
 tricts on the Tuesday after the first Monday 
 of November, 1876, and biennially there- 
 after. Those persons elected judges of 
 probate on the Tuesday after the first 
 Monday of November, 1876, and those 
 elected biennially thereafter, shall hold 
 their offices for two years from and after 
 the Wednesday after the first Monday of 
 the next succeeding January. Those per- 
 sons elected judges of probate on the first 
 Monday of April, 1876, shall hold then- 
 offices only until after the first Monday of 
 January, 1877. Art. 21; adopted October, 
 1876. 
 
 The compensation of members of the 
 general assembly shall not exceed f300 
 per annum, and one mileage each way 
 for each session, at the rate of twenty- 
 five cents per mile. Art. 22 ; adopted Octo- 
 ber, 1876. 
 
 Art. 8 of the amendments amended by 
 erasing the ^ord "white "from the first 
 line. Art. 23; adopted October, 1876. 
 
 Neither the general assembly, nor any 
 county, city, borough, town, or school dis- 
 trict shall have power to pay or grant any 
 extra compensation to any public officer, 
 employee, agent, or servant, or increase the 
 compensation of any public officer or em- 
 ployee, to take effect during the continuance 
 in office of any person whose salary might 
 be increased thereby, or increase the pay 
 or compensation of any public contractor 
 above the amount specified in the contract. 
 Art. 24; adopted October, 1877. 
 
 No county, city, town, borough, or other 
 municipality shall ever subscribe to the 
 
 capital stock of any railroad corporation, 
 or become purchaser of the bonds, or make 
 donation to, or lend its credit, directly or 
 indirectly, in aid of any such corporation ; 
 but nothing herein contained shall affect 
 the validity of any bonds or debts incurred 
 under existing laws, nor be construed to 
 prohibit the general assembly from author- 
 izing any town or city to protect by addi- 
 tional appropriations of money or credit 
 any railroad debt contracted prior to the 
 adoption of this amendment. Art. 25, 
 adopted October, 1877. 
 
 The Practice Act of the State of 
 Connecticut, with the Orders, Rules, and 
 Forms under the same, prepared by the 
 Judges of the Superior Court, and the Gen- 
 eral Rules of Practice of the Supreme Court 
 of Errors and the Superior Court, as re- 
 vised in June, 1879. Hartford. Adopted 
 June 24, 1879. 
 
 CONSPIRACY. An actioi^ for damages 
 for conspiracy may be maintained where a 
 tailor has a large number of journeymen 
 working for him by the piece, making up 
 garments for his customers out of material 
 furnished by him for that purpose, and by 
 a preconcerted arrangement among them- 
 selves, the journeymen, instead of finishing 
 the work and enabling him to keep his en- 
 gagements with his customers, all return the 
 garments in an unfinished state; he would 
 be damaged as well directly, in losing the 
 money which his customers would have paid 
 him if he could have delivered the garments 
 to them in a finished condition, as indi- 
 rectly, by the loss of customers and the 
 damage to the character of his house for 
 punctuality. Supreme Ct. 1879, Mapstrick 
 V. Ramge, 9 Neb. 390. 
 
 Minor Decisions on Conspiracy. 
 A c. to disseminate a slander is indict- 
 able: 41 N. J. L. 208; it is not punLsh- 
 able by imprisonment in penitentiary: 82 
 N. C. 565. Prosecution for a c. formed in 
 one State but consummated by acts done in 
 another: 41 N. J. L. 418. An action lies 
 for fraudulent use of legal proceeding by 
 conspirators to injure another: 76 iV. Y. 
 247. Indictment which alleges a c. be- 
 tween two or more, but indicts one only, is 
 good: 3 Hugh. 553. Indictment need not 
 describe the means intended for carrying it 
 out: 3 Woods, 47, Id. 187. Indictment that 
 S. and A. did conspire to induce a woman 
 
104 
 
 CONSPIRACY. — CONSTITUTION. 
 
 to be married to S. by a mock ceremony 
 performed by A., whereby she was seduced, 
 is a good charge of c. , and need not in 
 terms allege that the woman was unmar- 
 I'ied or of chaste character: 48 Iowa, 562. 
 Usual order ot proof is to show: (1) existence 
 of c. ; (2) connection of accused with it; but 
 judge may vary from this: 82 N. C. 565. 
 Acts and declarations of conspirators after 
 one of their number has left them are ad- 
 missible against him: 45 Conn. 256. Proper 
 evidence on indictment of agents of rail- 
 road company for conspiring to defraud by 
 issuing false tickets and passes: 48 Md. 
 ^2\: on indictment for c. by a public 
 officer and others to defraud the State by 
 withdrawing funds upon false vouchers 
 through instrumentality of his office: 11 
 .S. C. 195. Admissibility of letters be- 
 tween accused, and from an employee of 
 one of them on trial for c. to smuggle: 
 14 Blatchf. 38*1. 
 
 CONSTITUTION. California has 
 adopted a new constitution (see Cali- 
 fobnia) ; and many of the States have 
 ratified amendments ; these are, in 
 general, placed under the names of the 
 respective States. 
 
 The most important judicial question 
 has been one upon the vote needful to 
 secure adoption of a constitutional 
 amendment. It arose in Indiana. An 
 amendment to the constitution was 
 submitted to popular vote. No matter 
 what that amendment was, — it hap- 
 pened to be one changing election day 
 from October to November. Say, 
 simply, that it was an amendment sub- 
 mitted to the people. The votes cast 
 in its favor were more than those cast 
 against it; and this seems to have 
 been deemed by the executive depart- 
 
 Constitution. Rales of jurisprudence derived 
 from ihe constitutions, State or National, are under 
 the subject-matter, thus : for constitutional grant of 
 admiralty jurisdiction, see Admiralty. Operation 
 of 14th amendment and invalidity of State laws 
 conflicting with civil rights legislation, Civil 
 Rights. Regulation ot commerce. Commerce. 
 Restriction on carryingarms, Concealed Weap- 
 ons. Impairing obligation of contracts, Con- 
 tract. Authority to legislate over corporations, 
 ConpORATioNi over cities, Municipal Corpoba- 
 TioN ; over counties. County; over courts, Court. 
 Regulation of elections and the right of suffrage. 
 Election. Taking private property for public use, 
 
 ment sufficient, as being a majority 
 vote. But, at the same time, an election 
 of officers was proceeding. Electors 
 cast ballots for the candidates of their 
 choice, as well as " Aye " or " No" on 
 the amendment ; and the vote for can- 
 didates was, as is usually the case, far 
 larger than on the amendment. The 
 vote in favor of the amendment, though 
 larger than the vote against it, was by 
 no means equal to half the votes cast 
 at the election. Hence, when the 
 adoption of the amendment was con- 
 tested in the supreme court, the 
 judges said, in effect, that they could 
 not indulge any fiction or theory treat- 
 ing a majority of the votes cast as a 
 majority of aU existing electors, because 
 the indisputable fact that a great many 
 more voters turned out on that day and 
 voted, forbade. For the decision, see 
 Election. 
 
 Obviously such a decision may be 
 right, may be necessary, upon the lan- 
 guage of particular provisions of a con- 
 stitution prescribing the manner in 
 which an amendment shall be ratified. 
 The people of a State have power, 
 when framing the organic law, to pre- 
 scribe that it shall not be changed with- 
 out the actual votes of a majority (or 
 a larger proportion) , of all voters ; and 
 if they have distinctly done so, the 
 direction must be followed. The In- 
 diana decision purports to be largely 
 founded on language of this nature in 
 the constitution ; and a similar decision 
 in Tennessee, on an election to change a 
 countj' seat (see tit. Countt), has a like 
 basis in the wording employed. So 
 
 Eminent Domain. Effect in another State of a 
 State judgment, Judgment. Authority over nav- 
 igable rivers, Navigation; over patents, Patent; 
 over railroad companies. Railroad; over trade- 
 marks, Trademark. For relation between States 
 and the Union, United States ; also State. Kew 
 constitutions and constitutional amendments are un- 
 der the names of the several States ; see also State. 
 Extent of Federal jurisdiction in admiraltv ; p. 
 13. Validity of anti-Chinese laws : pp. 20, 80-83; of 
 laws excluding Texas or Cherokee cattle: p. 21; of 
 the Ohio scheme for taxing national banks: p 34; 
 of civil damage laws : p. 88 ; of State laws affecting 
 negroes : pp. 90-94; or commerce, p. 101. 
 
CONSTITUTION. 
 
 105 
 
 has a Nebraska decision. [State v. 
 Lancaster Count}', 6 2^eb. 481.] 
 
 But, rising above special phraseology 
 of particular constitutions, and view- 
 ing the question in its general bearings, 
 strong reason is easily perceived for 
 regarding a majority of the votes cast 
 as indicating the popular choice to ac- 
 cept the amendment. If this cannot 
 usually be done, grave doubt is thrown 
 over many of the constitutional amend- 
 ments. For a century the practice of 
 submitting to the people revisions or 
 amendments of the State constitutions 
 has existed. These proposals have in- 
 creased in frequency in modern times, 
 and now constantly occur. Hardly 
 a year passes in which some State — 
 oftener more than one — does not vote 
 on an amendment. The vote is usua% 
 . taken at a general election, and is al- 
 waj's smaller than for the ofHcers. Has 
 it been customary to test the popular 
 acceptance of an amendment by com- 
 paring its vote with the aggregate vote 
 cast for officers ? Certainly not. The 
 general understanding and practice 
 have been that a majority of the votes 
 cast on the amendment are sufficient to 
 ratify it. And this is, whenever the 
 question can be considered independent 
 of special and unusual hmitations pre- 
 scribed bj' the constitution, perfectly 
 correct. The true ground or principle 
 on which a majority of votes cast car- 
 ries the weight of a majority of all 
 voters is, not any weak fiction that all 
 persons vote who are authorized to do 
 so, but the strong common-sense im- 
 plication that persons who do not vote 
 assent to the result of the votes of 
 those who do. Throughout the land, 
 not only in popular elections, but in 
 legislatures, town-meetings, corporate 
 meetings, deliberative bodies of everj' 
 kind, questions are daily put to vote, 
 and decided upon a majority of the 
 votes cast, although it is obvious that 
 the prevailing vote is not half of all 
 the qualified voters. A presiding of- 
 
 ficer will declare a measure carried by 
 three votes against two, although there 
 are a hundred qualified members sitting 
 before him silent and indifferent. He 
 is right. The basis is, not a probabil- 
 ity that the votes cast are all that might 
 have been, — such a probability never 
 exists, — but the justice and necessity of 
 treating those who do not vote as as- 
 senting to the result. It is not accu- 
 rate to say that, upon the American 
 doctrine, the vote of a majority rules ; 
 the will of the majority is what rules ; 
 this will is ascertained by inviCing all 
 to vote, and assuming in a sensible, 
 untechnical way that those who are 
 absent or silent assent that the question 
 shall be decided by those who attend 
 and vote. It is upon imputing the 
 preferences of the larger number of 
 voters to the indifferents, and not upon 
 anj' absurd imagining that there are no 
 indifferents, that the doctrine of the 
 authority of majorities rests. When 
 this principle is applied to an election 
 upon an amendment, the result is sim- 
 ple and clear. The will of the people 
 of the State is inferred from the largest 
 number of votes for or against the 
 amendment. If there were voters who 
 came out to vote for officers, thereby 
 showing that nothing whatever pre- 
 vented them from voting on the amend- 
 ment, they, above all other persons, 
 may reasonably be supposed to have 
 consented that the amendment should 
 abide the contest between its friends 
 and its foes. 
 
 Wisconsin has decided substantially 
 this question in favor of this view. 
 [Gillespie v. Palmer, 20 Wis. 544.] 
 So has Minnesota in three cases. [Taj'- 
 lor V. Taylor, 10 Minn. 107 ; Bayard 
 V. Klinge, 16 Jd. 249; Everett v. 
 Smith, 20 Id. 53.] The question of 
 removing a county seat has in the latter 
 State been submitted to popular vote : 
 and the supreme court has been asked 
 to disregard the majority vote on the 
 ground that it was less than half of the 
 
106 
 
 CONSTITUTION. 
 
 electors in the county. But the court 
 answered that, when a question is put 
 to the people, and is made to depend 
 on the vote of a majority, there can be 
 no other test of the number entitled to 
 vote than the ballot-box. If there be 
 some who do not attend and vote, it 
 must be presumed that they concur 
 with a majority of those who do. 
 
 Construction. A grant of power in the 
 national constitution should be construed 
 according to the fair meaning of the lan- 
 guage, and is not necessarily limited by the 
 state of facts existing when the consti- 
 tution was adopted, 2d Circ. {N. F.) 
 1877, Matter of Jackson, 14 Blatchf. 245. 
 
 The maxim that " the king can do no 
 Wrong" has no application in American 
 constitutional' law. Tortious acts, such as 
 dispossessing a land-owner, do not lose 
 that character, or become remediable as 
 raising implied contracts, merely because 
 they are committed by an officer of the 
 United States on behalf of the govern- 
 ment. Supreme Ct. 1879, Langford v. 
 United States, 101 U. S. 341. 
 
 The provision of U. S. Const, art. 4, 
 § 2, giving the citizens of each State all 
 privileges of citizens in the several States, 
 must be confined to those privileges and 
 immunities which are fundamental in 
 their natui'e, — such as the right to ac- 
 quire and hold property, to institute and 
 maintain actions, the exercise of the elective 
 franchise in conformity to the laws of the 
 State in which it is exercised — and was 
 evidently intended to abolish the common- 
 law disabilities of residents of the several 
 States ; the States to a certain extent being 
 foreign to each other. It was not intended 
 to prohibit distinctions founded on resi- 
 dence, — such as the right to hold certain 
 property exempt from execution ; the right 
 to fish in the waters of the State, the 
 right to vote, and other rights depending 
 on residence. Thus a State law author- 
 izing attachment against property of a 
 non-resident (but not of a resident) with- 
 out an undertaking is not void. Supreme 
 Ct. 1879, Marsh v. Steele, 9 Neb. 98. Con- 
 sult Citizen. 
 
 Words found in a constitution as well 
 as those in a statute, are to be understood 
 in their ordinary signification. A consti- 
 
 tution, like any other instrument, admits 
 ' of no interpretation other than that which 
 the common understanding places upon it 
 where no technical words are employed. 
 It should not be hampered by judicial con- 
 struction, so as to render it impracticable 
 or inoperative. That which is plainly ex- 
 pressed admits of no construction. Sxi- 
 preme Ct. 1878, People v. Wall, 88 III. 75. 
 
 Only general powers can be declared in 
 a constitution ; and when power is granted 
 to a legislature for any specified purpose, 
 it caiTies by implication eveiything ne- 
 cessary to make it effectual, or which is 
 requisite to attain the end in view. Power 
 to establish appellate courts carries with it 
 the power to provide for judges to hold the 
 same. lb. 
 
 In the absence of restriction or hmita- 
 tion in the State constitution, the legis- 
 lative body possesses plenary power in all 
 matters of legislation: thus a power con- 
 ferred without limitation as to time of ex- 
 ercise may be exercised at any time in the ■ 
 discretion of the legislature ; the courts can- 
 not say that it has been lost by delay. /J. 
 
 Questions of the construction of a con- 
 stitution which has been long in, force are 
 not to be decided by a mere interpretation 
 of the language of the instrument, hut are 
 in a great degree historical questions, upon 
 which the practical exposition by those 
 branches of the government charged with 
 the 'duties of administration and legisla- 
 tion, especially if nearly contemporaneous 
 with the establishment of the constitution, 
 and followed and acquiesced in for a long 
 period of years afterwards, is never to be 
 lightly disregarded, and is often couplusive. 
 This rule of construction has been fre- 
 quently applied by the courts as a test of 
 the constitutionality of acts of the executive 
 or of the legislative departments. Opinion 
 of the Justices, 126 Mass. 557, 594. 
 
 There is a strong presumption in favor 
 of the constitutionality of a law passed al- 
 most contemporaneously with the adoption 
 of the constitution, and long and uni- 
 vereally acquiesced in. No court would 
 be justified in declaring such alaw invalid, 
 unless forced to do so by the most cogent 
 and conclusive reasoning. Supreme Cl- 
 1879, State v. Kinkead, 14 Nev. 117. 
 
 A State constitution is to be construed 
 not as being the grant of power to the 
 legislature, but as expressing restrictions 
 
CONSTITUTION. 
 
 107 
 
 iinposed upon its inherent power. Su- 
 preme Ct. 1879, Richards v. Raymond, 92 
 III. 612; State v. Dodge Co., 8 Neb. 124. 
 
 Therefore a provision that the legis- 
 lature may vest certain municipalities 
 with power to make local impi-ovements 
 by special assessment or taxation of prop- 
 erty benefited, operates only to limit the 
 way in which cost of improvements in such 
 municipalities shall be apportioned ; it does 
 not restrict the legislature from confer- 
 ring upon other municipalities than those 
 mentioned, power to make local improve- 
 ment^ at the special cost of property bene- 
 fited. [4 Neb. 540.] Supreme Ct. 1879, 
 State V. Dodge Co., 8 Neb. 124. 
 
 In creating a legislative department and 
 conferring on it legislative power, the people 
 must be understood to have conferred full 
 and complete legislative power, to the ex- 
 tent that such power may be exercised by 
 the governing power of any country, sub- 
 ject only to constitutional restrictions. 
 And a court cannot declare a statute un- 
 constitutional and void, solely on the 
 grounds of its unjust and oppressive pro- 
 visions ; nor because it is supposed to violate 
 the natural, social, or political rights of the 
 citizen not guaranteed by the constitution 
 itself; nor because it appears to violate 
 the fundamental principles of a republican 
 government, not forbidden by the consti- 
 tution itself to be violated. For a court 
 cannot legitimately substitute its own judg- 
 ment for that of the legislature in any case 
 properlyVithin its power under the con- 
 stitution. A statute, before it can be de- 
 clared void by the courts, must be clearly 
 in violation of some provision of the con- 
 stitution of the State or of the United 
 States. But if a legislature passes an act 
 which is not properly a statute because 
 not legislative in its character, such an act 
 must be declared void by the courts, be- 
 cause the constitution has conferred on 
 the legislature only legislative power. No 
 court, for instance, would hesitate to de- 
 clare void an act which enacted that A 
 and B, who were husband and wife to each 
 other, should be so no longer, but A 
 should thereafter be the husband of C and 
 B the wife of D., or which should enact 
 that the homestead now owned by A 
 should be no longer his, but should be 
 henceforth the property of B. These would 
 be despotic acts not legislative in their 
 
 character ; and therefore the power to pass 
 such acts is not conferred by the constitu- 
 tion on the legislature. So an act of the 
 legislature purporting to transfer a fund 
 bequeathed to one corporation unto an- 
 other one should be declared void. Ct. of 
 Appeals, 1878, Brooke Academy v. George, 
 14 W. Va. 411. 
 
 A " local-option law " is not unconsti- 
 tutional. The legislature, on passing an 
 act restricting sales of liquor, may pro- 
 vide that it shall not take effect in any 
 particular county or locality until it shall 
 be ratified by the majority of the voters 
 at a popular election. It is essential 
 under our form of government that every 
 legislative enactment must be complete in 
 itself, and take effect as a law at the time 
 it leaves the hands of the legislative depart- 
 ment, and if the act has no inherent force 
 or vitality as a law when appi-oved by the 
 Executive, it cannot become a law by reason 
 of a popular vote approving its provisions. 
 But while the law-making power cannot 
 delegate to the people the right to assemble 
 and frame such laws as may be deemed 
 best for their own interests, and to adopt 
 them by a popular vote, it is not incon- 
 sistent with our representative system of 
 government to consult the popular wiU as 
 to the propriety of a law already enacted. 
 Ct. of Appeals, 1878, Commonwealth v. 
 Weller, 14 Bush {Ky.), 218. 
 
 And there is no objection to the lan- 
 guage of a provision that the law shall not 
 take effect until it is ratified by a majority 
 of the voters of the country. The popu- 
 lar will expressed for or against the pro- 
 visions of the law does not in any manner 
 destroy or affect the legislative intent. 
 The law was enacted in order that the 
 people of each county might accept or re- 
 ject its provisions, and it was in force and 
 effectual as a law for that purpose when it 
 left the hands of the Executive with his 
 approval. When it passed the legislature 
 and was signed by the Executive, it then 
 became a law, and by reason of the law 
 the people interested in its passage were 
 authorized to vote for or against its pro- 
 visions; that its operation is made to de- 
 pend on the popular will is a part of the 
 law itself. lb. 
 
 An exclusive privilege conferred by the 
 State constitution — here Mass. Const, art. 
 7, § 3, cl. 1, to originate " money bills " — 
 
108 
 
 CONSTITUTION. —CONTRACT. 
 
 should be deemed limited to bills that 
 transfer money or property from the peo- 
 ple to the State; it does not, however, in- 
 clude bills that appropriate money from the 
 treasury of the State. Opinion of the Jus- 
 tices, 126 Mass. 557. 
 
 The provisions of Mo. Const. 1865, art. 11 , 
 § 14, did not take away from a county au- 
 thority previously conferred by statute to 
 subscribe for stock in a railroad company. 
 [93 U. S. 567; 94 Id. 682.] Supreme Ct. 
 1877, Macon County v. Shores, 97 U. S. 
 272; 1878, Schuyler County v. Thomas, 98 
 Id. 169. 
 
 A new provision in a State constitution, 
 — e.g. Miss. Const. 1869, § 14, declaring 
 " the legislature shall not authorize any 
 county, city, or town to become a stock- 
 holder in, or to lend its credit to, any com- 
 pany, association, or corporation, unless 
 two thirds of the qualified voters of such 
 county, city, or town, at a special election 
 or a regular election, to be held therein, 
 shall assent thereto," — should be con- 
 strued prospectively, and not enforced so as 
 t6 abrogate previous acts of the legislature 
 conferring authority to subscribe for stock. 
 Supreme Ct. 1878, Supervisors v. Galbraith, 
 99 U. 8. 214. 
 
 A constitutional provision prohibiting a 
 city to become indebted beyond a pre- 
 scribed limit, if clearly expressed, must 
 be enforced as it is written. When the 
 intention of the f ramers of the constitution 
 is ascertained, it must be held paramount 
 to all other powers in the State. It em- 
 bodies the sovereign power of the State, by 
 virtue of which alone all legislative, exec- 
 utive, and judicial power is exercised. It 
 is the source to which all the departments 
 of government and all of its officers must ul- 
 timately look to authorize or sanction their 
 official acts. It not only confers, but it 
 limits the exercise of governmental powers 
 to the mode prescribed. Nor is there lodged. 
 
 Contract. The various species of contracts 
 known by distinct names are chiefly treated under 
 those names, such as Assignmknt; Bailment; 
 Bills and Notes; Bond; Deed; Guaranty; 
 Insurance; Mortgage; Partnership; Sale, 
 Services; and the lilte. Disability to con- 
 tract, and rules governing contracts peculiar to 
 particular iicrsonal I'elations, are under the titles of 
 classes of persons and of the relations; thus; for 
 indentures, See Aitrentice; retainer of attorney, 
 Attorney ; limitations of liability of carriers gen- 
 erally, (^arrier; defence of infancy, Infant; dis- 
 abili'tv of lunatic, Insane, &c. As to contracts of 
 
 in our form of government, in any depart- 
 ment or functionary, any authority to dis- 
 pense with this or other provisions of the 
 fundamental law, or to mitigate its require- 
 ments. Negative or prohibitory clauses of 
 this character found in a constitution exe- 
 cute themselves, for legislative provisions, 
 repeating the prohibition in the same or 
 other language, could be no more binding 
 or forcible than the constitution itself. 
 Supreme Ct. 1877, Law v. People, 87 lU. 
 385. 
 
 Courts are not authorized to allow viola- 
 tions or departures from a plain and em- 
 phatic provision of the constitution because 
 its operation is found to cause hardship; 
 nor should they for such purpose resort to 
 strained construction or astute interpreta- 
 tion, lb. 
 
 Adoption and amending. The Ala- 
 bama constitution took effect by congress- 
 ional approval June 25, 1868 (15 Stat, at 
 L. 73.) Supreme Ct. 1876, Irwin u. Mo- 
 bile, 57 Ala. 6. 
 
 The mode of proposing and voting upon 
 amendments to the constitution of Arkan- 
 sas prescribed in minute detail. Ark. 
 Laws 1879 (April 2), 128, ch. 80 , 
 
 CONTRACT. Authority of Congress. 
 Congress cannot by a legislative act vary 
 the terms of a contract made under due au- 
 thority of law, for a specific time, by duly 
 authorized agents of the government. 1878, 
 Chicago, &c. R. R Co. v. United States, 14 
 Ct. of CI. 125. 
 
 The rule that, where a contract is partly 
 in print and partly in writing, the written 
 portion will be deemed the part more care- 
 fully considered, and more likely to express 
 the true intention of the parties, applies ta 
 government contracts. 1878, Merriam v. 
 United States, 14 Ct. of CI. 289. 
 
 — or of State legislature. A State 
 law granting to debtors a reasonable ex- 
 emption of homestead or personal property 
 
 corporations generally, Cokpohation; of the vari- 
 ous corporations, Banking ; Express; Insueasce; 
 Municipal Corporations; Kailroad; Tele- 
 graph. 
 
 No contract to pardon where accomplice is ad- 
 mitted as State's evidence, p. 9 Whether execu- 
 tory sale of mare includes foal, p. 22. Army con- 
 tracts, p. 28. Minor decisions on assignment, p. 30. 
 I Contracts as affected by by-laws of association, 
 I p. 31. Validity of some national-bank contracts, 
 j p. 27; of contracts limiting carrier's liability, p. 67; 
 1 under civil rights laws, p. 92. New books on Con- 
 I tracts, Anson, Cole, Lawson; Schoulkr. 
 
CONTRACT. 
 
 109 
 
 from execution for debts is not necessarily 
 void for impairing the obligation of con- 
 tracts, even in application to debts pre- 
 viously contracted. [96 U. S. 595 ; 41 Mm. 
 119; 49 Id. 790.] This is upon the prin- 
 ciple that the legislature may, in the pur- 
 suit of an enlightened public policy, and 
 on principles of humanity, reserve to the 
 debtor, by exemption from execution, the 
 reasonable means of carrying on his busi- 
 ness and occupation, and a reasonable 
 amount of the necessai'ies of life ; and that 
 this will not impair the obligation of pre- 
 vious contracts. The creditor knows, when 
 he lends his credit, that the legislature may 
 make such reasonable exemptions. Su- 
 preme Ct. 1879, Taylor v. Stookwell, 66 
 Ind. 505. 
 
 The construction of a contract does not 
 depend upon what either party understood, 
 but upon what botli agreed. Supreme Ct. 
 1880, Pendleton v. Jones, 82 N. C. 249. 
 
 Validity. The doctrine that neither of the 
 parties to an immoral or unlawful contract 
 which has been executed will be allowed 
 to recover back his consideration if both 
 were in pari delicto is subject to these limi- 
 tations: J. When the law which the trans- 
 action contravenes is designed for the 
 coercion of one party or the protection of 
 the other ; or, 2. Where one party is the prin- 
 cipal offender and the other acquiesces by 
 constraint of circumstances, the two are uot 
 regarded as equally in fault, and the lesser 
 offender may be relieved, notwithstanding 
 the transaction has been consummated ; 3. 
 So long as the transaction has been but 
 partially performed, there is a locus pceni- 
 tenlicE, and either party may rescind, after 
 which he may be relieved. 2d Circ. (N. Y.) 
 1877, Knowlton v. Congress, &c. Spring 
 Co., 14 Blatchf. 364; 17 Alb. L. J. 10. 
 
 A corporation instituted proceedings to 
 increase its stock, and K., who was a stock- 
 holder and trustee, took part in them and 
 subscribed for some o£ the new shares. 
 The proceedings were, however, illegal. 
 The agreement of subscription provided 
 that payments should be made as called by 
 the directors, and that any subscriber fail- 
 ing to pay a call should forfeit all previous 
 payments. K. paid the iirst call on his 
 shares, but failed to pay the second, and a 
 forfeiture was declared against him. No 
 scrip was, however, issued to any of the 
 subscribers for the increased stock, but the 
 
 project of increase was abandoned. K. 
 then brought this action to recover back 
 the sum he had paid. Held, that he might 
 recover [disapproving 57 N. Y. 518]. The 
 doctrine as to refusing a recovery where 
 the contract is illegal and the parties equally 
 in fault did not apply, because, until the calls 
 were all paid and the scrip issued, the trans- 
 action continued executory, and the plaintiff 
 had a locus poenitenticB. lb. 
 
 The objection that a contract for labor 
 or supplies furnished to government, was 
 not founded upon an advertisement for bids 
 as prescribed by law can be taken only on 
 behalf of the government. It is not avail- 
 able to a third person if the officers of gov- 
 ernment have not questioned the contract. 
 1877, DriscoU v. United States, 13 Ct. of 
 CI. 15; alf'd, 96 U. S. 421. 
 
 Law of place. Where a person orders 
 goods by a letter mailed in one State, but 
 addressed to and delivered in another State, 
 and the goods are put up for him in the 
 latter State, and there delivered to a car- 
 rier, the contract is, generally, to be 
 deemed made in the latter State; audits 
 validity, even as regards the capacity of 
 the person writing the letter to make 
 the contract, will be determined by the 
 law of the latter State. Thus a guar- 
 anty signed in Massachusetts by a married 
 woman there domiciled, and sent by mail 
 to another State, and assented to and acted 
 upon there, may be enforced by action in 
 Massachusetts if, by the law of the other 
 State, a married woman might give such a 
 guaranty. It is only by the comity of 
 other States that laws can operate beyond 
 the limit of the State that makes them. 
 But in the great majority of cases, especi- 
 ally in this country, where it is so common 
 to travel, or to transact business through 
 agents, or to correspond by letter, from one 
 State to another, it is more just, as well as 
 more convenient, to have regai'd to the law 
 of the place of the contract as a uniform 
 rule operating on all contracts of the same 
 kind, and which the contracting parties 
 may be presumed to have in contempla- 
 tion when making their contracts, than to 
 require them at their peril to know the' 
 domicile of those with whom they deal, 
 and to ascertain the law of that domicile, 
 however remote, which in many cases 
 could not be done without such delay as 
 would greatly cripple the power of con- 
 
110 
 
 CONTRACT. 
 
 traoting abroad at all. As, however, the 
 law of another State can neither operate 
 nor be executed in this State by its own 
 force, but only by the comity of this State, 
 its operation and enforcement here may be 
 restricted by positive prohibition of stat- 
 ute. A State may always, by express en- 
 actment, protect itself from being obliged 
 to enforce in its courts contracts made 
 abroad by its citizens, which are not 
 authorized by its own laws. Supreme Ct. 
 1878, Milliken v. Pratt, 125 Mass. 374. 
 
 Performance. The doctrine that a con- 
 tract for personal services requiring skill, 
 and which can only be performed by thb 
 particular person named, is subject to the 
 implied condition that the person is able 
 to perform at the time agreed, so that if he 
 dies or is disabled performance is excused, 
 has been applied in a case against the 
 manager Carl Rosa, involving a failure of 
 Wachtel to sing as appointed. The mana- 
 gers of the Olympic Theatre ih St. Louis 
 contracted with Rosa that he should 
 furnish in their theatre performances by 
 the Wachtel Opera Troupe, of which 
 Wachtel was the leader and. chief attrac- 
 tion. Wachtel's illness prevented him 
 from singing at the time appointed; there- 
 fore the performance did not take place. 
 The managers of the theatre sued Rosa for 
 the failure to furnish the troupe as agreed. 
 Held, that the sickness and disability of 
 Wachtel, having occurred without the fault 
 of defendants, was a valid excuse for the 
 failure to perform, and a good defence to 
 the action. Ct. of Appeals, 1877, Spald- 
 ing V. Rosa, 71 N. Y. 40. 
 
 The proprietors of patented butts en- 
 tered into a written agreement with the 
 projectors of a book, that, " Whereas said 
 Burr & Co. are about to publish a book 
 entitled ' The Great Industries of the 
 United States,' which will be sold by sub- 
 scription through their authorized agents 
 in every State in the Union and in Canada; 
 and, whereas in said work is to appear an 
 article on spiral spring butts, to occupy a 
 space of six pages ; now, therefore, in con- 
 sideration of said Burr & Co. incorporating 
 in said article, to the acceptance of said 
 company, their biography, &c., and pub- 
 lishing the same in the forthcoming edition 
 of said work, said company agrees to pay 
 to said Burr & Co. the sum of two cents 
 for six pages of said article, for every copy 
 
 of said work sold by said Burr & Co," 
 The book, with the article in it, was pub, 
 lished; but the publisher's action for the 
 contract price for inserting the article was 
 defended on the ground that they did not 
 show sales in every State and in Canada. 
 Held, that this proof was not necessary. 
 The recital of intention to make such sales 
 did not have the effect of constituting them 
 a condition precedent to any liabiHty of 
 defendant. Showing that copies had been 
 sold by the plaintiffs themselves was suf- 
 cient. Supreme Cl. 1879, Burr v. Ameri- 
 can Spiral Spring Butt Co., 17 Hm (N 
 F.),188. 
 
 The plaintiff entered into a special con- 
 tract with the defendants to publish a 
 newspaper upon certain terms, the de- 
 fendants agreeing to furnish him 1,000 sub- 
 scribers by a certain day. They failed to 
 furnish the same, and the plaintiff sus- 
 pended the publication of the paper. 
 Held, that the plaintiff was under no obli- 
 gation to go on with the paper, but was 
 authorized in law to treat the contract 
 as rescinded, and became entitled to re- 
 cover for his losses sustained by the non- 
 performance of the stipulations on the 
 part of defendants, upon the promise or 
 obligation implied by the law in such 
 cases. Supreme Ct. 1880, Jones v. Mial, 
 82 N. C. 252. 
 
 An artist brought suit to recover the 
 contract price for painting a portrait of 
 the deceased daughter of defendant. The 
 proof showed that the artist solicited the 
 commission, and that the engagement was 
 that defendant should pay if the picture 
 proved one which he liked and recognized 
 as a good picture ; if it was perfectly satis- 
 factory to him. The defendant, however, 
 rejected the picture when finished, and re- 
 fused to advise the artist as to remedying 
 defects. Held, that the artist could not 
 recover, since the picture was not satisfac- 
 tory to defendant. It may be that the 
 picture was an excellent one and that 
 the defendant ought to have been satisfied 
 with and accepted it, but under the agree- 
 ment the defendant was the only person 
 who had the right to decide this question. 
 Where parties thus deliberately enter into 
 an agreement which violates no rule of 
 public policy, and which is free from 
 all taint of fraud or mistake, there is no 
 hardship whatever in holding them bound 
 
CONTRACT. 
 
 Ill 
 
 by it. Artists or third parties might con- 
 sider a portrait an excellent one, and yet it 
 prove very unsatisfactory to the person 
 who had ordered it, and who might be un- 
 able to point out -with clearness or certainty 
 the defects or objections. And if the person 
 giving the order stipulates that the portrait, 
 when finished, must be satisfactory to him, 
 or else he will not accept or pay for it, and 
 this agreed to, he may insist upon his right 
 as given him by the contract. [7 Gray, 
 141 ; 113 Mass. 136.] Supreme Ct. 1878, 
 Gibson v. Cranage, 39 Mich. 49. 
 
 Minor Decisions on Contract. 
 Power to legislate affecting contracts. 
 
 A State law for cancellation and reissue 
 of warrants, requiring holders of warrants 
 already issued to submit them for inquiry 
 as to their validity, &c., is void, as impair- 
 ing the obligation: i'A Ark. 81; as respects 
 warrants afterwards issued, it is valid: Id. 
 740. To abolish one of two remedies al- 
 lowed for a breach is not impairing the 
 obligation: 47 Iowa, 269. A State may 
 abolish imprisonment for existing debts; 
 this impairs the remedy but not the obli- 
 gation: 9 S. C. 13. 
 
 Common-law requisites. Offer made 
 by mail must be promptly and uncondi- 
 tionally accepted, or the party is not holden : 
 90 III. 525. Mutual promises to arbitrate 
 are a good consideration for each other: 
 74 N. Y. 38. Company's giving notice 
 of election to rebuild, under option in the 
 policy, supersedes the c. of insurance and 
 binds absolutely by an agreement to re- 
 build: 75 N. Y. 7. Wife's promise to charge 
 separate estate with payment of her note 
 maybe in separate paper: 76 N. Y. 196. 
 Observance of charter requirements as to 
 advertising and deliberation upon plan 
 of street improvements, — held, a condition 
 precedent to any c. ; 47 Wis. 267. 
 
 Construction is for the court; unless the 
 words used or the intent in using them is 
 in dispute; those questions are for the jury: 
 20 Alb. L. /. 10; 8 Reporter, 327. The 
 latest of several inconsistent contracts 
 must control: 13 Ct. of CI. 269. What 
 regard is paid, in construction, to punctua- 
 tion: St III. 89. Construction of peculiar 
 C. made by telegraph: 87 III. 98; of c. be- 
 tween a railroad and telegraph company 
 for construction and use of telegraph line 
 along the road: 86 III 246. C. of seller of 
 
 goodwill of business not to continue man- 
 ufacture or sale of " N.'s Liquid Extract 
 CEnothera" does not forbid another prep- 
 aration differently made from same herb: 
 87 III. 215. Between the parties a memo- 
 randum on back of note, " this note to be 
 paid in wheat," is a part of the note: 
 8 Neh. 379. Written matter filling blanks 
 in a printed form is better evidence of 
 the intention than the printed words: 76 
 N. Y. 32. In a policy of insurance, the 
 place of the c. is the one where the appli- 
 cation is accepted: 7 Reporter, 171 ; and see 
 Id. 136. 
 
 Validity. Intoxication, to avoid obliga- 
 tion, must have been such as to depiive the 
 party of reason: 51 Iowa, 208. Modern 
 law does not discourage unconscionable 
 defences ; here, that c. in suit was illegal 
 because made in aid of the Confederacy: 
 61 Ala'. 288. An agreement with a pre- 
 emptioner not to oppose, in the United 
 States land office, his application for a 
 patent, is illegal and void: 52 Cal. 624. 
 The c. of a "lobbyist," i. e., for personal 
 services and influence in procuring passage 
 of a law, is void, as against public policy: 
 22 Kan. 692. So is a candidate's engage- 
 ment that, if elected, he will give a share 
 of the compensation in return for aid and 
 influence : 14 Nev. 175 ; or an engagement 
 to pay a candidate for withdrawing in favor 
 of another: 87 Pa. St. 63. Ante-nuptial 
 agreement, by which intending wife releases 
 dower, &c., may be valid; but will be 
 scrutinized and adjudged void if any de- 
 ceit appears: 71 N.Y. 154. Agreement to 
 buy or sell shares at promisee's option is 
 not presumed to be void as a gaming c. ; 
 illegal intent must be proved: 71 N. Y. 
 420. A c. with a person aged and infirm, 
 to be enforced out of his estate after his 
 death, to the prejudice of hi.s heirs or dis- 
 tributees, will be regarded with scrutiny and 
 disfavor: 72 N. Y. 400. Appointing power 
 cannot bind appointee by an engagement 
 that he will perform the duties of the office 
 for a less sum than the compensation 
 named by law: 75 N. Y. 38. One con- 
 tracting party cannot complain that the 
 other did not volunteer material informa- 
 tion unless there was some relation im- 
 posing a duty to give information, or some 
 artifice or misrepresentation to mislead: 75 
 N. Y. 55. The mere fact that one of the 
 parties to a contract was old, and was the 
 
112 
 
 CONTRACT. — CONVERSION. 
 
 grandfather and employer of the other, does 
 not throw upon the other the burden of 
 proving fairness in the c. : 75 N. Y. 91. 
 Affinity, where the relation between broth- 
 ers-in-law does not raise a presumption of 
 duress or undue influence : 45 N. Y. Su- 
 perior Cl. 80. A c. made on Sunday may 
 be rendered valid by any action of the par- 
 ties on a subsequent week-day which clearly 
 recognizes it as obligatory: 51 Vt. 334. 
 
 Modiflcation ; rescission ; reforma- 
 tion. Time given by sealed submission 
 for making award may be extended orally, 
 or waived: 74 N. Y. 38. Notice of rescis- 
 sion may be given on Sunday (in Nevada) : 
 99 U. S. 578. Releasor cannot have re- 
 lease given upon compromise set aside for 
 fraud, if he retains the consideration: 76 
 N. Y. 36. Judgment against plaintiff in 
 an action upon a written c. as it reads, bars 
 him from suing to reform it: 77 N. Y. 
 498. To warrant reforming a written 
 agreement there must be mutual mistake ; 
 mistake of one party may be ground for 
 rescinding, but not for reforming : 13 Ct. of 
 C/. 822; 50 Afrf. 524. 
 
 Performance and recovery. Agree- 
 ment to pay a debt to a third person may 
 be enforced by him: 8 Cent. L. J. 272; 
 7 Reporter, 550. The recovery for a par- 
 tial performance, accepted, of a c. to 
 perform a specified work for an entire 
 price, should be, generally, the c. price, 
 less the cost of completing the work: 33 
 Ark. 751. Omission of architect to state 
 in certificate that building has been com- 
 pleted "according to the specifications" 
 will not defeat an action for the price de- 
 oendent, by the c, upon the production of 
 m architect's certificate : 92 111. 559. What 
 :ompletion of a building is performance of 
 1 C. to erect a described manufactory within 
 I specified time: 62 Ind. 412. Employer 
 ;annot be compelled to receive building 
 iiffering from specification, even though 
 ;on tractor oifers to allow for the deficiency: 
 59 Mich. 431. Ambiguous promise must 
 56 performed in that sense in which the 
 promisor, when he made it, supposed the 
 jromisee received it: 73 N. Y. 505. A 
 itipulation that work shall be paid for 
 )nly on approval of architect, engineer, 
 kc, does not preclude recovery on proof 
 hat the work has been well done and the 
 
 Contribntion. Action for stoi-kholder's contri- 
 )ution to capital survives liis death, p. 6. 
 
 certificate is fraudulently or wrongfully 
 withheld: 10 S. C. 122. 
 
 Government contracts. By what of- 
 ficial action and formalities they are to be 
 made: li Ct. of Cl. 280. Effect of notice 
 from head of department to change con- 
 tract: Id. 125; Id. 74; or from Con- 
 gress: 13 Id. 108; 98 U. S. 104; or of fail- 
 ure to answer notice from contractor: 14 
 Cl. of Cl. 263. Application of the "eight 
 hours' law ": 18 Id. 15; 14 Id. 200; 96 U. 
 S. 421. Agreement to deliver hay, hdi a 
 c. for sale and delivery, not for services 
 in cutting and hauling: 97 U. S. 233; held, 
 to imply a license to cut on government 
 land: 14 Ct. of Cl. 84. A c. for "good, 
 soft wood," held to require dry wood: 
 Id. 84. A contractor cannot be required, 
 after unloading pursuant to orders, to load 
 again and deliver elsewhere: Id. 59; "more 
 or less " does not entitle him to furnish all 
 that is required by the wants of govern- 
 ment: Id. 289; and acts of parties may 
 determine construction of ambiguous con- 
 tract: lb. Directing alteration in per- 
 formance implies a consent to a reasonable 
 extension of time which may be needful: 
 13 Id. 209; 14 Id. 208; what shows assent 
 of contractor to such changes: 14 Id. 208, 
 235, 514; contractor not allowed, under cir- 
 cumstances, to adopt a delivery of goods by 
 a third person: 18 Id. 97; recovery for 
 extra work: 14 Id. 514; in building a wall: 
 13 Id. 372 ; effect of delay in furnishing 
 supplies per contract: 14 Id. 263; in build- 
 ing a wall: 99 U. S. 30; what shows ac- 
 ceptance of construction work : 14 Ct. of 
 Cl. 514; and what estimates of work done 
 and payment in them will bind contractor; 
 Ih. Effect of government officers hinder- 
 ing contractor from performing: Id. 84, 
 208, 235, 453 ; of mistakes in official esti- 
 mate of performance: 97 U. S. 398; agent 
 not allowed to claim more than his princi- 
 pal might for transportation service: 13 Ct. 
 ofCl. 136. 
 
 CONVERSION. Worthington, being the 
 general owner of a quantity of wheat, which 
 was stored in his name at Buffalo, but was 
 subject to a lien in favor of the Manufac- 
 turers' Bank, contracted orally to sell it 
 for cash to Nims. He gave to Nims an 
 order upon the warehouse where the wheat 
 was stored, to deliver it to the Erie Railway 
 
 Conversion of gold bank to currency bank, 
 p. 1. 
 
CONVERSION. — COPYRIGHT. 
 
 113 
 
 Co. , subject to order. The company, upon 
 mere production of this order, and without 
 asking any evidence of Nims's title to the 
 wheat; gave to him a bill of lading stating 
 that the wheat was shipped by him to New 
 York subject to the order of the Farmers' 
 Bank; and upon this bill he obtained an 
 advance from the latter bank. The com- 
 pany obtained the wheat from the ware- 
 house and carried it to New York, where it 
 was sold by the Farmers' Bank to reimburse 
 the advance. The Manufacturers' Bank, 
 however, sued the Farmers' Bank upon 
 these facts for a conversion of the wheat, 
 and recovered a verdict which the Farmers' 
 Bank paid. Held, that the Farmers' Bank 
 was entitled to recover from the railroad 
 company the damage it had thus sustained 
 through the negligent or wrongful act of 
 the company in issuing the bill of lading in 
 the name of Nims. Ct. of Appeals, 1878, 
 iFarmers', &c. Bank v. Erie Ry. Co., 72 
 N. Y. 188. 
 
 An action for conversion may be sus- 
 tained by proof of wrongful destruction of 
 plaintiff's property; as where defendant 
 contrived to melt ice stored in plaintiff's 
 room, without, however, manually interfer- 
 ing with it. Supreme Ct. 1878, Aschermann 
 V. Philip Best Brewing Co., 45 Wis. 262. 
 
 One who, by means of false representa- 
 tions, obtains chattels in exchange for an 
 invalid deed of land is liable as for a con- 
 version of the chattels. Supreme Ct. 1879, 
 Skinner v. Brigham, 126 Mass 132. 
 
 The unauthorized transfer of plaintiff's 
 property by defendant, though without 
 wrongful intent and before demand, is 
 still a conversion. 2d Circ. (N V.) 1879, 
 Savary v. Germania Bank, 7 Reporter, 615. 
 
 COOLEY. The General Principles of 
 Constitutional Law in the United States of 
 America. By Thos. M. Cooley. Bos- 
 ton : Little, Brown, & Co. 
 
 A volume in the Student Series. Its 
 topics are : Rise of the American union ; 
 Definitions and general principles; Dis- 
 tribution of powers of government; The 
 powers of Congress and of the Federal ex- 
 ecutive; The judicial department; Checks 
 and balances in tlie government; The gov- 
 ernment of the Territories ; Admission of 
 new States; Constitutional rules of State 
 comity; The guaranty of republican gov- 
 ernment; Amendments; Civil rights; Po- 
 litical privileges; Protection of accused 
 8 
 
 persons, and of contracts and property; 
 Municipal corporations. 
 
 As a concise exposition of the general 
 principles and leading rules within the 
 field, the volume has been warmly com- 
 mended. 
 
 COPYRIGHT. The questions of the 
 nature of literary property and the duty 
 of protecting it by copyright law have 
 been discussed with increased frequency 
 and earnestness. Foreign essays and 
 arguments upon the duty of Congress 
 in this regard do not sufficiently recog- 
 nize the liqiitations imposed bj^ the 
 United States constitution. Almost 
 all discussions abroad have rested the 
 claim to international copyright upon 
 the abstract right. Thus the session 
 of the literary congress at Paris adopt- 
 ed, as the basis of all its practical rec- 
 ommendations, the general declarations 
 that the right of an author is perpetual ; 
 and is not a legal concession, but a mode 
 of property which the legislature is 
 bound to guarantee. And the notable 
 presentments of the claim to interna- 
 tional copyright have been in the same 
 vein. 
 
 It deserves attention that all efforts 
 to place protection of literary property 
 in the United States on this basis in- 
 volve a necessity of amending the con- 
 stitution. The power conferred on 
 Congress to pass copj-right laws is 
 thus expressed : to promote the prog- 
 ress of science and useful arts by se- 
 curing, for limited times, to authors, 
 the exclusive right to their respective 
 writings. Only a very few years be- 
 fore the adoption of the constitution, 
 the noted decision of the House of 
 Lords was rendered, declining to rec- 
 ognize copyright after publication as 
 a common law, i.e. natural inherent 
 light of immemorial vitality, and de- 
 ducing it as a legislative grant or priv- 
 ilege from the statute of Queen Anne's 
 reign. It is probable that the conven- 
 tion did not re-examine the foundations 
 of this question. The}- were convened, 
 
114 
 
 COPYRIGHT. 
 
 not to investigate the foundations of 
 law and rights, but to make a judicious 
 and convenient apportionment of var- 
 ious legislative powers between the 
 States and Congress. Not : What is 
 the nature and basis of copyright ? but, 
 Is it a state or national question? was 
 the prominent inquiry. The limited 
 accounts of their discussions, which 
 have come down, indicate that they 
 gave no examination of the nature and 
 little of the proper assignment of this 
 topic, but promptly declared it to be a 
 topic for Congress, not for the States, 
 and passed onward to questions of 
 greater practical moment. But, however 
 this may be, the}' adopted, inadvertently 
 or deliberately, the prevalent doctrine 
 of the times. The suggestion has been 
 made, and has force, that the expression 
 securing to authors is consistent with the 
 idea that there exists already a natural 
 right to be secured, and does not re- 
 quire renouncing a common-law prop- 
 erty, or confine Congress to a grant of 
 a new privilege. But no such escape 
 seems practicable from the views that 
 the general purpose of any constitu 
 tional law must be a promotion of the 
 progress of science, not a submission to 
 claims of abstract ownership, and that 
 copyright can be granted only "for 
 limited times." A perpetual copyright, 
 or a copyright founded wholly on the 
 idea of protecting a natural author's 
 right, cannot, it would seem, be con- 
 ferred by act of Congress founded on 
 the present copyright power. And 
 this is practically, perhaps not neces- 
 sarily, a Umit upon what can be asked 
 in any copyright treaty. 
 
 Under arrangements recently pro- 
 cured by A. R. Spofford, librarian of 
 Congress, if publications intended to 
 be forwarded under the copyright laws 
 arc covered by printed "penalty la- 
 bels," which he will furnish on appli- 
 cation, they will go free through the 
 mail, according to rulings of the post- 
 
 offlce department. See a circular from 
 the librarian of Congress, infra. 
 
 What is subject of copyright. An 
 
 adaptation, substantially new, of a fornifir 
 piece of music is a subject of copyright 
 and will be protected against infringe- 
 ment. It is not necessary, in order to 
 entitle one to a copyright, that he should 
 be the sole creator of the work for which 
 protection is claimed. Labor bestowed on 
 the production of another will often con- 
 stitute a valid claim. The maker of an 
 abridgment, translation, dramatization, 
 digest, index, or concordance of a work 
 of which he is not the author may obtain a 
 copyright for the product of his labor, 
 thought, and skill ; and so may one making 
 material changes, additions, con-ections, 
 improvements, notes, comments, &c., in 
 the unprotected work of another. In all 
 such cases the test of originality is applied 
 to that which represents the labor or skill 
 of the person claiming the copyright, iri 
 Circ. (Pa.), Schuberth v. Shaw, 19 Am. 
 L. Reg. n. s. 248. 
 
 Entry, &c. To warrant an injunction 
 against violation, there must be averment 
 and proof that the title of the work was 
 registered before publication. In the case 
 of a label affixed to goods, sale of the goods 
 in parcels bearing the labels, before the 
 latter is entered, is a publication and au 
 abandonment. Entry thereafter is ineffec- 
 tive to secure copyright. 2d Circ. (N. ¥■) 
 1877, Marsh v. Warren, 14 Blatchf. 263. 
 
 " By a recent ruling of the post-office 
 department, publications mailed to the 
 librarian of Congress under the require- 
 ments of the copyright law are entitled 
 to free transmission through the mails it 
 covered by ' penalty ' envelopes, under the 
 provisions of §' 29 of the post-office appro- 
 priation act of March 3, 1879, taken in 
 connection with the act of March 3, 1877, 
 and § 4,961 of the Revised Statutes. As 
 former rulings had decided this niatt«r 
 adversely, and as the penalty envelopes 
 are uusuited to the protection of books, 
 the undersigned has procured from the 
 department a decision that publications 
 wrapped in the ordinary manner, and cov- 
 ered by penalty labels, are equally entitled 
 to free transmission to the copyright olBce 
 at Washington. To save publishers and 
 others sending copyright publications the 
 
COPYRIGHT. 
 
 115 
 
 cost of printing special labels, they -wiU be 
 furnished from this office to those desiring 
 them for copyright purposes. No letters 
 or writing other than the regular receipts 
 for copyright publications can be placed in 
 any package covered by the labels, under 
 the penalty of $300, imposed by the law. 
 Postmasters may be referred to Rulings of 
 the Department, No. 15-3, in the U. S. 
 Official Postal Guide for November, 1879." 
 Circular from the Librarian of Congress. 
 
 The extent of the right of an author 
 or a publisher is infringed only when 
 other persons produce a substantial copy 
 of the whole or of a material part of the 
 book or other thing for which he secured a 
 copyright. Where, therefore, the owner of a 
 copyright for maps of certain wards of " the 
 city of New York, surveyed under the direc- 
 tion of insurance companies of said city, 
 which exhibit each lot and building, and 
 the classes as shown by the different color- 
 ing and characters set forth in the refer- 
 ence," brought his bill to restrain the 
 publication of similar maps of the city of 
 Philadelphia, — Held, that the bill could 
 not be sustained. Supreme Ct. 1878, Per- 
 ris V. Hexamer, 99 U. S. 674. 
 
 The copyright of a book on book-keep- 
 ing cannot secure the exclusive right to 
 make, sell, and use account-books piepared 
 upon the plan set forth in such book. 
 Whether the art might or might not have 
 been patented is another question. The 
 description of an art in a book, though the 
 book be entitled to the benefit of copyright, 
 lays no foundation for an exclusive claim 
 to the art itself. The object of the one is 
 explanation ; the object of the other is use. 
 The former may be secured by copyright , 
 the latter can only be secured, if at all, by 
 letters-patent. Blank account-books are 
 not subject to copyright; and the mere 
 copyright of Seidell's " Condensed Ledger, 
 or Book-keeping Simplified " did not confer 
 upon him the exclusive right to make and 
 use account-books, ruled and arranged as 
 designated by him, and described and illus- 
 trated in said book. Supreme Ct. 1879, 
 Baker v. Selden, 9 N. Y. Week. Dig. 439. 
 
 In an action for penalties and forfeiture 
 pf plates of certain chromos, for infringing 
 a copyright which plaintiff claimed for a 
 prior publication of the same picture, the 
 defendant produced evidence that the pic- 
 ture, as published and sold by him, was 
 
 designed from a picture found in a foreign 
 publication circulated in this country before 
 plaintiff entered his picture for copyright ; 
 and the jury were instructed that, if the 
 defendant did thus obtain his design, he 
 was not liable. Held, correct. Any per- 
 son could rightfully reproduce in this coun- 
 try the design from the foreign publication. 
 If the plaintiff obtained his copyright by 
 appropriating this foreign sketch, he would 
 not have acquired an exclusive right, be- 
 cause he would not have been the author, 
 designer, or proprietor of the sketch. If, 
 on the other hand, he was the artist and 
 designer of the picture copyrighted by him, 
 still the defendapt was not liable if he did 
 not avail himself, directly or indirectly, of 
 the plaintiff's production. A copyright 
 secures the proprietor against the copying, 
 by others, of the original work, but does 
 not confer upon him a monopoly in the 
 intellectual conception which it expresses. 
 An artist cannot acquire such an exclusive 
 right to the conception embodied and ex- 
 pressed in his picture as to preclude others 
 from the exercise of their own creative 
 genius or artistic skill, or from availing 
 themselves of any part of the genial con- 
 tribution of artistic production. The law 
 of copyright oi'iginated in the recognition 
 of the right of another to be protected in 
 the manuscript which is the title of his 
 literary property. This protection could 
 not be adequate unless he was invested with 
 the exclusive privilege of copying the manu- 
 script, whether for sale or for publication. 
 It does not rest upon any theory that the 
 author has an exclusive property in his 
 ideas, or in the words in which he has 
 clothed them. If eacli of two persons 
 should compose a poem identically alike, 
 he who first composed it would have no 
 priority of title over the other, nor would 
 he acquire priority by first publishing it. 
 The law of copyright would protect each 
 in his own manuscript, but would not pre- 
 vent either from using his own. 2rf Circ. 
 (N. Y.) 1880, Johnson v. Donaldson, 3 
 Fed. Reporter, 22. 
 
 Copyright in the "title" of a book, as 
 being a material portion of a work, will be 
 protected, although another book published 
 under a similar title may be totally different 
 in form and contents. Chancery, 1878, 
 Weldon v. Dicks, X. R. 10 Ch. D. 247 
 
 The mammoth annual volume known as 
 
116 
 
 COPYRIGHT. 
 
 the Post-office Directory of London origin- 
 ated about seventy years ago, when a Lon- 
 don post-office clei'k conceived tlie idea of 
 publishing the names and addresses of the 
 inhabitants of London. Post-office clerks 
 had, of course, special facilities for the task, 
 and they continued to aid in the prepara- 
 tion of the volume (hence its name) until 
 1846, when objections were made in Parlia- 
 ment that they ought not to be concerned in 
 outside work of that kind. Since then the 
 publication has been carried on independent 
 of the post-offlce, but the name retained, and 
 was gradually extended by the proprietors 
 of the enterprise to several district direc- 
 tories, among which was one of the West 
 Riding of Yorkshire, which included the 
 town of Bradford. Recently, Byles start- 
 ed a " Bradford Post-office Directory" for 
 the town of Bradford. The proprietor of 
 the larger West Riding directory objected 
 to the small one being called "Post-office 
 Directory," claiming that he had copy- 
 righted his book, which ought to secure 
 his title; and, besides, that the title was 
 his trademark. But the vice-chancellor 
 held, that neither the copyright law nor 
 the doctrine of trademarks sustained the 
 claim ; the words were a general description 
 which any person might use. And this de- 
 cision was affirmed on appeal. Chancery 
 1879, Kelly u. Byles, L. R. 13 Ch. D. 
 682. 
 
 The proprietor, of a copyright does not 
 lose his right of republication, although the 
 book may have been out of print and obso- 
 lete, and of little or no value, for a num- 
 ber of years. Chancery, 1878, Weldon v. 
 Dicks, L. R. 10 Ch. D. 247. 
 
 Infringement. An infringement of the 
 registered copyright of the music of an 
 opera may be committed where the opera 
 itself has not been published, and so no 
 copy of it could be deposited, and where 
 that music having been made the subject 
 of two piano " arrangements," one without 
 the voice, another for the voice, and those 
 arrangements having been published, the 
 infringer has used them for his own pro- 
 duction. In such a case the question of 
 what was intended to be registered will be 
 considered with reference to all the parts 
 of the register, and if certain portions of 
 the form of registry are, in the particular 
 case, unnecessary and unmeaning, the in- 
 troduction of them will not affect those 
 
 parts of the registry which are correct. 
 House of Lords, 1879, Fairlie v. Boosey, 
 L. R. 4 App. Cos. 711. 
 
 The above principles applied to a case in 
 which an infringement of Offenbach's opera 
 " Vert- Vert " was claimed. lb. 
 
 To sustain an allegation of acquie.scence 
 in the infringement of a copyright, it must 
 be shown that there was knowledge of the 
 infringement. Chancery, 1878, Weldon ». 
 Dicks, L. R. 10 Ch. D. 247. 
 
 The copying, in whole or in part, of the 
 main design of a copyrighted engi-aving by 
 a chromo-printed pattern for wool-work, or 
 by a picture worked in wool, is an infringe- 
 ment. Chancery 1879, Dicks v. Brooks, 
 40 L. T. N. s. 710. 
 
 The copying, in whole or in part, of the 
 main design of a copyright engraving by a 
 chromo-printed pattern for wool-work, or 
 by a picture worked in wool, is an infringe- 
 ment. The plaintiffs, proprietors of a 
 weekly periodical, published, for presenta- 
 tion with this periodical, a chromo-printed 
 pattern for wool-work, called ' ' The Hugue- 
 not," which they advertised extensively. 
 The defendants, who were the proprietors 
 by assignment of the copyright in the en- 
 graving made from the original picture, 
 the main design of which was represented 
 in the plaintift''s chromo-printed pattern, 
 issued a circular containing a warning 
 against the sale of any copy of the subject, 
 " The Huguenot," without the stamp of 
 their firm, in whom the sole existing copy- 
 right existed, and saying that all such 
 unstamped copies were imitations and un- 
 lawfully made. The plaintiffs, alleging 
 that the publication of this circular was a 
 slander of title, &c., on their print, and 
 had damaged its sale, sued for an injunc- 
 tion and damages. The defendants, by 
 counter-claim, asked for the statutory pen- 
 alties for the copying of their print by 
 plaintiffs, and for injunction and damages. 
 Held, that the action for slander of title 
 was not maintainable ; that the plaintiff's 
 wool-work pattern was an unlawful imita- 
 tion of the engraving; and that the counter- 
 claim must be sustained. Ih. 
 
 For circumstances and reasons on which 
 a preliminary injunction was denied m a 
 suit to restrain publishers of an American 
 reprint of the Encyclopaedia Britanuica 
 from republishing, in their edition, certain 
 articles which the foreign proprietore of the 
 
COPYRIGHT. 
 
 117 
 
 original work had procured to be written 
 and copyrighted here, for the purpose of 
 securing an American copyright, — see 
 Scribner v. Stoddart, 19 Am. L. Reg. n. s. 
 433. 
 
 License, assigrnment, &c. The joint 
 authors of a book (one of whom composed 
 the letterpress, and the other sketched the 
 drawings from which the illustrations were 
 engraved) entered into a verbal agreement 
 with a firm of publishers, by which the firm 
 were to engrave the illustrations and print 
 and publish the book. If the publication 
 resulted in a loss, the fii-m were to bear the 
 whole of it; if there was a profit, they were 
 to pay half of it to the authors. The prof- 
 its were to be ascertained after deducting 
 the cost of the engi'aving, printing, and 
 publication, but without allowing any sum 
 to the authors for the illustrations and let- 
 terpress. The book was published, and 
 the publication resulted in a profit. Held, 
 that the agreement was merely personal to 
 the individuals then composing the pub- 
 lishers' firm, and that the benefit of it could 
 not, without consent of the authors, be as- 
 signed by the publishers' firm to a fii'ra 
 which had succeeded to their business, but 
 which contained none of the partners of 
 the original firm. The drawings on the 
 blocks from which the illustrations of the 
 book were engraved were sketched by 
 the author of the drawings himself. Held, 
 that, having regard to the terms of the 
 agreement, the blocks themselves were not 
 the property of either the plaintiffs or de- 
 fendants, but that the defendants must 
 deliver them up to the plaintiffs. Chan- 
 cery, 1879, Hole v. Bradbury, L. R. 12 Ch. 
 Die. 886. 
 
 The duly-registered proprietors in one 
 undivided moiety of the copyright in an 
 opera brought action against one who had 
 obtained a license from the proprietor of 
 the other moiety to restrain him from 
 representing the opera, and for damages. 
 Held, that the sole right of representation 
 was in the authors or assignees ; that one 
 co-owner could not grant a license, and that 
 the plaintiffs were entitled to recover from 
 the defendant one half of the minimum 
 statutory penalty of S^ for each representa- 
 tion. Chancery, 1879, Powell v. Head, 41 
 L. T. Rep. N. s. 70. 
 
 When the owner of a copyright of a paint- 
 ing assigns the copyright for the purpose 
 
 of producing an engraving of one size, the 
 right of producing copies of the painting 
 in other ways, or by engravings of other 
 sizes, remains in him, and can be assigned 
 by him to any other person. And, if the 
 assignee of the right of copying a painting 
 in a particular way alleges that some other 
 publication is an infringement of his copy- 
 right, the burden is on him to show that 
 the publication has been taken from his 
 copy and not from the original painting. 
 Chancery, 1880, Lucas v. Cooke, L. R. 13 
 Ch. D. ?,T2. 
 
 Crouch assigned by deed in 1843 to 
 D'Almaine his copyright in certain songs 
 which had been composed by him in 1836, 
 and registered in 1841, and also the sole 
 liberty of printing and publishing the same, 
 ' ' together with the sole and exclusive priv- 
 ilege of vending the same and all other his 
 estate, right, and title, interest, property, 
 contingent possibility, benefit, claim, and 
 demand whatsoever, both at law and in 
 equity," in those compositions. Held, that 
 after the 5 & 6 Vict. ch. 45, the author had 
 two distinct rights in these songs, the copy- 
 right, and the sole right of representation 
 or performing, and these words in the deed 
 passed both the copyright and the sole lib- 
 erty of performing the songs. Ct. of Ap- 
 peal, 1879, Exp. Hutchings, 48 L. J. n. s. 
 505. 
 
 The right in unpublished manuscripts is 
 not subject to execution. The right of the 
 proprietor of such a manuscript to publish 
 it, or to keep it back from publication, is 
 purely incorporeal, and is attended with con- 
 siderations of a nature entirely different 
 from those involved in other rights. The law 
 wiU not permit it to be interfered with, ex- 
 cept as the owner chooses to make the work 
 public, and the right is one which is en- 
 tirely independent of locality, and belongs 
 essentially to the owner, wherever he may 
 be. The value, when it may be considered 
 at all in a pecuniary sense, depends on the 
 information or interest of the composition 
 or document, and not on the particular 
 bundle of paper which records it. Even 
 after a work is published, a creditor cannot 
 reach the copyright unless by aid of some 
 special provision of law on the subject; the 
 author's rights are never subject to dis- 
 turbance except in accordance with statute. 
 No law can compel a person to publish what 
 he does not choose to publish. [Freem. 
 
118 
 
 COPYRIGHT. — CORPORATION. 
 
 Exec. § 110; 14 How. 531; 17 Id. 451; 1 
 Macn. §• G. 25; 3 Minn. 94.] It would 
 be very absurd to hold that books could be 
 seized and sold on execution which, after 
 Bale, the purchaser could not use. Supreme 
 Cl. 1879, Dart v. Woodhouse, 40 Mich. 399. 
 
 Action for penalty. Upon the trial of 
 an action for penalties and forfeiture of 
 plates, pursuant to Rev. Stat. § 4965, for 
 an infringement of the copyright of certain 
 ohromos, the plaintiff sought, by a subpoena 
 duces tecum, to compel the defendant to 
 produce his books of account, photographic 
 plates, and the copies of the printed chro- 
 mos claimed to be in his possession, to be 
 used as evidence for the plaintiff; and the 
 court ruled that, as the action was for 
 penalties and a forfeiture, the defendant 
 could not be compelled to furnish evi- 
 dence against himself. Held, correct : both 
 under Rev. Stat. § 860, and upon the ele- 
 mentary principle that a person should not 
 be compelled to furnish evidence to subject 
 him to a punishment or penalty. 2rf Circ. 
 (N. F.), 1880, Johnson v. Donaldson, 3 
 Fed. Reporter, 22. 
 
 The provision of Rev. Stat. 4963 — im- 
 posing a penalty for impressing a notice of 
 copyright upon books, &c., for which no 
 copyright has been obtained — is only ap- 
 plicable where such notice is so impressed or 
 inserted in an article which is copyrightable. 
 The offence is deceiving the public by false 
 assertion of a valuable privilege to which a 
 party is not entitled. But it is obvious 
 that the public cannot be deceived by put- 
 ting such a notice on articles not the proper 
 subject for copyright, any more than they 
 can be deceived by putting the mark " pa- 
 tent " on an article not patentable. There 
 is, therefore, no reason for extending the 
 terms of this statute, which is penal and 
 to be strictly construed, beyond the case of 
 articles subject to copyright, which is the 
 limit indicated by the terms of the statute 
 itself, if read in connection with the other 
 sections. Where an article mentioned in 
 a complaint for falsely using a notice of 
 copyright may or may not be within the 
 statute, it should be averred to be within 
 it. It must appear that if the complaint is 
 
 Corporation. For cases relating to the classes of 
 corporations, see Bankinq; Buildisg; ExPekss; 
 Gas; Insukanck; Municipal Corporation- 
 Eailhoad; Telegraph. 
 
 A District of Columbia insurance company is a 
 " foreign corporation " in Indiana, p. 7. Aqueduct 
 
 true, defendant is liable not merely that he 
 may be. S. Dint, of N. Y. 1880, Rosen- 
 bach V. Eh-eyfuss, 2 Fed. Reporter, 217. 
 
 CORONER. Power, when holding an 
 inquest, to employ necessary chemist, sur- 
 geon, &c., and charge the county for his 
 services: 64 Ind. 524; 49 Iowa, 148. He 
 is equally protected with sherifE in execu- 
 tion of process : 73 N. Y. 45. 
 
 CORPORATION. Powers of legisla. 
 tnre. A constitutional provision that 
 corporations may be formed under gen- 
 eral laws, but not by special acts, except 
 for municipal purposes, does not prohibit 
 the legislature from passing a special act 
 changing the name of an existing railroad 
 corporation, and giving it power to pur- 
 chase additional property. Supreme Ct. 
 1877, Wallace v. Loomis, 97 U. S. 146. 
 
 A legislative act conferring upon a private 
 corporation the exclusive right to transport 
 passengers across a navigable river for a 
 distance of six miles from a certain point 
 opposite a large trading town, in considera- 
 tion of a reduction by one half of the former 
 toll-rates paid by the residents of defined 
 parts of two counties, while full rates are 
 to be paid by all others, is obnoxious to the 
 constitutional inhibition against monopo- 
 lies. Supreme Ct. 1879, Wasliington Toll 
 Bridge Co. v. Beaufort County, 81 N. C. 
 491. 
 
 The principle that a coi-porate charter 
 forms a contract between the legislature 
 and the company, which the former cannot 
 afterwards assume to change without con- 
 sent or leave reserved, cannot be carried so 
 far as that a charter should preclude the 
 legislature from exercising its general 
 police power. That power clearly extends 
 to the protection of the lives, health, and 
 property of the citizens, and to the preser- 
 vation of good order and the public morals. 
 The legislature cannot, by any contraot, 
 divest itself of the power to provide for 
 these objects ; nor of its discretion to select 
 the most appropriate means of doing so. 
 Supreme Ct. 1877, Beer Co. v. Massachu- 
 setts, 97 U. S. 25. 
 
 Members. Although a person is not 
 technically a member of a board of trade, 
 
 company not liable for lack of water to extingnish 
 (ire, p. 25. Powers of Shaker trustees to warrant 
 cabbage seed, p. 31 ; of committee of open board lo 
 settle differences, p. 31. Banks, state and na- 
 tional, and their dealings, p. 34-40. Bonds of cor- 
 poration, p. 51. 
 
CORPORATION. 
 
 119 
 
 yiet if he visits the rooms of the board 
 frequently on a member's ticket, and, 
 while there, acts and deals apparently as a 
 member, making sales and purchases in the 
 exercise of the privileges of a member, he 
 will not be allowed, when one of his trans- 
 actions is drawn in question, and the other 
 party claims the application of the rules of 
 the board, to deny his membership. He is 
 estopped. Having made a contract in the 
 character of a member, the question what 
 he may recover upon it ought to be de- 
 termined in all respects as though he were 
 a member. Supreme Ct. 1877, Chicago 
 Packing, &c. Co. v. Tilton, 87 III. 547. 
 
 Stock. Where fully paid-up shares of 
 Stock were issued to pay for lands con- 
 veyed to the corporation at a fraudulent 
 valuation between the parties to the trans- 
 action, innocent purchasers of the stock in 
 open market are not liable, but the remedy 
 6f the corporation is against the guilty per- 
 petrators of the fraud in their individual 
 capacity. \st Circ. (Mass.) 1878, Fore- 
 man V. Bigelo w, 18 Bankr. Reg. 457 ; 7 Cent. 
 L. J. 430; 7 Reporter, 137. 
 
 The officers of a corporation are the cus- 
 todians of its books ; and it is their duty to 
 see that a transfer of shares of its capital 
 stock is properly made, either by the owner 
 himself or by a person having authority 
 from him. When Davenport died, he left 
 to be divided between his widow and two 
 children, 1170 shares of Western Union 
 Telegraph stock. The children were mi- 
 nors, and their mother was appointed their 
 guardian. The shares were transferred on 
 the company's books, a new certificate 
 being issued in the name of each child, for 
 its portion, 390 shares ; and these certifi- 
 cates were delivered to the mother, as 
 guardian, for safe-keeping. She locked 
 them up in a tin cash-box, which she 
 lodged in a Cincinnati bank. Upon taking 
 the children to Europe for a considerable 
 time, the mother gave the key of the box in 
 charge of her brother, in order that he 
 might from time to time cut off the coup- 
 ons from government bonds also contained 
 in it, and collect them. She knew that he 
 was insolvent, but supposed him trust- 
 worthy, although, in one instance pre- 
 viously, he had used money belonging to 
 her without leave. But while the party 
 were abroad he took the telegraph stock out 
 of the box, forged the name of the nephew 
 
 and that of the niece to the powei-s of 
 transfer, and sold the shares. The pur- 
 chasers paid the price and applied to the 
 company for new certificates ; and the com- 
 pany made the transfer, and issued the 
 certificates desired. In an action by the 
 injured beneficiaries, — Held, that they 
 were entitled to new certificates from the 
 corporation. 
 
 1. The negligence of their guardian (if 
 there was negligence) cannot preclude mi- 
 nors, in such a case, from asserting, by suit, 
 their right to stock belonging to them, 
 which was so sold and transferred. If 
 competent to transfer it, or to approve the 
 transfer made, they must, to create an 
 estoppel against them, have, by some act or 
 declaration by which the corporation was 
 misled, authorized the use of their names, 
 or subsequently approved such use by ac- 
 cepting the purchase-money with knowl- 
 edge of the transfer; but under the statute 
 of Ohio, where the minors who are the 
 complainants herein resided, they were not, 
 nor, without the authority of the probate 
 court, was their guardian, competent to 
 authorize a sale of- their property. 
 
 2. It is no answer to the demand of the 
 true owner of shares to be recognized as 
 such, and to receive new certificates and 
 draw dividends, to show that his original 
 certificates were stolen, an assignment 
 forged, and a transfer on the books ob- 
 tained to a purchaser for value. Forgery 
 can confer no power nor transfer any rights. 
 The officers of the company are the cus- 
 todians of its stock-books, and it is their 
 duty to see that all transfers of shares are 
 properly made, either by the stockholders 
 themselves or persons having authority from 
 them. If, upon the presentation of a cer- 
 tificate for transfer, they are at all doubtful 
 of the identity of the party offering it 
 with its owner, or if not satisfied of the 
 genuineness of a power of attorney pro- 
 duced, they can require the identity of thet 
 party in the one case, and the genuineness 
 of the document in the other, to be satis- 
 factorily established before allowing the 
 transfer to be made. In either case they 
 must act upon their own responsibility. 
 Neither the absence of blame on the part of 
 the officers of the company in allowing an 
 unauthorized transfer of stock, nor the 
 good faith of the purchaser of stolen prop- 
 erty, will avail as an answer to the demand 
 
120 
 
 CORPORATION. 
 
 of the true owner. The latter cannot be 
 deprived of his property except by his as- 
 sent or by due process of law. Supreme 
 Ct. 1878, Telegraph Co. v. Davenport, 97 
 UyS. 369. 
 
 The ti'ansfer of stock by means of a trans- 
 fer ticket and an entry of the transfer upon 
 the books of the corporation, accompanied 
 by a surrender of the certificate by the 
 transferer, and cancellation thei'eof, gives 
 to the transferee, as between himself and 
 the corporation, a complete title to the 
 stock, although no certificate was issued to 
 him in lieu of that which had been can- 
 celled. The president of a bank indorsed 
 the note of the cashier, the proceeds of 
 ■which were used in the puixhase of stock, 
 although no certificate of the stock was 
 ever issued to the cashier in place of the 
 certificate of the former owner which was 
 sm-rendered and cancelled. He subse- 
 quently assigned the stock as secuiity for a 
 loan and afterwards made an agreement in 
 writing with another person to sell him the 
 stock. The president then notified the offi- 
 cers of the bank of the circumstances of 
 purchase by the cashier, and of his claim 
 on the stock. Held, that the bank was 
 bound to issue a certificate of the stock to 
 the buyer, and was not liable in damages to 
 .the president therefor. Supreme Ct. 1877, 
 First Nat. Bank v. GifEord, 47 loiva, 575. 
 
 Transactions in stocks by way of margins, 
 settlement of difierences and payment of 
 the gain or loss, without any intention to 
 deliver the stocks, are mere wagers. Su- 
 preme Ct. 1879, North v. Phillips, 89 Pa. 
 St. 250. 
 
 " Every corporation organized under the 
 laws of this State which has heretofore 
 issued, or may hereafter issue, both pre- 
 ferred and common stock, forming part of 
 the capital stock of such corporation, is 
 hereby authorized, whenever the dn-ectors 
 of such corporation shall, by vote of two 
 thirds of their number, declare it for the 
 interest of the corporation so to do, and 
 the holder of any such preferred stock may 
 request, in writing, the exchange of the 
 same for the common stock, to exchange 
 the preferred stock of such holder for com- 
 mon stock, and to issue certificates of 
 common stock therefor, share for share, or 
 upon such other valuation as may have 
 been agreed upon in the scheme for organ- 
 ization of such company or the issue of | 
 
 such preferred stock; provided, howevet 
 that the total amount of the capital stock 
 of such company shall not be increased 
 thereby." 1 N. Y. Laws 1880 (May 81 
 471, ch. 225. 
 
 Corporate powers. A missionary society 
 incorporated by one State may, presumably 
 take a conveyance of lands lying in another. 
 An owner of lands in Illinois conveyed tliem 
 during his lifetime to the American and For- 
 eign Christian Union . This is a corporation 
 chartered in New York for the purpose of 
 promoting religious liberty and Christian- 
 ity at home and abroad; and had corporate 
 power in New York to take lands by deed. 
 But, after the death of the grantor, liis 
 heirs claimed the lands in question, on the 
 ground that a foreign corporation could not 
 take a conveyance of lands in Illinois. 
 Held, that, as the general laws of Illinois 
 allowed coi-porations formed for similar 
 purposes to take lands by purchase, the 
 presumption was that, on principles of 
 comity, a corporation created in another 
 State might do so. The general principle 
 that a corporation must exist and exercise 
 its corporate powers within its own State 
 does not forbid its doing business and hold- 
 ing property in other States. This is gene- 
 rally allowed. Supreme Ct. 1879, American 
 and Foreign Christian Union v. Yount, 101 
 U. S. 352. 
 
 A corporation cannot take a power in a 
 mortgage to sell the mortgaged premises 
 under Md. Code, art. 64, § 5; for it cannot 
 perform the conditions prescribed by the 
 act, viz. : that the person to sell shall be 
 named in the power; that he shall give 
 bond; that the sale shall be reported under 
 oath, &c. The provisions of the statute 
 contemplate that the power shall be given 
 to and executed by a natural person. Cu 
 of Appeals, 1878, Frostburg Building Assoc. 
 V. Lowdermilk, 50 Md. 175. 
 
 Where one of the chief objects of corpo^ 
 ations is to aid the families of deceased 
 members, the payment of a sum of money 
 to the surviving family of a deceased mem- 
 ber is not a violation of a charter provision 
 against doing an insurance business. St. 
 Louis Ct. of Appeals, 1877, Barbado v. Oc- 
 cidental Grove, 4 Mo. App. 429. 
 
 A contract by which a corporation as- 
 sumes to bind itself not to exercise the 
 franchise which the State has, for public 
 purposes, committed to it, is ultra vires and 
 
CORPORATION. 
 
 121 
 
 void. St. Louis Ct. of Appeals, 1878, St. 
 Louis V. St. Louis Gas Light Co., 5 Mo. 
 App. 484. 
 
 A corporation — here an insurance com- 
 pany — incorporated under the laws of, and 
 having its principal place of business in, 
 New York, does not become a resident of 
 Virginia, within the meaning of the foreign 
 attachment laws of that State, by comply- 
 ing with its laws relative to foreign insur- 
 ance companies doing business in the State, 
 (Va. Code 1873, ch. 36, § 19), — makinga 
 deposit, appointing a citizen of the State an 
 agent by power of attorney, &c. — and the 
 property of such company is liable to the 
 same attachment as that of a non-resident. 
 While a corporation may, by its agents, 
 transact business anywhere, unlesS prohib- 
 ited by its charter, or prevented by local 
 laws, it can have no residence or citizenship 
 except where it is located by or under the 
 authority of its charter. Ct. of Appeals, 
 1879, Cowardin v. Universal Life Ins. Co. , 
 82 Va. 445. 
 
 " Every foreign coi-poration now doing, 
 or transacting, or that shall hereafter do 
 or transact, any business in this State, or 
 acquire any right, title, interest in, or lien 
 upon real estate in this State, that shall 
 transfer or cause to be transferred from 
 any court of this State to any court 
 of the United States, save by regular 
 course of appeal, after trial in the State 
 courts, or any action commenced by or 
 enforced against such corporation in any 
 court of this State, by or against any 
 citizen or resident thereof, or that shall 
 commence in any court of the United 
 States in this State, on any contract made 
 in this State, or liability accrued therein, 
 any suit or action against any citizen or 
 resident of the State of Indiana, shall 
 thereby forfeit all right and authority to do 
 or transact business in this State, or hold 
 real property or liens thereon, and all con- 
 tracts between such corporations and cit- 
 izens, or residents of this State shall be 
 rendered void, as in favor of such corpora- 
 tion, but enforceable by such citizen at his 
 election. The provisions of this act shall 
 be, and the same are hereby made, con- 
 ditions upon which such corporations may 
 be authorized to do business in this State, 
 or hold titles to or liens on real estate there- 
 in." Ind. Laws 1879 (March 15), 145, 
 ch. 55. 
 
 Liabilities. Where a committee, ap- 
 pointed by a corporate meeting to nego- 
 tiate a contract, report simply a proposal 
 which has been made to them, and which 
 awaits acceptance by the corporation or by 
 its authority, a vote at a corporate meeting, 
 "that the report of the committee be ac- 
 cepted," does not operate as an acceptance 
 of the proposal, so as to create a contract 
 binding upon the corporation towards the 
 party making the offer. It should be con- 
 strued as simply a parliamentary accept- 
 ance of the report. Supreme Ct. 1878, 
 Carroll v. St. John's Soc, 125 Mass. 565. 
 
 A corporation appointed a committee of 
 members to hire a hall. They negotiated 
 a lease; reported it at a corporate meeting; 
 and their report was accepted and they 
 were appointed to make the lease. The 
 corporation then occupied the hall. In an 
 action for the rent it appeared that the 
 lease was drawn in form to be executed 
 between the landlord and the corporation ; 
 but that it was not executed in the cor- 
 porate name, but was signed by the com- 
 mittee-men individually. Held, that the 
 informality was no defence to an action for 
 rent. The landlord, having duly executed 
 the lease, was bound by it, and then the 
 corporation, having entered and occupied 
 under it, became liable at least as fully as 
 if it had been a deed poll. Ih. 
 
 A corporation is liable for the torts of its 
 officers and agents, committed while act- 
 ing within the scope of their employment, 
 or while engaged in performing the duties 
 devolved upon them thereby. Where the 
 cashier of defendant bank embezzled cer- 
 tain United States bond§ belonging to the 
 plaintiff, and pledged them as security for 
 moneys which he borrowed for said bank, — 
 Held, that such embezzlement was not 
 within the authority, express or implied, of 
 the cashier. Conceding that an authority 
 to borrow money for the bank may be 
 implied from the nature of the cashier's 
 employment and his acts done under it, yet 
 an act of embezzlement is quite foreign to 
 such an authority. The authority to bor- 
 row would embrace all necessary and proper 
 means to accomplish that object; but the 
 stealing of another's securities, to pledge 
 for that purpose, is not usual or proper, and 
 is not, therefore, within the authority con- 
 ferred, but is an act altogether beyond the 
 scope of the cashier's employment. .S'u- 
 
122 
 
 CORPORATION. 
 
 preme Ct. 1879, FishkillSav. Inst. v. Bost- 
 wick, 19 Hun, 354. 
 
 But the bank received money borrowed 
 by means of the pledge of the bonds, and 
 still retained such moneys. Held, that 
 such acts must operate as a ratification of 
 the cashier's embezzlement. It is true, in- 
 deed, tliat no one connected with the bank 
 except the cashier had any knowledge that 
 the money so received had been obtained 
 by means of a pledge of the plaintiff's 
 bonds. Still the receiving the money was 
 strictly within the scope of the cashier's 
 employment, and his knowledge will be 
 imputed to the bank under the settled 
 rule that notice to the agent is notice to 
 the principal, in the course of the trans- 
 action, which becomes the subject of the 
 suit. Nor can the bank retain the money 
 in question and repudiate the agency by 
 which such money was obtained, lb. 
 
 Officers. In the absence of positive 
 law, directors — here of a bank — are not 
 individually responsible to stockholders, 
 depositors, or creditors, for losses resulting 
 from mismanagement of the corporate 
 affairs, unless upon proof of wrongful in- 
 tent, bad faith, or gross negligence equiva- 
 lent to it. Ct. of Appeals, 1878, Dunn v. 
 Kyle, 14 Bush (Ky.), 134. (See supra, p. 
 39-40.) Sujireme Ct. 1878, Fusz v. Spaun- 
 horst, 67 Mo. 256. See also New York 
 Iron Mine v. Negaunee Bank, 39 Mich. 
 644. 
 
 The directors or chief officers of a 
 moneyed corporation — here a raih-oad com- 
 pany — are i-esponsible for losses and de- 
 falcations occasioned by their neglect as 
 well as for those caused by positive mis- 
 conduct [Angell & A. Corp. § 312]. 
 This liability is primarily and directly 
 towards the stockholders; but creditors 
 may, by suit in equity, reach the delin- 
 quent directors and compel them to ac- 
 count with the company, to the end that 
 funds which are in their hands or have 
 been appropriated by them may be sub- 
 jected to the payment of corporate debts. 
 And there is no reason why " State direc- 
 tors " should not be held responsible in 
 the same manner and to the same extent as 
 directors elected by stockholders. But 
 neither class can be held liable for losses 
 attributable to their errors in judgment or 
 mistakes in managing the corporate aifairs. 
 The liability is only for faithlessness or dis- 
 
 honesty. Supreme Ct. 1873, Shea v. Kno» 
 & Ky. R. R. Co., 6 Baxt. (Term.) 277. 
 
 A constitutional provision, such as Mis- 
 souri Const. 1875, art. 12, § 27, — declaring 
 that "it shall be a crime, the nature and 
 punishment of which shall be prescribed 
 by law, for any president, director, manar 
 ger, cashier, or other officer of any hanking 
 institution, to assent to the reception of de- 
 posits or the creation of debts by such 
 banking institution, after he shall have 
 had knowledge of the fact that it is insol- 
 vent or in failing circumstances;" and that 
 " any such officer, agent, or manager shall 
 be individually responsible for such deposits 
 so received, and all such debts so created 
 with his assent," — is not selt-^nforcing; 
 even to the extent of sustaining a civil 
 action to hold the officer individually liable. 
 The instances are exceptional where con.' 
 stitutional provisions enforce themselves; 
 ordinarily they must be supplemented by 
 legislation. A constitutional provision 
 should not be deemed self-executing unless 
 such intent is clearly expressed ; nor unless 
 it is complete in itself and may be allowed 
 to operate (as a constitutional provision 
 always must) inflexibly in all instances and 
 under all circumstances. The provision in 
 question shows a design to protect the com- 
 munity against mismanagement in banking 
 by two methods, — one criminal, the other 
 civil ; both were, in the opinion of the con- 
 vention, necessai-y, one as much so as the 
 other ; both were designed to operate togeth- 
 er and harmoniously. It would have been 
 as easy to have declared the nature and pun- 
 ishment of the crime of assenting to the re- 
 ception of deposits, or the creation of debts, 
 as it was to leave it to the legislature to 
 prescribe. It cannot be possible that the 
 members of the convention were willing to 
 trust the nature and punishment of that 
 act which they denounced as a crime to be 
 defined and provided for by the legislature, 
 and yet unwilling to trust the general 
 guardian of the people's welfare with the 
 details of the civil liability attached to the 
 commission of that crime, and unwilling, 
 also, themselves, to specify and provide for 
 the details of such civil liability ; that they 
 intended to operate by piecemeal until such 
 time as the legislature should otherwise 
 prescribe. It is very evident that the sec- 
 tion was designed to operate as a whole 
 and not in detached portions; that the 
 
CORPORATION. 
 
 123 
 
 penalties prescribed, civil and criminal, 
 were to go hand in hand, and that the 
 method of procedure in the criminal phase 
 of the case was no more necessary to be 
 prescribed by law than was the method of 
 procedure whereby the civil liability, also 
 incurred, was to be ascertained and deter- 
 mined. Supreme Ct. 1878, Fusz v. Spaun- 
 horst, 67 Mo. 256. 
 
 The civil branch of the above-mentioned 
 constitutional provision ought to be con- 
 strued as self-executing. The first clause 
 provides merely for the crime ; the second 
 has a double aspect, and, while it punishes, 
 confers a right. Penal as to ofEenders, the 
 section is remedial as to those whose trust 
 has been betrayed. Thus the two clauses 
 are distinct ; and one fiat of the convention 
 cannot be nullified by the fact that another 
 is referred to legislative action . All possible 
 efficacy must be given to the mandates of 
 the sovereign power. The argument which 
 is drawn from the fact that further legisla- 
 tion is required by the first part of the sec- 
 tion rests upon the basis that the two parts 
 are but one matter ; and when the two are 
 shown to be distinct, that argument falls. 
 But, besides this, that argument ignores 
 one of the most marked features of the sec- 
 tion, — that is, that the requirement of fur- 
 ther legislation is affixed to the first clause, 
 thus: " It shall be a crime, the nature and 
 punishment of which shall be prescribed 
 by law," &c. If the qualifying clause had 
 been intended to relate to a whole sentence, 
 it would not have been limited to a part of 
 it. It was for the framers of the constitu- 
 tion to say whether further legislation was 
 necessary, or whether the second clause is 
 one of the many which require no future 
 action; and if meaning is to be gathered, 
 not from isolated words, but from their ar- 
 rangement, their sequence, and their logical 
 interdependence, the conclusion must be 
 that the mind of the law-giver was fixed 
 upon the thought that it was the crime ex- 
 clusively that required future legislation. 
 It is obvious that legislation in detail is 
 necessary in case of the crime, and it is 
 not obvious that it is as to the civil liabil- 
 ity. The primary object of the convention 
 was to check a great and increasing wrong 
 by punishment. To affix a penalty and to 
 make that penalty recoverable by civil 
 action, upon the facts furnished by the 
 section, was a simple thing. The ordinary 
 
 laws of civil procedure were already suffi- 
 cient. The penalty to be recovered by civil 
 action is distinct from the crime, and for 
 the purpose of the former the latter is to be 
 regarded merely as a prohibition. There 
 is nothing in the section requiring a con- 
 viction as a precedent to civil liability; 
 nor is there anything which requires the 
 corporation or banking institution to be 
 first pursued. St. Louis Ct. of Appeals, 
 1877, Cummings v. Spaunhorst, 5 Mo. 
 App. 21. 
 
 A contract made between the boards of 
 directors of two corporations does not fall 
 fully within the principle that an agent or 
 trustee cannot deal with the principal or 
 trust for his own benefit. An agent may 
 represent two persons with their assent in 
 a transaction relating to or embracing a 
 subject-matter in which they have adverse 
 interests. Independent of a statute of re- 
 striction, a contract between two corpora- 
 tions having common directors, made by 
 their respective boards, is valid [13 C. iJ. 
 200; 6 Ho. of L. Cos. 401; 5 De Gex, M., 
 §• G. 746; 60 Pa. St. 290; 34 Vt. 144]. 
 There is no rule that a contract made be- 
 tween two corporations by their respective 
 boards of directors is invalid or voidable 
 at the election of one of the parties thereto, 
 from the mere circumstance that a minority 
 of its board of directors are also directors 
 of the other company. Where a quorum of 
 directors, sustaining no relation of trust or 
 duty to the other corporation, are present, 
 participating in the action of the board, 
 there is no good reason why such action 
 should not be binding upon the company, 
 in the absence of such fraud as would lead 
 a court of equity to undo or set aside the 
 transaction. If a majority of the board 
 are not adversely interested, and have no 
 adverse employment, the right to avoid the 
 contract or transaction does not exist with- 
 out proof of fraud or unfairness. Supreme 
 Ct. 1878, United States Rolling Stock Co. 
 V. Atlantic, &c. R. R. Co., 34 Ohio St. 450, 
 466. Compare, to the contrary, Thomas v. 
 BrownviUe, &c. Ry. Co,, 2 Fed. Reporter, 
 877. 
 
 For one appointed by a corporation trus- 
 tee of a sinking-fund raised to pay corporate 
 debts to loan the money to a banking-firm 
 of which he is a member, is a breach of 
 trust, which is not relieved by his taking 
 collaterals to secure the loan, which he 
 
124 
 
 CORPORATION. 
 
 believed to be good. The board of direc- 
 tors have not power to condone this mis- 
 conduct; their relation to the corporation 
 being only that of agent to a principal. 
 The facts warrant the removal of the trus- 
 tee and appointment of a receiver of the 
 fund. Supreme Ct. 1879, North Carolina 
 R. R. Co. D. Wilson, 81 N. C. 223. 
 
 By an agreement between the president 
 and cashier of a bank, which was unknown 
 to the otherofficers of the bank, certain stock 
 of the corporation was purchased by the cash- 
 ier with money borrowed from the bank, 
 for which he gave his note indorsed by the 
 president. Held, that the bank was not 
 chargeable with notice of the agreement, 
 and not bound to hold the note for the pro- 
 tection of the president. The officers of a 
 corporation cannot at the same time, and 
 with respect to the same transaction, in 
 which both the corporation and they them- 
 selves individually are interested, act for 
 themselves and the corporation; and if 
 they assume so to act, their acts are not 
 binding upon the corporation. Supreme 
 Ct. 1877, First Nat. Bank «. Gifford, 47 
 Iowa, 575. 
 
 Individual liability. Stockholders can- 
 not impeach the validity of the organiza- 
 tion, to escape individual liability. Having 
 organized the corporation, and held them- 
 selves out to the world as such, and thereby 
 obtained credit and incurred indebtedness, 
 they are estopped to deny the validity of 
 the act or their organization under it. 
 Even if the law is unconstitutional, the 
 promoters and those engaged in its opera- 
 tion cannot be heard to say that they may 
 therefore relieve themselves from liability, 
 and from all their engagements, because 
 the law under which they have acted is 
 prohibited by the organic law. If they 
 could, shrewd, intelligent persons might 
 procure an act that they should know is 
 prohibited by the fundamental law, avail 
 themselves of its benefits, obtain money of 
 the uninformed and the confiding, and 
 then be heard to say: " AVe are not incor- 
 porated, our charter and organization are 
 void, and we will hold our money." If 
 the charter contains a provision declaring 
 stockholders individually liable, the pre- 
 sumption is that each stockholder knew it; 
 and if, upon the faith of the charter, 
 credit has been obtained, the fact that the 
 incorporation was beyond the power of the 
 
 legislature does not prevent the stock- 
 holders from being personally holden. They 
 would be holden if, without attempting 
 corporate organization at all, they had 
 formed a partnership for the same general 
 purpose. Supreme Ct. 1878, McCarthy d. 
 Lavasche, 89 III. 270. 
 
 Where certain persons, organized as a 
 club, expressly authorize their presiding 
 officer to execute a note in the name of the 
 club, to be used, when executed, in making 
 purchases for the use of the club, and the 
 note is made and the purchases made in 
 accordance with such direction and author- 
 ization, those persons who thus authorized 
 the use of the club name became partners 
 as to this particular transaction, and are 
 each individually liable on the note to the 
 person who advanced money thereon, under 
 the common name assumed by them. Each 
 is regarded as a principal in the transaction, 
 and as having adopted the club nameas 
 his own, and as having signed the note, 
 through an agent, in that name. And 
 where, on maturity of this note, it is re- 
 newed by another, executed in the same 
 manner and by authority of the same per- 
 sons, it is not the note of the agent, but of 
 those expressly authorizing such use of the 
 club name. If it appears from the attend- 
 ant circumstances that it was not the in- 
 tention to bind the agent, and that the 
 credit was not given to him, a note signed 
 by the agent authorized to execute the 
 note for the company, with the name of 
 the company following that of the agent, 
 will be the note of the company, and not 
 the sole obligation of the agent. St. Louis 
 Ct. of Appeals, 1878, Ferris w. Thaw, 5 Mo. 
 App. 279. 
 
 Associations and clubs, the objects of 
 which are social or political and not for 
 purposes of trade or profit, are not partner- 
 ships, and pecuniary liability can be fas- 
 tened upon individual members thereof 
 only by reason of their acts or the acts of 
 their agents; and agency is not implied 
 from the mere fact of association, but must 
 be proved. A course of dealing nuy 
 amount to proof of original authority. 
 Individual members of such a club are 
 liable for work done with their coucunence 
 or subsequent approval, where credit was 
 given to members of the club. St. io"" 
 Ct. of Appeals, 1879, Richmond v. Judj. 
 6 Mo. App. 465. 
 
CORPORATION. 
 
 125 
 
 Becent general incorporation laws. 
 
 An act " concerning joint-stock companies 
 formed for religious, educational, and be- 
 nevolent purposes," is a general law for 
 incorporation of such bodies, prescribing 
 the manner of incorporation by election of 
 officers like trustees, and filing a sworn 
 certificate; the powers of officers and of 
 the corporate body; the disposition of real 
 and personal property, &c. ; stock is to be 
 issued in shares, and is to be dealt with in 
 much the same manner as in the case of 
 ordinary business corporations; and stock- 
 holders are individually liable for debts of 
 the corporation to the amount remaining 
 unpaid upon their shares. Synods, pi-es- 
 byteries, &c., may be incorporated under 
 this act. Col. Laws 1879 (Feb. 20), 33. 
 
 Corporations may be formed (under the 
 general act of April, 1871 and 1872) for any 
 lawful purpose, except banking, insurance, 
 real-estate brokerage, railroads (horse and 
 dummy railroads allowed), and loaning 
 money. III. Laws 1879 (April 19), 82. 
 
 An act " to authorize associations for 
 intellectual, scientific, aesthetic, spiritual, 
 religious, or liberal culture or inquiry " is 
 a general incorporation law authorizing as- 
 sociations of the kind mentioned to be 
 formed by not less than five persons filing 
 certificate of organization, electing manag- 
 ing officers, &c. Mich. Laws 1879 (March 
 20), 76, No. 79. 
 
 An act authorizing the formation of 
 bodies corporate to be known as the Fire- 
 man's Association of the State of Mich- 
 igan is a general law enabling any five or 
 more persons to become incoi-porated for 
 the promotion of the best interests of the 
 firemen; such as the relief of the dis- 
 tressed; the visitation of the sick; the 
 burial of the dead; and the compilation 
 of fire statistics. Mich. Laws 1879 (May 
 27), 106, No. 111. 
 
 An act "to provide for the incorporation 
 of benevolent societies " is a general act 
 enabling any ten or more persons to be- 
 come incorporated for benevolent purposes, 
 or enabling any benevolent society then in 
 existence to reorganize, &c. Mich. Laws 
 1879 (May 20), 148, No. 155. 
 
 Incorporated societies for social and 
 recreative purposes enabled to enlarge their 
 corporate purposes. N. Y. 1 Laws 1880 
 (May 11), 376, ch. 246. 
 
 Companies " for the purpose of accu- 
 
 mulating, storing, conducting, selling, fur- 
 nishing, and supplying water for mining, 
 domestic, manufacturing, municipal, and 
 agi'icultural purposes," may be organized 
 under the general manufacturing compa- 
 nies' law. Mining companies may extend 
 their corporate business to water-supply. 
 N. r. 1 Laws 1880 (March 31), 197, ch. 85. 
 
 UinoT Decisions on Corporation. 
 
 Notwithstanding a particular charter 
 granted to a beer company, held, that the 
 legislature might prohibit all manufacture 
 of malt liquors : 97 U. S. 25. Charter to 
 carry on noxious chemical works, held, 
 only a license for the time being ; not a 
 contract exempting the company from prose- 
 cution as a nuisance after the neighbor- 
 hood became settled : 98 Id. 059. A 
 provision that corporations shall not be 
 created by special act should not be con- 
 strued to forbid chartering a single c. to 
 improve the navigation of a particular 
 river • 38 Mich. 204. No c. (except cit- 
 ies) can be created or receive grant of ad- 
 ditional powers by special act : 44 Wis. 
 295. Alabama legislation as to general in- 
 corporation acts, — explained: 61 Ala. 232. 
 Repealing a general incorporation law does 
 not necessarily impair existence or powers 
 previously formed under it : 39 Mich. 700. 
 Invalidity of incorporation of benevolent 
 or missionary societies under the Michigan 
 general law for literary and scientific cor- 
 porations : 41 Id. 67. Altering the rem- 
 edy for assessment of damages for lands 
 taken for corporate use is not impairing 
 any contract in the charter : 87 Pa. St. 
 114. Court will take judicial notice of 
 corporate existence of company recognized 
 in a public statute : 51 Tex. 069. Sev- 
 eral States may unite in creating one c, or 
 in consolidating several into one: 3 Woods, 
 651. 
 
 A wrongly-removed member of a social 
 club restored by mandamus : 40 N. J. L. 
 295. Subscription is an engagement with 
 all other subscribers ; one signer cannot 
 set up a secret qualification for his sole 
 benefit : 87 Pa. St. 95. Subscription 
 made on a loose sheet of paper, afterwards 
 put in a book ; the contents of the paper 
 with names, amounts, &c., being entered 
 in a book by the commissioners, sustained 
 as sufficient : 33 Ark. 97. Subscriber for 
 shares, who does not pay calls punctually. 
 
126 
 
 CORPORATION. 
 
 is chargeable with interest, and cannot de- 
 mand certificate until it is paid : 71 N. Y. 
 298. How the capital stock of a c. — 
 here a bank — must be paid in ; and the 
 effect of accepting notes of stockholders 
 indorsed by each other, to render thein in- 
 dividaally liable for corporate debts : 1 
 Lea (Tenn.), 398. Legislative change of 
 corporate name does not release previous 
 subscribers to stock : 68 Me. 81. A certif- 
 icate of stock may be shown by parol to 
 have been issued to the party not as owner 
 but as security ■ 98 U. S. 514. Shares 
 assigned and transferred on the books as 
 security for a debt are pledged ; the credi- 
 tor cannot sell without demand and notice, 
 and they cannot be sold on execution 
 against the debtor : 58 Ala. 204. Notice 
 to the c. of a pledge of its stock is not 
 needful to render the pledge binding 
 against third persons : 31 La. Ann. 149. 
 What is notice to the c. of the ownership 
 of shares : Id. 523. A rule forbidding a 
 stockholder to sell stock without first offer- 
 ing it to the c. does not avoid a sale upon 
 execution : 12 R. I. 173. Assignment of 
 stock is valid (against creditors of assign- 
 or) without transfer on the books : 3 Lea 
 (Tenn.^, 1. Transfer of shares by assign- 
 ment and delivery only, when by-laws 
 require transfer on the books, is inopera- 
 tive on a creditor levying without notice ; 
 but may be enforced between the parties : 
 91 III. 457. Suit will lie to compel a c. to 
 make a transfer of shares on its books : 76 
 N. Y. 365. Stockholder who takes part in, 
 and is elected director at, a stockholders' 
 meeting, cannot object that the notice of 
 the meeting was insufficient : 68 Me. 81. 
 Persons who have done business and made 
 contracts under a name and organization as 
 if incorporated will not bfe allowed to deny 
 corporate liabili ty : 4 Mo . App . 429 . Stock- 
 holder cannot impeach stock issued in ex- 
 change for property while corporation 
 retains the property: 69 Mn. 611. One 
 who buys a share in an unincoi-porated 
 association must ascertain its by-laws be- 
 forehand : 48 Pa. St. 103 . 
 
 Ratification by stockholders is requisite 
 to a lease of a railroad in Nebraska ; but 
 invalidity of unratified lease will not pre- 
 vent recovery for use and occupation : 2 
 Fed. Reporter, 117. Corporate powers of 
 the grand grove and subordinate groves of 
 the Ancient Order of Druids : 4 Mo. App. 
 
 429. What business may be done by cor- 
 porations formed under 66 Ohio L. 125 
 authorizing corporations for building and 
 repairing water-craft : 33 Ohio St. 453. 
 Under general power to purchase property, 
 c. may buy shares of its own stock : 49 
 Iowa, 25. A vote to accept the report of 
 a committee is not an acceptance of a pro- 
 posal from a third person communicated 
 by the committee in their report : 125 
 Mass. 565. Effect of entries in company's 
 minutes to prove superintendent's claim to 
 salary: iO Mick. Si. The doctrine of utoa 
 vires is not applied to protect a c. from 
 damages for a wrong, — here, loss of a 
 special deposit by gro.sB negligence : 100 
 U. S. 699. C. is chargeable with notice 
 of whatever is actually known to its presi- 
 dent or its chief officers : 31 La. Ann. 149. 
 Ratification by c, here, municipal, is 
 limited to acts which it might have au- 
 thorized in advance ; a village cannot 
 ratify digging a sewer in another jurisdic- 
 tion : 40 Mich. 429. C. cannot dispute a 
 contract made by the board, the benefit of 
 which it has received and which it retains. 
 13 Ct. of CI. 209 : 97 U. S. 13 ; 8 Reporter 
 641. Liability of a c. upon notes made by 
 a general agent in the corporate name, 
 drawn payable to himself and negotiated? 
 39 Mich. 644. Operation of Laws 1850, ch, 
 172, forbidding corporations to plead usury: 
 74 N. Y. 85. C. may be indicted for Sab- 
 bath-breaking, e. g. running railway trains: 
 15 W. Va. 362; 22 Alb. L. J. 38. 
 
 When no successor is appointed, acts of a 
 corporate officer, done after expiration of 
 his term of office, without objection by the 
 c. or the State, are valid as to third per- 
 sons : 59 Ala. 461. Bankruptcy of a c. 
 does not dissolve it so that a director may 
 buy claims against it at a discount, and 
 claim the face value to the prejudice of 
 other creditors : 60 Ga. 174. President is 
 not incapacitated by his office from buying, 
 in open marltet, obligations of the company: 
 3 Hugh. 26. General agent of mining 
 company has not implied authority to make 
 notes in the name of the c , especially notes 
 drawn payable to himself : 39 Mich. 644,. 
 Directors cannot bind company by contract 
 with themselves or for their own benefit : 
 30 N. J. Eq. 702. Director who withholds 
 from his fellows infoi-mation material to a 
 sale which the board is negotiating may 
 be liable to an action : 14 BlcUchf. 41'2. 
 
CORPORATION. — COUNTY. 
 
 127 
 
 If trustees making sale for c. are members 
 of association purchasing, the sale is not 
 void ; but the c. can redeem : 69 Mo. 
 224. A sale made by a committee of a 
 corporation of its to a company of which 
 the committeemen were members con- 
 demned: 2 Pearson (Pa.), 84. 
 
 Eifect of expiration of a c.'s term to 
 defeat judgment in any pending suit 
 against it ; and of certain statutes con- 
 tinuing, partially, the corporate existence 
 and powers of trustees : 73 N. Y. 384. 
 Assets of a benevolent c. — here a fire 
 company — cannot, upon a dissolution, be 
 distributed amongst members ; they are 
 consecrated to public use : 88 Pa. St. 
 389. 
 
 Stockholder is chargeable with notice of 
 matters appearing by corporate records : 69 
 Mo. 224. Individual liability, under Iowa 
 Code, of stockholders of construction or rail- 
 road company : 49 Iowa, 317. A statute 
 charging stockholders individually for any 
 failure to comply with the law as to " organ- 
 ization and publicity " applies upon failure 
 to publish the required notice of incorpora- 
 tion, though there is no defect of organiza- 
 tion; "and" should be read " or " : 50 
 Id. 389. After the shares are allotted, the 
 liability of shareholders is no longer a joint 
 one for all the corporate debts, but, by 
 Stat. 1870, ch. 224, §§ 39-43, a several one 
 proportioned to the shares held by each 
 member : 127 Mass. 586. Proof that de- 
 fendant admitted being stockholder before 
 the date of the debt, and the books show no 
 transfer from him, is good proof of owner- 
 ship of shares to sustain a finding of indi- 
 vidual liability - 39 Mich. 58. Individual 
 liability of stockholders where directors 
 neglect to publish notice of debts ; and 
 their right to compel publication of notice 
 by mandamus: 8 Neb. 115. How far 
 members of the Nebraska State Grange of 
 The Patrons of Husbandry may be treated 
 as partners : Id. 130. Statute imposing 
 individual liability on stockholders must be 
 strictly construed, and not carried beyond 
 its terms: 77 iV^. Y. 1. Individual liabil- 
 ity is statutory ; but if stockholder has not 
 paid his subscription, the funds may be 
 reached by creditor : 49 Tex. 123. By 
 Illinois law, individual liability is avail- 
 able, not to each creditor for his debt, 
 but to furnish a common fund for all 
 creditors by chancery proceedings : 3 
 
 Bradw. (111.) 191. Payment by stock- 
 holder to company of his entire sub- 
 scription bars action on his individual 
 liability for debt afterwards contracted : 
 48 Md. 292. One stockholder, or his as- 
 signee, cannot sue to hold his fellow 
 stockholders individually liable on a note 
 of the company : 127 Mass. 592 ; or on a 
 demand for wages : Id. 595. Individual 
 liability is purely statutory, and must be 
 pleaded and proved as such : 40 N. J. L. 
 52. Judgment creditor of c. may bring 
 creditor's bill against stockholder to reach 
 assets wrongly transferred to him : 76 
 N. Y. 9. 
 
 COUNTY. Alteration. Counties are 
 not, in any respect, business corporations 
 for private purposes ; nor are they organ- 
 ized exclusively for the common benefit of 
 citizens and property-holders within their 
 respective limits. They are of a purely 
 political character, constitutingthe machin- 
 ery and essential agencies by which the free 
 governments derived from and modelled 
 upon the popular and representative fea- 
 tures of the English constitution are up- 
 held, and through which, for the most part, 
 their powers are exercised. The idea of a 
 government by means of counties comes 
 down from the remotest period of Anglo- 
 Saxon history. In our constitution this 
 division is taken for granted. The idea of 
 counties underlies aU American constitu- 
 tions; they presuppose both the existence 
 and necessity of counties, and, starting 
 from that foundation, proceed to base 
 thereon frames of government, in which the 
 counties all act eflScient parts. The polit- 
 ical power is composed of representatives 
 from counties. Through them justice is 
 administered, the revenue collected, and the 
 local police rendered effective. Neither 
 the courts of justice, nor the executive of 
 the State, can perform any important func- 
 tion, except in the tribunals, or through 
 the offices of the counties. Having this 
 character, so intimately connected with the 
 public interests, so foreign to any consider- 
 ations of private convenience in opposition 
 to the common good, it logically follows 
 that the power of the legislature to mould 
 and direct these political subdivisions to 
 effect their objects, and cause them to sub- 
 serve the highest purposes, must be very 
 great. They are the vitals of the State. 
 Their annihilation as a system would be 
 
128 
 
 COUNTY. 
 
 the destruction of the State; their ineffi- 
 ciency, her paralysis. It has long been 
 held with regard to the towns in the New 
 England States, which, there, are political 
 agencies, and with regard to counties also, 
 that, upon their division, the old county or 
 town will, without statutory provision, re- 
 tain the property, and remain liable for the 
 debts. But it is competent for the legisla- 
 ture to apportion the property and the bur- 
 den between the old and new towns and 
 counties as it may deem proper, and compel 
 taxation for the purpose \^Coo. Tax. 176, n. 
 2; 92 U. S. 307]. In some of the cases 
 property originally inuring to the use of a 
 portion of the citizens of a town has been 
 applied to the benefit of all others brought 
 into the same town with them; and in 
 others, burdens have been imposed on new 
 additions which did not appertain to them 
 before. The power to create new towns or 
 counties, and change the boundaries of old 
 ones, is indispensable to a wholesome gov- 
 ernment in the evei-varying changes of 
 condition attending our progress in civiliza- 
 tion; and that power could not be exercised 
 with sufficient freedom if the legislature 
 could not, in doing so, apportion benefits 
 and burdens amongst those presumed to be 
 benefited by the change. This is not in 
 any true sense taking the property of A. 
 for the benefit of B. It is simply imposing 
 a tax upon the property of A. and B. to- 
 gether, for the direct benefit of the partic- 
 ular political subdivision of the State, and 
 for the general benefit of the whole State, 
 in so arranging these political subdivisions 
 that justice may be administered, the local 
 police provided for, the revenue collect- 
 ed, and political representation secured in 
 the most eflicient manner, without injus- 
 tice to creditors. It is, indeed, like all 
 taxation , taking private property for public 
 uses ; but the compensation is presumed in 
 the benefits of the new organization in pro- 
 moting the welfare and convenience of all 
 citizens, regardless of locality. Supreme 
 Cl. 1878, Eagle v. Beard, 33 Ark. 497. 
 
 Change of county seat. Tenn. Const. 
 1870, art. 10, § 4, prohibited the removal 
 of any county seat without the con- 
 currence of two-thirds of the qualified 
 voters of the county. An act of 1873 for- 
 bade a proposed removal unless a vote 
 should be cast for it equal to two thirds 
 of the votes cast in the next preceding gov- 
 
 ernor's election ; but authorized it if the 
 proposal should receive that number of 
 votes in its favor; thus taking the number 
 of votes cast in the preceding governor's 
 election as a measure or standard showing 
 the entire number of qualified voters in the 
 county. A removal was ordered under this 
 act, and was contested. For the law it was 
 urged that the act might be sustained as a 
 legislative declaration of what shall consti- 
 tute or be considered two thirds of the 
 qualified voters of the county; that it would 
 be inconvenient and almost impossible to 
 ascertain the exact number of voters in a 
 county on any given day, and, the vote 
 on the governor's election and the vote on 
 the subject of removal ought to suflBce for 
 criteria ; that a vote of two thirds of 
 the greatest number of persons voting at 
 either of these elections, for removal, 
 ought to suffice, and the voters not voting 
 ought not to be counted for this purpose; 
 for if a voter remains away from the polls 
 on an election to remove the county seat, 
 he ought to be regarded as consenting to 
 the i-emoval because he does not vote against 
 it. Held, that the law could not be sus- 
 tained [5 HeisJc. (Tenn.) 294]. The word 
 " concurrence " in the constitution is even 
 stronger than "consent." It i-equires ac- 
 tive assent of two thirds of the qualified 
 voters. Passive acquiescence cannot be 
 substituted. An affirmative vote of two 
 thirds of the qualified voters is required to 
 authorize removal of a county seat. Sti- 
 preme Ct. 1878, Bouldin v. Lockhart, 1 Lea 
 (Tenn.), 195. 
 
 Public works. A county may be en- 
 abled and even required by special law to 
 construct a public work — here a drawbridge 
 — lying outside its territorial limits. The 
 legislature may, unless restrained, exercise 
 control over the county agencies, and re- 
 quire such public duties and functions to be 
 performed by them as fall within the gen- 
 eral scope and objects of the municipal 
 organization. This power of the legislar 
 ture is not without limit, and especially ii 
 there a limit in regard to objects. The 
 legislature has no more power to require a 
 tax to be raised in one county to pay for a 
 purely local object in and for another county 
 than it has to require that the expense of » 
 purely public improvement should be paw 
 by one or a given number of individuals. 
 But it does not follow where the purposes 
 
COUNTY. 
 
 129 
 
 of the taxation required is not oflly ptiblio, 
 but the object to be accomplished is at the 
 same time local in its character, and of 
 special and peculiar interest to the people, 
 sought to be taxed, that the law directing 
 the tax to be levied may not be enforced, 
 though the object of the expenditure may 
 have its situs beyond the limits of the 
 county taxed. While it would not be 
 competent to a county to levy taxes to be 
 expended in the construction of a road or 
 bridge beyond its territorial limits, without 
 the express authority of law, yet where 
 the bridge in question was not only author- 
 ized, but its construction and the levy of 
 taxes to pay for it were expressly directed 
 by mandatory act of the legislature, then, 
 though the bridge is over a stream beyond 
 the limits of the county, the authorities 
 are quite explicit in maintaining, upon the 
 ground of special and peculiar interest, that 
 such mandatory legislation is constitutional 
 and enforceable. [103 Mass. 129; 104 Id. 
 236; 24 Wend. 65; Coo. Tax. 123.] Ct. of 
 Appeals, 1878, Talbot County v. Queen 
 Anne's County, 50 Md. 245. 
 
 A coanty treasurer who is robbed of 
 the county moneys is not, nor are the sure- 
 ties on his bond, liable to make good the 
 loss to the county. In the absence of a 
 statute enlarging his responsibility, the 
 county treasurer is custodian or depositary 
 of the funds in his charge; and his liability 
 it that of an ordinary bailee for hire, not 
 that of an absolute debtor or insurer. His 
 giving a bond does not increase his respon- 
 sibility, but is required only as security 
 that his obligation shall be met. He is 
 bound, virtule officii, to exercise good faith 
 and leasonable skill and diligence in the 
 discharge of his trust ; or, in other words, 
 to bring to its discharge that prudence, 
 caution, and attention which careful men 
 usually exercise in the management of their 
 own affairs; and he is not responsible for 
 any loss occurring without any fault on 
 his part. This, substantially, is the rule by 
 which the common law measures the re- 
 sponsibility of those whose oflBcial duties 
 require them to have the custody of prop- 
 erty, public or private, — such as officers of 
 court in charge of the property of suitors ; 
 trustees, except when they mix the trust 
 property with their own, whereby the iden- 
 tity of the former is lost ; marshals appoint- 
 ed by courts of admiralty to take care of 
 9 
 
 vessels and cargoes; receivers, &c. [Re- 
 viewing many cases.] The grounds on 
 which sheriff, carriers, and innkeepers 
 are held to a higher liability are peculiar 
 to their vocations. Supreme Ct. 1879, Cum- 
 berland County V. Pennell, 69 Me. 357. 
 
 Minor Decisions on Connty. 
 Distinction between " e.stablished " and 
 "organized " counties: 24 Minn. 143. In 
 what sense city of St Louis may be deem- 
 ed a c. : 4 Mo. App. 347; and see Id. 377. 
 Legislative recognition of c. negligently or 
 fraudulently organized, held, to give it va- 
 lidity: 21 Kan. 210. Validity of legisla^ 
 tion changing c. seat: 7 Baxt. (Tenn.) 46. 
 Authority to levy taxes: 30 Gratt. (Va.) 
 471. Property brought within c. by an- 
 nexation of new territory may be taxed for 
 precedent debts: 82 N. C. 17. The pror 
 ceedings of a c. court can be shown only 
 by its record: 97 U. S. 272. Mandamus 
 directed to c. in its coi-porate name, and 
 served upon the clerk of the board of com- 
 missioners, binds the board: 99 Id. 624. 
 The rule that a member of a board is dis- 
 qualified to vote on a proposition in which he 
 has an adverse interest applies to c. super- 
 visors ; a supervisor who is surety for the 
 treasurer cannot vote upon a proposal to 
 release or modify the treasurer's liability: 
 47 Wis. 208. Supervisors cannot pay 
 dealer for coal bought and distributed 
 among the poor by a charitable society, 
 although c. poor were relieved: 2 Bradw, 
 {III.) 548. Treasurer of c. cannot be com,- 
 pelled by mandamus to pay to school trus- 
 tees the amount of unpaid taxes on lands 
 of non-residents \_Laws 1864, ch. 555, 
 tit. 7, § 75], unless funds applicable have 
 been raised ; or if they have been paid out 
 upon lawful claims: 76 N. Y. 422. C. may 
 sue on treasurer's official bond for his default 
 to pay over county moneys ; it is the party 
 aggrieved: 9 5. C. 1. Effect of a constitu- 
 tional prohibition of c. bonds in aid of 
 railroads, to abrogate a prior enabling act, 
 and prevent proceedings being taken under 
 it to cure defects in an earlier subscription; 
 92 ///. 441. C. cannot dispute recitals in 
 its railroad bonds, showing an election in 
 favor of the subscription, for the purpose , 
 of defeating the recovery of a hona fide 
 purchaser: 99 U. S. 636. An unauthor- 
 ized extra session of a legislature passed an 
 act to permit c. bonds; held, that the c. 
 
130 
 
 court; 
 
 eommissloners took no power, and the bonds 
 were void: 1 Dak. T. 236. C. held liable 
 for nuisance in maintaining house for small- 
 pox patients, by which plaintiff's family, 
 living near, were made sick and died: 60 
 Ind. 511. 
 
 COURT. In general. Judicial tri- 
 bunals, such as are clothed with power to 
 ascertain the facts as well as to pronounce 
 the law, have in general an implied power, 
 with consent of parties, to appoint arbitrar 
 tors or refei'ees, and refer a pending cause 
 to them. And Ohio Code, § 281, permits 
 issues either of fact or law to be thus re- 
 ferred. Supreme Ct. 1878, Newcomb v. 
 Wood, 97 U. S. 581. 
 
 Liability of judges. The judge holding 
 a United States circuit court, before which 
 Lange was convicted of an offence punish- 
 able under act of Congress by fine or im- 
 prisonment, sentenced him to fine and 
 imprisonment. Lange paid the fine, and 
 then sued out a writ of habeas corpus to 
 procure a discharge from the imprisonment. 
 The application came on to be heard before 
 the same judge, who vacated the entire 
 sentence, and sentenced the accused anew 
 to imprisonment. Further proceedings in 
 behalf of the accused resulted in a deci- 
 sion by the supreme court of the United 
 States that the re-sentence was unauthor- 
 ized; and Lange was then discharged. He 
 then brought the present action to recover 
 damages from the judge. Held, that the 
 action was not maintainable. The general 
 rule is familiar that no action will lie 
 against a judge of superior or general ju- 
 risdiction for an act done in his judicial 
 capacity. The test is not whether the act 
 is done by one while having the judicial 
 character, or whether it is lawful or unlaw- 
 ful, or whether it was in excess of jurisdic- 
 tion or whether it was done with malice or 
 corruptly. There is no liability to civil 
 action if the act was done in a matter 
 within his jurisdiction ; if, when the person 
 assumed to do the act as judge, he had ju- 
 risdiction over the person acted upon, and 
 of the subject-matter to which the act re- 
 Court. As to the chief Federal courts, see their 
 titles: Circuit Court; Coukt of Claims; Dis- 
 trict Court; Supreme Court. 
 
 Kftect of bankruptcy of party on suit in State 
 court, p. 6. Drawinff grand jurors in U. S. district 
 court, p. 7. Duty of court in trying accomplice 
 wlio turned state's evidence, p. 9. Court will nut 
 arrest war-vessel of friendly nation, p. 14. Appeal 
 
 lated. And jurisdiction oi the subject, 
 matter, within the rule, does not require 
 proof of particular facts establishing, a 
 specific and immediate cause of action in 
 the individual case, but means that the 
 general or abstract question involved is 
 within the power of the tribunal or officer. 
 [72 N. Y. 217; 1 Ld. Raym. 454; Z Man. 
 §■ S. ; 2 Mod. 218.] It is the general ab^ 
 stract thing which constitutes the subject- 
 matter; and the power to inquire and 
 adjudge whether the facts of a particular 
 case make that case an instance of the 
 general thing is jurisdiction of the subject- 
 matter. 
 
 In the present case the judge had ju- 
 risdiction of the person of the plaintiS 
 manifestly. He had also jurisdiction of the 
 subject-matter in the sense above explained, 
 that is, of the general matter then befwe 
 the court. The particular matter or ques- 
 tion presented was the sentence of fine and 
 imprisonment passed upon the plaintiff; 
 whether it was erroneous and unlawful in 
 that it went beyond the limit of the law, 
 he having been some days in imprisonment 
 under it, and having paid a sum of money 
 equal in amount to the fine to the clerk ol 
 the court, who in turn had paid it to an 
 officer of the United States government; 
 whether it was lawful to vacate the sentence 
 if in excess of the law; whether, if that 
 sentence should be vacated, another sen- 
 tence which should be in accord with the 
 statute might be imposed. Now if he had 
 authority to adjudicate upon these facts 
 and questions, an erroneous adjudication 
 was a judicial error to be redressed by ju- 
 dicial review, and not a wrong done per- 
 sonally and to be redressed in a civil action. 
 Where jurisdiction over the subject is 
 invested by law in the judge; or in the 
 court which he holds, the manner and ex- 
 tent in which the jurisdiction shall he 
 exercised are generally as much questions 
 for his determination as any other involved 
 in the case; although upon the correctness 
 of his determination in those particulars 
 the validity of his judgment may depend. 
 
 to supreme court, p. 24. Tennessee county court 
 could not trv Union soldier during civil war lor 
 murder, p. 26; nor New Orleans court adjudge 
 damages against General Dow, p. 27. Using ni«|- 
 nifving glass in court to detect forgery, P; ■"• 
 What courts may talie suits affecting national 
 banks, p. 39; or ijnnkrupts or their assignee.', PP' 
 42, 45. Reorganization of California courts, ?• * 
 
COURT. 
 
 131 
 
 For such sin act, a pel-son acting as judge 
 therein is not liable to civil or criminal 
 action. Ct. of Appeals, 1878, Lange v. 
 Benedict, 73 N. Y. 12. See also 8 Hun, 
 332, for decision of the State supreme 
 court, here affirmed; and 18 Wall. 103, 
 where the decision of the United States 
 supreme court, discharging from the second 
 imprisonment, is reported; also, 99 U. S. 
 68, where the court dismissed a writ of 
 error brought to review the above decision 
 of the New York court of appeals, on the 
 ground that it did not present a Federal 
 question. 
 
 Judicial officers are not liable to action 
 for damages for official acts done within 
 their jurisdiction ; this rule extends to wil- 
 ful and malicious acts as well as to neglect 
 of duty. For ' the sake of protecting so- 
 ciety from the scandal and embarrassment 
 which would follow subjecting the judiciary 
 to separate prosecutions of private parties, 
 the appointed remedy for wilful miscon- 
 duct of a judge is indictment or impeach- 
 ment at the instance of the sovereign 
 power. Supreme Ct. 1878, Rains v. Simp- 
 son, 50 Tex. 495. 
 
 — or ministerial officers. But a judicial 
 officer may be lield liable for an act or a 
 refusal to act in the discharge of a minis- 
 terial duty. The test is that where tlie law 
 prescribes and defines the duty with such 
 precision and certainty as to leave nothing 
 to the exercise of discretion or judgment, 
 the act is ministerial; but where the act to 
 be done involves the exercise of discretion 
 or judgment, it is not to be deemed minis- 
 terial, lb. 
 
 The approval of a sheriff's bond is a ju- 
 dicial act; and the members of the county 
 court, as constituted under the Texas 
 Const. 1869, were not liable personally in 
 a civil action, at suit of the sheriff, for 
 having wrongfully and maliciously rejected 
 his official bond. lb. 
 
 When property or money is in custodid 
 lerjis, the officer holding it is the mere hand 
 of the court; his possession is the posses- 
 sion of the court; to interfere with his pos- 
 session is to invade the jurisdiction of the 
 court itself; and an officer so situated is 
 bound by the orders and judgment of the 
 court, whose mere agent he is, and he can 
 make no disposition of it without the con- 
 sent of that court, express or implied; 
 in the absence of some statutory authority. 
 
 Dist. of Iowa, 1879, Re Cunningham, 9 
 Cent. L. J. 208. 
 
 Where the proceedings of a court are 
 void on their face, they afford no protec- 
 tion to an innocentdepositary without hire, 
 who pays out money on the faith of them 
 to a party not entitled to receive it. 1878, 
 Winchester v. United States, 14 Ct. of CI. 
 13. 
 
 The Federal conrts. The Federal courts 
 will enforce equitable rights created by 
 State legislation if they have jurisdiction 
 of the subject-matter and the parties. 
 Supreme Ct. 1878, Smith v. Railroad Co., 
 99 U. S. 398. 
 
 No court of the United States is em- 
 powered to decree final distribution in prize 
 cases, except the court which first acquires 
 jurisdiction over the res or its representa- 
 tive proceeds. 1878, Winchester v. United 
 States, 14 Ct. of CI. 13. 
 
 The provision of Rev. Stat. § 5198, — 
 that suits against national banks may be 
 had in any court of the United States held 
 within the district where the court is estab- 
 lished, or in any state, county, &c., court in 
 the county or city where the bank is located, 
 — has reference only to transitory actions, 
 and does not prevent suing a bank upon a 
 cause of action of a local character, in any 
 State court having jurisdiction within the 
 venue where the cause of action arose. 
 The distinction between local and transi- 
 tory actions is old and familiar; ^.nd laws 
 which prescribe in general terms where a 
 party shall be sued are generally understood 
 to be subject to the qualification that local 
 actions are to be prosecuted where the sub- 
 ject-matter is situated. Supreme Ct. 1879, 
 Casey v. Adams, Opinion in Cterk^s Office. 
 
 Adoption of State practice. Section 2 
 of the Process Act of 1792 (Rev. Stat. 
 §913) — which declares that in suits in 
 equity in the United States courts the pro- 
 ceedings shall be according to the usages of 
 courts of equity — in effect forbids pur- 
 suing equitable and legal causes of action 
 in one suit. A party who claims a legal 
 title must proceed at law; while one whose 
 title or claim is equitable must follow the 
 forms and rules of equity proceedings. 
 Supreme Ct. 1879, Hurt v. Hollings worth, 
 100 U. S. 100. 
 
 While Molsberger was occupying lands 
 as a homestead, a creditor caused them to 
 be sold on execution; and Hollingsworth 
 
132 
 
 COURT. 
 
 bought them and took a sheriff's deed, but 
 did not get possession. Later Molsberger 
 sold the lands to Hurt, and gave him a 
 deed and possession. Of course the title 
 then depended on the validity of the home- 
 stead claim ; if the land wag exempt, the 
 execution sale was a nullity; if it was not, 
 Molsberger's conveyance was void; for 
 ■when it was made, his title had been de- 
 vested. To determine the question. Hurt 
 brought suit to vacate the sheriff's deed as 
 a cloud on his title, and Hollingsworth 
 answered denying the homestead exemp- 
 tion, alleging his own purchase and that 
 Hurt wrongfully withheld the land from 
 him, and asking judgment for possession. 
 The circuit court, partly on a stipulation 
 of parties, entertained both claims ; heard 
 the evidence as to the homestead claim, 
 and decided that it was invalid; and then 
 rendered judgment dismissing Hurt's suit 
 and granting Hollingsworth's demand for 
 possession. Held, that a Federal court 
 cannot entertain these two demands in one 
 action. The first is strictly a suit in equity 
 seeking special relief, which only a court 
 of chancery can grant. The second is an 
 action at law for the recovery of real prop- 
 erty. The two cases are entirely different 
 in their nature, and can be determined, 
 where the distinctions between legal and 
 equitable proceedings are maintained, only 
 in sepai'ate suits. In the one case, if the 
 allegations of the plaintiff be sustained, the 
 judgment must be declai-atory and pro- 
 hibitory, adjudging that the deed of the 
 sheriff to the defendant constitutes a cloud 
 upon his title, and enjoining the defendant 
 from asserting any claim to the premises 
 under it. In the other case, if the defend- 
 ant establishes his averments, the judg- 
 ment must be for the possession of the 
 premises and the rent and profits. In the 
 Federal courts such a blending of equi- 
 table and legal causes of action in one suit 
 is not permissible. Ih. 
 
 The adoption, by Rev. Stat. § 914, of 
 State practice for Federal courts does not 
 enable a plaintiff to seek both legal and 
 equitable i-elief in one action. Thus, al- 
 though such joinder is allowed by the 
 N. y. Code of Procedure, it is not allow- 
 able in a Federal court, either in a cause 
 originally commenced there, or in one re- 
 moved to it from a State court. When a 
 suit seeking for an injunction and the | 
 
 cancellation of a contract licensing defend- 
 ant to manufacture under a patent-right 
 and also for damages for past breaches of 
 the contract, is removed, the proper pra<!. 
 tice is to recast the complaint, dividing it 
 into two suits, — one an action at law for 
 the damages, and one in equity for the rescis- 
 sion. The doctrine of retaining the cause 
 on proof of right to equitable relief for the 
 purpose of making an award of damages 
 does not apply. 2d Circ. (N. Y.) 1879, 
 La Mothe Manuf. Co. ». National Tube 
 Works Co., 15 Blatchf. 432. 
 
 Under the New York practice as adopted 
 in the United States courts, an oral transfer 
 by insured, after loss, of his right of action 
 on the policy, is valid, and enables the 
 assignee to sue. N. Dint of N. Y. 1878, 
 Bennett v. Maryland Fire Ins. Co, 17 
 Alb. L. J. 363. 
 
 The practice of New Tork State courta, 
 allowing one suit on a bond to be brought 
 against executor of a deceased obligor to- 
 gether with surviving obligors, may be 
 followed in a Federal court. S. Dist. of 
 N. Y. 1875, United States v. Tracy, 8 Ben. 
 l\2d Circ. (N. Y.) 1877, United States ». 
 Lawrence, 14 Blatchf. 229. 
 
 Rev. Stat. § 914, does not adopt a State 
 law allowing equitable defences to be set- 
 up against a .demand of legal cogaizancei 
 e. g. in an action on a judgment. 2d Circ. 
 (N. Y.) 1877, Montejo o. Owen, UBlatclif. 
 324. 
 
 A State law providing for the examina- 
 tion of witnesses before trial is not 
 adopted for the Federal courts in that 
 State; evidence in such courts is regu- 
 lated by Rev. Stat. § 861. 2d Circ. {N. Y.) 
 1877, Beardsley v. Littell, 14 Blatchf. lOi; 
 23 Int. Rev. Rec. 226. 
 
 Rev. Stat. § 914, was not intended te 
 abrogate the established law of the courts 
 of the United States, that to gi-ant or rfr 
 fuse a new trial rests in the sound dis- 
 cretion of the court to which the motion is 
 addressed, and that the result cannot he 
 made the subject of review by writ of 
 error. Supreme Ct. 1S78, Newcomb o. 
 Wood, 97 U. S. 581. 
 
 The rule as to the order in which, where 
 lands have been mortgaged, and jjarcels 
 thei'eof subsequently sold at different times 
 to different purchasers, such parcels shall 
 be subjected to the satisfaction of the mort 
 gage, is, where the rule is established by a 
 
COURT. 
 
 133 
 
 statute or by the decisions of the courts of 
 the State where the lands lie, a rule of 
 property binding on the courts of the 
 United States sitting in that State. Su- 
 preme Ct. 1878, Orvis v. Powell, 98 U. S. 
 176. 
 
 The construction given by the State 
 courts to the statute of limitations fur- 
 nishes the rule of decision in Federal courts 
 within the State, in cases to which it is 
 applicable. Supreme Ct. 1878, Davie v. 
 Briggs, 97 U. S. 628. 
 
 The United States cannot be barred by 
 a State statute of limitations from suing in 
 one of its own courts ; hence the rule that 
 the laws of the States shall be regarded as 
 rules of decision in the national courts does 
 not extend to warrant applying a State 
 limitation law to a suit brought by the 
 government of the United States. Su- 
 preme Ct. 1878, United States v. Thomp- 
 son, 98 U. S. 487. 
 
 " In the trial of all indictments, infor- 
 mations, complaints, and other proceedings 
 against persons charged with the commis- 
 sion of crimes, offences, and misdemeanors 
 in the United States courts, Territorial 
 courts, courts-martial, and courts of in- 
 quiry, in any State or Territory, including 
 the District of Columbia, the person so 
 charged shall, at his own I'equest but not 
 otherwise, be a competent witness. And 
 his failure to make such request shall not 
 create any presumption against him. " Act 
 of March 16, 1878, ch. 37, 20 Slat, at L. 
 30. 
 
 Terms of the circuit and district courts 
 for Colorado shall be held at Denver on the 
 first Tuesday in May and the first Tues- 
 day in October; at Pueblo on the first 
 Tuesday in March ; at Del Norte on the 
 first Tuesday in September. Regulations 
 as to summoning jurors and preservation 
 of records. Act of Congress of April 20, 
 1880. 
 
 California jadiciary. Part I. of the 
 Code of Civil Procedure, relating to courts 
 of justice, is amended by substitute, which 
 takes the place of the former Part I. as a 
 whole. Thus the entire subject of courts 
 of justice, their organization and jurisdic- 
 tion, judicial officers, and persons specially 
 invested with judicial powers, the minis- 
 terial officers and persons attached to courts, 
 &c.; as covered by the former Part I. of 
 the Code, is now regulated anew. 
 
 Minor Decisions on Conrt. 
 Constitutionality of act of June 2, 1877, 
 to divide the State into judicial circuits, — 
 sustained, notwithstanding long delay of the 
 legislature to exercise its power of changing 
 the j udiciary -.SS 111.75. H-istory and extent 
 of the privilege of the Massachusetts legis- 
 lature to ask the opinion of the justices 
 of the supreme c. . 126 Mass. 557. The 
 decision of the Texas supreme c. in 1869 
 [82 Tex. 286], criticised because the c. 
 did not exercise its function by the con- 
 stitution and laws of the State, but merely 
 by military appointment : 50 Tex. 291. 
 Jurisdiction and necessary averments in 
 divorce suit in St. Louis circuit c. ; 6 Mo. 
 App. 49. A c. can neither restrain nor 
 compel city ofiicers in the exercise of dis- 
 cretionary powers : 2 Pearson {Pa.), 101. 
 One State cannot be sued in the courts of 
 another if she objects ; but if she appears and 
 submits she is bound by the decree: 3 Lea 
 (Tenn.'), 106. Authority to issue a specified 
 writ implies authority to hear and determine 
 the question which it brings up: 3 Col. 397. 
 Stenographer may exact payment of fees 
 for copying testimony, in advance: 8 Neb. 
 22. Judgment of de facto judge is not 
 avoided by his being afterwards ousted as 
 ineligible: 60 ^fa. 260. Constitutionality 
 of statute reducing the number of district 
 judges, — sustained: 14 Nev. 117. Affin- 
 ity between a judge and a stockholder in 
 a corporation, party to a cause before him, 
 does not disqualify him: 77 N. Y. 101. 
 Appointment of administrator made by 
 clerk's filling up and sealing a blank pre- 
 viously signed by surrogate is void ; judi- 
 cial power of surrogate cannot be delegated: 
 76 N. Y. 316. Effect of a constitutional 
 requirement that a c. shall decide every 
 point fairly arising, and give reasons in 
 writing: 13 W. Va. 230. General words 
 in a constitution, conferring appellate ju- 
 risdiction, should be understood as mean- 
 ing only power to review proceedings of 
 courts ; not as including revision of any 
 and all official acts and oi-ders: 44 Wis. 
 584. Act of March 3, 1875, does not pre- 
 vent a Federal c. from trying by stipula- 
 tion issues of fact without a jury: 100 U. S. 
 208. United States courts are not bound 
 by State decisions upon the general com- 
 mercial law : Id. 239. National courts can- 
 not relieve against enforcement of a State 
 tax law if it does not conflict with the U. 
 
134 
 
 COURT OF CLAIMS.— CRIME. 
 
 S. constitution or laws, — here, a law tax- 
 ing resident citizens in respect of bonds 
 and mortgages secured on lands in other 
 States: Id. 491. A State law cannot for- 
 bid a foreign insurance company to sue in 
 a national c. ^ 3 Uuyli. 260. Jurisdiction 
 of United States courts under Rev. Stat. 
 § 5198, is not exclusive of State courts: 3 
 Woods, 21. Proceedings duly commenced 
 in a State c. for the dissolution of an insur- 
 ance company must be completed in that 
 tribunal; recovery of judgmejjt in Federal 
 courts does not authorize it to interfere : 1 
 Fed. Reporter, 20G. A State C. cannot 
 authorize replevin of property held by mar- 
 shal under circuit c. execution: 3 Bradw. 
 (III.) 353. State c. has jurisdiction of an 
 action by a borrower under act of Congress 
 June 3, 1864, § 30, to recover double illegal 
 interest taken by a national bank: 87 Pa. 
 St. 87; Id. 465; and see Id. 468. 
 
 COURT OF CLAIMS. The court of 
 claims has not jurisdiction of a land-owner's 
 claim for compensation for ha'^ng been 
 dispossessed by officers of the government 
 taking his lands for government use, where 
 they have done the acts complained of upon 
 claim that the lands are government prop- 
 eirty. Such circumstances contradict the 
 idea of any promise to pay, and do not 
 warrant raising an implied contract. If 
 the land was not government property, the 
 taking it was a tort, and does not lose that 
 character because committed by officers 
 of government acting in its behalf. Of 
 claims arising out of tort, the court of 
 claims has not jurisdiction. Supreme Ct. 
 1879, Langford v. United States, 101 U. S. 
 341. 
 
 When money comes to the fiscal officers 
 of the government subject to a statutory 
 duty imposed on the officer to pay it over 
 to a particular claimant, an implied contract 
 obligatory on the government arises, that 
 it shall be paid to him; and if it is not, he 
 may maintain an action for it in the court 
 of claims against the United States. This 
 is a claim founded on contract within the 
 jurisdiction of the court [95 U. S. 156], 
 1878, Taylor v. United States, 14 Ct. of 
 CI. 339. 
 
 Crime. Decisions on crimes well known by 
 specific names are under their titles : chiefly, 
 Auductiun; AnonTiON; Adultehy; Assault; 
 BiijAMY; Buiukhy; Bukolahy ; CoNsfUfACY; 
 CniinLTY; Disturbing RFickting; Embezzle- 
 ment j Extohtion; I'alsePhetesce; Fohgeky; 
 
 The court of claims has jurisdiction of an 
 action brought upon an implied license to 
 manufacture a patented article, the manu- 
 facture by the government being with the 
 patentee's assent, and the damages sought 
 a reasonable license-fee. Such a suit is an 
 action upon an implied contract for the use 
 of the invention. 1878, McKeever v. United 
 States, 14 Ct. of CI. 396. 
 
 UinoT Decisioiis on Court of Claims. 
 
 The c. of c. has not jurisdiction of a 
 claim for property taken by our miUtary 
 forces occupying California during Mexi- 
 can war: 14 Ct. of CI. 121; or for proceeds 
 of property captured in the civil war and 
 erroneously or wrongfully paid away by 
 government officers on forged orders: U. 
 189 ; or for compensation for attending to 
 testify before committee of Congress: Id. 
 539. What limitation bars suit in c. of c. 
 on claim referred by head of department: 
 100 U. S. 663. 
 
 COVENANT. Burden of proof in action 
 on c. of seisin or against encumbrances: 
 51 Iowa, 321. Obligation of landlord, un- 
 der a special c. in a lease, to rebuild ware- 
 house after destruction by fire : 71 N. ¥. 
 48. C. in deed of city lot, restrictive of 
 building, which is expressed to be for the 
 benefit of owners of otlier lots, then owned 
 by grantor, may be enforced directly by 
 subsequent grantee of such lot : 72 Id. 
 174. His own wrong or neglect cannot ex- 
 cuse person for breach of c. : 74 7d. 15. 
 Land-owner's c, that when he shall use a 
 party-wall he shall contribute to cost of 
 construction, is not enforceable against his 
 grantee : 76 Id. 141. A mere license to 
 enter lands for laying an aqueduct and 
 keeping it in repair is not a breach of a 
 C. against encumbrances : 33 Ohio St. 13S; 
 nor is existence of a highway on land; 
 31 Gratt.^Va.) 1. 
 
 CRIME. National jurisdiction. An 
 offence committed on board an American 
 vessel (in navigable waters) is an ofience 
 against tlie laws of the United States, not- 
 withstanding she lay within a foreign 
 country at the time. Dist. of Md. 1877| 
 United States v. Bennett, 3 Hugh. 466. 
 
 Gaming; Im>kcency'; Larceny; Libel; Maim- 
 ing; Maxslaui-.iiteb; Murder; Perjury; BAfBi 
 Robbery; Seduction. For punishable violations 
 of laws vesiilating corporations generally, see CoB- 
 poration; collection of duties. Duties; sole oj 
 liquor, Liquor - skllisg ; pensions, Pe.nsioss| 
 
CRIME. 
 
 135 
 
 Intent. The rule, -well established and 
 often stated, that crime proceeds only from 
 a criminal mind, must be so limited in 
 application as to harmonize with another 
 well-established rule, viz. : that ignorance 
 of the law is not a defence. Even with 
 respect to common-law offences, it is not 
 invariably true that the actor must have 
 knowledge sufficient to make the mind 
 guilty with respect to his act, in order that 
 he be held criminally liable ; and in a 
 large number of statutory offences the 
 crime may be committed without intent 
 to violate the statute, and even with- 
 out knowledge that the statute exists. 
 Whether, with respect to a violation of 
 any particular statute, a guilty intent to 
 break the law is necessary to criminality 
 or not, is a question of the construction of 
 that statute. It is not governed by any of 
 the general maxims of civil or natural law. 
 The eifort of the court should be to ascer- 
 tain the will of the legislature from the 
 language and purpose of the enactment. 
 The legislature has power to declare an 
 action criminal, irrespective of any knowl- 
 edge or motive on the part of the actor ; 
 and when this has been done the judiciary 
 cannot require, in the enforcement of the 
 law, that such knowledge or motive shall 
 be shown. In examining the adjudica- 
 tion it will be found that the judicial in- 
 quiry has been what was the intention of 
 the legislature in the particular statute. 
 Ct. of Errors, 1879, Halsted v. State, 41 
 N. J. L. 552. 
 
 Where the law in question declared 
 that, if any board of chosen freeholders 
 should disburse public moneys or incur 
 obligations in excess of appropriations 
 therefor, the members so voting should 
 be- deemed guilty of malfeasance in 
 office, and punishable by fine and impris- 
 onment, — Held, that a freeholder who pre- 
 sided at a meeting at which a resolution 
 incurring obligations in excess of appropria- 
 tions was passed, and who subsequently 
 approved the resolution and joined in sign- 
 ing bonds under it, was punishable, not- 
 withstanding he was advised by counsel, 
 
 railroads, Railboads ; transfers and management 
 of vessel. Shipping. 
 
 Producing miscarriage and killing the child ai-e 
 distinct offences, p. 8. Who is an accomplice, pp. 
 9, 11. His rights after turning state's evidence, 
 p. 10. Corroborating his testimony, p. 11. Nota- 
 ble English cases on detection and proof of adul- 
 
 and honestly believed that the resolution 
 did not involve a violation of the law. /&. 
 
 The duty prescribed being a simple one, 
 and easily performed, there was no ground 
 on which the court could import into the act 
 a requirement that to constitute guilt an 
 intentional violation of the law must be 
 shown. lb. 
 
 Reasonable doabt is not a mere imagi- 
 nary, captious, or possible doubt, but a 
 fair doubt, based on reason and common 
 sense, and growing out of the testimony in 
 the case ; it is such a doubt as will leave a 
 juror's mind, after a careful examination 
 of all the evidence, in such a condition that 
 he cannot say he has an abiding conviction 
 to a moral certainty of defendant's guilt. 
 Supreme. Ct. 1878, People v. Finley, 38 
 Mich. 482. 
 
 Insanity. A proper charge in regard to 
 the defence of insanity is that the accused 
 is blameless in law, (1) if, by i-eason of in- 
 sanity, he was not capable of knowing he 
 was doing wrong ; or (2) if he had not 
 power to resist the temptation to violate 
 the law. The law has no theories on the 
 subject of insanity. It holds every one 
 responsible who is compos mentis or a free 
 agent, and every one irresponsible who is 
 nan compos mentis, or has no control of his 
 mind. But if the term insanity — which, 
 it may be remarked, is not a term of law at 
 all — is so far enlarged as to include per- 
 sons who have not only knowledge of 
 wrong, but also capacity to resist it ; then 
 it includes persons whom the law deems 
 capable of crime, and is a phrase entirely 
 inapplicable in civil or criminal law. A per- 
 son who willingly indulges passion until it 
 gains temporary control over him, is respon- 
 sible for the condition in which he thus 
 falls, as a man who becomes voluntarily 
 intoxicated is liable for his drunken vio- 
 lence. It is unsafe that anything should be 
 deemed innocent insanity which in no way 
 affects the mind or conduct except on the 
 one occasion when it is kindled by tem- 
 porary anger, and which subsides with the 
 gratification of that malignant passion. 
 lb. 
 
 tcration of food, p. 15. Criminal punishment of 
 adulterv, p. 16. Evidence of alihi, p. 19. Crime 
 by Union soldier not punishable in court of se- 
 ceded State, p. 26. Assault, p. 29. Bawdy house, 
 p. 45. Burglary, p. 54. New books on crimes 
 and criminal law, Busbee; Criminal Law Mag- 
 azine; Hakbis; Houston; Wharton. 
 
136 
 
 CRIME. 
 
 There is no rule that the defence of 
 moral insanity requires to be established 
 by testimony of experts ; or that introduc- 
 tion of non-professional testimony casts, 
 irrespective of its weight in the particular 
 case, the burden of proof of rebutting it 
 on the prosecution. lb. 
 
 The sanity of a person accused of crime 
 — here murder — is presumed; to acquit 
 on the ground of insanity there must be 
 clear proof that, at the time of the offence, 
 the accused was laboring under such a de- 
 fect of reason from disease of the mind as 
 not to know the nature or quality of the 
 act he was doing, or, if he did know it, 
 that he did not know he was doing wrong. 
 The inquiry must be directed to the capa- 
 city of the accused for the particular thing 
 done and at the particular time; and not 
 to his capacity for other acts or at other 
 times. But, the inquiry being thus limit- 
 ed, it is often proper to receive proof of 
 mental condition at other times, especially 
 earlier ones, or as to other subjects; for 
 such proof may aid in determining the 
 question of sanity in issue. Ct. of Appeals, 
 1879, Webb v. State, 5 Tex. App. 596. 
 
 The proof of insanity must be satis- 
 factory, not merely doubtful ; but it need 
 not be conclusive where it may be es- 
 tablished by evidence which fairly pre- 
 ponderates. If the charge of the judge, 
 taken as a whole, may probably have led 
 the jury to suppose that conclusive evi- 
 dence is necessary, or that the defence must 
 be established beyond a reasonable doubt, 
 there should be a new trial. Supreme Ct. 
 1878, Pannell v. Commonwealth, 86 Pa. 
 St. 260. 
 
 That the accused is not required to estab- 
 lish insanity; raising a reasonable doubt 
 of his sanity entitles him to an acquit- 
 tal, — see State v. Bruce, 48 Iowa, 530; 
 Brown v. Commonwealth, 14 Bush (Ki/.), 
 398. 
 
 Punishment of death. In Texas a 
 person cannot be punished with death for 
 an offence committed before the age of 
 seventeen yeai-s [Pasch. Di;/. art. 6539]. 
 The burden of proof is on the defendant 
 claiming the benefit of the exemption to 
 show that he is mider the prescribed age. 
 The rule that the burden is upon the prose- 
 eution in a criminal case to establish every 
 fact essential to the charge, and that it 
 never shifts, means that the State is re- 
 
 quired to establish the corpus delicti and 
 the constituent elements of the crime. It 
 does not extend to distinct substantive 
 matter relied upon by the accused to ex- 
 empt him personally from punishment [13 
 Ired. 184]. Ct. of Appeals, 1879, Ake p. 
 State, 6 Tex. App. 398. 
 
 Execution of the death penalty must not 
 be in a public manner, but only in the 
 presence of such oiHcers of the law as may 
 be necessary to see that the sentence of the 
 court is properly can-ied into effect. Va. 
 iazcs 1879 (April 2), 380, ch. 119. 
 
 Commutation of imprisonment. Pro- 
 visions for allowing convicts in a State 
 prison a liberal commutation of the term of 
 imprisonment for good behavior. Wit. 
 Laws 1880 (March 15), 274, ch. 238. 
 
 Innominate offences. If any person 
 «hall unlawfully and maliciously send and 
 deliver to, or cause to be taken or received 
 by, any person, any kind of explosive sub- 
 stance, or any other noxious or dangerou! 
 thing, with intent, in so doing, to bum, 
 maim, disfigure, or disable any person, 
 or do bodily harm to any person, and every 
 person privy to such intent, who shall aid 
 in the commission of such offence, when 
 death shall not result, shall be punishable 
 by imprisonment Mich . Laws 1879 (March 
 20), 185, No. 202. 
 
 " Any person who shall, by any offen- 
 sive or disorderly act or langu^, an- 
 noy or interfere with the passengers of 
 any public stage, railroad car, ferry-boat, 
 or other public conveyance, or who shall 
 disturb or offend the occupants of such 
 stage, car, boat, or conveyance, by any dis- 
 orderly act, language, or display," though 
 not amounting to assault or battery, de- 
 clared guilty of misdemeanor. 1 N. Y. 
 Laws 1880 (May 6), 302, ch. 186. 
 
 Sending, &c., any letter or postal card, 
 signed or not, " with intent thereby to 
 cause annoyance to any pei-son, or with 
 a view or intent to extort or gain any 
 money or property of any description 
 belonging to another," declared a mis- 
 demeanor, punishable by fine and impris- 
 onment. 1 N. Y. Laws 1880 (May 8), 325, 
 ch. 209. 
 
 Any person who shall "wilfully and 
 wantonly kindle a fire on the lands of 
 another, so as to set on fire any woodlands, 
 barrens, or moors," declared guilty of » 
 misdemeanor, punishable by fine and im- 
 
CRIME. — CRUELTY. 
 
 137 
 
 prisontnent. Pa. Laws 1S79 (June 11), 
 162, No. 176. 
 
 Minor Decisions on Crime. 
 Nature and history of the c. of bigamy in 
 England and in Maryland: oOMd. 161. An 
 act not criminal at common law, prohibited 
 by statute under specific pecuniary penalty 
 recoverable by action, — such as selling 
 liquor to intoxicated persons [iV. Y. Laws 
 1857, ch. 628, § 18], —is not indictable: 77 
 N. Y. 331. That one has been punished 
 under city ordinance does not prevent pun- 
 ishing him under general State law; the 
 same act may be a c. under two laws. 
 
 6 Baxl. (I'enn.) 567. Shooting at a brake- 
 man should not be prosecuted under an act 
 punishing any attempt to endanger the lives 
 of persons engaged in the work of, or trav- 
 elling on, a railroad, but under the general 
 law: 39 Mich. 255. Presumption of marital 
 coercion may be rebutted by proof that wife 
 acted willingly: 38 Mich. 744; 34 Ohio, 127. 
 Accidental injury to a third person done in 
 lawfully defending one's self from attack 
 is not criminal: 4 Tex. App. 310. There 
 may be burglary with intent to commit 
 rape, although the accused was mistaken 
 in supposing that the woman intended was 
 within the building: 5 Id. 74. If evidence 
 in support of a/i6i raises a reasonable doubt, 
 defendant should be acquitted: 69 Mo. 93; 
 4 Tex. App. 202. General rule for deter- 
 mining sufficiency of circumstantial evi- 
 dence, — stated : 5 Id. 256 ; 6 Id. 42 ; 
 
 7 Id. 212. Religious belief of accused that 
 the prohibited act — here polygamous mar- 
 riage — was right and a duty, cannot be 
 accepted as a defence, if it was by law 
 declared ciiminal: 98 U. S. 145. Fit of 
 drunkenness is no excuse for c, though 
 chronic mental disease induced through re- 
 peated intoxication may be : 64 Ind. 485. 
 Intoxication is no defence, but maybe con- 
 sidered in determining whether accused 
 could form the prohibited intent: Id. 275, 
 461; 1 Dak. T. 197: 4 Tex. App. 76: or 
 in determining whether he could form the 
 deliberate intent needful for murder in 
 first degree: 9 Neb. 241. Any degree of 
 intoxication may be considered in deter- 
 mining whether accused had the forbidden 
 intent: 2 Lea (Tenn.), 575. Effect of 
 drunkenness of officer as au excuse for 
 
 Cross-examination.- Witness. 
 
 Cruelty. For recent laws in protection of chil- 
 
 making false arrest: 49 Tex. 70. Exist- 
 ence of hereditary homicidal mania appears 
 to be recognized as a competent defence for 
 mui'der, if sufficiently proved: 14 Bush 
 (A», 398. 
 
 A Texas county judge is authorized as 
 magistrate to take preliminary examina- 
 tions: 6 2'ex. App. 319. One accused of 
 murder by poisoning has no right to be 
 present at disinterment and po.i/ mortem 
 examination of the corpse : 80 N. C. 432. 
 Indictment is not denmrrable because the 
 alleged date of the offence is back of the 
 period limited for prosecuting: 33 Ark. 
 129. Record on prosecution for breach of 
 ordinance — here for keeping a bawdy 
 house — need not show arraignment and 
 plea: 69 Mo. 626. Under laws giving an 
 appeal "in cases of felony" only, the 
 right will depend, in respect to an offence 
 punishable either as felony or misdemeanor, 
 upon the sentence passed in a particular 
 case: 14 Nev. 347. Upon what piinciples 
 commutation of imprisonment is allowed to 
 well-behaved Federal convicts : 14 BLalchf. 
 344. 
 
 CRIMINAL LAW MAGAZINE. Pub- 
 lished bi-monthly. Editors: Stewakt 
 Rapalje, Robert L. Lawrence. 
 
 This magazine was commenced in Jan- 
 uary, 1880, to aid the profession in con- 
 ducting criminal causes, by publication of 
 leading articles on timely topics of criminal 
 law, giving recent criminal cases, and giv- 
 ing a bi-monthly digest of all criminal 
 cases, from reports or periodicals, American 
 or English. A recent announcement of the 
 publishers (Linn & Co.), says it is sustained 
 and will be permanently continued. 
 
 CRUELTY. Pigeon- shooting. Under 
 a statute which punishes any person who 
 shall needlessly kill any living creature, 
 Bogardus was brought up for shooting 
 pigeons at the Abbey race-track. The facts 
 shown were that a parcel of live pigeons 
 were taken, two at a time, from their cage 
 by an attendant and thrown up into the 
 air, while Bogardus, standing near, shot 
 at them. This was done, however, not out 
 of any pleasure in hurting the pigeons, 
 but to exercise and show skill as a marks- 
 man. Held, that this was not a case of 
 "needlessly killing." It is not to be sup- 
 posed that such a statute is intended to 
 
 I dren against cruelty. Child; Cruelty as a cause of 
 I divorce, Divorce. 
 
138 
 
 CRUELTY. 
 
 suppress manly sports. They are geneWly 
 recognized as rightful and even useful, as 
 they tend to promote health, vigor, and 
 courage, and to cultivate skill which may 
 become important in the community. The 
 value of atliletic sports is not to be denied. 
 St. Louis Ct. of Appeals, 1877, State v. 
 Bogardus, 4 Mo. App. 215. 
 
 Shooting at live birds, either for amuse- 
 ment or as a test of skill, — except wild 
 game, — punishable by fine and imprison- 
 ment. N. li. Laws 1S79 (July 19), 364, 
 ch. 51. 
 
 New general laws. " If any person 
 shall overdrive, overload, torture, torment, 
 deprive of necessary sustenance, or cruelly 
 beat, or needlessly mutilate or kill, or cause 
 or procure to be overdriven, overloaded, 
 tortured, tormented, or deprived of neces- 
 sary sustenance, or to be cruelly beaten or 
 needlessly mutilated or killed, as aforesaid, 
 any living creature, every such offender 
 shall, for every such offence, be guilty of a 
 misdemeanor." Ark. Laws 1879 (March 
 11), 54, ch. 47, § 1. 
 
 " Any person who shall keep or use, or 
 in any way be connected with or interested 
 in the management of, or shall receive 
 money for the admission of any person to 
 any place kept or used for the purpose of 
 fighting or baiting any bull, bear, dog, 
 cock, or other creature, and every person 
 who shall encourage, aid, or assist therein, 
 or who shall permit or suffer any place to 
 be so kept or used, shall, upon conviction 
 thereof, be adjudged guilty of a misde- 
 meanor." Id. § 2. 
 
 " Any person who shall impound or 
 cause to be impounded in any pound or 
 other place any creature shall supply to the 
 same, during such confinement, a sufficient 
 quantity of good and wholesome food and 
 water, and in default thereof shall, upon 
 conviction, be adjudged guilty of misde- 
 meanor." Id. § 3. 
 
 " In case any creature shall be at any 
 time impounded as aforesaid, and shall 
 continue to be without necessary food and 
 water for more than twelve successive 
 hours, it shall be lawful for any person 
 from time to time, and as often as it shall 
 be necessary, to enter into or upon any 
 pound or other place in which any such 
 creature shall be so confined, and to supply 
 it with necessary food and water so long as 
 it shall remain so confined; such person 
 
 shall not be liable to any action for sudi 
 entry, and the reasonable cost of such food 
 and water may be collected by him of the 
 ow.ner of such creature, and the said crea- 
 ture shall not be exempt from levy and sale 
 upon execution issued upon a judgment 
 therefor." Id. ^ L 
 
 " If any person shall carry or cause to 
 be carried in or upon any vehicle, boat, 
 or otherwise, any creatm-e< in a cruel or 
 inhuman manner, he shall be guilty of a 
 misdemeanor, and whenever he shall be 
 taken into custody therefor by any officer, 
 such officer may take charge of such ve- 
 hicle, bfiat, &c., and its contents, and de- 
 posit the same in some sate place of cus- 
 tody, and any necessary expenses which 
 may be incurred for taking charge of and 
 keeping and sustaining the same shall be 
 a lien thereon, to be paid before the same 
 shall be lawfully recovered; or the said 
 expenses or any part thereof remaining, 
 unpaid may be recovered by the person 
 incurring the same of the owner of said 
 creature in any action therefor." Id. § 5. 
 
 " Every person who shall wilfully set on 
 foot, or instigate, or move to, or carry on, 
 or promote, or engage in, or do any act to- 
 ward the furtherance of any act of cruelty 
 to any animal shall be guilty of a misde- 
 meanor." " Any person who shall sell, or 
 offer for sale, or use, or expose, or who 
 shall cause or procure to be sold, or offered 
 for sale, or used or to be exposed, any hoise 
 or other animal having the disease known 
 as glanders or farcy, or any other contag- 
 ious or infectious disease, known to such 
 per.son to be dangerous to human life, or 
 which shall be diseased past recovery, shall 
 be guilty of a misdemeanor." Id. §§ 6,7. 
 
 " Every animal having glanders or farcy 
 shall at once be deprived of life by the 
 owner or person having charge thereof, 
 upon discovery or knowledge of its con- 
 dition, — and any such owner or person 
 omitting or refusing to comply with the 
 pi-ovisions of this section shall be guilty of 
 a misdemeanor." Id. § 8. 
 
 " The agents of any society which shall 
 be incorporated for the prevention of 
 cruelty to animals, upon being appointed 
 thereto by the president of such society in 
 any county of the State of Arkansas, may 
 within such county make arrests and bnng 
 before any court or nnigistrate thereof 
 having jurisdiction offenders fouud vio- 
 
CRUELTY. — CURRENCY. 
 
 139 
 
 latiiig the provisions of this act. Any 
 officer, agent, or member of such society 
 may lawfully interfere to prevent the per- 
 petration of any act of cruelty upon any 
 animal in his presence. Any person who 
 shall interfere with or obstruct any such 
 officer, agent, or member in the discharge 
 of his duty shall be guilty of a misde- 
 meanor." /rf. §§ 9, 10. 
 
 " Any agent or officer of such society 
 may destroy or cause to be destroyed any 
 animal found abandoned or otherwise, and 
 not properly cared for, appearing in the 
 judgment of two reputable citizens, called 
 by him to view the same in his presence, to 
 be glandered, injured, or diseased past re- 
 covery for any useful purpose." Id. § 11. 
 
 " When any person arrested is at the 
 time of such arrest in charge of any vehicle 
 drawn by or containing any animal, any 
 agent of such society may take charge of 
 such animal and of such vehicle and its 
 contents, and deposit the same in a safe 
 place of custody, or deliver the same into 
 the possession of the police or sheriff of the 
 county or place wherein such arrest was 
 made, who shall thereupon assume the 
 custody thereof." Id. § 12. 
 
 " All fines, penalties and forfeitures im- 
 posed and collected in any county in this 
 State under the provisions of every act 
 passed, or which may be passed, relating 
 to or in anywise affecting animals, shall 
 inure to such society in aid of the pur- 
 pose for which it was incorporated, and no 
 injunction shall be granted against such 
 society or any of its officers or agents, ex- 
 cept upon motion after due notice and 
 hearing thereof." Id. § 13. 
 
 " Upon complaint under oath or affirma- 
 mation to any magistrate authorized to 
 issue warrants in criminal cases, that the 
 complainant has any just and reasonable 
 cause to suspect that any of the provisions 
 of law affecting in anywise or relating to 
 animals are being or about to be violated 
 in any particular building or place, such 
 magistrate shall immediately issue and de- 
 liver a warrant to any person authorized to 
 make arrests for such offences, authorizing 
 him to enter and search such building or 
 place, and to arrest any person there pi'esent 
 found violating said laws, and to bring 
 such person before the nearest magistrate 
 of competent jurisdiction, to be dealt with 
 according to law." /t/. § 14. 
 
 " In this act, and in every law in the 
 State of Arkansas passed, or which may 
 be passed, relating to or affecting animals, 
 the singular shall include the plural ; the 
 words ' animal ' or ' dumb animal ' shall 
 be held to include every living creature; 
 the words ' torture,' ' torment,' or ' cruelty' 
 shall be held to include every act, omission, 
 or neglect whereby unjustifiable physical 
 pain, suffering, or death is caused or permit- 
 ted ; and the words ' owner ' and ' person ' 
 shall be held to include corporations as 
 well as individuals; but nothing in this act 
 shall be construed as prohibiting the shoot- 
 ing of birds or other game for purposes of 
 human food." Id. § 15. 
 
 A Louisiana act provides penalties for 
 overdriving, overloading, torturing, tor- 
 menting, depriving of necessary sustenance, 
 or unnecessarily or cruelly treating, or mu- 
 tilating, or killing, or causing the same to 
 be done to domestic or domesticated ani- 
 mals; for impounding or causing to be 
 impounded in any pound or yard, for safe- 
 keeping, sale, or slaughter, any domestic 
 or domesticated animal without supplying 
 the same, during such confinement, with a 
 sufficient quantity of food or water; for 
 transporting live-stock on railway-trains, 
 steamboats, or otherwise, and for detaining 
 such stock in cars or compartments more 
 than twenty-four hours without food or 
 water, and to crowd them so as to overlie, 
 crush, wound, or kill each other. La. Laws 
 1880 (March 29), 43, ch. 44. 
 
 An act passed in New Jersey for the 
 prevention of cruelty to animals contains 
 extended and systematic provisions, filling 
 twenty-four sections ; and is well deserving 
 attention of those interested in the subject. 
 N. J. Laws 1880 (March 11), 212, ch. 157. 
 
 An act of Mississippi is very nearly a 
 transcript of the above Arkansas law. 
 Miss. Laws 1880 (March 6), 157, ch. 31. 
 
 CURRENCY. "From and after the 
 passage of this act it shall not be lawful 
 for the secretary of the treasui'y or other 
 officer under him to cancel or retire any 
 more of the United States legal-tender 
 notes. And when any of said notes may 
 be redeemed or received into the treasury 
 under any law, from any source whatever, 
 and shall belong to the United States, they 
 shall not be retired, cancelled, or destroyed, 
 but they shall be re-issued and paid out 
 again and kept in circulation: Provided, 
 
140 
 
 CURRENCY. — DAMAGES. 
 
 That nothing herein shall prohibit the 
 cancellation and destruction of mutilated 
 notes, and the issue of other notes of like 
 denomination in their stead, as now pro- 
 vided by law." Act of May 31, 1878, oh. 
 146, 20 Slat, at L. 87. 
 
 CURTESY. Husband shall not be en- 
 titled to oui'tesy or to distributive share of 
 wife's property if he abandoned or neglected 
 to support her. N. H. Laws 1879 (July 18) , 
 ch. 37. 
 
 Minor Decisions on Curtesy. 
 Seisin of a reversion by the wife durin? 
 coverture gives a husband c. ; 6 Mo. Arm. 
 416. There may be tenancy by thee, in 
 equitable separate property of the wife: 
 Id. 549. When tenancy by the c. exists ia 
 Rhode Island: 12 R. 1. 586. Words in » 
 marriage settlement debarring husband 
 from participation in rents and profits of 
 lands during coverture do not necessarily 
 forbid c. : 3 Lea (I'enn.), 710. 
 
 D. 
 
 DAKOTA. Additional associate justice 
 for Dakota authorized. A fourth judicial 
 district created, composed of specified 
 counties taken from the second, but with- 
 out jurisdiction of causes to which the 
 United States may be a party. Act of 
 March 3, 1879, ch. 194, 20 Stat, at L. 473. 
 
 A land district in Dakota created, and 
 named the Grand Forks District. Ap- 
 pointment of a register and a receiver 
 authorized. Act of Congress of Jan. 21, 
 1880. 
 
 DAMAGtES. The decisions in Michigan 
 have established the following rules as to 
 allowance of damages for injury to feel- 
 ings:— 
 
 1. In any injury entitling the party to 
 redress, damages to the person, property, 
 and reputation, together with such special 
 damage as may be shown, are recoverable. 
 
 2. Where the act done is one which from 
 its vei-y nature must be expected to result 
 in mischief, or where there is malice, or 
 wilful or wanton misconduct, carelessness 
 or negligence so great as to indicate a 
 reckless disregard of the rights or safety of 
 others, a new element of damages is al- 
 lowed, viz., for injury to the feelings of the 
 plaintiff. 
 
 3. Damages for injuries to the feelings 
 are only allowed in those torts which con- 
 sist of some voluntary act or very gross 
 neglect, and depend in amount very much 
 
 Damages. "Right to recover damages for lands 
 taken for public use, Eminent Domain; High- 
 way ; Railiioad. 
 
 Damages f(u' defacing scenery in Colorado, p. 
 19; for loss of a lior.se through his browsing on a 
 yew-tree, p. 22 ; for personal injury siistiiinod from 
 a ferocious buck, bull, dog, or stalliou, pp. 22-24; 
 
 upon the degree of fault evinced by all the 
 circumstances. 
 
 4. Where the tort consists of some vol- 
 untaiy act, but no element of malice, care- 
 lessness, or gross negligence is shown to 
 have existed, but the wrong was done in 
 spite of proper precaution, the damages to 
 be awarded on account of injured feelings 
 will be reduced to such sum as must have 
 inevitably resulted from the wrong itself. 
 
 5. Where, however, the elements exist 
 in a case, entitling a party to recover for 
 injured feelings, the amount to be allowed 
 for shame, mental anxiety, insulted honor, 
 and suffering and indignation consequent 
 on the wrong, may be increased or aggra. 
 vated by the vindictive feelings, or tha 
 degree of malice, recklessness, gross care- 
 lessness or negligence of the defendant, as 
 the injury is much more serious where 
 these elements, or either of them, are 
 shown to have existed. 
 
 6. This increase of damages dependent 
 upon the conduct of the defendant must ba 
 considered in the State of Michigan aa 
 actual damages, although usually spoken 
 of as exemplary, vindictive, or punitory; 
 and the amount thereof to be recovered, 
 where recoverable at all, as they are inca- 
 pable of ascertainment by any other known 
 rule, must rest in the fair and deliberate 
 judgment and discretion of the jury acting 
 upon their own sense of justice in view of 
 
 for loss of money in the mail, p. 70; for injury to 
 cabbages, or to eggs, delayed in transportation, p. 
 71 ; o{ animals, by excessive heat or cold, or by 
 lack of food and water, on a journey, pp. 69, 71,! 
 for loss of valuable laces, merchant's samples, or 
 government bonds, by carrier, pp. 72-74; for in- 
 juries by intoxication, pp. 88-P4. 
 
DAMAGES. 
 
 141 
 
 all the circumstances, both mitigating and 
 aggravating, appearing in the case, and 
 which can fairly be said to give color to or 
 characterize the act, aided, however, by 
 such instructions from the court as will 
 tend to prevent the allowance of damages 
 merely fanciful, or so remote as not fairly 
 resulting from the injury. 
 
 7. So far as these damages are concerned, 
 the fact that an indictment may or may 
 not be pending or threatened for the same 
 wrong is immaterial, as they are allowed 
 by way of remuneration for the injury sus- 
 tained. If their allowance also operates 
 by way of punishment, this is an indirect 
 result equally applicable to damages allowed 
 for injuries to person or property. Supreme 
 Ct. 1880, Scripps v. Reilly, 38 Mich. 10. 
 
 An award of punitive damages for a tort 
 which has been punished as a crime is not 
 a violation of the constitutional provision 
 that no person shall twice be put in jeop- 
 acdy of punishment for the same offence. 
 The putting into jeopardy prohibited is a 
 second criminal prosecution. The same 
 act may be an offence (in the sense of 
 crime) against the State, and an offence 
 (in the sense of tort) against a private per- 
 son; and judgment for the one is not a bar 
 to the other. Judgment for the criminal 
 offence is for the ofience against the pub- 
 lic; judgment for the tort is for the offence 
 against the private sufferer, though puni- 
 tory damages go in the right of the public 
 for example; they do not go by way of 
 punishment, but by way of private dam- 
 ages ; for the act as a tort, not as a crime; 
 to the private sufferer, and not to the State. 
 Though they are allowed beyond compen- 
 sation of the private sufferer, they still go 
 to him for himself, as damages allowed to 
 him by law in addition to his actual dam- 
 ages; like the double and treble damages 
 sometimes allowed by statute. Considered 
 strictly as punitory, the damages are for 
 the punishment of the private tort, not of 
 the public crime. It is unfortunate that 
 damages should ever have been suffered to 
 go beyond actual compensation. But the 
 rule so long and so generally established is 
 a sin against sound judicial principle, not 
 against the constitution. The constitu- 
 tional provision works no exception to the 
 rule of exemplary damages, although it 
 adds gi'eat force to the weight of argument 
 against the soundness of the rule generally. 
 
 Supreme Ct. 1878, Brown v. Swineford, 44 
 Wis. 282. 
 
 In Illinois exemplary damages are un- 
 questionably recoverable for an injury wil- 
 fully inflicted. Supreme Ct. 187!J, Cairo, 
 &c. R. R. Co. V. Peoples, 92 ///. 97. 
 
 Exemplary damages may be awarded for 
 libel, notwithstanding defendant might 
 also be indicted. Supreme Ct. 1878, Barr 
 V. Moore, 87 Pa. St. 385. 
 
 Exemplary or punitive damages should 
 not be awarded for a wrong for which a 
 criminal prosecution might be maintained: 
 to allow them exposes the wrong-doer to 
 be punished twice for the same act. Su- 
 preme Ct. 1878, Boyer d. Barr, 8 Neh. 68. 
 S. P. Stewart v. Maddox, 63 Ind. 51. 
 
 The measure of damages where one 
 whose services have been employed is 
 ready and willing to perform, but is wrong- 
 fully prevented by the employer, is, gener- 
 ally speaking, the profit which the employer 
 would have realized if the contract had 
 been fully performed; but for special rea- 
 sons applicable to attorneys they may, 
 when employed for a specified sum for an 
 entire service which the client prevents 
 them from performing, claim the whole 
 agreed compensation, subject to any abate- 
 ment which, in the natural course of 
 things, the attorney would have incurred 
 in performing. Supreme Ct. 1878, Brodie 
 V. Watkins, 33 Ark. 515. 
 
 In an action against a common carrier 
 for damages occasioned by delay in the 
 transportation and delivery of cattle, the 
 measure of damages is the difference be- 
 tween the market price of the cattle when 
 they arrive at their destination and the 
 market price when they should have ar- 
 rived, together with compensation for the 
 difference between the shrinkage in weight 
 actually sustained by the cattle and that 
 which would have occurred if there had 
 been no delay. Proof of a decline in mar- 
 ket price during delay is not admissible. 
 Supreme Ct. 1879, Glascock «. Chicago, &c. 
 R. R. Co., QQ Mo. 589. 
 
 The measure of damages upon a breach 
 of warranty that seed sold was of a speci- 
 fied and valuable kind, in a case where its 
 defective quality was not discovered except 
 by raising a crop from it, whicli proved 
 worthless, is the difference in value be- 
 tween the crop actually raised and such 
 crop as would ordinarily have been pro- 
 
142 
 
 DAMAGES. —DEATH. 
 
 duced in that year if the seed had been 
 genuine. Ct. of Appeals, 1877, White v. 
 Miller, 71 N. Y. 118. 
 
 Minor Deoisions on Damages. 
 Measure of d. recoverable by widow of 
 raih'oad operative killed by defective appa- 
 ratus: 69 Mo. 536. Conductor is not liable 
 in exemplary d. for ejecting passenger, 
 done in good faith and without malice or 
 excessive violence: 50 Iowa, 79. How to 
 estimate d. for breach of agreement to give 
 a railroad pass for life: 88 Pa. St. 243. 
 Anticipated profits disallowed, in action 
 for breach of landlord's covenant to re- 
 build a warehouse which had been burned ; 
 71 iV. Y. 48. Measure of d. recoverable 
 by turnpike company for building railroad 
 on the turnpike is compensation for loss of 
 profits or tolls ; not the value of the land: 
 53 Cal. 11. . The measure of d. for deten- 
 tion of property is the market value of its 
 use, not its value to plaintiff: Id. 97. 
 Measure of d. for defects in a boiler erected 
 under special contract is the difference 
 between its value with the defects and the 
 value it would have had if completed ac- 
 cording to contract: 40 Mich. 209. Meas- 
 ure of d. for breach of covenant of warranty 
 of lands, recoverable in action by purchaser 
 from covenantee, is the consideration paid 
 by the covenantee with interest and the 
 costs incurred in the action to eject him: 
 10 S. C. 8. Measure of d. for injury to 
 cargo by bad stowage is difference between 
 market value of goods in damaged state 
 and in good order: 8 Ben. 90. 
 
 DEATH. Presumption. The common 
 law and the law of New York do not in- 
 dulge the presumptions allowed by the 
 civil law as to survivoi-ship among persons 
 who perish by a common disaster, such as 
 shipwreck. Whoever claims to inherit 
 from one of such persons must adduce 
 some evidence showing that the person 
 under whom he claims did in fact survive. 
 Ct. of Appeals, 1878, Newell v. Nichols, 75 
 N. Y. 78. 
 
 Causing death. An action cannot be 
 maintained for a person whose death is 
 caused on the high seas by mismanage- 
 
 Death. As to the fact of death, generally, see 
 Person ; its effect upon a suit. Abatement. 
 Proof of, to wavrant probate of will ov appoiiifnient 
 of executor or administrator, Exeoutok; Will. 
 ('rime; of causing death, Manslauqiitek; Muk- 
 DEB. Punishment of death, Crime. 
 
 ment of a merchant vessel, here by ship, 
 wreck and unskilful management of boats 
 by force of the statute of California and the 
 facts that the vessel was owned in and 
 sailed from, and the passage contract was 
 made in, that State. At common law 
 there was no liability for the death of a 
 party under such circumstances; the stat- 
 ute creates a new right of action, and does 
 not merely give a remedy for a right 
 already existing. If allowed to operate 
 beyond the territorial jurisdiction of the 
 State, then it becomes a universal law 
 applicable to all countries, and the legisla- 
 ture of California would be adopting a code 
 of laws affecting the rights of parties aris- 
 ing out of acts done wholly in foreign 
 countries as well as upon the high seas, and 
 these laws may be in conflict. Moreover, 
 there is nothing in the statute to indicate 
 that it was intended to operate beyond the 
 limits of the State. Qtli Circ. {Cal.) 1879, 
 Armstrong v. Beadle, 5 Sawyer, 484. See 
 Mackay v. Central K. R., 14 Blalchf. 65. 
 
 The statute of New York giving a ri^ 
 of action for causing death, &c., enables the 
 representatives of a person killed on board 
 a merchant vessel hailing from, and regis- 
 tered in, and owned by citizens of New 
 York, while sailing upon the high seas, by 
 negligence or wrongful act, — here car- 
 rying petroleum, which took fire, — to 
 maintain an action for damages. The 
 rule that such a statute has no extra-terri- 
 torial operation means that it cannot ope- 
 rate in another jurisdiction where there are 
 laws to govern the subject-matter. On the 
 high seas, where there are no local laws, a 
 merchant vessel is to be regarded as fol- 
 lowed by and subject to the laws of the 
 State where she belongs, except as to mat- 
 ters which are regulated by acts of Congress, 
 — such as crimes on board ship. [Follow- 
 ing 16 Wall. 610, which reversed 49 N. Y. 
 86.] Ct. of Appeals, 1879, McDonalds. 
 Mallory, 77 N. Y. 546. 
 
 The existence of a statute defining the 
 boundary and territorial jurisdiction of the 
 State does not defeat such an action. lb. 
 
 " When the death of a person is caused 
 by a wrongful act or neglect of another, 
 
 Death of party to divorce suit as an abatement 
 p. 6. Of husband suing for injury to wife, p O' 
 Of stoelthoider sued to contribute toward capital, 
 p. 6. Of wife of blind man whose boat wns nm 
 down by steam-tug, p. 101. Punishment of deatB, 
 p. 136. 
 
DEATH. — DEDICATION, 
 
 143 
 
 •which, if death had not ensued, would 
 have entitled the person injured to recover 
 damages therefor, then, on the death of 
 such person, his executor or administrator 
 may, by suit brought within two years of 
 such death, recover damages for the injury, 
 and one half of such damages shall go to 
 the widow or widower, and the other half 
 to the children of the deceased. If there 
 is no child, the whole shall go to the widow 
 or widower ; and if no widow or widower, 
 to the heirs of the deceased according to 
 the law regulating the distribution of in- 
 testate estates." N. H. Laws 1879 (July 
 18), 353, ch. 35. 
 
 Effect of death of party. An action 
 to recover damages for alleged fraud on the 
 part of defendant, that he induced plaintiff 
 to marry and cohabit with him by means 
 of false and fraudulent representations that 
 his first wife was dead, and that he was in 
 all respects competent to marry, does not 
 survive the death of the defendant. The 
 action is for injury to the person of the 
 plaintiff, and its character is not changed 
 by an allegation in the complaint that the 
 defendant promised, undertook, covenanted, 
 and warranted that he had the right and 
 was in all respects competent to many, or 
 by allegations that the defendant was a 
 man of wealth, and that he instituted an 
 action against plaintiff and procured a 
 judgment annulling their marriage upon 
 the ground that his former wife was living. 
 Ct. of Appeals, 1878, Price v. Price, 75 
 N. Y. 244. Consult Abatement. 
 
 Ui&or Decisions on Death,- 
 
 Father cannot recover for d. of his daugh- 
 ter though a minor, but may recover for 
 loss of services till twenty-one: 60 Ga. 320. 
 Representative of married woman may sue 
 for wrongfully causing her d. ; the demand 
 belongs to her estate, not to her husband 
 as such: 59 Ala. 272. Statute requiring 
 person injured by felonious homicide of 
 another to prosecute for the felony before 
 suing for damages applies to a suit for kill- 
 ing a railroad passenger in collision of 
 trains; this is presumably felonious: 61 
 Ga. 500, 587. 
 
 DEBTOR AND CREDITOR. Laborer's 
 rendering bill for services on building, not 
 agreed to by owner, does not preclude re- 
 covering a larger sum : 76 N. Y. 50. Pre- 
 sentation of claim against city for payment 
 need not be accompanied by demand that 
 the authorities levy a tax: 82 N. C. 22. 
 Giving and accepting a promissory note is 
 not conclusive evidence of settlement of 
 previous accounts between the parties ; but 
 is sufficient in absence of disproof: 7 Oreg. 
 39. Creditor who accepts an order on a 
 third person in payment must present it 
 within reasonable time; delay, if prejudi- 
 cial, discharges the principal debtor: 33 
 Ark. 33; 80 N. C. 300; 3 Lea (Term.), 
 215; and so of a check: 89 Pa. St. 128. 
 Creditor's accepting monthly payments 
 sent by a particular messenger is not an 
 employment of the messenger such as will 
 charge the creditor, if afterwards the mes- 
 senger misappropriates an instalment: 59 
 lotoa, 459. Pledgee cannot forbid other 
 creditors from seizing and selling pawn sub- 
 ject to his right: 30 La. Ann. 865. Pledgee 
 of stock as collateral not bound to sell on 
 mere request of pledgor, but may use his 
 own judgment, and is liable only for negli- 
 gence : 6 Mo. App. 470. Husband indebted 
 to wife may prefer her: 38 Mich. 253. In- 
 debtedness of an attorney in fact for money 
 collected is not fiduciai-y ; the exception of 
 fiduciai-y debts from a discharge includes 
 only technical trusts: 127 Mass. 41. A 
 composition, like a discharge, does not af- 
 fect fiduciary or fraudulent debts: 40 N. 
 J. L. 83. Rights of parties to composition 
 deeds: 25 Int. Rev. Rec. 169 ; 8 Reporter, 8. 
 
 DECEIT. One who knowingly makes 
 false statements of his means and credit in 
 answer to inquiries of a mercantile agency, 
 in consequence of which the agency is 
 led to rate him higher than he deserves, 
 which leads a customer of the agency, rely- 
 ing on its report, to sell him goods which 
 are not paid for, is liable directly to the 
 customer in an action for deceit. Supreme 
 Ct. 1879, Eaton, &c. Co. v. Avery, 18 Hun 
 (N. F), 44. 
 
 DEDICATION. The surveying by the 
 owner of a tract of land adjoining a city 
 
 Deceit. Fraud as a ground of equitable relief or 
 as a defence, see Kkaud. Offence of obtaining 
 money, &c., by false jiretences, Fai.sk Phetenck. 
 Crimes involving deceit, ADUr/rEEAXioN ; Eji bez- 
 zlemest; Forgery ; Perjury; Seuuctios. 
 
 Peceptive letter employed by a detective, p. 8. 
 And see DETBf tive. 
 
 Decree. Judg.ment. 
 
 Dedication. For highways, particularly, High- 
 way. 
 
144 
 
 DEDICATION. — DEED. 
 
 into blocks and lots, streets and alleys, 
 mapping the same, with streets thereon, 
 designated as such, and which are continu- 
 ations of public streets of the city, owned, 
 worked, repaired, lighted, and guarded by 
 the city authorities, making the same a 
 matter of public record, and selling lots 
 with reference thereto in his conveyances, 
 are acts, as the public have a right to un- 
 derstand them, uttei-ly inconsistent with 
 any other intent than to dedicate them to 
 public use. Supreme Ct. 1877, Denver v. 
 Clements, 3 Col. 484. 
 
 If there exist an actual intent to reserve 
 any portion of the lands so platted into 
 streets, otherwise than by express reserva- 
 tion on the plat, it should be made mani- 
 fest in some manner not only of equal 
 importance, but of equal publicity, with the 
 plat ; otherwise an actual intent cannot be 
 permitted to avail against an intent on 
 which the law must and will insist, as 
 being shown by unequivocal acts upon 
 which the public had a right to rely. Ih. 
 
 A dedication of land to public use may be 
 made either according to the common law, 
 or in pursuance of statute. The distinc- 
 tion between these two kinds of dedication 
 is quite manifest, and must be kept con- 
 stantly in view in determining the rights 
 of the city of Denver to lots dedicated to 
 public use. When the dedication is statu- 
 toiy, no act of acceptance on the part of 
 the city is required to impose upon it the 
 obligation to keep the streets in repair. 
 The moment the plat is made, filed, and 
 recorded, the fee of all parcels of ground, 
 reserved therein to the use of the public 
 vests in such city in trust. Such statutory 
 dedication operates by way of grant. The 
 law surrounds the act of dedication with 
 all the formalities and solemnities neces- 
 sary to the creation of a grant. A com- 
 mon-law dedication operates by way of 
 estoppel in pais, rather than by way of 
 grant. lb. 
 
 Minor Decisions on Dedication. 
 
 A man cannot dedicate lands of his wife 
 and children for a highway ; nor will they 
 be bound by user : 69 Mn. 642. Writing 
 " Park "or " Public Square " on a tract 
 
 Deed. The particular sealed instnimonls ntlicr 
 than conveyances are under their titles; chie%, 
 AssiQKMEXT (see also Bankruptcy and Insol- 
 
 delineated on a recorded map of city prop- 
 erty, and conveying lots accoiding to the 
 map, is a d. : 40 N. J. L. 608 ; 49 fex. 
 347. Intent is a vital principle of d. • if 
 it is to be inferred from acts and declara- 
 tions, they must unmistakably prove intent 
 to dedicate : d. to public use is not pre- 
 sumed : 31 Gratt. (Va.) 685. Acceptance 
 of d. maybe inferred from user; but mere 
 user is not of itself an acceptance : Id. 713. 
 D. (nust be to the entire public : 46 Wii 
 646. 
 
 DEED. Beqnisites. At common law, 
 and also in Oregon, a deed is valid be- 
 tween the parties and their privies, 
 although not witnessed, acknowledged, or 
 recorded. Qth Circ. (Oreg.) 1879, Good? 
 nough V. Warren, 5 Sawyer, 494. 
 
 For recent statutes of Connecticut and 
 Indiana, confirming deeds defectively exe- 
 cuted or acknowledged before persons 
 whose termsof office had expired, see Conn. 
 Laivs 1879, ch. 72 ; Ind. Laios 1879, ch. 1. 
 
 Conditions. The breach of conditions 
 subsequent which are not followed by a 
 limitation over to a third person does not, 
 ipso facto, work a forfeiture of the freehold 
 estate to which they are annexed. It only 
 vests in the grantor or his heirs a right of 
 action which cannot be transferred to a 
 stranger, but which he or they, even with- 
 out an actual entry or a previous demand, 
 can enforce by a suit for the land. iV 
 preme Ct. 1878, Ruch v. Rock Island, 97 
 U. S. 693. 
 
 Recording. The register of a county tes.- 
 tified that no " reception index " — mean- 
 ing apparently the general index required 
 by the statute — was kept in his ofiice; but 
 there was proof that two indexes were 
 kept, each covering all the successive vol- 
 umes of records, one with the names of the 
 grantors, and the other with those of the 
 grantees, alphabetically arranged ; and 
 that the former contained all the entries 
 required by law to be made in the general 
 index. Held, that the due entry of a deed 
 upon such index must be regarded as a 
 recording. The failure of tlie register to 
 keep a separate index in each volume of 
 tlie records, though a violation of duty, did 
 not affect the operation of entries in the 
 general index as constructive notice. Su- 
 
 VKVOY); Bond; Lease; Mortgage; Tax deed. 
 Tax; Tiust deed or mortgage. Trust. "Deea 
 iucludcs mortgage, p. 152. 
 
DEED. 
 
 145 
 
 preme Ct. 1879, Oconto Co. v. Jerrard, 46 
 Wis. 317. 
 
 The register failed to enter on the gen- 
 eral index, as the statute required, the de- 
 scription of the land described in an 
 instrument otherwise duly recorded there- 
 in, but in the column designed for that 
 purpose merely entered a direction to " see 
 the record of the deed in full," referring 
 to the volume and page. Held, that the 
 record in the general index was complete 
 from the time when the deed was actually 
 recorded in full ; and the statutory limita- 
 tion in favor of the deed (which was a tax 
 deed) then began to run. Ih. 
 
 The presumption is that all entries 
 touching a deed were made, and the deed 
 recorded in extenso, on the day of its re- 
 ceipt by the register ; and this presump- 
 tion is not overcome by the testimony of a 
 subsequent register of deeds of the same 
 county, that during his term of oflBce it 
 was his habit not to make entries in the 
 index until after he recorded instruments 
 at length, and that he did not always 
 record deeds on the day of their entry in 
 the index. lb. 
 
 That is sufficient registry of a tax deed 
 which would be sufficient registry of any 
 other deed. 76. 
 
 Under a statute by which the register of 
 deeds was required to keep three distinct 
 and separate sets of record books, one for 
 deeds, one for mortgages, and one for all 
 other instruments ; and also a like num- 
 ber and corresponding sets of alphabetical 
 index-books, an index-book for all other 
 instruments, separately and correctly kept, 
 is not defective and invalid, because it is 
 bound in a volume containing one of the 
 record-books to which it relates. Su- 
 preme Ct, 1877, Benton v. NicoU, 24 Minn. 
 221. 
 
 In determining the appropriate book in 
 which to record and index any particular 
 instrument, its character is to be considered 
 as indicated by its terms alone, and not its 
 legal effect taken in connection with some 
 other instrument. In order to give con- 
 structive notice of the legal effect of a 
 deed purporting in terms to be an actual 
 conveyance, but converted into a mortgage 
 by reason of a separate bond of defeasance, 
 executed at the same time, it was sufficient 
 that the former was duly recorded and 
 indexed as a deed, and the latter as a 
 10 
 
 bond, or other instrument than a deed or 
 mortgage. lb. 
 
 In the District of Columbia, deeds, &c., 
 entitled to be recorded shall take effect, as 
 to creditors and subsequent purchasers for 
 value without notice, from the time when 
 delivered to the recorder for record. Rev. 
 Stat. §§ 446, 447, as amended, act of 
 April 29, 1878, ch. 69, 20 Stat, at L. 39. 
 
 Cancelling. It is settled that a man 
 who obtains a deed of land from a woman 
 to whom he is under engagement of mar- 
 riage may be required to show affirmatively 
 that the transaction was fair, and to dis- 
 prove undue influence ; and that in absence 
 of such proof the conveyance may be set 
 aside on the unfavorable presumption aris- 
 ing from the confidential relation. The 
 case is far stronger where the grantor has 
 been seduced and become pregnant by the 
 grantee. Supreme Ct. 1879, Gilmore u. 
 Burch, 7 Oreg. 374. 
 
 Uinor Becisions on Deed. 
 Parties signing a d. drawn to be exe- 
 cuted by a number jointly are not bound 
 by their signatures until all have executed: 
 9 S. C. 234. Presumption of delivery from 
 record may be repelled by proof of long- 
 continued possession contrary to the d. : 71 
 N. Y. 574. How to identify boundaries 
 where monuments in government surveys 
 are lost: 88 7W. 186. Courses and distances 
 will prevail over monuments where d. shows 
 intent to convey a specific quantity, and 
 the courses and distances include that pre- 
 cise quantity: 72 N. Y. 94. D. of lands 
 by definite, permanent boundaries should 
 be restricted to tracts so described, though 
 it may contain a general designation of the 
 tract by its name, which would seem to 
 include more: 73 Id. 205. Grant of por- 
 tion of one's lands implies right to con- 
 tinue existing use of water from the other 
 portion for irrigation necessary for enjoy- 
 ment of the parcel granted: 53 Cal. 135. 
 Right of way across, or drainage through, 
 grantor's adjoining land will not pass by 
 implication, although in actual use and 
 convenient at the time of the d., unless 
 clearly necessary: 69 Me. 323; 68 Id. 173. 
 Statutes enabling wife to acquire separate 
 property by conveyance, &c., except from 
 husband, do not avoid such conveyance, 
 &c., from husband as was valid in equity 
 before the statute: 57 Ala. 127. Grantee 
 
146 
 
 DEED — DEFINITIONS. 
 
 in fee from tenant for life is in possession 
 under a claim of title adverse to reversioner, 
 and latter cannot convey: 71 N. Y. 189. 
 Operation of recording act (1 Rev. Stat. 
 756, § 3) as to recording d. and defeas- 
 ance in separate instruments, — explained: 
 Id. 173. Priority of title where both 
 parties claim from a common source, and 
 the conveyances earlier than theirs were not 
 seasonably recorded: 76 N. Y. 463. D. is, 
 in law, recorded when duly left for record; 
 mistake of clerk in entering it in wrong 
 book does not impair: 89 Pa. S<. 343. One 
 who takes land from his debtor in satisfac- 
 tion of a precedent debt is a honafide pur- 
 chaser for value within the recording acts : 
 80 Gratt. (Fa.) 292. What knowledge of 
 facts sufficient to put prudent man upon 
 inquiry charges purchaser with notice : 44 
 Wis. 498. Condition that liquor shall 
 never be sold on the premises, with rever- 
 sion to grantor on breach, is valid: 100 
 U. S. 55; 3 Col. 82. Reservation of the 
 " part used by the railroad " is not ambig- 
 uous if there was use by a railroad at the 
 time ; a d. is construed by the facts at its 
 date: 39 Mich. 30. Any words in a d. 
 averring that a material thing has been 
 done may constitute a covenant: 87 Pa. St. 
 339. Mistake in married woman's d. may 
 be reformed against her or her heirs: 60 
 Ind. 413. A mistake apparent on the face 
 — here want of seal and granting clause — 
 may be reformed without extrinsic proof: 
 69 Mo. 442. D. will not be set aside for 
 mental weakness of grantor, unless there 
 was undue influence: 47 loiua, 121; if ob- 
 tained by person in confidential relations 
 by means of untrue statement, it may be 
 Bet aside without proof of intent to de- 
 fraud: S2N. C. 40. 
 
 DEFIKITIONS. Abet ; aid. Are nearly 
 synonymous. They comprehend all as- 
 sistance rendered by acts, words of en- 
 couragement or support, or presence, actual 
 or constructive, to render assistance should 
 it become necessary. No particular acts are 
 necessary. Kaiford ji. State, 59 Ala. 106. 
 
 An aider and abettor is one who assists 
 another in the accomplishment of a com- 
 mon design or pui-pose; he must share 
 the design; if none exists,^ as in invol- 
 untary manslaughter, which is homicide 
 done without any purpose of killing, — 
 there can be no aider or abettor. Adams 
 V. State, 65 Ind. 565. 
 
 About to sail. This phrase in a charte^ 
 party was held to mean, under the circum- 
 stances, that the vessel should sail as soon 
 as, with reasonable diligence, the cargo 
 could be laden on board. Von Lingen o. 
 Davidson, 1 Fed. Reporter, 178. 
 
 Abstract. Equivalent ip " copy." Pa. 
 cheoo V. Beck, 52 Cal. 1. 
 
 Filing a certified copy of a judgment is 
 not a compliance with a statute requiring 
 an "abstract" to be filed. Frazier « 
 Crowell, Id. 399. 
 
 Abuse. In a large sense signifies anj 
 improper treatmeilt or forcible injury; but 
 in a statute punishing abuse of a girl under 
 ten in the attempt to carnally know her, it 
 must be restricted by the context to some 
 injury to the genital organs in an attempt 
 at carnal knowledge falling short of actual 
 penetration. There must be physical in- 
 jury done in an attempt to deflower; but it 
 may be done without anything that may be 
 called penetration. Dawkins v. State, 68 
 Ala. 376. 
 
 Acquainted. Testimony of a witness 
 that he is "well acquainted with " a per- 
 son implies that the two mutually know 
 each other, and is proved false by showing 
 that the pei^son did not know the witness. 
 United States v. Jones, 14 Blatchf. 90. 
 
 Acquittance. A common receipt for 
 money paid is within a statute punishing 
 forgeries of acquittances. State v. Shel- 
 ters, 51 Vt. 102. 
 
 Action. Summary proceedings to eject 
 a tenant do not constitute a civil action. 
 State V. Fickling, 10 5. C. 301. 
 
 Actual notice. The actual notice re- 
 quired by the Wisconsin recording law is 
 not synonymous with actual knowledge. 
 None of the cases hold that, in order to 
 charge the purchaser with actual notice, it 
 must be shown that he had actual knowl- 
 edge of the precise claim of the person 
 holding the unrecorded defeasance. The 
 true rule is that notice must be held to be 
 actual when the subsequent purchaser has 
 actual knowledge of such facts as would 
 ' ' put a prudent man upon inquiry, which, 
 if prosecuted with ordinary diligence, would 
 lead to actual notice of the right or title 
 in conflict with that which he is about to 
 purchase." Where the subsequent pin- 
 chaser has knowledge of such facts, it be- 
 comes his duty to make inquhy, and he 
 is guilty of bad faith if he neglects to do 
 
DEFINITIONS. 
 
 147 
 
 so, and consequently he ■will be charged 
 ■with the actual notice he would have re- 
 ceived if he had made the inquiry. Brink- 
 man V. Jones, 44 Wis. 498. 
 
 Advancement. To frame such a defini- 
 tion as will cover every possible case is 
 difficult, but there ai-e certain essential 
 elements which every advancement must 
 possess; one of which is that it must once 
 have been part of the ancestor's estate, 
 which, upon his death, would descend to 
 his heirs but for the fact that, by the act 
 of the ancestor in making the gift, it has 
 been separated from the estate ; or it must 
 be something which is purchased with the 
 funds of the father in the name and for the 
 benefit of the child. Rickenbacker v. Zim- 
 merman, 10 S. C. 110. 
 
 There is no rule that to constitute an 
 advancement the property must have 
 been knowingly accepted by the child as 
 an advancement. The child must have 
 received the property so as to have enjoyed 
 it. In that sense there must have been an 
 acceptance of the subject-matter. But the 
 fact that the child supposed it to be an 
 absolute gift will not prevent its being 
 treated as an advancement if such is 
 clearly shown to have been the father's 
 intention. HoUiday v. Wingfield, 59 Ga. 
 206. 
 
 Aggrieved. A party cannot be said to 
 be " aggi'ieved " unless error has been com- 
 mitted against him. State v. Boyle, 6 Mo. 
 App. 57. 
 
 Under a statute authorizing " the party 
 aggi'ieved " by an improper assessment of 
 lands for expenses of a local improvement 
 to apply to vacate it, a mortgagee of the 
 land who has bought the property in under 
 foreclosure, subject to the lien of the as- 
 sessment, may apply. Matter of Walter, 
 75 N. Y. 354. 
 
 Agreement. The distinction between 
 an "agreement " and an " understanding." 
 Barkow v. Sanger, 47 Wis. 500. 
 
 Alienation. Always implies the con- 
 veyance of an estate; hence it cannot in- 
 clude a mortgage where a statute has de- 
 clared that mortgages shall not operate as 
 a conveyance, but as a security only. Tlie 
 essential idea of alienation is that of the 
 transfer of the title to an estate by an act 
 of the parties, as contradistinguished from 
 the operation of the law; some act by 
 which the title to an estate is voluntarily 
 
 resigned by one person, and' accepted by 
 another, in the forms prescribed by law. 
 Simons u. Bryce, 10 S. C. 854. 
 
 Alter. City cannot give permission to 
 enclose for private^use a portion of a street, 
 under its general power to establish, alter, 
 &c., streets. St. Vincent Female Orphan 
 Asylum V. Troy, 76 N. Y. 108. 
 
 Appellate. A constitutional provision 
 conferring " appellate jurisdiction " in gen- 
 eral terms means power to revise decisions 
 of courts only, not those of all inferior 
 officers and boards. Hubbell v. McCourt, 
 44 Wis. 584. 
 
 Appendage. A stereoscope, however 
 valuable or useful it may be in a school, 
 can in no proper sense of the term be 
 called an appendage for a school house. 
 School Dist. No. 29 v. Perkins, 21 Kan. 
 536. 
 
 Appointment. An order assigning an 
 ai-my officer to duty as commissary of a post 
 is not an "appointment" to a staff office 
 within a regulation that no officer shall re- 
 ceive pay for two staff appointments for 
 the same time; but is an assignment to 
 special duty. Morrison v. United States, 
 13 Cl. of CI. 1 ; aff'd, 96 U. S. 232. 
 
 Assault. Includes touching a virtuous 
 woman against her consent in illicit love 
 or lust, as well as in anger or with intent 
 to hurt. Goodrura v. State, 60 Ga. 509. 
 
 Assessment. When used in a constitu- 
 tion, in contrast with taxation, imports a 
 charge upon real property benefited by an 
 improvement for the expense of making it. 
 There can be no assessment where there 
 has been no special benefit conferred, and 
 as such benefits are made the basis of the 
 assessment, it must be limited to the value 
 of the special benefits conferred. Cham- 
 berlain V. Cleveland, 34 Ohio St. 5ol. 
 
 A condition in a lease that the lessee 
 shall " pay all assessments whatsoever, lev- 
 ied," &c., on said premises, does not bhid 
 him to the payment of state, county, and 
 city taxes for general purposes. The word 
 " assessment " is often used to signify a 
 proceeding which includes taxes ; but in the 
 above connection it is a specific designation 
 of charges upon the property, and does not 
 include taxes for general purposes. The 
 popular understanding of the use of the 
 word refers it specifically to those charges 
 imposed upon real property by tlie city to 
 defray the expense of local improvements, 
 
148 
 
 DEFINITIONS. 
 
 in proportion to the benefits received; and 
 this distinction between assessments and 
 taxes is observed in the enactments of the 
 legislature. Stephani v. CathoUo Bishop 
 of Chicago, 2 Bradw. (/^.) 249. 
 
 Assignment. In a statute regulating 
 assignments for creditors, does not include 
 a deed of trust in the nature of a security 
 for a particular debt. Crow v. Beardsley, 
 68 Mo. 435. 
 
 Assig'ns. A summary remedy given by 
 statute, to be prosecuted in the name of 
 the party entitled " or his assigns," is not 
 available to one who holds the demand in 
 question by mere delivery, and without 
 transfer in writing. A statute giving a 
 summary remedy must be strictly con- 
 strued. Transfer of commercial paper by 
 delivery only is sometimes loosely called 
 " assignment; " but in its proper sense that 
 term imports a transfer by writing; espe- 
 cially when used of non-negotiable de- 
 mands, such as claims against a county. 
 One who holds such a claim by mere deliv- 
 ery of the certificate, &c., is not an " as- 
 sign." Enloe V. Reike, 56 Ala. 500. 
 
 At large. Hogs kept in an enclosed 
 field surrounded by a sufficient fence are 
 not at large, as towards a railroad company 
 running trains through the field and neg- 
 lecting to fence the track. Atchison, &c. 
 E. R. Co. V. Yates, 21 Kan. 613. 
 
 When cattle may be deemed at large 
 within a statute as to estrays. Sloan v. 
 Hubbard, 34 Ohio St. 583. 
 
 Aactioneer. A person may be prose- 
 cuted under an ordinance requiring an 
 auctioneer to procure a license, notwith- 
 standing the property which he sold was 
 his own. The word is not limited to a 
 person who sells the property of others. 
 Goshen v. Kern, 63 Ind. 468. 
 
 Ballot. A constitutional provision di- 
 recting a vote to be taken " by ballot " or 
 "by joint ballot" does not mean merely 
 by vote or joint vote, taken in any manner 
 acceptable to the assembly, but requires 
 some method, such as putting balls or tick- 
 ets into a box, which shall keep the vote of 
 each person secret. State v. Shaw, 9 S. C. 
 94, 132. 
 
 Beat. To beat, in a legal sense, is not 
 merely to whip, wound, or hurt, but in- 
 cludes any unlawful imposition of the hand 
 or arm. The slightest touching of an- 
 other in anger is battery. To touch a vir- 
 
 tuous wife in the way of illicit love is a 
 greater outrage than to touch her in anger 
 and equally a breach of the peace. Good- 
 rum ». State, 60 Ga. 509. 
 
 Believe ; suspect. The provision of 
 the bankrupt law declaring void a convey- 
 ance taken by a creditor " having reason- 
 able cause to believe that he is insolvent"' 
 must not be administered as if worded 
 " having reasonable cause to suspect such a 
 person is insolvent." The two phrases are 
 distinct in meaning and effect. It is not 
 enough that a creditor has some cause to 
 suspect the insolvency of his debtor; but 
 he must have such a knowledge of facts as 
 to induce a reasonable belief of his debtor's 
 insolvency, in order to invalidate a security 
 taken for his debt. A man may have 
 many grounds of suspicion that his debtor 
 is in failing circumstances, and yet have 
 no cause for a well-grounded belief of the 
 fact. Obtaining additional security, or re- 
 ceiving payment of a debt, under such cir- 
 cumstances, is not prohibited by the law. 
 Grant v. National Bank, 97 U. S. 80. 
 
 Benevolent. Intrinsically considered, 
 includes more than legal charities, but its 
 signification may be narrowed by the con- 
 text. Where the will gave property to a 
 church in trust " to aid the missionary, 
 educational, and benevolent enterprises to 
 which the church is in the habit of con- 
 tributing," and it was shown that theen- 
 tei-prises mentioned were legal charities,— 
 Held, that the word " benevolent " could 
 not in the connection have a signification 
 wider than " charitable," and that con- 
 sequently the trust was valid. De Camp r. 
 Dobbins, 31 N. J. Eg. 671. 
 
 Bet. There is no material difference 
 between the expressions " to bet on an 
 election " and " to bet on the result of an 
 election." Commonwealth v. Avery, U 
 Bmh (Ky.), 625. 
 
 Between. A will gave property to be 
 divided between the children of D. At 
 the making of the will, and at the testar 
 tor's death, D had two children; but be- 
 fore the day for division a third was born. 
 Held, that the latter was entitled to share. 
 "Between" does not necessarily mean 
 among two only. Ward v. Tomkins, 30 
 N. J. Eg. 3. 
 
 Bona fide pre-emption claimant. In 
 the proviso of § 8 of the act of July 23, 
 1866, 14 Stat, at L. 218, —to quiet land 
 
DEFINITIONS, 
 
 149 
 
 titles in California, — means a person who 
 has settled upon lands subject to pre- 
 emption, with the intention to acquire 
 them, and, in order to perfect his right to 
 them, has complied, or is proceeding to 
 comply, in good faith with the require- 
 ments of the pre-emption laws. Hosmer v. 
 Wallace, 97 U. S. 575. 
 
 Borrower. One who has sold land sub- 
 ject to a mortgage which the purchaser has 
 agreed to pay is no longer a borrower as 
 towai'ds the mortgagee. Smith v. Cross, 16 
 Hun(N.Y.),i87. 
 
 Brass knacks. In a statute forbidding 
 the carrying of them, embraces all weapons 
 of the kind irrespective of the metal of 
 which they are made. It is not ground of 
 acquittal, on an indictment for carrying 
 brass knucks, that the knucks carried were 
 made of lead or pewter. Patterson v. 
 State, 3 Lea (Tenn.), 575. 
 
 Breaking. Pushing open a closed 
 though unfastened transom over outer 
 door of dwelling is sufficient breaking to 
 constitute burglary. Timmons v. State, 34 
 Ohio St. 426. 
 
 Opening a door fastened only by a latch 
 may be sufficient breaking. Bass o. State, 
 ILea (Tenn.), 444. 
 
 Opening or unlocking a door to go out is 
 not a breaking: Adkinson o. State, 5 Baxt. 
 {Tenn.) 569. 
 
 Broker. Is no longer limited to a per- 
 son employed to negotiate contracts be- 
 tween merchants for sale or exchange of 
 goods. It has become extended to almost 
 every branch of business. In its modern 
 and enlarged signification it embraces the 
 buying and selling and dealing in real as 
 well as personal estate. The dealer in real 
 estate for others may as legitimately be 
 called a broker as a person employed to 
 make bargains and contracts in matters 
 of trade, commerce, or navigation. Little 
 Kock V. Barton, 38 Arh. 436. 
 
 Builder. Includes one who repairs mar 
 chinery of a steam vessel, putting in new 
 parts. _ King v. Greenway, 71 N. Y. 413. 
 
 Business. A statute which forbids en- 
 gaging in the business of retailing liquor 
 is not violated by a single sale ; the accused 
 must have engaged in retailing as a busi- 
 ness, that is, must have given it time, at- 
 tention, and labor for the purpose of profit. 
 Martin v. State, 59 Ala. 34. 
 
 For a person to take a single lot of 
 
 liquors for a debt, and sell it, though in 
 quantities of not less than five gallons at a 
 time is not carrying on the business of a 
 wholesale liquor-dealer, by which he in- 
 curs a forfeiture if he does not pay a tax 
 under Rev. Stat. § 3242. United States v. 
 Feigelstock, 14 Blalchf. 321. 
 
 Cancel; rescind. Distinction between 
 them. Weil u. Jones, 53 Cal. 46. 
 
 Case. As used in Rev. Stat. § 5392, — 
 limiting perjury to oaths in a case in which 
 a law of the United States authoi'izes an 
 oath to be administered, — is not confined 
 to a suit or proceeding in court. The mean- 
 ing is that the law must authorize the oath 
 to be administered under the circumstances 
 existing. Perjury may be committed by 
 false swearing to one's property in justify- 
 ing as ban. United States v. Volz, 14 
 BlatcTif. 15. 
 
 Cash. Under a law requiring that capi- 
 tal furnished by special partners must be 
 paid in cash, their uncertified checks upon 
 a bank in which, at the date of the checks, 
 they have not money sufficient to meet and 
 pay their checks, cannot be deemed cash, 
 although, before the checks are presented, 
 they have arranged or provided funds to 
 pay the same, and they are paid. Ma- 
 ginn V. Lawrence, 45 N. Y. Superior Ct. 
 235. 
 
 Cause. In a statute providing that re- 
 movals of officers and employees shall be 
 only for cause, implies some dereliction or 
 general neglect of duty; some incapacity to 
 perform the duties of the post ; or some de- 
 linquency affecting the incumbent's gen- 
 eral character and fitness for the office. 
 The meaning is that an incumbent may 
 be removed for personal unfitness for the 
 place, if, on a hearing, the charge is unex- 
 plained. Ascertaining that some other man 
 is better fitted to discharge the duty, or is 
 more congenial to the appointing or remov- 
 ing power, is not a cause of removal within 
 such a statute. So long as a person in office 
 fully performs its duties and is legally qual- 
 ified and of good character, he cannot be 
 removed because the services of a better- 
 adapted person can be seoui-ed. People ». 
 Fire Commissioners, 72 N. Y. 445. 
 
 Character. In a statute punishing the 
 seduction of a woman of previously chaste 
 character, refers, not to her reputation, but 
 to her real moral qualities, and signifies 
 that which the person really is, in distinc- 
 
150 
 
 DEFINITIONS. 
 
 tion from that which she may be reported 
 to be. State v. Prizer, 49 Iowa, 5.31. 
 
 Child. In a statute punishing assault 
 upon a child, should not be deemed equiv- 
 alent to minor, or as including all persons 
 under twenty-one; but .should be construed 
 in the popular sense of one so young as to 
 be more susceptible to pain and injury from 
 violence, and to lack strength and ability 
 to defend himself. McGregor v. State, 4 
 Tex. App. 599. 
 
 The word children, in a will, does not 
 include grandchildren, unless it appears 
 from the context to be so intended by the 
 testator, or such meaning is necessary to 
 carry out his manifest intent. Castner's 
 Appeal, 88 Pa. St. 478. 
 
 Circular. As used in the postal law, 
 means a printed letter, which bears internal 
 evidence that it is being sent to several 
 persons. Act of March 3, 1879, ch. 180, 
 § 18, 20 Stat, at L. 360. 
 
 Citizen ; voter. Are not synonymous. 
 Minors and females may be citizens, and 
 yet they are not legal voters. People v. 
 Oldtown, 88 III. 202. 
 
 City officer. The chief of police of a city 
 is not within a charter power to the mayor 
 to remove city officers. The term denotes 
 officers whose functions relate exclusively 
 to the local affairs of the city, so that only 
 the city is interested in their duties and 
 conduct; such as city engineers and sur- 
 veyors, superintendents of streets, water- 
 works, sewers, &c., city inspectors, and the 
 like. Such officers as city judge, clerk, or 
 treasurer, Commonwealth's attorney, sher- 
 iff, and the like, though often called city 
 officers, are not included. Bureh v. Hard- 
 wicke, 30 Gratt. (Va.) 34. 
 
 City purpose. A constitutional pro- 
 vision forbidding cities from loaning their 
 credit " except for city purposes " does not 
 confine them to work or expenditure within 
 the city limits. Any public improvement 
 which may be regarded as for the common 
 benefit and enjoyment of all the citizens 
 may be a " city purpose." People i;. Kelly, 
 76 N. Y. 475. 
 
 Claim ; demand. An application by a 
 widow to a surrogate for an order directing 
 the administrator to pay her a family allow- 
 ance is not a claim or demand within Code 
 Civ. Pro. § 1880, — that parties in whose 
 behalf a proceeding is prosecuted against an 
 administrator, &c., upon "a claim or de- 
 
 mand against the estate " cannot be iit. 
 nesses. The words are used synoDymously 
 and mean assertions of indebtedness sncji 
 as will diminish or impair the estate; sucji 
 as might have been enforced againstthe 
 decedent during his lifetime, by a money 
 action. McCausland's Estate, 52 Cal. 568. 
 
 Clerk. A police surgeon cannot be 
 deemed embraced within a statutory pot. 
 er of a board of police to fix " compensa- 
 tion of all clerks appointed." People t. 
 Board of Police, 75 N. Y. 38. 
 
 C. 0. D. These initials have a well- 
 known commercial meaning, and show 
 clearly that the consignor does not intend 
 to give credit, but means to retain control 
 of the goods and thereby secure himself 
 against default in payment. Wagner r. 
 Hallack, 3 Col. 176. 
 
 Concurrence. Is a word of stronger im- 
 port than consent. A constitutional pro- 
 hibition upon removal of any county seat 
 without concurrence of a majority of voters 
 requires actual votes of more than half the 
 qualified electors. Bouldin v. Lockheart, 
 1 Lea {Term.), 195. 
 
 Confectionery. A generic word which 
 includes a great variety of articles. An 
 indictment which charges the defendant 
 with unlawfully and fraudulently adulter- 
 ating ' ' a certain substance intended for 
 food, to wit, one pound of confectionery," 
 does not sufficiently describe the substance 
 alleged to have been adiflterated, and shonld 
 be quashed. Commonwealth v. Chase, 125 
 Mass. 202. 
 
 Congregate. Necessarily implies the 
 joint action or co-operation of two or more 
 persons, and is usually applicable to the 
 coming together of a considerable number. 
 To speak of one man as forming by him- 
 self a congi-egation of any kind is mean- 
 ingless. Powell «. State, 62 Ind. 531. 
 
 Contract. A judgment is not a contract 
 within a statute requiring that an acknowl- 
 edgement or new promise of a contract, to 
 take it out of the statute of limitations, 
 shall be in writing. Niblaok v. Goodman, 
 67 Ind. 174. 
 
 Contracted. An exemption of a home- 
 stead from being taken for any debt con- 
 tracted by the owner, &c., does not mean 
 debts sounding in contract only, but is 
 eqnivalent to "incurred," and includa 
 debts founded on tort. Re Eadway, i 
 Hugh. 609. 
 
DEFINITIONS. 
 
 151 
 
 Such exemption is not limited to obliga- 
 tions incurred by agreement; but may in- 
 clude other liabilities. Homestead lands 
 are exempt from judgment for damages for 
 trespass; or from a lien in favor of the 
 State for costs of a prosecution. State v. 
 O'Mel, 7 Oreg. 141. 
 
 Contract for tbe payment of money. 
 This phrase does not include an official 
 bond or bond of an executor, administra- 
 tor, or guardian; these are contracts for 
 performance of official duty, or execution 
 of a trust. Morrow v. Wood, 56 Ala. 1. 
 
 Copy. The expression " copy of any 
 paper on file " in a statute authorizing an 
 officer to charge a fee for every copy of any 
 paper on file in his office, furnished by him, 
 means a transcript made and certified by 
 him as a copy. He is not entitled to draw 
 up written instructions to his subordinates, 
 print them, file one copy, send out the other 
 copies, and charge the government with 
 fees upon these. Muirhead v. United 
 States, 13 Ct. of CI. 251. 
 
 Corporator. As used in Laws 1849, 
 ch. 308, § 19, relative to liability of cor- 
 porators of insurance company for debts 
 incurred before the capital is paid in, does 
 not include stockholders. Corporators are 
 the associates engaged in organizing the 
 company, whose functions cease with its 
 organization, when stockholders come in. 
 After their functions thus cease, the cor- 
 porators cannot further be held liable. 
 Chase v. Lord, 77 N. Y. 1. 
 
 Cruelty. The cruelty which authorizes 
 a divorce is anything that tends to bodily 
 harm and thus renders cohabitation unsafe; 
 that involves danger of life, limb, or health. 
 What merely wounds the feelings without 
 being accompanied by bodily injury or 
 actual menace — ■ mere austerity of temper, 
 petulance of manner, rudeness of language, 
 want of civil attention and accommodation, 
 or even an occasional sally of passion that 
 does not threaten harm — may be a high 
 offence in the married state, but does not 
 amount to legal cruelty. Latham v. La- 
 tham, 30 Gratl. (Va.) 307. 
 
 Currency. Includes both coined money 
 and paper money ; but means money only. 
 The only practical distinction between paper 
 money and coined money, as currency, is 
 that coined money must generally be re- 
 ceived, paper money may generally be spe- 
 cially refused, in payment of debts; a 
 
 payment in either is equally made in 
 money. There is a distinction between 
 money which is current and money which is 
 legal tender; the property of being legal 
 tender is not necessarily inherent in money. 
 "Currency" does not necessarily include 
 all bank-notes in actual circulation, for all 
 bank-notes are not necessarily money. It 
 includes only such bank-notes as are issued 
 for circulation by authority of law, and are 
 in actual and general circulation at par as 
 a substitute for coin, and interchangeable 
 with it; bank-notes which actually repre- 
 sent dollars, and ai-e paid and received for 
 dollars at their legal standard value. What- 
 ever is at a discount — that is, whatever 
 represents less than the standard value of 
 coin at par — is not money, and therefore 
 is not properly included in the word ' ' cur- 
 rency." National-bank notes, although 
 not legal tender, are as much currency as 
 treasury-notes, which are legal tender. 
 Therefore a certificate of deposit promising 
 repayment " in currency " may be deemed 
 negotiable. It is payable in money. Klau- 
 ber V. Biggerstaff, 47 Wis. 551. 
 
 Distinction between "currency" and 
 "currency funds" considered. lb. 
 
 Curtilage. In a statute punishing the 
 use of abusive language in the dwelling- 
 house of another or in the curtilage thereof, 
 includes the yard, or garden, or field which 
 is near to and used in connection with the 
 dwelling. That either should be surrounded 
 by an enclosure is not necessary. It is the 
 propinquity to the dwelling, and the use in 
 connection with it for family purposes, 
 which the statute regards. Ivey v. State, 
 61 Ala. 58. 
 
 Day. In a statute prohibiting the sale 
 of liquors on election day, includes the 
 whole twenty-four hours, beginning at 
 midnight of election morning and ending 
 at the following midnight. Kane v. Com- 
 monwealth, 89 Pa. St. 522. 
 
 Deadly weapon. Is not limited to any 
 particular class of weapons, but includes 
 any which, as actually used in the partic- 
 ular case, is capable of producing death, 
 or of inflicting great bodily injury, or seri- 
 ously wounding. McReynolds v. State, 4 
 7'ex. App. 327. 
 
 Debancli ; seduce. "Did seduce and 
 debauch" is a sufficient averment of the 
 offence in an indictment for seduction; 
 the words import illicit intercourse accom- 
 
152 
 
 DEFINITIONS. 
 
 plished by arts, promises, or deceptions. 
 State V. Curran, 51 Iowa, 112. 
 
 Debt. Taxes are not debts in the sense 
 that they are obligations or liabilities aris- 
 ing out of contracts express or implied. 
 They are the enforced proportional contri- 
 bution of each citizen and of his estate, 
 levied by the authority of the State for the 
 support of the government. State v. Yel- 
 low Jacket Silver Min. Co., 14 Nev. 220. 
 
 Dedication. The act of devoting or 
 giving property to some proper object, in 
 such a manner as to conclude the owner. 
 Denver v. Clements, 3 Col. 484. 
 
 Deed. Mortgages may be deemed in- 
 eluded in an act providing in general terms 
 for recording deeds. Pfeaff v. Jones, 50 
 Md. 263. 
 
 Default. A judgment rendered when a 
 defendant is present, either in person or by 
 attorney, though neither takes any part in 
 the proceeding, held, not a " judgment by 
 default" within a statute. Borgwald v. 
 Fleming, 69 Mo. 212. 
 
 Desertion. A breach of matrimonial 
 duty is composed of (1) the actual break- 
 ing-off of matrimonial cohabitation and 
 (2) the intent to desert in the mind of 
 the offender. Both must combine to 
 make the desertion complete. The intent 
 to desert is usually the principal thing 
 to be considered. Desertion cannot be in- 
 ferred from the unaided fact that parties 
 do not live together. Latham v. Latham, 
 30 Graft. (Va.) 307. 
 
 Device ; snbstitute. In a statute pun- 
 ishing games " with any device or substi- 
 tute for cards," " device " has a narrower 
 meaning than "substitute;" the latter 
 word would embrace anything used in the 
 place of cards, whether designed for the 
 same purpose or not. Henderson v. State, 
 59 Ala. 89. 
 
 Distilled spirits. In a chemical sense 
 this term is not, but in the ordinary and 
 literal meaning is, confined to products of 
 distillation. It is used in the latter sense 
 in Kev. Stat. § 3248. United States v. 
 Anthony, 14 Blatchf. 92. 
 
 As used in Rev. Stat. §§ 3289, 3299, it 
 includes all spirits which have been dis- 
 tilled, whether they have been rectified or 
 not. Boyd v. United States, Id. 317. 
 
 Distiller. To make one in possession 
 of a still a distiller within the meaning of 
 Rev. Stat. § 3247, because he keeps in his 
 
 possession mash, wort, or wash, the mash, 
 wort, or wash must be such as will produce 
 alcoholic spirits on distillation. United 
 States V. House and Lot No. 3 Abattoir 
 Place, 8 Reporter, 391. 
 
 District. As used in direct taxes act of 
 June 7, 1862, means a part or portion of a 
 State. Keely v. Sanders, 99 U. S. 441. 
 
 Domicile ; residence. Domicile means 
 more than residence. A man may be a 
 resident of a locality without having his 
 domicile there ; and may have several resi- 
 dences at once, though he can have but one 
 domicile. Residence is the place of abode 
 or the act of abiding in a place; and to 
 reside in a place is to abide there for a 
 time. Domicile is residence accompanied 
 with positive or presumptive proof of an 
 intent to remain at the place for an unlim- 
 ited time. To constitute domicile, two 
 things must concur, residence and intent 
 to remain indefinitely. But residence is 
 used so differently in various statutes tbat 
 the question of construction must be de- 
 cided in each case on the particular circmn- 
 stances. Long i;. Ryan, 30 Gratt. (Fa.) 
 718. 
 
 Distinction between the terms " domi- 
 cile," " inhabitancy," and " residence," as 
 used in a policy of life insurance. Mobile 
 Life Ins. Co. v. Walker, 58 Ala. 290. 
 
 Donation. In an act enabling a city to 
 make a donation of bonds in aid of a rail- 
 road, means an absolute gift or grant, with- 
 out condition or consideration. Wilkinson 
 V. Peru, 61 Ind. 1. 
 
 Due process of law. The meaning of 
 the constitutional provision is that no per- 
 son shall be deprived either of life, or of lib- 
 erty, or of property, unless the matter shall 
 be adjudged against him upon trial and 
 according to the course of the common law. 
 The same measure of protection against 
 legislative encroachment is extended to life, 
 to liberty, and to property; as to all these, 
 the prosecution or suit must be instituted 
 and conducted according to the prescribed 
 forms and solemnities for ascertaining guilt 
 or determining title. Whether an info^ 
 mation, if triable by jury, is due process. 
 People V. Sponsler, 1 Dak. T. 289. 
 
 The phrase implies the right of the per- 
 son affected to be present before the tri- 
 bunal which pronounces judgment, to be 
 heard by testimony or otherwise, and to 
 have the right of controverting by piwf 
 
DEFINITIONS. 
 
 153 
 
 every material fact Mrhioh bears on the 
 question of right in the matter involved. 
 If any question of fact or liability be con- 
 clusively presumed against him, there is 
 not due process of law. Zeigler v. South 
 & North Ala. R. E. Co., 58 Ala. 594. 
 
 It requires an orderly proceeding adapted 
 to the nature of the case, in which the citi- 
 zen has an opportunity to be heard and to 
 defend his rights. An opportunity to be 
 heard is absolutely essential; there cannot 
 be due process of law without it. Stuart v. 
 Palmer, 74 N. Y. 183. 
 
 A statute allowing penal or exemplary 
 damages for a wilful wrong is not objec- 
 tionable as taking property without due 
 process of law. Cairo, &c. R. R. Co. v. 
 People, 92 III. 97. 
 
 Dwelling'-house. If the ground floor of 
 a building is occupied for stores, and the 
 upper floors for residences of families, 
 breaking into one of the stores may be 
 deemed breaking into a dwelling-house, 
 notwithstanding there is no communication 
 between the lower and upper floors. Quinn 
 V. People, 71 N. Y. 561. 
 
 Earnings; net earnings. The " earn- 
 ings " of the Union Pacific RaUroad include 
 all the receipts arising from the com- 
 pany's operations as a railroad company, 
 but not those from the public lands granted, 
 nor fictitious receipts for the transportation 
 of its own property. " Net earnings " are 
 ascertained by deducting from the gross 
 earnings all the ordinary expenses of or- 
 ganization and of operating the road, and 
 expenditures made bond fide in improve- 
 ments, and paid out of earnings, and not 
 out of sales of bonds or stock; but without 
 deducting interest paid on any of the 
 bonded debt of the company. Union 
 Pacific Railroad Co. v. United States, 99 
 U. S. 402. 
 
 In computing net earnings of a railroad, 
 there should be deducted from gross earn- 
 ings sums actually disbursed from current 
 earnings (not raised by sale of bonds or 
 stock) for equipment account or replacing 
 or rebuilding rolling-stock, machinery, &c. ; 
 for depot grounds, and the expenses of 
 same ; and for the construction account, or 
 improvements and additions to the track, 
 &c. Deductions should not be made for 
 money which may be needed but has not 
 been expended for repairs, for expenses of 
 a land department, or for interest on a 
 
 funded debt. United States v. Kansas 
 Pacific R. R. Co., 99 U. S. 455. 
 
 Earth. In a contract for excavation, 
 may include hard pan. Hard pan is earth 
 rather than rock. Dickinson v. Pough- 
 keepsie, 75 N. Y. 65. 
 
 Easement. A privilege off and beyond 
 the local boundaries of lands or a tenement 
 conveyed, — here, the privilege of conduct- 
 ing water to lands granted through the 
 lands retained by the grantor. Cave v. 
 Crafts, 53 Cal. 135. 
 
 Effect. A statute requiring an appel- 
 lant to give a bond to prosecute his appeal 
 to effect does not mean that he shall prose- 
 cute to a successful issue in his favor, but 
 that he will prosecute with due diligence to 
 a final issue or judgment. Prosecution to 
 effect implies a diligent prosecution, with- 
 out fraud or unnecessary delay. Kasson v. 
 Brocker, 47 Wis. 79. 
 
 Embezzle; embezzlement. These are 
 not words of definite common-law mean- 
 ing. They are used through the U. S. 
 Rev. Stat, to designate a variety of offences 
 having this idea in common ; that the per- 
 son has the opportunity to commit them 
 by reason of some office or employment; 
 and they include some breach of confidence 
 or trust; some misuse of a confidential 
 opportunity. United States v. Conant, 9 
 Cent. L. J. 129. 
 
 Employed. In a statute exempting from 
 compulsory pilotage any vessel regularly 
 employed in the coasting-trade the word 
 "employed," although answered by any 
 present occupation, is more commonly used 
 as signifying continuous occupation. Thus 
 a single act of trading answers the phrase 
 " employed in trade; " yet this phrase ordi- 
 narily imports continuous business. And 
 when to these words " regularly " is pre- 
 fixed, the argument is strong that the use 
 of them is intended to import something 
 more than a single transaction, and to 
 require something in the nature of per- 
 manence in the employment. But a vessel 
 properly documented, sailing from Pliila- 
 delphia to Boston with a cargo of coal, duly 
 cleared, with bills of lading signed and 
 delivered, is, in point of fact, at the time 
 regularly employed in the coasting trade, 
 and must be deemed to be within the ex- 
 emption. Wilson V. Gray, 127 Mass. 98. 
 
 Employee. Is usually considered as 
 embracing laborers, servants, and persons 
 
154 
 
 DEFINITIONS. 
 
 occupying inferior positions ; a police sur- 
 geon is not an employee of the board of 
 police, but an officer. People v. Board of 
 Police, 75 N. Y. 38. 
 
 Enclose. A deed of land described as 
 so many acres of a certain section " enclos- 
 ing the mill and house" of C, is a good 
 conveyanceof the buildings. " Enclosing" 
 is to be taken in the sense of including or 
 embracing. "Enclose" and "include" 
 have several significations, one of which is 
 to confine within. Campbell v. Gilbert, 
 57 Ala. 569. 
 
 Enclosure. A fence only partly enclos- 
 ing the land would not make it an " en- 
 closure." To constitute an enclosure the 
 fence must surround the land. Gundy v. 
 State, 63 Ind. 528. 
 
 EncnmbEance. The right of the public 
 to use flats — or land along tide-waters be- 
 tween high and low water marks — during 
 the hours while they are covered by the 
 sea, for purposes of navigation, until the 
 owner of the upland shall have reclaimed 
 and enclosed them, is not an encumbrance, 
 within the usual covenant. Montgomery 
 V. Keed, 69 Me. 510. 
 
 A mere license to enter lands for laying 
 an aqueduct and keeping it in repair is 
 not an encumbrance. Wilkins v. Irvine, 
 33 Ohio St. 138. 
 
 A highway over land is not an encum- 
 brance. Jordan v. Eve, 31 Gratt. (Va.) 1. 
 A contingent right of dower — here, of a 
 former owner of the land — is not an en- 
 cumbrance. Southern Mutual Ins. Co. v. 
 Kloeber, 31 Gratt. (Va.) 739. 
 
 Encumbrancer. May include a judg- 
 ment creditor whose judgment is a lien. 
 Fuller V. Scribner, 76 N. Y. 190. 
 
 Erect. An engagement to erect a build- 
 ing within a given time may be deemed 
 performed, notwithstanding all the plaster- 
 ing intended is not finished, and all the 
 windows are not in, &c. These matters 
 are not essential to the idea of a building. 
 So held where the edifice was built by the 
 party for his own use; so that he could 
 perfect it after the specified time. Mc- 
 Laughlin u. Child, 62 Ind. 412. 
 
 Escape. A person whose property has 
 been partially though insufficiently taxed 
 cannot be .subjected to provisions of statute 
 for reaching "persons who and property 
 which have escaped taxation." The verb 
 "escape," in the connection, means to 
 
 avoid the notice of; to pass unobserved by 
 to evade. Lehman v. Robinson, 59 ^ij 
 219, 240. 
 
 Especial privilege. Granting a city 
 charter, although it contains power to for- 
 bid liquor-selling, is not a violation of an 
 act of Congress providing that the legisla- 
 tive assembly of a Territory shall not grant 
 especial privileges. The terra "especial 
 privileges " refers to the granting of mon- 
 opolies, such as ferries, trademarks, the 
 exclusive right to manufacture certain ar- 
 ticles, or to carry on certain business in a 
 particular locality to the exclusion of oth- 
 ers. The granting of a public charter does 
 not confer any especial privileges within 
 this meaning. Elk Point v. Vaughn, 1 
 Dak. T. 113. 
 
 Estate. In a statute directing that, if 
 the estate does not exceed $300, the estate 
 shall vest absolutely in the widow or chil- 
 dren, does not point particularly to real 
 property, but is used in the wider and 
 popular sense ; and means the entire mass 
 of property left by the decedent. Harri- 
 son V. Lamar, 33 Ark. 824. 
 
 Evidence. In a legal, technical sense, 
 is almost a synonym of iiLstrument of 
 proof; and does not import conclusive tes- 
 timony, nor that which produces full con- 
 viction. Popularly it is generally used in 
 the latter sense. McWilliams v. Kodgers, 
 56 Ala. 87. 
 
 The use of the words " evidence " and 
 "testimony" interchangeably, in an in- 
 struction as to the conflict of testimony, is 
 harmless. Forgey v. First Nat. Bank, 66 
 Ind. 123. 
 
 Evident. Under a constitutional pro- • 
 vision that prisoner shall be bailable unless 
 held for capital ofEences " when the proof 
 is evident," if the evidence adduced on the 
 application for bail would sustain a verdict 
 convicting the prisoner of murder in the 
 first degree, the proof is evident ; if it might 
 not, bail should be allowed. Exp. Foster, 
 5 Tex. App. 625. 
 
 Ex post facto. Such laws only are m 
 post facto as provide for the punishment of 
 a party for acts antecedently doue which 
 were not punishable at all, or not punish- 
 able to the extent or in the manner pre- 
 scribed. Denver, &c. Ky. Co. v. Wood- 
 ward, 4 Col. 162. 
 
 A law is ex post facto which so alters th^ 
 rules of evidence in criminal cases as to 
 
DEFINITIONS. 
 
 155 
 
 allow a conviction on less or different evi- 
 dence than was requisite when the offence 
 was committed. Calloway v. State, 7 Tex. 
 Ajpp. 585. 
 
 Express. A contract for the furnish- 
 ing of material to be used in a building, 
 fixing the prices for the articles to be de- 
 livered, but leaving all other matters to be 
 implied, is not an express contract. Grun- 
 deis !). Hartwell, 90 lU. 824. 
 
 Family. Persons dwelling together in 
 one household, and under superintendence 
 of one head, are one family ; and domestic 
 servants ai-e a part of the family. Race v. 
 Oldridge, 90 Ttl. 250. 
 
 In an action on a policy of insurance 
 containing a warranty that a family will 
 live in the house throughout the year, evi- 
 dence that at the time of the fire, and for 
 some time previous thereto, the only occu- 
 pancy of the insured premises was by two 
 workmen, who took their meals and were 
 employed elsewhere during the day, but 
 kept their trunks and clothing and slept at 
 night in one of the rooms on the premises, 
 will not justify the jui-y in finding that 
 the warranty has been complied with. 
 Poor i>. Humboldt, 125 Mass. 274. 
 
 Whether a married daughter, with her 
 children, residing with her mother, forms 
 a constituent member of the family such 
 as to entitle her and her children to the 
 homestead upon the death of her mother, 
 
 — see Roco v. Green, 50 Tex. 483. 
 Family use. A statute providing for 
 
 the supply by a city aqueduct, of water for 
 family uses, includes supplying the city 
 buildings, such as the jail. Family uses 
 are such as are appropriate to the individ- 
 ual needs of the members of a household, 
 and to the needs of the household in its 
 collective capacity ; it is the inhabitants, 
 the men, women, and children, who are to 
 be supplied with water for family uses, — 
 domestic uses, drinking, lavation, &c. The 
 occupants of a jail — keepers and prisoners 
 
 — have such "family uses," as well as the 
 best-ordered family of parents, children, 
 and servants. The fact that the city 
 and county, as an incident to its power and 
 duty to establish a jail, has the right and 
 obligation to furnish necessary water for 
 keepers and prisoners, does not change the 
 nature of the uses for which such water is 
 supplied. And so as to hospitals, poor- 
 houses, schools, and other institutions. 
 
 Spring Valley Water-works v. San Fran- 
 cisco, 52 Cal. 111. 
 
 Feloniously. Is no longer necessary in 
 Texan indictment for theft ; " fraudu- 
 lently "is the proper substitute. Jarosco 
 V. State, 6 Tex. App. 238; Conner v. State, 
 Id. 455. 
 
 Felony. Is incapable of any definition, 
 and is not descriptive of any offence. Its 
 origin has puzzled law-writers. It has 
 become useless and unintelligible ; for 
 it seems to mean something when in 
 truth it conveys uo distinct notion. It 
 was founded on former ideas of two 
 descriptions of punishment, — the one cap- 
 ital, with the forfeiture of lands and 
 chattels ; the other, not capital, with the 
 forfeiture of chattels only, and the form of 
 burning in the hand, to which imprison- 
 ment, &c., might be added. Lynch v. 
 Commonwealth, 88 Pa. St. 189. 
 
 Ferry. A boat provided with two rail- 
 road tracks, which prevent the entrance or 
 egress of ordinary vehicles, and also of 
 foot-passengers, except as they are trans- 
 ported in cars which run upon the railroad 
 track ; which is exclusively used for the 
 transportation of railroad cars, in connec- 
 tion only with the arrival of trains, and 
 cannot transport ordinary vehicles or foot- 
 passengers except as they are conveyed to 
 the boat in cars ; which is for the ingress 
 and egress of cars, and not for the accom- 
 modation of anything else, and which is a 
 part of a continuous through i-ailroad line, 
 is unlike an ordinary ferry for the ti-ans- 
 portation across a river of persons, ani- 
 mals, and freight, at intervals more or less 
 regular for fare or toll. The ordinary 
 feri-y is a substitute for the ordinary 
 bridge, for the accommodation of the pub- 
 lic generally. The railroad feny is a sub- 
 stitute for a railroad bridge, being the 
 continuation of railroad tracks across a 
 stream of water. It differs widely, except 
 in name, from a general or unlimited feri-y, 
 and is not within a grant of an " exclusive 
 right of ferry." New York v. New Eng- 
 land Transfer Co., 14 Blalchf. 159. 
 
 Fiduciary. Indebtedness of an attor- 
 ney in fact for money collected is not 
 fiduciary; the exception of fiduciary debts 
 from a discharge in bankruptcy includes 
 only technical trusts. Woodward v. Towne, 
 127 Mass. 41. 
 
 Fine. In ordinary legal language, 
 
156 
 
 DEFINITIONS. 
 
 means a sum of money imposed by a 
 court according to law, as a punishment 
 for the breach of some penal statute. A 
 sum imposed, not as a compensation for 
 some loss sustained ; not as damages ; not as 
 interest; and not as costs; but purely as 
 a punishment for the breach of a penal 
 statute, — is a fine. The legislature may 
 give damages wherever loss has been sus- 
 tained. It may give even enhanced dam- 
 ages, double damages, treble damages, 
 exemplary damages, and remote as well as 
 proximate damages ; but these are all dam- 
 ages because of loss sustained, and not 
 simple punishment for violation of law. 
 Costs, interest, or enhanced damages also 
 are given upon the principle of awarding 
 compensation for loss. In aU cases where 
 money is imposed merely as punishment 
 for the violation of some law, the imposi- 
 tion should be called a fine. Atchison, 
 &c. R. R. Co. V. State, 22 Kan. 1. 
 
 Foreig'n corporation. An insurance 
 company created by an act of Congress is a 
 foreign corporation, within the definition 
 given by Indiana insurance laws, viz. : a 
 corporation created by or under the laws 
 of any other State, government, or coun- 
 try. An act of Congress creating a private 
 corporation is the act of Congress as the 
 local legislature of the District of Colum- 
 bia ; for Congress cannot, under the Fed- 
 eral constitution, as the Congress of the 
 United States, create a private corporation. 
 Daly V. National Life Ins. Co., 64 Ind. 1. 
 
 Forfeit. When a statute says that an 
 offender " shall forfeit and pay the sum of 
 $100, to be recovered by indictment," the 
 meaning is that the party shall be fined 
 $100, to be recovered by indictment. 
 Forfeiture, in the common-law sense, 
 transfers the title to a specific thing from 
 the owner to the sovereign power. But 
 in the statute the meaning must be that 
 the Commonwealth, by indictment, may 
 recover of the offending party that sum, to 
 be levied on his goods, chattels or property. 
 Commonwealth v. Avery, 14 Bush (Ky.), 
 625. 
 
 Forged. An instrument falsely and 
 fraudulently written over a genuine signa- 
 ture is a forged one. Hence an answer 
 alleging that the note in suit is a forged 
 instrument does not necessarily involve a 
 denial of the genuineness of the signatui-e, 
 and is not such a plea as requires plaintiff 
 
 to make proof of the signature. Smith v. ' 
 Ehnert, 47 Wis. 479. 
 
 Fornication. Under Ga. Code, § 382, 
 there is no fornication unless the man 
 and woman both consent. The woman 
 must consent as well as the man ; therefore 
 fornication cannot be forcible and against 
 the woman's wiU. Speer v. State, 60 Ga. 
 381. 
 
 Fonnd. A corporation doing business 
 within a given State may be regarded as 
 "found within the State" within the 
 meaning of statutes authorizing service 
 of process on a defendant in a State where- 
 in he may be found. Wilson Packing Co. 
 V. Hunter, 8 Cent. L. J. 393 ; 25 Int. Rev. 
 Rec. 137 ; 7 Reporter, 455. 
 
 Franchise. Membership of a board of 
 trade or an association organized for the' 
 purpose of regulating commercial business 
 is not a franchise within the meaning of a 
 statute giving the supreme court juris- 
 diction in cases involving a franchise. No 
 doubt the word is sometimes used as synony- 
 mous with privileges and immunities of a 
 personal character; but in law its appro- 
 priate meaning is understood to be some- 
 thing which the citizen cannot enjoy 
 without legislative grant. It is a privilege 
 emanating from the sovereign power of the 
 State, owing its existence to a grant, or, 
 as at common law, to prescription, which 
 presupposes a grant, and is invested in in- 
 dividuals or a body politic. Religious, 
 benevolent, literary, and scientific societies 
 and associations are incorporated under 
 general or special laws, but it was never 
 understood that members of such societies 
 or associations possess or exercise any 
 franchise. What they obtain is most ap- 
 propriately termed ' ' membership. ' ' Board 
 of Trade v. People, 91 III. 80. 
 
 Game. Playing billiai'ds for mere amuse- 
 ment is not a violation of an ordinary 
 law forbidding games and gaming; such 
 statutes are intended to prevent games on 
 the result of which something of value is 
 staked. Williams v. Warsaw, 60 Ind. 457. 
 
 Gaming-table. Any table kept and 
 used for playing games of chance is within 
 a statute against gaming-tables; it need 
 not be made in any particular way, or have 
 any devices specially adapting it to such 
 use ; nor be necessary to the game. Toney 
 V. State, 61 Ala. 1. 
 
 Gelding. Does not include a ridgling; 
 
DEFINITIONS. 
 
 157 
 
 an indictment for stealing a gelding is not 
 sustained by proof of stealing a ridgling. 
 Brisco V. State, 4 Tex. App. 219. 
 
 General law. Does not import univer- 
 sality in the subjects or operation of such 
 law. The so-called general acts are, for 
 the most part, special and local in their 
 eflect and applicability, provided we put 
 the widest, possible signification on the 
 terms special and local. State v. Parsons, 
 40 N. J. L. 1. 
 
 A statute may be "general" and also 
 " local." The fact that a law is general 
 negatives the idea that it is private, but not 
 that it is local. Yellow River Improvement 
 Co. V. Arnold, 46 Wis. 214. 
 
 A law, framed in general terms, re- 
 stricted to no locality, and operating 
 equally upon all of a group of objects, 
 which, having regard to the purposes of 
 the legislation, are distinguished by char- 
 acteristics sufficiently marked and im- 
 portant to make them a class by themselves, 
 is not a special or local law, but a general 
 law. Van Kiper v. Parsons, 40 N. J. L. 
 123. 
 
 Given. Averment that a judgment was 
 duly rendered is not sufficient under Code 
 Civ. Pro. § 456, — providing that a judg- 
 ment may be pleaded by merely stating 
 that it was duly given or made. A judg- 
 ment is duly " rendered " when it is duly 
 pronounced and ordered to be entered. 
 But judgment duly " made or given " 
 means a complete judgment, properly 
 entered in the judgment book, so that it 
 may be pleaded in bar of another action. 
 Young V. Wright, 52 Cal. 407. 
 
 Goods and chattels. This phrase does 
 not include a mere right in action, such 
 as a debt or claim for money due ; but only 
 personal property which is visible and 
 tangible. Kirkland u. Brune, 31 Gratt. 
 {Va.) 126. 
 
 Greenback. Is not a proper term to be 
 used in an indictment for larceny of 
 treasury-notes. It is originally but a 
 nickname or slang word derived from the 
 color of the engraving on the backs of the 
 currency so denominated; and is not a 
 legal designation, or a proper description 
 of notes alleged to have been feloniously 
 taken. Wesley v. State, 61 Ala. 282. 
 
 Habit. A statute forbidding' sales of 
 liquor to a person " in the habit of getting 
 intoxicated" means a person who by fre- 
 
 quent repetition has acquired an involun- 
 tary tendency to become intoxicated. Oc- 
 casional acts of intoxication do not bring 
 one within the law. Murphy v. People, 90 
 III. 59. 
 
 Habitual. Imports formed or acquired 
 by habit; customary; usual. Habitual 
 drunkenness is not established by proving 
 four instances of drunkenness. There 
 must be proof that the party has a fixed 
 habit of drunkenness, and is accustomed to 
 intemperauce whenever opportunity offers. 
 But he need not be continually intoxicated. 
 Trigg V. State, 49 Tex. 645, 676. 
 
 Head of family. A widow keeping a 
 boarding-house, having a lady friend and 
 female servants residing with her, is the 
 head of a family within the meaning of a 
 law exempting property of a head of a fam- 
 ily from execution. Such a statute is not 
 limited to a household consisting of parents 
 and children living together. Kace v. 
 Oldridge, 90 111. 250. 
 
 When husband and wife are living to- 
 gether, the husband is to be deemed the 
 head of the family within an exemption 
 law, irrespective of which one may be the 
 owner of property in question. The term 
 is used in reference to the relation existing 
 between members of the family as recog- 
 nized by law and the usage of society. 
 There may be a head of a family when 
 there is no marriage relation existing. 
 When, however, the marriage relation does 
 exist, the headship of the family cannot 
 depend upon circumstances of property 
 held by the parties. The universal senti- 
 ment of the people is, and has been for 
 ages, that the husband is the head of the 
 family. The term is used in its univer- 
 sally accepted signification. Van Doran 
 V. Harden, 48 Iowa, 186. 
 
 Any man who has a wife is the head of 
 a family within the meaning of the home- 
 stead act; though his wife may have de- 
 serted him, and may be residing in another 
 State, and he may himself be living in im- 
 proper relations with another woman. 
 Whitehead v. Tapp, 69 Mo. 415. 
 
 To entitle a person to claim exemptions 
 of personal property as the head of a fam- 
 ily, he must have a home, and a family 
 circle at that home of one or more under his 
 control. That home may be the occupation 
 of an entire house, or it may be a single 
 room. Searcy v. Short, 1 Lea {Tenn.), 749. 
 
158 
 
 DEFINITIONS. 
 
 An unmarried man who lives (but does 
 not keep house) in one town, and sup- 
 ports, by his contributions, hia mother and 
 his unmarried sister, who board with his 
 married sister in another town, is not a 
 head of a family; for the three persons do 
 not constitute a family, because they are 
 not dwelling together. Jones v. Gray, 3 
 Woods, 494. 
 
 Heir. An unborn child is not an heir 
 within a statute authorizing partition of 
 land among heirs. Gillespie v. Nabors, 59 
 Ala. 441. 
 
 A widow is an heir of her deceased hus- 
 band only in a special and limited sense; 
 and not in the general sense in which that 
 term is usually used. Unfried v. Heberer, 
 63 Lid. G7. 
 
 " Heir," in a will, is flexible, and should 
 be so construed as to give effect to the 
 manifest intent of the testator as ascer- 
 tained by a dae consideration of all the 
 provisions. Jones v. Lloyd, 33 Ohio St. 
 572. 
 
 Highway. Generally means roads open 
 to the public for use in their own vehi- 
 cles. In special connections it may include 
 railroads. Plank roads and macadamized 
 roads are highways in a strict sense. Flint, 
 &c. R. R. Co. V. Borden, 41 Mich. 420. 
 
 Highway is a nomen generalissimum, 
 which embraces every kind of way common 
 to all citizens, whether a footway, a horse- 
 way, a cartway or a way by water; whether 
 under the charge of commissioners or not, 
 and whether originally laid out for the 
 whole public, or laid out for particular per- 
 sons and used by the public. Roads are 
 properly divided into highways and private 
 ways, and highways are subdivided into 
 two kinds, — public highways and neigh- 
 borhood roads. A neighborhood road is a 
 highway within the rule that obstruction 
 of a highway constitutes a nuisance. State 
 ». Harden, il S. C. 360. 
 
 Hinder ; delay ; defraud. These words 
 are not synonymous. A conveyance may 
 be made with intent to hinder or delay 
 without an intent to defraud. Crow v. 
 Beardsley, 68 Mo. 435. 
 
 Hog. A pig four or five months old is a 
 hog, within the meaning of a statute mak- 
 ing it grand larceny to steal any "hog, 
 sheep, or goat," &c. Lavender v. State, 
 60 .'\la. 60. 
 
 Householder. A juror who resides in 
 
 part of a house occupied by himself as a 
 grocery, his widowed sister and her two 
 children living with him, he paying the 
 rent and furnishing the supplies, is a house- 
 holder, and, as to that qualification, a 
 competent jui'or. Hall v. State, 6 Baxt. 
 {Term.) 522. 
 Illegal lottery. In 1 Rev. Stat. 667, 
 
 — enabling any purchaser of a ticket in an 
 illegal lottery to recover double the price, 
 
 — includes lotteries maintained in other 
 States, although authorized by their laws. 
 The purpose of inserting the word " illegal " 
 in the statute was to protect some persons 
 who at the time when it was passed held 
 unexpired franchises to conduct lotteries. 
 Grover v. Morris, 73 N. Y. 473. 
 
 Illegitimate. In a New York statute 
 directing that children who are illegitimate 
 shall not be entitled to inherit, should have 
 its common-law meaning, i. e. begotten 
 and born out of wedlock. If, by local law 
 of claimants' domicile, the marriage of par^ 
 ents legitimates offspring previously bom, 
 that makes no difference in the adminis- 
 tration of the New York law as to real 
 propertv in that State. MiUer b. Miller, 
 18 Hun (N. F.), 507. 
 
 Implied malice. Is that which the law 
 infers from or imputes to certain acts. 
 Thus, the law implies malice from the 
 killing of a human being, unless the cir- 
 cumstances make it evident that the kill- 
 ing was either justifiable, or, if not 
 justifiable, was so mitigated as to reduce 
 the offence below murder in either the first 
 or second degree. Sharp v. State, 6 Tex. 
 App. 650. 
 
 What is express malice, see Evans v. 
 State, Id. 513. 
 
 Incest. Imports consent. Carnal knowl- 
 edge of one's daughter under ten years of 
 age, and therefore incapable of consent, is 
 not incest, but rape. De Groat r. People, 
 39 Mich. 124. 
 
 Income. Means money ; not the expec- 
 tation of receiving it, or the right to 
 receive it at a future time. If one makes 
 a sale and takes notes for the price, the 
 notes are not income, but only the giound 
 of expecting income. The amount is to 
 be returned for income tax in the year 
 when the notes are paid ; not in that in 
 which the sale is made. United States v. 
 Schillinger, 14 Blalchf. 71. 
 
 Incompatible. Oflices may be incom- 
 
DEFINITIONS. 
 
 159 
 
 patible without one having any superiority 
 or control over the other. They are in- 
 compatible when public policy forbids, or 
 the nature or extent of the duties pre- 
 vents, that one person should execute both. 
 The oflBces of circuit solicitor under the 
 State government, and representative in 
 Congress, are incompatible ; for the duties 
 of the one are to be performed in Wash- 
 ington, while those of the other are to be 
 performed in the State. The constitution 
 of the United States requires the repre- 
 sentative to be in Washington for a large 
 part of the time, and at all times to be 
 subject to the call of the proper authorities 
 there, while the constitution of the State 
 requires the solicitor to reside in his cir- 
 cuit. State V. Buttz, 9 S. C. 156. 
 
 Indebted. A certificate issued by mu- 
 nicipal officers, stating that the city owes 
 the holder a specified sum, and promising 
 or directing the treasurer to pay it, 
 whether at a specified future time or 
 otherwise, is within a constitutional prohi- 
 bition upon cities becoming indebted. The 
 generally-accepted meaning of the word 
 clearly includes obligations for future pay- 
 ments equally with those presently due. 
 Law V. People, 87 III. 385, 393. 
 
 Indebtedness. In a statute relative to 
 a conveyance in fraud of creditors, is not 
 limited to some fixed sum due. Any lia- 
 bility incurred either by contract express 
 or implied, or by a tort, renders a party a 
 debtor within the meaning of the law. 
 Mattingly v. Wulke, 2 Bradiv. (III.) 169. 
 
 Infamous crime. By this term in 
 U. S. Const, amend. 5, was intended a 
 crime which worked infamy and dishonor 
 in one who had committed it, and which 
 rendered the infamous person incompetent 
 as a witness, considering him too corrupt, 
 morally, to testify. As crimes that were 
 at the time considered infamous, the fol- 
 lowing may be .specified : treason ; all 
 offences founded in fraud, and which come 
 within the general idea of the crimen falsi, 
 — such as perjury, subornation of perjury, 
 forgery, swindling, cheating, barratry, 
 suppression of testimony by bribei-y, or 
 conspiracy to procure the absence of a 
 witness ; petit as well as grand larceny ; 
 receiving stolen goods, &c. It was not the 
 punishment but the crime that rendered the 
 person infamous. People v. Sponsler, 1 
 Dak. T. 289. 
 
 Infer; presume. Infer is a stronger 
 word than "presume;" its strict meaning 
 is to bring a result or conclusion from some- 
 thing behind; i.e. from some evidence or 
 data from which it may be logically de- 
 duced; while "presume" means to take 
 or assume a matter beforehand, or without 
 proof; to take for gi-anted. To instruct a 
 jury that fraud cannot be inferred is not 
 correct; though it is correct to say that the 
 law does not presume fraud. Morford v. 
 Peck, 46 Conn. 380. 
 
 Inferior ofScer. Under Const, art. 2, 
 § 1, an " inferior ofiicer " is one subordin- 
 ate or inferior to those officers in whom re- 
 spectively the power of appointment may by 
 act of CongTCss be vested: to wit, the Pres- 
 ident, the courts of law, and the heads of 
 departments. Collins v. United States, 8 
 Reporter, 611. 
 
 Injury to person. The seduction of a 
 daughter, being an infringment of the fa- 
 ther's relative rights of person, is an injury 
 to his person within the meaning of a stat- 
 ute allowing the arrest of the defendant in 
 an action for such tort. Hoover v. Palmer, 
 80 N. C. 313. 
 
 Instrument ; tool. The movable shop 
 or saloon of a ti'avelling photographer is 
 not exempt from execution as one of the 
 tools or instruments of his trade. Holden 
 V. Stranahan, 48 Iowa, 70. 
 
 Insurance company. An association 
 issuing policies on the lives of its members, 
 payable, in case of death, to the widow, 
 orphans, heirs, and devisees of its members, 
 and to them alone, and which provides by 
 its by-laws that each member may be as- 
 sessed for the general expense fund such 
 sums as may be determined upon by the 
 trustees, not to exceed $20 in any one year, 
 is not a life-insurance company. Commer- 
 cial League Assoc, v. People, 90 III. 166. 
 
 Intersect. A railroad which runs along- 
 side a turnpike even so as to require some 
 change in the travelled path does not inter- 
 sect it. The word " intersect " ordinarily 
 means the same as to cross ; literally it is 
 to cut into or between. State v. New 
 Haven, &e. Co., 45 Co7in. 331. 
 
 Intoxicating liquors. In statutes of 
 Connecticut, " shall include any spirituous 
 and intoxicating liquor, any mixed liquor 
 of which apart is spirituous and intoxicat- 
 ing, all wines, porter, and any beer manu- 
 factured from hops and malt or from hops 
 
160 
 
 DEFINITIONS. 
 
 and barley, or any beer needing an inter- 
 nal revenue stamp." Conn. Laws 1880 
 (March 25), 29, § 93. 
 
 Irreleyant. Not pertinent; not appli- 
 cable. Matter in a pleading is said to be 
 irrelevant when it has no bearing upon the 
 subject-matter of the controversy, and can- 
 not affect the decision of the court. Soo- 
 fleld V. State Nat. Bank, 9 Neb. 316. 
 
 Judicial action. The application to 
 persons or things of legal sequences from 
 facts conceded or ascertained. It implies 
 parties, an issue, and a judgment pro- 
 nounced. There must be an issue, express 
 or implied, or a judgment rendered, which 
 declares or qualifies some right affecting 
 life, liberty, or property; less than this is 
 not a judicial function. A private statute 
 appointing a trustee to execute a trust 
 created by deed, in which infants are in- 
 terested as beneficiaries, and authorizing 
 him to settle with the acting trustee, is 
 not an invasion of judicial power by the 
 legislature, but a legitimate exercise of 
 their own appropriate functions. Tindal 
 V. Drake, 60 Ala. 170. 
 
 Jury. In the constitutional provision 
 preserving trial by jury, means a common- 
 law jury ; a body of twelve men. People 
 V. Special Sessions, 74 N. Y. 406. 
 
 Labor. May include the services of a 
 counsellor-at-law. Baylis v. Lafayette, &c. 
 K. R. Co., 8 Reporter, 579. 
 
 The services of an architect in superin- 
 tending the construction of a building are 
 labor within the meaning of a mechanic's- 
 lien law [iV. Y. Laws 1862, ch. 478] giving 
 a lien in favor of any person who shall per- 
 form any labor in building, &c., any house. 
 A service is not any the less labor, within 
 the general meaning of the word, because 
 it is rendered by a person fitted by special 
 training and skill. The policy and purpose 
 of meohanic's-lien laws extend to profes- 
 sional workers. They are not now confined 
 to inferior workmen because supposed to 
 need special protection. Stryker v. Cassidy, 
 76 N. Y. 50. 
 
 Laborer. An assistant chief engineer of 
 a railroad flompany is not a "laborer" 
 within a provision making stockholders 
 liable for labor debts. No doubt the term 
 " labor," in some extended senses, includes 
 every possible human exertion, mental and 
 physical, but in ordinary meaning the posi- 
 tion of an assistant chief engiueer would 
 
 never be classed as that of a laborer, norhb 
 work as labor. It is mostly direction and 
 scientific work, involving superintendence 
 more than personal exertion. Brockway v. 
 Innes, 39 Mich. 47. 
 
 A contractor for preparing and complet- 
 ing the road-bed of a railroad is not a 
 " laborer " within the meaning of the pro- 
 visions which make stockholders liable for 
 labor debts. Peck v. Miller, 39 Mich. 594. 
 
 An overseer of a plantation is not a " la- 
 borer " within a statute giving a lien for 
 the wages of agricultural laborers. In the 
 common use the word means one who toils; 
 one who labors with his hands. An over- 
 seer is an agent, a superintendent, a sort of 
 " alter ego." His business is not to labor, 
 but to oversee those who do work in sub- 
 jection to his authority. Whitaker v. 
 Smith, 81 N. C. 340. 
 
 A drayman, who is in the regular employ 
 of a corporation, and whose services are of 
 a kind or class which the corporation must 
 have in order to continue its business, is 
 entitled to the protection given to employees 
 by § 63 of the act concerning corporations, 
 — which declares that the word laborers 
 shall be construed to include all persons 
 doing labor or service, of whatever charac- 
 ter, as workmen or employees. " Laborer," 
 though less comprehensive than " em- 
 ployee," is thus made its equivalent, and 
 the correlative of " employer." Watson o. 
 Watson Manuf. Co., 30 N. J. Eq. 588. 
 
 Laborer ; servant. In a statute de- 
 claring stockholders liable for wages of 
 laborers and servants, cannot be defined 
 with precision. The purpose of such stat- 
 utes is to secure the demands of all those 
 who, in common parlance and according 
 to the general understanding of men, fall 
 under that appellation, in enumerating the 
 different classes of persons employed by a 
 corporation. Dean v. De Wolf, 16 Hun 
 (iV. Y.), 186. 
 
 An assistant or vice of a general agent 
 of a mining company, employed to superin- 
 tend the affairs of the company at the mine 
 abroad, with general powere, is not withiu 
 the expression "laborer or servant." lb. 
 S. P. Krauser v. Ruchel, 17 Hun (N. Y.), 
 463. 
 
 Law. Does not include an apparent act 
 in the session laws which was not constitu- 
 tionally passed. A commissioner to codify 
 the laws has no authority to embrace such 
 
DEFINITIONS. 
 
 161 
 
 acts in his report; and his inserting them 
 does not, even though his report is adopted 
 by the legislature, give them validity. 
 Dane b. McArthur, 57 Ala. 448. 
 
 A State constitution is a law within the 
 meaning of the clause of the constitution 
 that no State shaR pass any law impairing 
 the obligation of contracts. Lehigh Val- 
 ley R. R. Co. V. McFarlan, 31 N. J. Eq. 
 706. 
 
 Legal representatires. In a strict and 
 literal acceptance, means executors or ad- 
 ministrators ; but it is frequently used in a 
 different sense, even in statutes, as well as 
 in wills, deeds, contracts, &c. Its meaning 
 in a particular connection is a question of 
 intention, to be determined by the language 
 and the attendant circumstances. When 
 a party, for a consideration, covenanted to 
 warrant and defend the title of another in 
 a town-lot against the claims of all persons, 
 except those of A. and his legal representa- 
 tives, held, that the term " legal represent- 
 atives," included the person succeeding to 
 the claims A. then had, whether as heir, 
 devisee, grantee, or assignee, and not to 
 his executor or administrator ; for the lat- 
 ter could take no interest in the land, or to 
 any claim which A. might subsequently 
 acquire. Bowman v. Long, 89 III. 19. 
 
 In an assignment of a patent-right, this 
 phrase wiU be held to include assigns as 
 well as executors and administrators, where 
 the circumstances and context show such 
 to have been the intent. Hamilton v. 
 Kingsbury, 14 Pat. Off. Gaz. 448. 
 
 In a devise the phrase was held to mean 
 those who were representatives at the time 
 when the estate vested; not at the time 
 when the will was made. Gourdin v. 
 Shrewsbury, 11 5. C. 1. 
 
 Liability. Although ' ' liability, ' ' stand- 
 ing by itself, may well include a cause of 
 action for damages for a tort, such as neg- 
 ligence in not keeping the sidewalks of a 
 city in repair, yet in a statute providing 
 that no action against a city on a contract 
 obligation or liability, express or implied, 
 shall be commenced within one year, &c. , 
 it should be deemed restricted by the con- 
 text so as to embrace only claims such as 
 may be presented for audit, and not to in- 
 clude mere torts. McGaffln v. Cohoes, 74 
 N. Y. 387. 
 
 LibeL Any malicious publication, writ- 
 ten, printed, or painted, which by words 
 11 
 
 or signs tends to expose a person to con- 
 tempt, ridicule, hatred, or degradation of 
 character. Barr v. Moore, 87 Pa. St. 385. 
 
 License. An authority to do a particu- 
 lar act or series of acts upon the land of 
 another, without possessing an estate there- 
 in. Morgan v. United States, 14 Ct. of CI. 
 319. 
 
 Liquor-shop. A house where spirituous 
 liquors ai'e kept and sold. It is not essen- 
 tial that selling liquor is the principal 
 business of the house, to constitute a liquor- 
 shop. Wooster v. State, 6 Baxt. (Tenn.) 
 533. 
 
 Local. In a constitutional provision 
 that the legislature shall not pass special or 
 local laws in various cases designated, in- 
 terdicts a kind of laws of which the vice is 
 that they do not embrace the entire class 
 to which they are naturally related; they 
 create preferences and establish inequali- 
 ties, they apply to persons, things, or places 
 possessed of certain qualities or situations, 
 and exclude from their effect other persons, 
 things, or places which are not dissimilar 
 in these respects. A law is not necessarily 
 objectionable as local because in its operar 
 tion it must necessarily be confined to cer- 
 tain localities ; if it does not exclude from 
 its sway or effect any place or subject be- 
 longing to the class to which it relates, it 
 may be a general, and not a local or special 
 law. Van Riper v. Parsons, 40 N. J. L.\. 
 
 A law may be a local one within a con- 
 stitutional provision that no private or local 
 bill shall embrace more than one subject, 
 and also a general one within a provision 
 that no general law shall be in force until 
 published. Yellow River Improvement Co. 
 V. Arnold, 46 Wis. 214. 
 
 Lottery. Has no technical legal mean- 
 ing. As used in statutes against lotteries, 
 it must be construed in the popular sense, 
 and with a view of remedying the mischief 
 intended to be prevented. A result of the 
 accepted definitions is : Where a pecuniary 
 consideration is paid, and it is determined 
 by lot or chance, according to the scheme 
 held out to the public, what and how much 
 he who pays the money is to have for it, 
 that is a lottery. [56 N. Y. 424.] Wil- 
 kinson V. Gill, 74 N. Y. 63. 
 
 What is called "playing policy," i.e. a 
 bargain in which the buyer pays a small 
 sum and selects certain numbers in a lot- 
 tery about to be drawn independent of the 
 
162 
 
 DEFINITIONS. 
 
 parties, and the seller engages that if those 
 numbers draw prizes he will pay a certain 
 larger sum, is a lottery; or at least a game 
 or device in the nature of a lottery. It is 
 not a mere wager or bet. If the drawing 
 of a lottery is adopted for determining the 
 winning, the fact that the prizes in that 
 lottery are furnished by independent par- 
 ties does not change the character of this 
 transaction. It is not necessary that the 
 accused should himself organize and con- 
 duct the scheme of drawing, in order to 
 constitute a lottery; adoption of a drawing 
 by other persons is within the mischief and 
 the prohibition. lb. 
 
 Maim. In a statute relative to dumb 
 animals, should not be construed in the 
 strict common-law sense, but as it is under- 
 stood in common language, — as very 
 nearly synonymous with ' ' cripple. ' ' Thur- 
 man v. State, 4 Tex. App. 586. 
 
 Maintain. A covenant to cultivate and 
 maintain a hedge requires only maintenance 
 by cultivation, as by ploughing, hoeing, 
 trimming, &c. ; and does not require the 
 covenantor to build fences to prevent roving 
 cattle from breaking it down. His duty is 
 only to do all that is reasonable and useful 
 to promote the growth of the hedge. 
 Usher v. Hiatt, 21 Kan. 548. 
 
 Malice. In its popular sense, means 
 hatred, ill-will, or hostility to another; 
 but in its legal sense it characterizes all 
 acts done with an evil disposition, wrong 
 or unlawful motive or purpose ; the wilful 
 doing of an injurious act without lawful 
 excuse. Evans v. State, 6 Tex. App. 513. 
 
 Malice aforethouglit. Has a more com- 
 prehensive meaning than enmity or ill-will 
 or revenge, and has been extended so as to 
 include all those states of the mind under 
 which the killing of a person takes place 
 without any cause which will, in law, jus- 
 tify, excuse, or extenuate the homicide 
 [25 Tex. 33]. Without the specific inten- 
 tion to take the life of the deceased, or to 
 do him some serious bodily harm the doing 
 of which subsequently results in his death, 
 malice aforethought is wanting. Tooney 
 V. State, 5 Tex. App. 163. 
 
 If a killing is proved by satisfactory 
 evidence, and there are no circumstances 
 disclosed tending to show justification or 
 excuse, and it is not proved that the ac- 
 cused killed the deceased with a sedate, 
 deliberate mind, and a formed design, this 
 
 would be a homicide committed with ma- 
 lice aforethought implied. Evans v. State, 
 6 Tex. App. 518. 
 
 Managing agent. An assistant secre- 
 taiy of a foreign railroad company, whose 
 duty consists in making such records as he 
 may be expressly directed to make, is not 
 a managing agent within a statute author- 
 izing service upon a corporation by the 
 delivery of a summons to the managing 
 agent Sterett v. Denver & Kio Grande 
 Ry. Co., 17 Hun {N. Y.), 316. 
 
 Manifest. In a statute allowing correc- 
 tion of an assessment for a manifest error, 
 means something which is apparent by an 
 examination of the assessment-roll or re- 
 turn without need of evidence to make it 
 more clear ; something which is open, pal- 
 pable, and incontrovertible. It is synony- 
 mous with evidence, visible, plain, obvious 
 to the understanding from an examination 
 of the roU or document; or at the most 
 only requiring a mathematical calculation 
 to demonstrate it. Matter of Hermance, 
 71 N. Y. 481. 
 
 Market. Markets are places where com- 
 estibles, perishable in their nature, are 
 sold for the daily consumption of the peo- 
 ple, which, from the very nature of the 
 things therein sold, require sanitary regu- 
 lations, and thus fall within the police 
 power of cities. A place of traffic called a 
 market bazaar, owned by a municipal cor- 
 poration for the sale of merchandise, from 
 which the sale of fresh meats, fish, and 
 vegetables was excluded, and which had 
 been rented out by the corporation for a 
 term of years, is not within the rule that 
 the property of a municipal corporation 
 necessary to the exercise of its functions, 
 such as markets, prisons, &c., or property 
 which has been destined and set apart by 
 an act of the legislature as a permanent 
 revenue for the corporation, cannot he 
 seized or sold on execution against it. 
 New Orleans v. Morris, 3 Woods, 103. 
 
 Material. Applied to alterations in 
 written instruments, means a change which 
 would give the instrument a different legal 
 effect. Briscoe v. Reynolds, 51 Iowa, 673. 
 
 Maturity. In a will, — held, equivalent 
 to twenty-one years of age. Carpenter v. 
 Boulden,48 Md. 122. 
 
 Mavorick. All neat stock found run- 
 ning at large in this State and without a 
 mother, and upon which there is neither 
 
DEFINITIONS. 
 
 163 
 
 ear-mark or brand, shall be deemed a mav- 
 orick, and may be taken in charge by the 
 captain or foreman of a legal round-up, and 
 sold. Col. Laws 1879, (February 12), 188. 
 
 May. Should not be read as "must" 
 in a statute providing that a school-teacher's 
 certiflcate "may be drawn" in a given 
 form. Union School Dist. v. Sterricker, 
 86 111. 595. 
 
 Merchant; tradesman. A speculator 
 in stocks is not a merchant or tradesman 
 within the meaning of Rev. Stat. § 5110, 
 subd. 7, making failure to keep books of 
 account an objection to a discharge in 
 bankruptcy. Matter of Woodward, 8 Ben. 
 563. 
 
 Merits. Is a term not very clearly de- 
 fined. It certainly embraces more than 
 the questions of law and fact constituting 
 the cause of action or defence. It naturally 
 bears the sense of including all the party 
 may claim of right in i-eference to his case. 
 No authority limits the sense to any partic- 
 ular class of rights among those that have 
 a tendency to control the results of cases. 
 Blakely v. Frazier, 11 S. C. 123. 
 
 Money. Is a generic and comprehensive 
 term. It is not a synonyme of " coin; " it 
 includes, but is not confined to, coin. It 
 embraces whatever is lawfully and actually 
 current in buying and selling, of the value 
 and as the equivalent of coin. By univer- 
 sal consent, under the sanction of almost 
 all courts, bank-notes lawfully issued, ac- 
 tually current at par in lieu of coin, are 
 money. The common term paper money 
 •is, in a legal sense, quite as accurate as the 
 term coined money. Klauber v. Bigger- 
 staff, 47 Wis. 551. 
 
 In a statute defining larceny, " money " 
 inchides treasury notes and national-bank 
 notes. Sansbury v. State, 4 Tex. App. 99. 
 
 Money bill. This term, as used in a 
 constitutional grant to the popular branch 
 of the legislature, of exclusive power to 
 originate money biUs, should be deemed 
 limited to bills that transfer money or prop- 
 erty from the people to the State ; it does 
 not, however, include bills that appropriate 
 money from the treasury of the State. 
 Opinion of the Justices, 126 Mass. 557. 
 
 Mortgage. The essential idea of a mort- 
 gage is the security for a debt. If there is 
 no debt, i. e. a duty or obligation to pay, 
 the transaction cannot be a mortgage. 
 Haynie v. Uobertson, 58 Ala. 37. 
 
 Navigable. Those must be regarded as 
 public, navigable rivers, in law, which are 
 navigable in fact ; and they are navigable 
 in fact when they are used, or are s usceptible 
 of being used, in their ordinary condition, as 
 highways for commerce, conducted in the 
 customary modes of trade and travel on 
 water. Ebb and flow of tide is not the 
 test in this country. Healy v. Joliet & 
 Chicago R. R. Co., 2 Bradw. (III.) 435. 
 
 Near. A statute requiring notice to be 
 given of the " place where " an injury from 
 defective highway was received is not com- 
 plied with by saying that it was near a 
 house specified; the word "near" is too 
 indefinite. Holcomb v. Gamby, 51 Vt. 
 428. 
 
 Necessaries. Repairs on a dwelling- 
 house are not necessaries within the tech- 
 nical meaning of the word. Wallis v. 
 Bardwell, 126 Mass. 366. 
 
 Necessary. In a statute limiting ex- 
 penditure of school moneys to expenses 
 necessary for keeping the schools in opera- 
 tion, means indispensably requisite; what 
 cannot be otherwise without preventing the 
 purpose intended. Lightning-rods upon a 
 school-house may be very desirable, and 
 may greatly promote the safety of the build- 
 ing and the security of its inmates; but 
 they are not indispensably requisite for 
 keeping the schools in operation. Prima 
 facie, an order drawn for the cost of the 
 erection of a lightning-rod is invalid. 
 Wolf V. Independent School Dist., 51 
 Iowa, 432. 
 
 Necessity. Does not always mean some- 
 thing absolutely indispensable. A provi- 
 sion of law as to a city aqueduct company, 
 that the company shall furnish water to the 
 city free of charge " in case of fire or other 
 great necessity," includes all the various 
 purposes — such as irrigating parks and 
 squares, watering the streets, flushing the 
 sewers, &c. — for which water may be de- 
 manded by the city authorities in discharge 
 of their direct duties as governmental 
 agents. Spring Valley Water Works v. 
 San Francisco, 52 Cal. 111. 
 
 Negligence. In a technical sense does, 
 in a popular sense does not, include indis- 
 cretion of a servant in continuing to use 
 apparatus — here railroad machinery — ■ 
 which he knows to be defective. Colorado 
 Cent. R. R. Co. v. Ogden, 3 Col. 499. 
 
 Negotiability; negotiation. Negotia- 
 
164 
 
 DEFINITIONS. 
 
 bility is a technical term derived from usage 
 of merchants and bankers in transfen-ing 
 bills and notes. They import, respectively, 
 the capacity of being transferred, and the 
 actual transfer of an instrument, so as to 
 give the new holder a right to sue in his 
 own name, — a right which the common 
 law denied, but which the law merchant 
 accorded. The liability of an indorser to 
 respond for the default of the acceptor or 
 maker; the exemption of the instrument in 
 the hands of a buyer in good faith and be- 
 fore maturity from equities available against 
 the payee ; and the marketability of a stolen 
 bill or note, — are not involved in its negoti- 
 ability. A statute that bills of lading shall 
 be negotiable like bills and notes does not 
 enable a finder or thief to give a good title 
 -to the instrument by a sale, as he might do 
 with a bill of exchange or promissory note. 
 Supreme Ct., Shaw v. Railroad Co., 101 
 U. S. 557. 
 
 Negotiable. This word, as generally 
 applied to commercial paper, is a term of 
 classification, and does not necessarily im- 
 ply anything more than that the paper has 
 the negotiable quality; it includes notes 
 drawn to order and not yet indorsed. Bills 
 of exchange and notes payable to order or 
 to bearer are equally considered negotiable, 
 though the ceremony of indorsement is re- 
 quired in the one case and not in the other. 
 Robinson v. Wilkinson, 38 Mich. 299. 
 
 New. A distinction must be observed 
 between a new article of commerce and a 
 new article which, as such, is patentable. 
 Any change in form from a previous con- 
 dition may render the article new in com- 
 merce; as powdered sugar is a different 
 article in commerce from loaf sugar, and 
 ground coffee is a different article in com- 
 merce from coffee in the berry. But to 
 render the article new in the sense of the 
 patent law, it must be more or less effica- 
 cious, or possess new properties by a com- 
 bination with other ingredients; not from 
 a mere change of form produced by a me- 
 chanical division. It is only where one of 
 these results follows that the product of the 
 compound can be treated as the result of 
 invention or discovery, and be regarded as 
 a new and useful article. Glue Co. v. 
 Upton, 97 U. S. 3. 
 
 A pound established temporarily, as a 
 substitute for the usual pound while that 
 was being repaired, was held not to be a 
 
 new pound within a statute providing for 
 appointment of a pound-keeper when the 
 selectmen should " establish a new pound." 
 Bos worth V. Trowbridge, 45 Conn. 303. 
 
 Next meeting'. In a constitutional pro- 
 vision as to governor's return of bills after 
 adjournment, means the next regular ses- 
 sion of the legislature ; not an extra session 
 which may be convened between two regu- 
 lar sessions. Arnold v. McKeUar, 9 S. C. 
 335. 
 
 Next of kin. These words do not or- 
 dinarily include a widow, but mean rela- 
 tives in blood. In a will they may he 
 construed as including the testator's widow, 
 if there is something to show that inten- 
 tion; but not otherwise. Where, at the 
 time of making the will, the testator had 
 blood relatives but no wife, but he married 
 afterward, a residuary legacy to his " next 
 of kin " should not be construed as includ- 
 ing the widow. Keteltas v. Keteltas, 72 
 N. Y. 312 
 
 Non-claim. A statute providing that a 
 demand against an estate not exhibited to 
 the representative within two years shall be 
 barred is called a statute of non-claim. 
 Williamson v. McCreary, 33 Ark. 470. 
 
 Obscene. Matter in a publication tend- 
 ing to suggest impure and libidinous 
 thoughts is obscene. United States ». Ben- 
 nett, 8 Reporter, 38. 
 
 Obscene; wanton. A city ordinance 
 for the punishment of any person who 
 "shall address any wanton or obscene 
 language to another," or " exhibit any 
 wanton, lewd, or obscene language or con- 
 duct," appears intended to prevent lewd 
 and lascivious language and conduct, and 
 the words "wanton or obscene" should 
 be construed in that sense. They do not 
 extend to opprobrious and insulting lan- 
 guage ; this, although tending to a breach of 
 the peace, is not lewd or lascivious. Sutton 
 V. McConnell, 46 Wis. 269. 
 
 Occur. A provision requiring suit on a 
 policy to be brought within twelve months 
 after the loss shall occur means within 
 twelve months after the destruction of 
 the property by fire. The loss occurs at 
 the time when the property is destroyed. 
 The word occur cannot here be construed 
 in the sense of "accrue." It means "to 
 happen." To allow the assured twelve 
 months from the time of adjustment of the 
 amount of the loss for bringing the suit is 
 
DEFINITIONS. 
 
 165 
 
 not a construction of the policy, but is 
 making a new contract for the parties. 
 Johnson v. Humboldt Ins. Co., 91111. 92. 
 
 In computing the time for bringing suit, 
 allowed by a provision in a policy that it 
 must be commenced within twelve months 
 " after the loss shall occur," the insured is 
 to be allowed twelve months from the time 
 when the liability is fixed, by proofs of 
 loss, &c. The words " after the loss shall 
 occur " do not necessarily refer to the time 
 the property was actually destroyed. The 
 loss should be deemed to occm- when the 
 company pays it, or is lawfully called upon 
 to pay it. The loss then, and not till then, 
 practically occurs to it. Hay v. Star Fire 
 Ins. Co.,77JV".r. 235. 
 
 Office. This term has a very general 
 signification, and is defined to be that 
 function by virtue whereof one person has 
 some employment in the affairs of another. 
 Office may be public, private, or quasi pub- 
 lic. All officers exercising powers under 
 public authority are not " public officers " 
 within Const. 1846, art. 6, § 8, prohibiting 
 certain judges from exercising " any power 
 of appointment to public office. " " Office, ' ' 
 in such a connection, means the right to 
 exercise generally, and in all proper cases, 
 the functions of a trust or employment on 
 behalf of government somewhat permanent 
 in nature, and to receive the emoluments 
 attached to it. It does not include the des- 
 ignation of individuals to exercise a dele- 
 gated power for special purposes on special 
 occasions or in special cases; such as a 
 referee, appraiser, receiver, elisor, or per- 
 son to act as surrogate over a single estate. 
 Matter of Hathaway, 71 N. Y. 238. 
 
 Officer. Is a generic term, and when 
 used in a statute without anything to in- 
 dicate a limitation, — as in a statute for 
 the punishment of embezzlement by offi- 
 cers, — should be held to include officers 
 de facto as well as officers de jure. State v. 
 Goss, 69 Me. 22. 
 
 Ordinance ; resolution. A charter pro- 
 vision that every ordinance or resolution 
 must be approved by the mayor includes 
 a resolution confirming an appointment. 
 People V. Schroeder, 76 i^. Y. 160. 
 
 Ordinary stock. In a contract, — Held, 
 not to include swine. Usher v. Hiatt, 21 
 Kan. 548. 
 
 Owner. In the homestead law, and in 
 many others, includes any person having a 
 
 claim or interest in the property, though 
 less than the absolute fee. Lozo v. Suther- 
 land, 38 Mich. 168. 
 
 The mortgagor and not the mortgagee of 
 land taken for public use is the owner who 
 must have notice and an opportunity to 
 claim compensation. Whiting v. New 
 Haven, 45 Conn. 303. 
 
 Party. In a statute authorizing exami- 
 nation of a party to an action before trial, 
 cannot be extended so as to authorize com- 
 pulsory examination of an officer, agent, or 
 employee of a corporation which may be a 
 party to a pending suit. People v. Mutual 
 Gas Light Co., 74 N. Y. 434. 
 
 Pauper supplies. Does not include 
 medical attendance furnished to a person 
 in jail for crime. To constitute pauper 
 supplies, under the laws of this •State, to 
 adult persons of sound mind, the supplies 
 must be applied for or received with a fuU 
 knowledge that they are pauper supplies, 
 and all care, whether medical or otherwise, 
 is subject to the same rule. Bucksport v. 
 Gushing, 69 Me. 224. 
 
 Paving'. Includes flagging; so that a 
 statute relative to repaving any street in- 
 cludes setting curb and gutter stones and 
 flagging sidewalks. Matter of Burmeister, 
 76 N. Y. 174. 
 
 Pedler. Includes a person who travels, 
 selling and putting up lightning-rods. 
 State V. Wilson, 2 Lea (Tenn.), 28. 
 
 Penal law. A law for the breach of 
 which a penalty is imposed. Atchison, 
 &c. R. R. Co. V. Sanders, 22 Kan. 1. 
 
 People ; State. A juror's oath to well 
 and truly try, &c., between the people of 
 the State of Alabama and the accused, is 
 not a compliance with a constitutional pro- 
 vision that all prosecutions shall be in the 
 name of the State. Perkins v. State, 60 
 Ala. 7. 
 
 Permanent. Does not necessarily in- 
 volve absolute perpetuity ; negation of all 
 change. Any obligation of the State aris- 
 ing out of a statute that, on performance 
 by the residents of certain conditions as to 
 providing lands and buildings, the county 
 seat shall be " permanently located " at a 
 specified town, is discharged by locating 
 the county seat there with the intention 
 that it shall remain, and is not violated by 
 removing it a generation afterwards, when 
 changes in population and public couve- 
 
166 
 
 DEFINITIONS. 
 
 nience require. Supreme Ct. 1879, New- 
 ton V. Commissioners, 100 U. S. 548. 
 
 Perpetual. A grant to a corporation of 
 " perpetual succession " does not mean 
 that the corporate existence shall be un- 
 ending, but only that it is to be unbroken 
 during the term. Soanlan v. Crawshaw, 5 
 Mo. App. 337. 
 
 Person. A civil-damage law allowing 
 a recovery of damages by one who has 
 been "injured in person" by intoxication 
 of another, requires physical injury; hurt 
 to the body. Mortification from vulgar con- 
 duet or threatening language is not 
 enough. Calloway v. Laydon, 47 Iowa, 
 456. 
 
 Under the rule that "person " includes 
 " corporation," a statute giving an action 
 for damages for a death caused by any 
 person may be extended to railroad com- 
 panies. So held, where statutes on the 
 same subject-matter showed an intent to 
 include them. Savannah, &c. R. R. Co. v. 
 Shearer, 58 Ala. 672. 
 
 Play, One who bets upon the result of 
 a game carried on by other persons is not 
 punishable under a statute forbidding to 
 " play " at the game. Exp. Ah Yem, 
 53 Cat. 246. 
 
 Poison. A substance which is capable 
 by its inherent qualities, and without act- 
 ing mechanically, of destroying life. AU 
 noxious or even destructive substances are 
 not poisonous. People ij. Van Deleer, 41 
 Mich. 147. 
 
 Port-risk. In policy of insurance, 
 means a risk upon a vessel while she lies 
 in port, and before she takes her departure 
 on a voyage. Where it appeared that the 
 vessel insured for port-risk cleared for an- 
 other voyage, and left the pier at which 
 she was lying, in tow of a tug, for the pur- 
 pose of proceeding upon the voyage ; but, a 
 short distance from the pier, struck a rock 
 and was injured. Held, that as she had 
 taken her departure and begun her voy- 
 age, the policy had ceased to be operative, 
 and the insurers were not liable. Nelson 
 V. Sun Mutual Ins. Co., 71 N. Y. 453. 
 
 Possessions. A gift by will of all one's 
 possessions rnay include- real property 
 where such is the apparent intention ; but 
 a gift of " all my real estate in 8., also 
 all the residue of my personal estate and 
 possessions of whatever kind," indicates 
 that by "possessions" the testator meant 
 
 personalty only, and does not pass lands 
 which he acquired after making the will, 
 and outside of S. Blaistell v. Hight, 69 
 Me. 306. 
 
 Post road; post roate. Properly a 
 post road is a highway by land or water, 
 over which any mail may lawfully travel ; 
 while a post route is a post road or portion 
 of one, or combination which has been 
 designated for carrying a mail ; a route 
 for which the department contracts for 
 transportation of a mail. But in acts of 
 Congress passed prior to the consolidation 
 act of 1872, the two terms are used inter- 
 changeably. Railway Mail Service Cases, 
 13 Ct. of CI. 199. 
 
 Premises. A public street or alley 
 fronting a place in which beer is sold to be 
 drunk in the street is embraced within a 
 statute prohibiting sales of liquor to be 
 drunk upon " premises adjacent to " the 
 place of sale. Bandalow v. People, 90 III. 
 218. 
 
 In a condition in a policy that it shall 
 be void if the premises become unoccupied, 
 " premises " covers the whole property 
 insured, dwellings, out-houses, and appur- 
 tenances, together composing one estab- 
 lishment ; and unless they all become 
 unoccupied, the condition is not broken. 
 Being invoked to create a forfeiture, it is 
 to be strictly construed against the under- 
 writer. Herrman v. Adriatic Fire Ins. Co., 
 45 N. Y. Superior Ct. 394. 
 
 Prescription. Used of a direction for 
 compounding medicine, is not limited to 
 medicine for human beings; a recipe or 
 formula for the treatment of disease in 
 domestic animals may be called a prescrip- 
 tion. To fill a prescription is to furnish, 
 prepare, and combine the requisite mate- 
 rials in due proportion as prescribed. Kay 
 V. Burbank, 61 Ga. 505. 
 
 Print; printing. These terms in- 
 clude most of the forms of figures or 
 characters or representations, colored or 
 unoolored, that may be impressed on a 
 yielding surface. They do not require thai 
 the characters produced should be letters 
 or numerals, or the result of types or stereo- 
 types, or be reading-matter. Nor does the 
 fact that the result is produced by several 
 impressions, and of a different color at 
 each time, make a difference. Chromo- 
 lithographs, printed from oil-stones upou 
 paper, and known as decalcomanie pio- 
 
DEFINITIONS. 
 
 167 
 
 tures, are subject to duty as " printed pa- 
 pers." Arthur v. MoUer, 97 U. S. 365. 
 
 Printed matter. As used in the postal 
 law, is the reproduction, upon paper, by 
 any process except that of handwriting, of 
 any words, letters, characters, figures, or 
 images, or of any combination thereof, not 
 having the character of an actual and per- 
 sonal correspondence. Act of March 3, 
 1879, ch. 180, § 19, 20 Stat, at L. 360. 
 
 Frivilegred communication. Includes, 
 as between couusel and client, all those 
 which are lawful, and which relate to the 
 business and interest of the client, and 
 fall within the scope of professional duty. 
 Re Cole, 8 Reporter, 105. 
 
 Profession. A city tax upon all per- 
 sons exercising any profession presumably 
 includes lawyers. So held, notwithstanding 
 the rule of ejusdem generis was invoked. 
 Lanier K.. Macon, 59 Ga. 187. 
 
 Professional employment. Does not 
 include the vocation of a real-estate agent, 
 a commission-merchant, and the like. 
 Pennock v. FuUer, 41 Mich. 153. 
 
 Prohibit. A power to city authorities 
 to prohibit liquor-seUing includes a power 
 to require dealers to take out a license 
 and pay a fee; this is a partial pro- 
 hibition; a prohibition of aU unlicensed 
 selling. Keokuk v. Dressell, 47 Iowa, 597. 
 To nearly same effect, Chicago Packing 
 Co. V. Chicago, 88 III. 221. 
 
 Property. A term of more extensive 
 signification than the words " corporeal 
 personal property," and comprehends the 
 latter and all other descriptions of prop- 
 erty. Hence, an indictment for theft may, 
 in alleging ownership, use the general word 
 "property," instead of the phrase "cor- 
 poreal personal property." Sansbury v. 
 State, 4 Tex. App. 99. 
 
 In a statute relative to property of a 
 married woman employed in her trade or 
 business, "property" includes the de- 
 mands due to the keeper of a boarding- 
 house from her boarders for board. Dawes 
 V. Kodier, 125 Mass. 429. 
 
 Public board. Directors of a railroad 
 corporation are not public ofiicers, or a pub- 
 lic body or board, within 2 Rev. Stat. 587, 
 § 60, regulating mandamus. People ». 
 Rochester, Stc. R. R. Co., 76 N. Y. 294. 
 
 Public place. A spot near and in view 
 of a path frequently used by foot-passen- 
 gers is a public place within a statute 
 
 forbidding gaming in a public place. 
 Henderson v. State, 59 Ala. 89. 
 
 "Public highway" is not equivalent to 
 " public place," in an indictment for inde- 
 cency or affray in a public place. There 
 may be a spot in a legal highway which by 
 reason of disuse or of local shelter may 
 not be within the reason of such statute. 
 Williams v. State, 64 Ind. 553. 
 
 Presumably the post-ofiice building is a 
 public place within a statute directing 
 legal notices to be posted in public places. 
 Hart V. Smith, 44 Wis. 213. 
 
 Public resort. A public street or alley 
 adjoining a place where beer is sold by the 
 gallon may be so used by the public as to 
 make it a place of " public resort " within 
 the intent and meaning of a statute for- 
 bidding sale of liquor, to be drunk in any 
 place of public resort. Bandalow v. Peo- 
 ple, 90 III. 218. 
 
 Punishable. A statute styling an act 
 " punishable," and imposing a fine, creates, 
 by force of the word punishable, an offence. 
 Matter of Jackson, 14 Blatchf. 245. 
 
 Railroad; railway. Whether there is 
 any settled distinction between these terms, 
 — considered ; and held that " railroad " in 
 a general law authorizing merger or con- 
 solidation should be deemed to include 
 narrow-guage roads and horse or street 
 railroads. Hestonville v. Philadelphia, 89 
 Pa. St. 210. 
 
 Raise revenue. In a constitutional pro- 
 vision that any bill for raising revenue 
 shall originate in the popular house, does 
 not necessarily mean a bill which will in- 
 crease the revenue. " Raise " in this con- 
 nection may well mean to bring together ; 
 to collect. A bill authorizing the le\'y of a 
 tax for revenue is within the clause, 
 although it may contain provisions exempt- 
 ing various property from taxation, so that 
 its effect wiU be to reduce the income of 
 the State. Perry County v. Selma, &c. 
 R. R. Co., biAla. 546. 
 
 Rape. Is the carnal knowledge of a 
 female forcibly and against her will. Force, 
 not consent, either purely voluntary or 
 yielded to seduction, is the element that 
 necessarily enters into the crime ; and there 
 is no rape, and can be none, if the woman 
 is willing. Speer ». State, 60 Ga. 381. 
 
 Carnal knowledge of one's own daugh- 
 ter under ten years of age, and therefore 
 incapable of consenting, is not incest, — 
 
168 
 
 DEFINITIONS. 
 
 for that crime requires consent, — but rape. 
 De Groat v. People, 39 Mich. 124. 
 
 Record. In a large and loose sense, the 
 transcript and the bill of exceptions taken 
 together are often called "the record," 
 after a case reaches the supreme court. 
 Smith V. State, 60 Ga. 430. 
 
 Regulate. A power to city authorities 
 "to regulate packing-houses," includes 
 power to require their proprietors to take 
 out licenses and pay fees therefor. Chi- 
 cago Packing, &c. Co. v. Chicago, 88 III. 
 221. To nearly same effect, Keokuk v. 
 Dresser, 47 Iowa, 597. 
 
 Relation ; relative. In a statute as to 
 compelling support of insane persons by 
 their kindred, — Held, limited to persons 
 legally bound for the support, and not to 
 include the father of an adult insane son. 
 Monroe County v. Teller, 51 loiva, 670. 
 
 Renew. An agreement to renew a pol- 
 icy implies that the terms of the existing 
 policy are to be continued, and this would 
 be so of any instrument, in the absence of 
 evidence that a change was intended. Hay 
 V. Star Fire Ins. Co., 77 N. Y. 235. 
 
 Reside. A statute making jurisdiction 
 of a city court dependent on the fact that 
 one of the parties ' ' resides ' ' in the city 
 requires continuous and voluntary abiding. 
 A person who boards in the city during the 
 winter months, but lives in another town 
 during the summer, being an inhabitant 
 and voter in the latter place, and intending 
 to remain only temporarily in the city, 
 does not reside in the city within the law. 
 Charter Oak Bank v. Reed, 45 Conn. 391. 
 
 Rightt In a constitutional provision 
 that the right of trial by jury shall remain 
 inviolate, is not used as synonymous with 
 " law." It is seldom found in that sense. 
 State V. Worden, 46 Conn. 349, 364. 
 
 Road; street. These terms, in their 
 ordinary legal use, mean ways open to 
 public use. It is not necessary to prefix 
 the adjective "public" in an indictment 
 for carrying on an offensive trade near 
 roads and streets. Horner v. State, 49 Md. 
 277. 
 
 Robbery. Must be by violence, or by 
 fear amounting to it; snatching money 
 from the hand of one who has been in- 
 duced by trick to exhibit it is not enough. 
 Shinn v. State, 64 Ind. 13. 
 
 Sale. A sale (of goods) is the transfer 
 of ownership from one person to another 
 
 upon a valuable consideration paid or 
 promised. The agent of a club who super- 
 intends delivery of spirituous liquors, pur- 
 chased with the funds of the club, to the 
 members, for which they pay him money 
 which he turns into the treasury of the 
 club, is chargeable with making sales of 
 liquor, notwithstanding no persons not 
 members are so suppUed. Martin v. State, 
 59 Ala. 34. 
 
 Sale in gross. Expressions in a con- 
 tract or deed, showing that a " sale in 
 gross," of lands is intended, preclude the 
 buyer from claiming relief for a deficiency 
 in quantity. Green v. Taylor, 3 Hugh. 
 400. 
 
 Salvage. Whenever a ship or its lading 
 is saved from an impending peril by the 
 services of any person who is under no 
 obligation to render them, there is a case 
 of salvage service. Hayden v. The C. W. 
 Cochrane, 3 Woods, 304. 
 
 Sand-pacliing. A statute punishing 
 any person who fraudulently packs any 
 cotton by plating, &c., is violated when 
 persons who gin cotton for toll, with intent 
 to defraud, mix sand or other worthless 
 foreign substances with the cotton, when 
 ginned, in the bales into which it is packed. 
 It is not necessary that the sand should be 
 put into the interior of the bale and con- 
 cealed by surrounding or plating it with 
 clean cotton; nor does it matter whether 
 the sand is put into the cotton while in the 
 gin-house, or being carried out to the press, 
 or at the press when packed or about to be 
 packed into bales. An indictment which 
 described this species of fraud by the 
 mere term "sand-packing," sustained; but 
 disapproved. Daniel v. State, 61 Ala. 4. 
 
 Sanitary. General power to enact sani- 
 tary regulations includes power to prohibit 
 sale of adulterated milk. Polinsky v. 
 People, 73 N. Y. 65. 
 
 Servant. One who is engaged not 
 merely in doing work or service for an- 
 other, but who is in his service, usually 
 upon or about the premises of his employer, 
 and subject to his direction and control 
 therein, and who is generally liable to be 
 dismissed. A person whom a railroad 
 company employs to get out cross-ties, or 
 build a section of their road, according to 
 certain specifications and at a certain price, 
 or one whom a planter employs to build a 
 house, or dig a ditch of certain dimensions, 
 
DEFINITION'S. 
 
 169 
 
 npon terms agreed upon, is not a servant 
 of his employer. But persons who are en- 
 gaged as conductors or other employees of 
 railroad trains, to assist in running them, 
 or a person employed as a superintendent 
 of the business of a railroad company ac- 
 cording to such schedules and arrange- 
 ments or directions as the company may 
 from time to time prescribe, may properly 
 be regarded as servants. Heygood v. 
 State, 59 Ala. 49. 
 
 Shore. Along tide- waters the " shore " 
 is the ground between the ordinary high 
 and low water mark, — the flats. Mont- 
 gomery V. Reed, 69 Me. 510. 
 
 Signature ; subscription. At common 
 law, making one's mark, by a person un- 
 able to write, was a signature or sub- 
 scription, and was a sufficient execution 
 without being- attested by a witness, unless 
 the instrument were one which must be 
 witnessed, irrespective of mode of signing. 
 Bickley v. Keenan, 60 Ala. 293. 
 
 Specially. Properly means some sealed 
 instrument, and is not well used to include 
 a judgment. David v. Porter, 51 Iowa, 
 254. 
 
 Street. The term " street," used upon 
 a map of a town or city, imports a public 
 way for the free passage of its trade and 
 commerce. Such is its natural and usual 
 signification, and it is inconceivable, hav- 
 ing reference to the ordinary course of 
 business, that a party so surveying and 
 mapping his lands without any express 
 reservation should intend that the streets 
 thereon designated as such should be re- 
 garded as mere private ways for the use 
 only of those purchasing. Denver v. Clem- 
 ents, 3 Col. 484. 
 
 In a statute relative to street improve- 
 ments, "street" includes sidewalks and 
 gutters. Matter of Burmeister, 76 N. Y. 
 174. 
 
 Structure. A railroad track may be 
 considered a structure placed upon a high- 
 way ; but a moving train of cars is not 
 one. Lee v. Barkhampsted, 46 Conn. 
 213. 
 
 Suicide. Is not fully synonymous with 
 death by one's own hand, but generally 
 means self-murder ; voluntary death caused 
 by an act done by a person of sound mind, 
 and capable of measuring his moral re- 
 sponsibility. A policy of insurance which 
 provides that it shall be void if the insured 
 
 " shall die by suicide," is not forfeited by 
 the insured destroying himself while in- 
 sane, but intending to take his life, and 
 knowing that death would result from his 
 act. Connecticut Mut. Life Ins. Co. v. 
 Groom, 86 Pa. St. 92. 
 
 Suit at law. Is synonymous with ac- 
 tion at law ; and includes a scire facias. 
 White V. Washington School Dist., 45 
 Conn. 59. 
 
 Supply. A contract to supply a man- 
 ufacturer with an aiiicle for a year, not 
 exceeding a designated quantity, is equiva- 
 lent to an agreement to furnish that 
 quantity if demanded. It is not limited 
 by needs of his business. Highlands 
 Chemical, &c. Co. v. Matthews, 76 N. Y. 
 145. 
 
 Temporarily. Implies some short time ; 
 some period not long continued. A power 
 to city authorities to close liquor-shops 
 temporarily is not well executed by an 
 order to close them until further notice. 
 The order must prescribe a limited time. 
 State V. Strauss, 49 Md. 288. 
 
 Through. When grain has been re- 
 moved from the vessel bringing it to the 
 port, and taken up into elevators, and thence 
 let down into hoppers and weighed, and 
 after weighing hsis been deposited in the 
 purchaser's bin, it has been " carried 
 through the elevators " within the mean- 
 ing of a statute that grain carried to the 
 city through elevators need not be weighed 
 by the city weigher, although it has not 
 yet been removed from the elevator build- 
 ing. Gill V. Cacy, 49 Md. 243. 
 
 To. As used in a description in a deed 
 of the premises conveyed, is a word of ex- 
 clusion. A call in a deed, commencing 
 at a known monument and running thence 
 in a certain course ' ' to the shore of the Dam- 
 ariscotta River ; thence northerly and west- 
 erly as the shore lies, around the head of a 
 cove," &c., includes none of the shore or 
 flats. Montgomery v. Reed, 69 Me. 510. 
 
 Tolls. In common-law usage applies to 
 a large class of dues and exactions which 
 are in the nature of fixed rights, and can- 
 not be lawfully exceeded. They are gen- 
 erally if not universally connected with 
 some franchise, which involves duties as 
 well as privileges of a public or private na- 
 ture. The right to receive fixed tolls is 
 found in fairs, markets, mills, turnpikes, 
 ferries, bridges, and many other classes of 
 
170 
 
 DEFINITIONS, 
 
 interests where the owner of the franchise 
 is obliged to accommodate the public, and 
 the public in turn are protected from ex- 
 tortion by an obligation to pay only regu- 
 lar dues. McKee v. Grand Rapids, &c. By. 
 Co., 41 Mich. 274. 
 
 Ton ; tonnage. Under a policy con- 
 taining a warranty not to load more than 
 her registered tonnage, the insured is en- 
 titled to load by tons at the rate of 2,240 
 pounds, as recognized by acts of Congress; 
 and is not limited by a law of the State 
 where the policy is issued, defining a ton 
 as 2,000 pounds. The registered tonnage 
 of vessels is ascertained by rules provided 
 by the act of Congress, and the word " ton- 
 nage," in this country, when applied to 
 ships, signifies "the internal cubical ca- 
 pacity in tons of 100 cubic feet each, to be 
 ascei-tained in the manner prescribed by 
 Congress." This registered tonnage of 
 vessels is pm-ely a subject of Federal 
 regulation, and not at all dependent upon 
 or controlled by the legislation of the sev- 
 eral States. A contract, therefore, which 
 adopts "the registered tonnage" of a 
 ship as the limit to which her cargo shall 
 be subjected must be construed as having 
 reference to the laws of Congress, and as 
 meaning such weight per ton as is recog- 
 nized by those laws or by established com- 
 mercial usage at the time those laws were 
 enacted. Otherwise the registered ton- 
 nage of vessels would be a variable quan- 
 tity, dependent upon the statutes of the 
 several States, or upon the usages and 
 customs of different localities in the ab- 
 sence of statutes. Beck v. Phoenix Ins. 
 Co., 16 Hun (N. Y.}, 344. 
 
 Towards. A statute that insulting 
 words towards a female relative of the per- 
 petrator of a homicide will reduce it to 
 manslaughter does not imply that the wo- 
 man must be present at the time, so that 
 the language shall be addressed to her in 
 her hearing. Stewart v. State, 4 Tex. App. 
 519. 
 
 Town. In a constitutional provision 
 forbidding the legislature to pass local or 
 special laws regulating internal affairs of 
 towns and counties, fairly embraces cities. 
 Van Riper v. Parsons, 40 N. J. L. 1. 
 
 Trader. In a law taxing traders, does 
 not include persons who buy timber and 
 convert it, by sawing and planing at their 
 mill, into boards, &c., which they sell. 
 
 Words used in such a statute bear that 
 sense in which they are understood in the 
 common business of life and in the inter- 
 course of men. In general use a trader is 
 one engaged in the business of buying and 
 selling. In trading the goods are sold 
 substantially in the form in which they 
 are bought, and the difference between the 
 sums paid and received constitutes the 
 profit of the business. Persons who pur- 
 chase the tree or log and dispose of the 
 lumber and boards which are made from 
 it are manufacturers rather than traders. 
 State V. Chadboume, 80 iV. C. 479. 
 
 Transportation. Is not limited to car- 
 rying, but may include other removals of 
 property. A corporation engaged in car- 
 rying oil from place to place through pipes 
 laid under ground, whether the oil runs 
 from gravity or is forced by pumps, is a 
 transportation company. Commonwealth 
 V. Columbia Conduit Co., 2 Pearson (Pa.), 
 411. 
 
 Try. Is equivalent to attempt. Words 
 imputing that a plaintiff has tried to steal 
 are actionable as charging an offence, 
 although the statute delineation of the 
 offence is "attempt to steal." Berdeaux 
 «, Davis, 58 Ala. 611. 
 
 Uncertain. May include any doubt, 
 whether reasonable or not; it is error to 
 tell the jury in a criminal cause that i£ 
 they feel uncertain that the witnesses are 
 to be believed they should acquit. They 
 should not acquit unless they have a reason- 
 able doubt of the truthfulness of the wit- 
 nesses. State V. Ah Lee, 7 Oreg. 237, 258. 
 
 Understand. When a witness is testi- 
 fying to the terms of an oral agreement to 
 which he was a party, his testimony that he 
 "understood" the terms to be so and so 
 should be read as meaning more than his 
 belief; it is direct testimony to the terms 
 of the agreement. Fraser v. Davie, 11 
 S. C. 56. 
 
 Unoccupied. The meaning of the word 
 in a condition that, if insured premises 
 become unoccupied, the policy shall be 
 void, varies in different policies, and must 
 be determined as a question of intention 
 in the particular case. If a building is 
 insured as an ordinai-y dwelling, not as a 
 mere summer residence, and the family 
 shut it up and leave it during the winter, 
 it must be deemed unoccupied for the time 
 being, notwithstanding frequent visits of 
 
DEFINITIONS. —DESCENT. 
 
 171 
 
 inspection and an intention to return next 
 summer. Herrman ». Adriatic Fii-e Ins. 
 Co. 45 N. Y. Superior Ct. 394. 
 
 Utter. In one of its senses imports 
 "publish." An averment that defendant 
 uttered a libel may be a sufficient allega- 
 tion of publishing. Benedict v. Westover, 
 44 Wis. 404. 
 
 Vagrancy. Is distinguished from dis- 
 orderly conduct and breaches of the peace, 
 and includes only such cases of vagabond- 
 age as are known to the common law. Its 
 statutory definition cannot be enlarged by 
 municipal ordinance. Matter of Way, 41 
 Mich. 299. 
 
 Vessel. Includes a steam canal-boat. 
 King V. Greenway, 71 N. V. 413. 
 
 Warrant. A copy of minutes of a vil- 
 lage meeting or of proceedings of village 
 auditors, showing that a claim against the 
 corporation was audited, is not a warrant 
 of auditors within a statute forbidding 
 money to be paid from the treasury save 
 on a warrant, because not addressed to the 
 treasurer nor framed as a direction to him. 
 By "warrant," in that connection, is 
 meant a writing given by competent author- 
 ity, in pursuance of law, directing an act 
 to be done, and addressed to an officer or 
 person competent to do it, as his voucher 
 or protection if he does it. People v. Wood, 
 71 N. Y. 371. 
 
 White person. Cannot be construed as 
 equivalent to "not an Indian," and there- 
 fore as including negroes, although found 
 in a statute where the antithesis is In- 
 dian. United States v. Ferryman, 100 
 U. S. 235. 
 
 DEPOSIT. When a bank receives de- 
 posits, it undertakes to ^ay the depositor's 
 check to the holder, if it has funds of the 
 depositor sufficient to pay the check when 
 presented. This promise or agreement 
 between the bank and its depositor, im- 
 plied from universal usage or custom of the 
 business world, inures to the benefit of 
 
 Deposit. Matters applicable to deposit in com- 
 mon with other bailments, see, Bailment. De- 
 posits with banivs, Banking ; as collateral security. 
 Debtor, &c. ; in pledge, Pledge. 
 
 National bank may take special deposit, p. 34 ; 
 repayment of banking deposits on checks, pp. 35, 
 36. Receiving deposit after bank's insolvency, 
 punishable as embezzlement, p. 36 ; conversion or 
 unlawful loan of deposit, punishable as larceny or 
 false pretences, p. 36. National bank liable for 
 special deposit stolen, p. 36. Carrier depositing 
 cotton on pier for consignee, p. 76. 
 
 Deputy. Of officers in general, Officbk. Of 
 
 the holder of the check; and if he presents 
 it to the bank for payment, and payment 
 is refused, the bank having funds of the 
 the depositor sufficient to pay it when pre- 
 sented, he may sue, and recover of the 
 bank upon the check. St. Louis Ct. of 
 Appeals, 1877, McGrade v. German Sav. 
 Inst., 4 Mo. App. 330. 
 
 The rights of a check-holder and of a 
 bank are fixed when the check is presented 
 for payment ; and the bank has no right to 
 pay or satisfy out of the fund thus appro- 
 priated other checks or demands subse- 
 quently presented, or demands which 
 subsequently accrued to the bank or others ; 
 nor can the bank retain the money against 
 the check-holder under claim of an equita- 
 ble lien for a debt by the drawer not yet 
 matured, lb. Consult Banking. 
 
 DESCENT. " Whenever any person shall 
 die intestate, without leaving issue living, 
 and shall leave a husband or wife surviv- 
 ing, such husband or wife shall take in 
 fee the real estate of such deceased to an 
 amount not exceeding $5,000 in value." 
 How the same shall be set oS. Curtesy, 
 dower, and homestead in remaining estate 
 of deceased to be unaffected. Mass. Laws 
 1880 (April 22), 118, ch. 211. 
 
 minor Decisions on Descent. 
 Common or civil law canons were never 
 in force in Indiana; rules for every case 
 are given by statute; degrees are computed 
 by civil law : 61 Ind. 171. Express terms 
 or necessary implication in a will are need- 
 ful to disinherit the heir : 15 W. Va. 646. 
 Property of adopted child descends to his 
 relatives by blood ; not to those by adop- 
 tion : 68 Mo. 482. A child before birth is 
 not an heir for purposes of a partition 
 suit : 59 Ala. 441. Legitimation, under 
 law of domicile, of one born bastard, by in- 
 termarriage of his parents, does not enable 
 him to inherit in New York : 18 Hun 
 (N. Y.), 507. 
 
 any one in particular. Sheriff; also. Marshal, 
 Coroner, &o. 
 
 Descent. Incapacity of alien, Alien. Legiti- 
 macy of children. Parent. Inheritance in Cali- 
 fornia, p. 55. 
 
 Desertion. Of husband or wife, bj' the other, 
 Abandonment ; Husband, &c. By soldier or 
 sailor, Army ; Navy. Of seamen in the merchant 
 service. Seaman. 
 
 Separation by consent is not abandonment, p. 2. 
 Effect of desertion of wife, p. 2. Laws for protec- 
 tion of deserted children, p. 79. 
 
 Intent in the criminal law, generally, 
 
172 
 
 DETECTIVE. 
 
 DETECTITE. Recent cases are no- 
 ticed, upon the vexed question : What 
 devices may detectives use ? The 
 course of decision tends towards de- 
 velopment of the two-fold rule that 
 tricks and deceptions used in obtain- 
 ing evidence do not impair the right of 
 the prosecution to use it, provided it 
 establishes a complete and independent 
 criminal act by the accused ; but if the 
 detective participates in the act, so 
 that, la3'ing what he has done out of 
 view, there is not a complete offence 
 committed, the prosecution must fail. 
 An Alabama case [59 Ala. 98, cited 
 under Evidence, 201], in which a 
 train-wrecker was enticed into a con- 
 fession by the device of a detective, 
 asking to be told of a good place 
 where he himself might throw a train 
 off the track, belongs under the first 
 branch of the rule. So does a Texas 
 case, where a detective served as 
 herdsman with a ranch-owner sus- 
 pected of altering the brands of cattle, 
 until at length he saw him change a 
 brand. See Accomplice, 7 Tex. App. 
 574. So does a Kansas case [see m/ra, 
 22 Kan. 498], where the detective left 
 the door open in order that the burglar 
 might enter more readily. Under the 
 second branch falls the California case 
 [see infra, 53 Oal. 185], where the 
 owner of a building and the sheriff 
 arranged with a detective to encourage 
 a burglary ; and when the appointed 
 night came, the detective and intend- 
 ing burglar went together, the detec- 
 tive took the marked money and gave 
 it to the coadjutor, who was thereupon 
 arrested by the sheriff ; but the court 
 said that, as the detective went by the 
 owner's consent, there was no burgla- 
 ry. Like it is a St. Louis decoy-letter 
 case, where a physician answered a let- 
 
 Chime; in particular crimes, Assault; Bur- 
 glary; Conspiracy; Larceny; Murder, &c. 
 Patent for a design, Patent. 
 
 Assaults with special intent, p. 30. Fraudulent 
 design in chattel mortgage, pp. 77, 78. 
 
 Detective. Answering a decoy letter, p. 8. De- 
 
 ter asking for prohibited information, 
 but as his letter was entirely blind and 
 unintelligible unless read with the detec- 
 tive's question, the court quashed the 
 information ; for they said the accused 
 had not given information to anj' one but 
 the detective. See Post-office. Simi- 
 lar is the English case where the detec- 
 tive bought a sample of adulterated 
 food for analysis, and the defence 
 claimed that, as he only wished it for 
 analysis, he was not "prejudiced" by 
 the adulteration ; but the Queen's 
 Bench thought that he was. See 
 Adulteration ; L. R. A Q. B. D. 
 233. The strong remarks of the 
 Michigan supreme court in support of 
 the second branch of the rule [see infra, 
 38 Mich. 218] will be noticed; and 
 there are strictures somewhat similar 
 in a Texas decision, upon testimony of 
 a state's evidence, who claimed to have 
 acted as a detective. See "Witness, 6 
 Tex. App. 669. In Tennessee it has 
 been held that making arrest which 
 only sheriff could make, but without 
 representing one's self as sheriff, does 
 not expose detective to prosecution for 
 falselj' assuming to be sheriff. See 
 Officer, 7 Baxt. (^Tenn.) 16. 
 
 Upon the trial of a lawyer for breaking 
 and entering a court-room by night, and 
 stealing therefrom certain documents, it 
 appeared that when the accused was medi- 
 tating the offence he applied to the police- 
 man in chai'ge of the room to facilitate his 
 entry by leaving the door unlocked ; that 
 the policeman, after consulting with his 
 superior officer, consented, and did so; 
 and that he then, with other officers, 
 watched at night and caught the thief 
 in the act. Held, improper conduct 
 on the part of the police. Supreme 
 Ct. 1878, Saunders v. People, 38 Mich. 
 218. 
 
 tective not an accomplice, p. 9. Measures to 
 detect adulteration of food, p. 15. Attorney man- 
 ufacturing evidence to procure divorce, p. 32. 
 Referee's use of magnifying glass to detect forger- 
 ies, p. 35. 
 
DETECTIVE. 
 
 173 
 
 Although the officer may have acted, not 
 by way of enticing the defendant into 
 crime, but only by allowing him the oppor- 
 tunity he sought and requested, yet it placed 
 him in an equivocal position, and the jury 
 ought to have had the benefit of all light 
 upon the transaction. [Per Cooley, J.] 
 76. 
 
 The course pursued in this case by the 
 officers was utterly indefensible. Where a 
 person contemplating the commission of 
 an offence, approaches an officer of the law, 
 and asks his assistance, it would seem to 
 be the duty of the latter, according to the 
 plainest principles of justice and duty, to 
 decline to render such assistance, and to 
 take such steps as would be likely to pre- 
 vent the commission of the offence, and 
 tend to the elevation and improvement of 
 the would-be criminal, rather than to his 
 further debasement. Some courts have 
 gone a great way in giving encouragement 
 to detectives, in some very questionable 
 methods adopted by them to discover the 
 guilt of criminals; but they have not yet 
 lent encouragement or aid to officers who 
 may, under a mistaken sense of duty, en- 
 courage and assist parties to commit crime, 
 in order that they may arrest and have them 
 punished for so doing. The mere fact that 
 the person contemplating the commission 
 of a crime is supposed to be an old offender 
 can be no excuse — much less a justification 
 — for the course pursued and adopted in this 
 case. Human nature is frail enough at 
 best, and requires no encouragement in 
 wrong-doing. If we cannot assist another 
 and prevent him from violating the laws of 
 the land, we at least should refrain from 
 any active efforts in the way of leading 
 him into the way of temptation. [Per 
 Marston, J.] Ih. 
 
 I concur with my brethren in their view 
 of the case. The encouragement of crimi- 
 nals to commit crimes in order to get up a 
 prosecution against them is scandalous and 
 reprehensible. [Per Campbell, J.] lb. 
 
 A detective having disclosed to the police 
 the place of an intended burglary, the pro- 
 prietor of the building, 'a saloon, upon the 
 direction of the police, left the rear door, 
 which was ordinarily fastened with a lock 
 and bar, unlocked and unbarred, but closed ; 
 and at two o'clock at night the defendant, 
 with the detective, entered through that 
 door, the defendant lifting the latch and 
 
 opening the door, and were arrested by the 
 police and the proprietor, who were lying 
 in wait. Upon the trial the court refused 
 to instruct that the lifting of the latch 
 and opening of the door were, under the 
 circumstances, no burglarious breaking, 
 and left it to the jury to say whether the 
 proprietor consented to the entry by defend- 
 ant. Held, no error. Supreme Ct. 1879, 
 State V. Jansen, 22 Kan. 498. 
 
 Parnell informed the sheriff that Collins 
 had requested him to enter a house in the 
 night-time, and steal therefrom a sum of 
 money which he knew to be concealed 
 there; the same to be divided between 
 them. By advice of the sheriff Parnell 
 agreed to do so, for the purpose of entrap- 
 ping Collins. He accordingly entered the 
 house, secured the money, marked it so 
 that it could be identified, and after deliver- 
 ing it to Collins gave a signal, when the 
 sheriff arrested Collins with the money in 
 his possession. Held, that inasmuch as 
 Parnell alone entered the building, and did 
 so without felonious intent, there was no 
 burglary committed, and, therefore, Collins 
 could not have been privy to a burglaiy. 
 Supreme Ct. 1878, People v. Collins, 53 
 Cal. 185. 
 
 Cohen was indicted for a conspiracy ; and 
 witnesses for the prosecution testified to 
 overhearing conversations between him and 
 Davis, agreeing upon the commission of a 
 crime. Cohen did not deny the conversa- 
 tions. His explanation was that he was a 
 professional detective, having been first in- 
 structed in such duty by the former chief 
 of the detective force, who had directed 
 him, generally, to mingle and associate 
 with suspected persons and affect to join 
 them in their criminal plans so far as need- 
 ful to obtain admissions and other proofs 
 against them. This chief of the detectives 
 had gone out of office about a year pre- 
 viously, but Cohen had been continuing 
 the business in the same general way. He 
 had been for some time suspicious of Davis, 
 and'had some evidence against him, and 
 he declared that the conversations which 
 the witnesses for the State overheard and 
 supposed to be a conspiracy were, in truth, 
 only a scheme to lead Davis along to a full 
 disclosure of his criminal plans by leading 
 him to be^eve that Cohen was in -coopera- 
 tion with him, — Cohen's real purpose 
 being, however, to cause his arrest. In 
 
174 
 
 DETECTIVE. — DISCOVERY. 
 
 corroboration of this testimony the defence 
 offered to prove by the former chief of the 
 detectives that he had employed Cohen and 
 given him such instructions as are above 
 stated. Held, that the testimony of the 
 chief was inadmissible. He had not em- 
 ployed Cohen in the Davis case, which 
 arose after his office expired; and his in- 
 structions given in earlier cases could not 
 form any warrant or excuse for what was 
 done after his term expired. Supreme Ct. 
 1879, Commonwealth v. Cohen, 127 Mass. 
 282. 
 
 DEVISE. A decision of the Massa- 
 chusetts supreme court sustains the 
 validity of a devise of real property to 
 th§ United States, where the local law 
 does not expressly limit the testator's 
 power. The case arose upon the will 
 of Gardner ; who gave the residue of 
 his estate, comprising lands in Massa- 
 chusetts and in Iowa, to the govern- 
 ment, as a contribution towards the 
 expenses of suppressing the EebeUion. 
 His heirs contested the devise ; in- 
 fluenced very probably by decisions of 
 the New York court of appeals and 
 United States supreme court not many 
 years ago, which have given rise to an 
 impression that a man cannot will prop- 
 erty to the national government [52 
 N. T. 530 ; 94 U. S. 315]. In that 
 case Fox gave the residue of his estate, 
 which comprised land as well as monej^, 
 "to the government of the United 
 States for the purpose of assisting to 
 discharge the debt contracted by the 
 war for the subjugation of the rebel- 
 lious Confederate States." The entire 
 series of courts from the surrogate's up 
 to the supreme court at "Washington 
 adjudged that the government could 
 not take the land. But the decision 
 rested upon a provision of the New 
 York wills act that no devise to a cor- 
 poration shall be valid, unless such 
 corporation be expressly authorized by 
 
 Devise. Form, construction, and validity of a 
 will as a "whole. Will. Of bequest, or legacy of 
 personalty. Legacy. Devise to charitable uses, 
 Chakity. 
 
 Construction of devise for charitable use is gov- 
 
 its charter or by statute to take by de- 
 vise. It was because the local law 
 limited the testator's power of disposi- 
 tion, and not because of any doubt of 
 the power of government to take, that 
 the devise was annulled. According- 
 ly, the Massachusetts decision is in 
 favor of the government. It holds 
 that the doctrine of Fox's Case applies 
 only to land in New York, or where 
 there may be a similar restrictive 
 statute. The general rule throughout 
 the country is that the government may 
 take property by gift, bequest, or de- 
 vise equally well as it may by taxation, 
 eminent domain, or other like powers. 
 See Will, 125 Mass. 311. 
 
 Minor Secisions on Devise. 
 
 It is only in favor of creditors and pur- 
 chasers that a d. conferring a life estate 
 with absolute power of disposal is (by Ala. 
 Rev. Code, § 1595) enlarged into a fee; to- 
 wards others the property is subject to any 
 future estate limited upon the life estate: 
 56 Ala. 350. A d. for life with unlimited 
 power of disposition vests the fee: 7 Baxt. 
 (Term.) 188. A d. of a factory with ap- 
 purtenances, &c., may carry raw material 
 in stock, but not manufactured goods await- 
 ing sale: 89 Pa. St. 148. A gift of both 
 real and personal property by will is sub- 
 ject to a statutory rule for construction of 
 devises of real property : 56 Ala. 350. 
 Charitable devises, held, valid in Georgia; 
 and several such construed and sustained: 
 3 Woods, 443. Various elementary rules 
 of construction discussed at length and 
 applied: 92 111. 515. 
 
 DISCOVERT. A merchant sued for 
 duties on his importations has a legal right 
 to examine and make copies of the papers 
 and records in the custom-house relating to 
 the importation and relevant to his defence. 
 This right is not impaired by the regulation 
 of the treasury department restricting in- 
 spection of custom-house papers; because: 
 
 1. Rev. Stat. § 251, does not authorize 
 the secretary to forbid all access by an im- 
 
 erncd by intent, p. 77. Instances of devises sus- 
 tained, p. 77. 
 
 Discharge. Of supernumerary army officer, p. 
 25. Of insane officer tendering resignation, p. 26. 
 In bankruptcy, p. 42. Of indorser, p. 50. 
 
DISCOVERT. — DISTRICT OF COLUMBIA. 
 
 1T5 
 
 porter to custom-house papers relative to 
 his importations. 
 
 2. The regulation itself, properly con- 
 strued, does not necessarily forbid such 
 access ; but merely requires a written ap- 
 plication to the collector himself, and for- 
 bids subordinates to give information. S. 
 Dist. of N. Y., United States v. Hutton, 
 25 Int. Rev. Rec. 67. 
 
 While the statutes defining the duties of 
 collector of customs (Rev. Stat. § 2621) do 
 not specify his duties in respect to the cus- 
 tody or mode of preserving the papers that 
 are required to be lodged in his office, or the 
 records made therein, or the rights and 
 privileges of other parties in respect there- 
 to, yet from the nature of the documents 
 and the relation of the government to the 
 merchant to whose business these papers and 
 records relate, and the necessity out of 
 which such deposit of papers and the keeping 
 of such records arise, the duties of the col- 
 lector in regard to them may with certainty 
 be deduced. Some of these papers are, 
 notwithstanding their deposit in the cus- 
 tom-house, the personal property of the 
 merchant; as, for instance, invoices which 
 he receives from his foreign correspondent, 
 and which constitute his proper and origi- 
 nal paper, title, or assurance of title to the 
 goods. While the public good undoubtedly 
 requires that these invoices should be im- 
 pounded at the custom-house, yet this ne- 
 cessity does not affect, in the slightest 
 degree, the ownership of the paper. As to 
 other papers relating to his importations, 
 such as entries, bonds, permits, &c., the 
 right of access to them may not be based 
 on a strictly proprietary right, and yet 
 they are the written memorials and the 
 only ones (for no duplicates are delivered 
 to the merchant) of business transactions 
 between him and the government, which, 
 for safe-keeping and for reasons of public 
 pohcy, are required to be kept in this pub- 
 lic office. They appear to be public records 
 in which the merchant has a special inter- 
 est; which implies the right of access to 
 them on his part, under reasonable restric- 
 tions as to their preservation and the proper 
 and orderly conduct of the public business 
 of the collector's office. They are not pub- 
 
 Sistrict attorney. In common with other of- 
 ficers, Officer. 
 How he should deal with state's evidence, p. 9. 
 District court. Matters applicable to courts 
 
 lie records in the sense of being placed in 
 a public office for the information of all the 
 world ; but they are papers relating to the 
 private business of the merchant, which a 
 public necessity connected with the collec- 
 tion of the public revenues alone requires 
 to be entrusted to and kept by the govern- 
 ment, lb. 
 
 Mandamus lies to compel a collector, in 
 a proper case, to permit such inspection by 
 an importer and allow him to take copies ; 
 for the importer has no other adequate 
 remedy. lb. 
 
 DISTRICT ATTORNEY. He cannot 
 bind the government by stipulating that 
 an accomplice shall have immunity if he 
 will freely testify against his principal. 
 Supreme Ct. 1878, Whiskey Cases, 99 U. S. 
 594. 
 
 DISTRICT COURT. Consent will not 
 confer on a district court sitting in admir- 
 alty a jurisdiction not given by statute, 
 especially where the rights of third parties 
 are affected. 1878, Winchester v. United 
 States, 14 Ct. of CI. 13. 
 
 A district court of a Territory — here 
 Washington — may exercise jurisdiction of 
 a cause of admiralty cognizance; here, a 
 suit in rem by a passenger to recover 
 damages for personal injuries sustained 
 through falling into the hold through neg- 
 ligence of the ship's officers or employees, 
 in leaving a concealed hatchway in the 
 cabin open and unguarded. Supreme Ct. 
 1879, The City of Panama v. Phelps, 
 101 U. S. 453. 
 
 DISTRICT OF COLUMBIA. A perma- 
 nent form of government for the District of 
 Columbia prescribed. Act of Congress of 
 June 11, 1878, ch. 180, 20 Stat, at L. 102. 
 
 " The issue of any marriage of colored 
 persons, contracted and entered into ac- 
 cording to any custom prevailing at the 
 time in any of the States wherein the same 
 occurred, shall, for all purposes of descent 
 and inheritance and the transmission of 
 both real and personal property within the 
 District of Columbia, be deemed and held 
 to be legitimate, and capable of inheriting 
 and transmitting inheritance, and taking as 
 next of kin and distributees according to 
 law, from and to their parents, or either of 
 
 fenerally, Codkt; peculiar powers, Admiralttj 
 ANKRUPTCY, &c. ; subjcctto appellate jurisdiction. 
 Circuit Court. 
 
176 
 
 DISTRICT OF COLUMBIA. 
 
 them, and from and to those from whom 
 such parents, or either of them, may in- 
 herit or transmit inheritance, anything 
 in the laws of such State to the contrary 
 notwithstanding: Provided, That nothing 
 herein shall be construed as implying that 
 any such maiTiage is not valid, or such is- 
 sue legitimate for all other purposes." 
 Act of Feb. 6, 1879, oh. 49, 20 Stat, at 
 L. 283. 
 
 " The President of the United States is 
 hereby authorized to appoint as many com- 
 missioners of deeds throughout the United 
 States as he may deem necessaiy, with 
 powers to take the acknowledgment of 
 deeds for the conveyance of property with- 
 in the said District, administer oaths, and 
 take depositions in cases pending in the 
 courts of said District in the manner pre- 
 scribed by law; to whose acts, properly 
 attested by their hands and seals of office, 
 full faith and credit shall be given. The 
 President shall also have power to appoint 
 such number of notaries public, residents 
 of said District, as in his discretion the 
 business of the District may require ; said 
 commissioners of deeds and notaries public 
 to hold their offices for the period of five 
 years, removal at discretion .' ' Act of June 
 8, 1878, ch. 162, § 5, 20 Stat, at L. 101. 
 
 " All acknowledgments of deeds and 
 other instruments of writing under seal 
 heretofore made in a foreign country, be- 
 fore any secretary of legation, consul, or 
 consular officer of the United States, for 
 lands lying in the District of Columbia, are 
 hereby validated and confirmed, and the 
 same, and the records of the said deeds and 
 instruments, if the said deeds and instru- 
 ments have been recorded, are declared to be 
 as good and effectual, in behalf of the gran- 
 tees therein named, and all persons claiming 
 through or under them, as if the said ac- 
 knowledgments and records had been re- 
 spectively made and recorded under the 
 provisions of existing laws: Provided, that 
 nothing in this act shall be construed to 
 devest just rights already acquired in good 
 faith by creditors of or purchasers from the 
 grantors in such deeds or instruments." 
 Act of March 3, 1879, ch. 174, 20 Stat, at 
 L. 353. 
 
 " Any person who shall steal, wrongfully 
 deface, injure, mutilate, tear, or destroy 
 any book, pamphlet, or manuscript, or any 
 portion thereof, belonging to the library 
 
 of Congress, or to any public library in 
 the District of Columbia, whether the prop- 
 erty of the United States or of any individ- 
 ual or corporation in said District, or who 
 shall steal, wrongfully deface, injure, mu- 
 tilate, tear, or destroy any book, pamphlet, 
 document, manuscript, print, engraving, 
 medal, newspaper, or work of art, the 
 property of the United States, shall be held 
 guilty of a misdemeanor, and, on convic- 
 tion thereof, shall, when the offence is not 
 othei-wise punishable by some statute of 
 the United States, be punished by a fine 
 of not less than $10 nor more than $1,000, 
 and by imprisonment for not less than one 
 nor more than twelve months, or both, for 
 every such offence." Act of June 19, 1878, 
 ch. 317, 20 Stat, at L. 171. 
 
 " An act to provide for the settlement 
 of all outstanding claims against the Dis- 
 trict of Columbia, and conferring jurisdic- 
 tion on the court of claims to hear the 
 same," extends the jurisdiction of the 
 court of claims to claims now existing 
 against the District of Columbia, founded 
 upon various contracts, certificates, &c., 
 designated, and directs how such claims 
 shall be prosecuted, and authorizes payment 
 of judgments recovered from the treasury. 
 Act of Congress, June 16, 1880. Consult 
 Court of Claims. 
 
 Local enactments are : Justices of the 
 peace, commissioners of deeds, and con- 
 stables : 20 Stat, at L. 100. Taxes, and 
 sales for unpaid taxes : Id. 34; Id. 166; 
 Id. 284; Id. 323. Dogs declared personal 
 property, and must be taxed and muzzled : 
 Id. 173. Inspection of flour : Id. 91. 
 Druggists to be registered ; and their sales 
 of poisons regulated : Id. 137. Oleomar- 
 garine : Id. 264. Certain wages exempt 
 from attachment or execution : Id. 173. 
 Embezzlement ; or stealing, altering, &c., 
 records ; declared punishable : Id. 23. 
 Breaking and removing fixtures from 
 buildings : Id. 36. Keeping any lottery 
 shop or selling lottery tickets, &c. : Id. 39. 
 Gunning on Sunday : Id. 135. Preserva- 
 tion of game and birds : Id. 134. 
 
 Minor Decisions on District of CoInmMa. 
 
 Congress cannot create insurance com- 
 pany in D. C. as Congress, but only as 
 the local legislature: 64 Ind. 1. Congi'ess 
 cannot authorize D. C. to legislate in gen- 
 eral law, — here, as to lien of judgments : 
 
DISTRICT OF COLUMBIA.— DIVORCE. 
 
 177 
 
 8 Reporter, 814. Congress can confirm un- 
 authorized acts of district officer : Id. 687. 
 Construction of former laws as to taxes 
 and exemptions: 97 U. S. 541; as to con- 
 firmation of assessments and acts of board 
 of public works: /d. 687; /d. 692. Federal 
 commissioner to inspect Indian agencies 
 cannot be member of D. C. board of 
 health : 14 Ct. of CI. 512. Sources and 
 history of real-property laws in D. C. : 14 
 Ct. of CI. 493. Notice to quit between 
 landlord and tenant : lb. On note prom- 
 ising to pay with ten per cent interest, in- 
 terest should be computed at ten per cent 
 up to maturity ; afterward at six per 
 cent. 100 U. S. 72. 
 
 BITORCE. Publication of notice of 
 pendency of divorce suit, prescribed, in 
 cases where defendant is not a resident of 
 the State. Ind. Laws 1879 (March 13), 
 124, ch. 45, § 1; amend'g act of March 10, 
 1873, § 12. 
 
 Proof of adultery. The mere fact 
 that a man and woman inhabit the same 
 dwelling does not raise a presumption of 
 intercourse upon which either can be 
 charged with adultery by his or her wife 
 or husband; there must be some accom- 
 panying circumstances evincing a guilty 
 intention. To sustain a charge of adul- 
 tery against a husband, proof was made 
 that his alleged paramour was at his 
 apartment almost every day, and sometimes 
 in the evenings ; that they went. out to- 
 gether on errands and to amusements ; 
 that she cooperated in the marketing and 
 housework ; and that she had been taken 
 for his wife. Held, that these facts showed 
 only abundant opportunity for illicit inter- 
 course; which is not enough to sustain the 
 charge. Ct. of Appeals, 1877, Pollock v. 
 Pollock, 71 N. Y. 137. 
 
 Effect of foreign decree. In a wife's 
 action for a divorce she proved that the hus- 
 band had married another woman ; in jus- 
 tification of which he alleged that he had 
 procured a judgment of divorce from 
 plaintiff, setting him at liberty to marry 
 again. That judgment was rendered by a 
 court in Louisiana. It was regular in 
 form ; but the plaintiff sought to impeach 
 it because (1) it was fraudulently procured ; 
 (2) the Louisiana court had not competent 
 jurisdiction; (3) the divorce granted by it 
 was not warranted by the law of Louisi- 
 ana; and (4) because, having been ob- 
 12 
 
 tained upon service by publication and ap- 
 pointment of a curator ad hoc, it was not 
 operative out of that State. Held : — 
 
 1. The charge of fraud was not sustained 
 by the proof. The evidence showed that 
 the plaintiff had ample notice in fact as to 
 the prosecution of the Louisiana divorce 
 suit and was fully advised and deliberately 
 decided lo rest upon the supposed want of 
 jurisdiction in the courts. She was not in 
 any manner deceived or misled. To con- 
 stitute fraud in procuring a judgment, such 
 as will vitiate it, there must be representa- 
 tions made with knowledge of their falsity, 
 and with intent to mislead, resulting in 
 damaging deception. 
 
 2. As to the jurisdiction of the Louis- 
 iana court: every State may determine lor 
 itself for what causes divorce may be 
 granted, and by what legal proceedings; 
 and may prescribe which of its courts 
 shall have authority to grant divorces. 
 All citizens of any State, domiciled within 
 it and owing allegiance to it, are bound by 
 its laws and regulations on this subject. 
 When the constitutional statutes of a 
 State have conferred upon any of its 
 courts the general power to adjudge di- 
 vorces, such court has " jurisdiction of the 
 subject-matter of divorce." The subject- 
 matter in a divorce suit is not the wrong 
 which gives cause of action for divorce, but 
 the matrimonial relation which the court 
 is asked to dissolve. If a court is empow- 
 ered to entertain and determine a suit for 
 divorce, it has jurisdiction of the subject- 
 matter, even if, in a particular case, a 
 suitor does not establish facts which give 
 lawful ground of divorce. Because he does 
 not establish cause of divorce, it does not 
 follow that the court is without jurisdic- 
 tion ; it has power to give judgment that 
 he has not made out a case. And if, under 
 such circumstances, it gives judgment in 
 favor of the divorce, this is not exceeding 
 its jurisdiction, but error in the exercise of 
 it, which is to be corrected in that action, 
 not by disregarding the judgment. ^ The 
 laws of Louisiana have given this jurisdic- 
 tion of suits for divorce to the fifth district 
 court of the parish of Orleans, by which 
 the divorce in question was granted. And 
 even if such law allows a divorce on ac- 
 count of acts done before the law was 
 passed, this is not unconstitutional. 
 
 3. Upon the question whether the 
 
178 
 
 DIVORCE. 
 
 charges made and proved in the Louisiana 
 suit against the defendant there were, by 
 the law of that State, a sufficient cause for 
 a divorce, the judgment in that suit was 
 conclusive in the courts of New York, if 
 that court had jurisdiction of the parties as 
 well as of the subject-matter. The deci- 
 sion to grant a divorce necessarily involved 
 an adjudication upon the sufficiency of the 
 cause alleged. If the adjudication made 
 was erroneous, correction of the error 
 should have been sought in that suit. The 
 judgment, standing unreversed in the State 
 where it was rendered, cannot be disre- 
 garded in another State. 
 
 4. As to the objection that there was not 
 personal service or appearance ; the parties 
 were married in Louisiana, and the plain- 
 tiff in that suit was domiciled aad actually 
 resident in that State. Where such are 
 the facts, and the statute law of that State 
 authorizes a summons to commence a di- 
 vorce suit to be served by publication, such 
 service is sufficient to give jurisdiction 
 over the person of the defendant. One 
 who, being a citizen of and domiciled in a 
 State, contracts a marriage within it, can- 
 not, by afterwards removing, throw off the 
 authority of that State so as to put it out 
 of the power of the other party to appeal 
 to the laws of the State governing a disso- 
 lution of the marriage. The cases hold- 
 ing that a divorce obtained in another 
 State without residence of parties and ac- 
 tual service of process may be disregarded 
 in New Tork, have not been cases in 
 which the defendant so sued abroad was a 
 citizen of the other State. The result of 
 the New York decisions on this subject is, 
 that when courts of another State have 
 jurisdiction of the subject-matter and of 
 the person, their judgments are to be cred- 
 ited collaterally ; that jurisdiction of the 
 subject-matter is to be tested by the pow- 
 ers conferred by the constitution and laws 
 of the other State, and that if the defend- 
 ant is a domiciled citizen of New York, 
 jurisdiction of defendant's person cannot 
 be acquired by the courts of another State, 
 except by either personal service of process 
 or voluntary appearance. But these deci- 
 sions do not hold that, in a suit for di- 
 vorce, j,urisdiction of the person of a 
 domiciled citizen of a State may not be 
 acquired by the courts of that State by 
 substituted service of process according to 
 
 its laws, merely because the defendant is at 
 the time in fact abiding in another State. 
 On the contrary, a valid judgment dis- 
 solving the marriage contract may be ren- 
 dered against a defendant not within the 
 territorial jurisdiction, if that be the place 
 of defendant's citizenship and domicile, 
 although the service is by some substituted 
 method and there is no voluntary appear- 
 ance. Ct. of Appeals, 1878, Hunt v. Hunt, 
 12 N. Y.2V1. 
 
 Baker married in Ohio. He removed 
 with his wife to New York State, after 
 which she obtained a divorce in Ohio for 
 his " gross neglect of duty." There was 
 no personal service of process on him, nor 
 an appearance ; but a service by publica- 
 tion which rendered the judgment valid 
 by Ohio law. Relying on this divorce, 
 however, he afterward married another 
 woman in New York. Held, that he 
 was guilty of bigamy. The courts of 
 another State have no authority to deter- 
 mine the social status or dissolve the 
 matrimonial relation of a person resid- 
 ing in New York, without actual service 
 upon or voluntary appearance by him, ex- 
 cept so far as the judgment is kept within 
 the confines of the State where rendered. 
 It cannot claim any validity or operation 
 in New York. The circumstance that the 
 marriage was solemnized in the State 
 where the divorce was adjudged makes no 
 difference. Ct. of Appeals, 1879, People 
 V. Baker, 76 N. Y. 78; rev'g 15 Hun 
 (N. F.), 256. 
 
 A statute [Oreg. Code Civ. Pro. § 495] 
 that whenever a marriage shall be annulled 
 or dissolved, the party at whose prayer the 
 decree shall be made shall be entitled to 
 one third of the other's real property, — 
 will not be enforced as to a decree granted 
 in another State, but will be deemed lim- 
 ited to domestic decrees. The legislature 
 probably has power to make such an enact- 
 ment applicable to foreign decrees; but an 
 intent to do so will not be presumed. For 
 decrees are often granted abroad for causes 
 and on grounds not recognized as sufficient 
 in the State where the land to be affected 
 lies. 9th Circ. (Oreg.) 1880, Barrett v. 
 Failing, 3 Fed. Reporter, 471. 
 
 minor Decisions on Divorce. 
 Jurisdiction and necessary averments in 
 d. suit in St. Louis circuit court : 6 Mo. 
 
DIVORCE. — DUTIES. 
 
 179 
 
 App- 49. A husband who deceives, ill- 
 treats, and deserts his wife, and afterwards 
 seeks to return, which she refuses, cannot 
 obtain a d. for such refusal as being an 
 abandonment by her: 49 Md. 509. Wife's 
 adultery, after separation induced by hus- 
 band's fault, does not entitle him to d. : 80 
 N. C. 316. Proof of his having visited a 
 house of ill fame is not conclusive of adul- 
 tery; it may be explained by showing mis- 
 take or good purpose: 30 Gratt. (Va.) 307. 
 For a husband to distress his wife by 
 avowing dislike, and consorting openly 
 with other women, " free lovers," &c., who 
 avow disbelief in the obligations of mar- 
 riage, is extreme cruelty warranting a d. : 
 40 Mich. 493. The cruelty which war- 
 rants a d. by Illinois Stat, must be grave, 
 dangerous, bodily harm: 88 III. 248. To 
 threaten orally, and by flourishing a pis- 
 tol, to kill one's wife, and to falsely charge 
 infidelity is cruelty warranting a separa- 
 tion: 73 N. Y. 369. Independent of stat- 
 utory grounds of d., marriage may be 
 adjudged void when assent was procured 
 by duress: 6 Baxt. (Tenn.') 297. What 
 degree of habitual intoxication of hus- 
 band will entitle wife to a d. : 126 Mass. 
 205. Condonation is not available unless 
 pleaded: 31 N. J. Eq. 225. Cohabiting, 
 with knowledge, implies condonation, and 
 bars d. : 60 Ind. 259. Decree vacated, not- 
 withstanding a subsequent marriage of the 
 party, on proof that the summons was pur- 
 posely published in a manner to avoid its 
 coming to defendant's notice: 2 Pearson 
 (Pa.), 166. To grant alimony where there 
 is not competent proof of valid marriage, 
 or where recriminatory charges are not 
 controverted, is error of law; and the de- 
 cree may be reversed on appeal: 71 iV. Y. 
 269. Alimony should not be granted to 
 wife on granting husband a d. for her de- 
 sertion: 31 Gratt. (Fa.) 13. Principles on 
 which custody of children should be 
 awarded: '31 N. J. Eq. 343. Abduction 
 by mother of child awarded to father, how 
 punishable: 44 Wis. 411. Obligation and 
 enforcement of recognizance taken from 
 husband for support of his wife and chil- 
 dren: 74 iV. Y. 320. 
 
 DOWER. Release of d. is not a con- 
 veyance of an estate ; it is merely an es- 
 toppel, and operates only in favor of parties 
 
 and privies: 69 Me. 537. Husband need 
 not join in instrument executed by wife to 
 release her d. in land conveyed by him, 
 when her instrument is separate from his 
 deed: 66 Ala. 241. Conveyance of one's 
 lands just before marriage, and unknown 
 to intended wife, not necessarily a fraud 
 upon her d. : 21 Kan. 521. D. in Maine is 
 wholly statutory; eloping in adultery does 
 not bar it, without divorce : 69 Me. 527. 
 Widow prevented by mental incapacity 
 from dissenting, within statute time, to 
 husband's will, may dissent upon recovery: 
 2 Lea (Tenn.}, 78. What agreement by a 
 woman intending marriage will bar d. : 69 
 Me. 247. In proceedings for d. reputation 
 and conduct are sufficient proof of the 
 marriage: 38 Afic/j. 282. 
 
 DRUGGIST. Where a druggist in good 
 faith recommends a prescription, not as his 
 own, but as that of another named person, 
 and thereupon is ordered by his customer to 
 fill it, and does so, charging only for the 
 medicines and for compounding them, he 
 is not responsible to the customer for any 
 damage which may result from the use or 
 administration of the remedy by the lat- 
 ter. The rule applies to filling a recipe 
 or formula for the treatment of a given 
 disease in horses, whether it proceeds from 
 a professional source or only from a com- 
 mon person. Supreme Ct. 1878, Kay v. 
 Burbank, 61 Ga. 505. 
 
 DUTIES. Powers of collector. The 
 provision of Rev. Stat. § 2931, — making 
 the decision £kf the collector of customs of 
 the port wheP merchandise is entered final 
 and conclusive as to the rate and amount 
 of duties on such merchandise, unless the 
 importer pays the amount claimed and duly 
 protests, appeals, and brings suit for its 
 recovery, — applies not only in cases where 
 such collector errs in judgment as to the 
 proper rate and amount of such duties, but 
 also where there are informalities and irreg- 
 ularities on the part of the customs officers 
 respecting the appraisal of such merchan- 
 dise, such as would enable the importer to 
 recover his money back if he had duly pro- 
 tested, appealed, and brought suit therefor. 
 Dist. of Mass. 1879, United States v. Chase, 
 25 Int. Rev. Rec. 161. 
 
 Therefore, although it appeared fhat the 
 collector did not designate on the invoice 
 
 Duties. Unconstitutionality of State tonnage duties, Commekce. Internal revenue tax. Inter- 
 sal KEVENUE. State taxation, Tax. 
 
180 
 
 DUTIES. 
 
 the requisite number of sample bales for 
 examination, nor did the appraisers make 
 proper examination of the merchandise in 
 question, and the said merchandise was in 
 fact erroneously classified to the prejudice 
 of the importer; but the appraiser made a 
 certificate of appraisal in due form, and 
 the collector made final liquidation of the 
 duties on the basis of the appraiser's re- 
 poi-t; and the importer, having already paid 
 the estimated duties, refused to pay the 
 balance demanded, — Held, that in a suit 
 by the government against the importer to 
 recover such balance, the importer could 
 not take advantage of any of the above 
 mentioned defects and irregularities. Ih. 
 
 The entire question of rate and amount, 
 and whether or not it was legally as- 
 sessed and found, must be submitted to 
 and passed on by the secretary. E. Dist. 
 of Pa. 1879, United States v. Lowers, 25 
 Int. Rev. Rec. 405. 
 
 Seizures and forfeitures. Under the 
 detailed regulations for the execution of 
 the General Postal Union Treaty, concluded 
 at Berne, Oct. 9, 1874, and under the stat- 
 utes of the United States and the regula- 
 tions of the treasury and post-office 
 departments, the transmission of a dutiable 
 article by mail from a foreign country, 
 though there be no intent, on the part either 
 of the sender or receiver, to avoid payment 
 of duties, is unlawful, and renders such 
 article liable to seizure by the collector of 
 customs, in the hands of the receiver. 7th 
 Circ. {Wis.) Von Cotyhausen v. Nazro, 25 
 Int. Rev. Rec. 342; 8 Repcrrler, 645. 
 
 In an action to charge a collector per- 
 sonally as for a conversion of an article 
 transmitted by mail which he had seized, 
 the jury returned a special verdict by which 
 they found: 1. That the article in que.stion 
 was sent from a foreign country by mail, 
 enclosed in a sealed envelope, addressed to 
 the plaintiff at Milwaukee, and was trans- 
 mitted by mail thus enclosed to its point of 
 destination. 2. That the contents of the 
 package were disclosed by writing placed 
 upon it by the sender. 3. That the pack- 
 age was received at the Milwaukee post- 
 office, and that the collector of customs 
 was notified of its receipt. 4. That the 
 package was placed in the hands of the 
 plaintiff by a clerk in the post-office, in 
 the presence of the deputy collector, and 
 that she opened it. 5. That the deputy 
 
 collector then seized the article after it was 
 so opened. 6. That the collector there- 
 after caused the article to be appraised by 
 the appraiser for this collection district, 
 and that he refused to surrender it to the 
 plaintiff without payment of the amount 
 of the appraisal. 7. That the article was 
 not sent by mail for the purpose or with 
 intent on the part of the sender or the 
 plaintifl to avoid the payment of duties 
 thereon . On these facts both parties moved 
 for judgment; counsel for plaintiff con- 
 tending that the right to seize depends 
 upon the intent with which the property 
 is imported; and counsel for the collector 
 that the importation was contrary to posi- 
 tive provision of statute, which directs the 
 seizure of all property imported contrary 
 to law ; and as a positive law was violated 
 in importing the article, that fact ren- 
 dered the article forfeited or forfeitable, 
 regardless of intent. Beld, that defendant 
 was entitled to judgment. Whatever may 
 be the necessity of proving actual fraud or 
 guilty knowledge for the purpose of obtain- 
 ing ultimately a judicial adjudication of 
 forfeiture, the article in question was duti- 
 able; its importation through the mails 
 was absolutely forbidden, and therefore 
 unlawful, though the intent of the sender 
 was innocent. By express provision of law, 
 because it was dutiable, and because of the 
 manner in which it was sent, it became 
 the duty of the proper officer, on anival of 
 the article at destination, to seize it if he had 
 reasonable cau.se to believe it to be subject 
 to duty, or to have been unlawfully intro- 
 duced into the United States. The seizure 
 having been effected, the law made the 
 seizing officer the custodian of the prop- 
 erty; and the owner could only reclaim it 
 by payment of the appraised value, or 
 appeal to the secretary of the treasury for 
 relief. Therefore, as the property was 
 seized in conformity with law, and came 
 lawfully in possession of the seizing officer, 
 there was not the wrongful conversion 
 essential to personal liability, lb. 
 
 On the arrival of the steamship " Hansa" 
 at her pier or dock at Iloboken, N. J., cer- 
 tain packages were, without a permit or 
 the knowledge of the customs inspectors, 
 unladen by her officers as the baggage of 
 steerage passengers. The customs officers 
 having there examined the packages, and 
 found them to contain articles subject to 
 
DUTIES. 
 
 181 
 
 duty, so marked them for identification, 
 and sent them to Castle Garden, New York 
 city, for further examination. Upon such 
 further examination at that place, and the 
 failure to pay the duties, the packages were 
 sent to the seizure-room at the custom- 
 house. Held, that the seizure was made at 
 Castle Garden, and not on the pier or dock 
 at Hoboken, and that, there being full 
 proof that the packages were unladen as 
 above stated, the court below did not err in 
 directing a verdict condemning them for a 
 violation of § 50 of the a^t of March 2, 
 1799, 1 Stat, at L. 665. Supreme Ct. 1878, 
 Four Packages v. United States, 97 U. S. 
 40i. 
 
 Where goods are forfeited to the govern- 
 ment for frauds in their importation by 
 means of false invoices, if the government 
 elects to accept their value instead of the 
 goods, it is not bound to take what the 
 fraudulent importer got for them, but may 
 recover their market value. -2(/ Circ. (N. 
 F.)) United States u. York Street Flax- Spin- 
 ning Co, 8 Reporter, 551. 
 
 Eecent enactments. "All works of 
 art, collections in illustration of the pro- 
 gress of the arts, science, or manufactures, 
 photographs, works in terra cotta, Parian, 
 pottery or porcelain and artistic copies of 
 antiques in metal or other material here- 
 after imported in good faith for permanent 
 exhibition at a fixed place by any society 
 or institution established for the encourage- 
 ment of the arts or science, and not in- 
 tended for sale, nor for any other purpose 
 than is hereinbefore expressed, and all such 
 articles, imported as aforesaid, now in 
 bond, and all like articles imported in good 
 faith by any society or association for the 
 purpose of erecting a public monument, and 
 not for sale," allowed to be admitted free 
 of duty. Act of .June 6, 1878, ch. 156, 
 20 Stat, at L. 99. 
 
 " All clothing and other articles, being 
 charitable contributions or the avails of 
 charitable contributions, imported in good 
 faith for the relief or aid of colored per- 
 sons who may have emigrated from their 
 homes to other States, and not for sale, and 
 all such articles imported and now in bond, 
 shall be admitted free of duty," subject to 
 certain regulations and provisos. Act of 
 Congress of March 5, 1880. 
 
 Boundaries of the collection districts of 
 Yorktown and Richmond defined anew. 
 Act of Congress of May 27, 1880. 
 
 Regulations for the immediate transpor- 
 tation of dutiable goods, that is, the priv- 
 ilege of having imported goods carried past 
 the great shipping port of the country to 
 which they may first be brought, directly to 
 the port of destination, without being 
 opened, inspected, assessed, &c., where they 
 first arrive. What record of such impor- 
 tations must be kept. Obligations of car- 
 riers of such merchandise. Attestation 
 abroad of invoices of property intended for 
 immediate transportation. Manner in 
 which such merchandise shall be packed, 
 fastened, &c. , during transportation. List 
 of ports entitled to the privilege of im- 
 mediate transportation. Various amend- 
 ments to the provisions of the Revised 
 Statutes upon the same subject. Act of 
 Congress of June 10, 1880, amend. June 
 14, 1880. 
 
 Kinor Decisions on Duties. 
 
 Repeal of § 3 of act of March 3, 1823 : 97 
 U. S. 546 ; status and relations of customs 
 officers : 14 Ct. of CI. 305. Power of coUec- 
 tors to appoint weighers, gaugers, measur- 
 ers, and inspectors: lb.; and compensation 
 of persons so employed: lb. Collector's 
 salary: Id. 332; and right of action for 
 fees: 76. Duty of collector to pay over 
 moneys received; and liability of himself 
 and his sm-eties therefor: 98 U. S. 584. 
 Who may certify to probable cause for 
 seizure by collector: 14 Blatchf. 289. Sur- 
 veyor's share of fines, &c. . 14 Ct. of CI. 
 305. D. payable on chromo-lithographs : 
 97 U. S. 365; on delaines: 25 Int. Rev. 
 Rec. 168 ; on sago and starch : Id. 149 ; on 
 empty casks refilled: Id. 335; construction 
 of statutes of exemption: Id. 149; oath of 
 importer of unfinished goods: 14 Blatchf. 
 550; omission of goods from manifest: 
 8 Ben. 9. Liability of surety for d. de- 
 pends on bond ; and may be different from 
 that of importer: 98 U. S. 142. Right to 
 recover back excessive d.. 14 Blatchf. 346. 
 Protest must accompany payment: 13 Ct. 
 of CI. 117. Delegation of powers of col- 
 lector to deputy-collector, and obligation of 
 deputy's bond: 51 Tex. 332. 
 
182 
 
 EASEMENT. —ELECTION. 
 
 E. 
 
 EASEMENT. The English doctrine of 
 ancient lights is not in force in Kentucky. 
 Nature of the rule; and history of its 
 adoption or rejection in the various States. 
 Ct. of Appeals, 1878, Ray c. Sweeney, 14 
 Bush {Ky.), 1. 
 
 Nor is it adopted in New Jersey. Chan- 
 cery, 1879, Playden v. Dntcher, 31 N. J. 
 Eq. 217. 
 
 Hinor Decisions on Easement. 
 
 If adjoining owner uses additions made 
 to party wall, owner who built them may 
 claim half the value at that time: 2 Lea 
 {Term.), 213. Grantee of one house and 
 lot has no implied right to use a chimney 
 built on adjoining lot, although the flues 
 are connected: 125 Mass. 287. First ex- 
 ercise of right granted in general terms to 
 lay water-pipes through land of grantor 
 determines extent of the right; grantee 
 cannot afterwards lay a larger pipe. 71 
 JV. Y. 194. Making an erection which par- 
 tially intercepts access of light and air 
 extinguishes the right only to the extent 
 of the interruption: 72 N. Y. 174. 
 
 EJECTMENT. It is allowable, though 
 unusual in American practice, for the gov- 
 ernment of the United States, if interested 
 in the subject-matter of an action, — in 
 this case ejectment for lands held by de- 
 fendant under a sale in confiscation pro- 
 ceedings instituted by government, — to 
 intervene, by means of suggestion by the 
 attorney-general, for the protection of its 
 interest. 5(7; Circ. (Va.) 1878, Lee v. 
 Kaufman, 3 Hugh. 36; 24 Int. Rev. Rec. 
 90. 
 
 Such suggestion does not necessarily vest 
 the court with jurisdiction to render any 
 judgment against the government, but 
 operates to bring to the notice of the court 
 any reason which the law officers of the 
 
 Easement. Grant of, by deed. Deed. By con- 
 tract, Vendor and Purchasek. Particulai- ease- 
 ments, Higuvvay; Party Wall; Private Way; 
 Watercourse. 
 
 Education. In California, p. 60. (^onipulsory, 
 of children, p. 79. Kights of colored cliildren "in 
 public schools, p. 93. 
 
 Ejectment. Eight to real property; Real 
 Property. 
 
 Election. Appointment of civil officers is under 
 
 government may be able to assign why plain- 
 tiff should not prevail. The suggestion is 
 not of itself sufficient to defeat jurisdiction 
 of the court over the cause. The judicial 
 department is independent of the executive 
 represented by the attorney-general. The 
 court must examine the plaintiff's claim, 
 the , defendant's title, and the objection 
 presented by the attorney-general upon the 
 merits. For although the sovereign power 
 cannot be directly sued before its own 
 judiciary without its consent, yet when 
 rights or interests of government are in- 
 directly involved in a controversy between 
 private parties, the courts may decide upon 
 them. lb. 
 
 An estate near Arlington, Va., formerly 
 owned by G. W. C. Lee, and known as Ar- 
 lington, was confiscated for its owner's 
 participation in the Rebellion ; and a part 
 of it was appropriated for a national cem- 
 etery, while the residue came into the 
 occupation of tenants at will of the govern- 
 ment, paying no rent. Held, in ejectment 
 by the former owner against one of the 
 tenants, that the title of the government 
 as dependent on the confiscation, being thus 
 indirectly presented between individuals, 
 might be examined and adjudicated. lb., 
 and p. 108 of 24 Int. Rev. Rec. 
 
 The consideration that the court may not 
 have adequate process to enforce, in every 
 event, the judgment it may render, does 
 not preclude it from rendering such judg- 
 ment as may be proper. lb., p. 110 of 24 
 Int. Rev. Rec. 
 
 ELECTION. Several constitutional 
 changes made during the period covered 
 by the Year Book arc mentioned under 
 the names of the States. Notable 
 among them are the following : — 
 
 In 1879 California adopted a new 
 
 Officer, and titles of particular officers ; of army 
 or navy officers, Arjiy; Navy. Title to a civil 
 office, Officer; and how it may be judicially as- 
 certained. Quo Warranto. "School elections. 
 School. Elections in private or municipal cor- 
 porations, CoRPORiVTioN ; Municipal Corpora- 
 tions. 
 
 Kiglit of suffrage in California decided anew, p. 
 56. Right to vote of former British sub' 
 what is now Maine, p. 88. 
 
ELECTION. 
 
 183 
 
 constitution restating the right of suf- 
 frage with changes by no means insig- 
 nificant, striking out the limitation as 
 to whites, modifying the riglit as to 
 natives of Mexico, asserting the right 
 as to naturalized citizens, and exclud- 
 ing natives of China. Georgia adopted 
 a new constitution in 1877, declaring 
 the right of suffrage in new language, 
 and with material changes. In Indiana 
 the constitutional amendments voted 
 upon in April, 1880, which excited so 
 much attention as proposing to post- 
 pone the election from October to No- 
 vember, also proposed important 
 changes in the conditions of suffrage ; 
 thej' were, by the supreme court, pro- 
 nounced not ratified. 
 
 Among enactments of the various 
 State legislatures are one by Massachu- 
 setts, prescribing specific regulations 
 as to the preparation of ballots ; and 
 one by New York on the same subject ; 
 five laws regulating registration of 
 voters in various localities in New York 
 State ; and a statute in Ohio to repress 
 briber J'. See infra. 
 
 There are two new enactments in New 
 York, embodying measures which, if 
 approved in practical working, might be 
 adopted elsewhere. One is an act " to 
 promote honest elections." It forbids 
 any person to be inspector of election 
 or clerk of the polls unless he can read 
 and write English, and authorizes ap- 
 pointment of " watchers " of election. 
 These are to be appointed, two in each 
 election district, on behalf of each 
 political organization presenting a can- 
 didate. The statute gives them quite 
 distinct authority, and powers to scruti- 
 nize the balloting and count They can- 
 not interfere with or take part in the 
 proceedings, but have a right to witness 
 aU that is done. This law can prob- 
 ably be administered so as to prevent, 
 in great measure, the frauds in count- 
 ing so often practised. It also pre- 
 scribes new and stringent regulations 
 against frauds. The other enactment 
 
 mentioned provides a more expeditious 
 remedy for errors in the count. Here- 
 tofore there has been a difficulty of this 
 general nature, that if the canvassers 
 counted the votes improperlj-, and gave 
 the certificate to the wrong person, the 
 opponent who ought to I'eceive it had 
 no immediate remedy. He could move 
 an action in the nature of quo warranto 
 against the man declared elected, and 
 the courts would decide his right to the 
 votes, and if the term of office lasted 
 long enough, he might, by and by, get 
 in by the judgment. But usually the 
 oflice expired before the lawsuit. By 
 the new law a candidate dissatisfied 
 with the count may apply immediately 
 to the supreme court, and that tri- 
 bunal may issue peremptory orders to 
 the canvassers to correct what they 
 have done, and to give the certificate 
 to the person entitled to it. 
 
 Among recent decisions in this field, 
 a very noteworthy one is that of the 
 United States supreme court sustaining 
 the provisions of the United States 
 Revised Statutes, punishing neglect of 
 duty by officers of election, which have 
 been earnestly contested as unconstitu- 
 tional. The supreme court holds that 
 Congress has power to prescribe such 
 regulations as it thinks necessary, par- 
 tial or complete, over elections for 
 congressmen ; and may authorize the 
 deputy marshals to keep the peace at 
 such elections, even by forcible meas- 
 ures if necessar}^ ; and may punish in 
 the criminal courts violation of its 
 laws. 
 
 The general interest attached to the 
 opinions of the justices of the Maine 
 supreme court upon numerous and 
 complex questions which arose, in Jan- 
 uary, 1880, upon the election and qual- 
 ification of State senators and repre- 
 sentatives, led to the publication of 
 them in full as an appendix to the Ses- 
 sion Laws, in advance of the reports in 
 70 Me. 560. The leading principles are 
 that the real will of the electors is to 
 
184 
 
 ELECTION. 
 
 be sought and ascertained in the can- 
 vass of an election, and must not be 
 defeated by formal irregularities ; that 
 a canvassing board, such as the gover- 
 nor and council of Maine, in ascertain- 
 ing the result, should be governed 
 simplj by the returns, made and laid 
 before them in the manner prescribed 
 by law, and should not seek objections 
 or defects, or receive extrinsic evi- 
 dence, to defeat the will of the electors 
 as manifested by the returns them- 
 selves, reading them in a practical, 
 untechnical, sensible way ; and that 
 erroneous canvass and an award of 
 certificate or summons contrary to the 
 result of the returns when thus read, 
 does not confer title, but the title is 
 founded on the election, not on the can- 
 vassers' decision, to be ultimately as- 
 certained, in the case of members of 
 the representative body, by inquiry and 
 vote of the house to which election is 
 claimed. See these decisions more fully 
 stated, infra. 
 
 Eight of sntfrag'e. A person who is 
 capable of doing ordinary work and trans- 
 acting business, who knows money and its 
 value, makes his own contracts, and does 
 his own trading; or a person vacillating 
 and easily persuaded; or a person who has 
 been laboring under some kind of illusion or 
 hallucination, but not so as to incapacitate 
 him for the general management of busi- 
 ness, which hallucination or illusion is not 
 shown to extend to political matters, — can- 
 not be denied the privilege of the elective 
 franchise on the ground of a want of men- 
 tal capacity. There is no error on the part 
 of canvassers in counting votes cast by such 
 persons, notwithstanding testimony of ex- 
 perts is brought forward impeaching their 
 soundness of mind. Supreme Ct. 1878, 
 Clark V. Robinson, 88 III. 498. 
 
 A pauper remaining at the county poor- 
 house, and sent there from another town- 
 ship, does not acquire a residence in the 
 township in which the poor-house is lo- 
 cated, so as to entitle him to vote in the 
 latter township. Persons under legal dis- 
 ability or restraint, persona of non-sane 
 memory, or persons in want of freedom, 
 
 are incapable of gaining or losing a resi- 
 dence by acts performed by them under 
 the control of others. There must be an 
 act of volition by persons free from restraint 
 and capable of acting for themselves, in 
 order to acquire a change of residence. A 
 person, by being removed from the town 
 to the county poor-house in a different 
 town, does not thereby lose his residence 
 in the town from which he came. lb. 
 
 Where the division of a county into 
 townships is shown by the records of the 
 county, to justify persons residing in one 
 of the towns thus established voting in an 
 adjoining one, it must be shown the boun- 
 daries of the towns have been changed by 
 the board of supervisors according to law. 
 Proof that such persons were assessed in 
 the adjoining town, paid taxes, and worked 
 roads therein, is not .sufficient to show a 
 change. lb. 
 
 New reg'istration laws in Kew York. 
 The following are, substantially, the titles 
 of five recent laws of the New York legis- 
 lature, relating for the most part to regis- 
 tration of voters in various parts of the 
 State, and topics germane thereto. Their 
 intention and proper construction and op- 
 eration are very obscure, and no brief 
 statement of them would be trustworthy. 
 They are of local interest chiefly. 
 
 An act " to ascertain the citizens of the 
 several towns in any county of this State 
 having a population of over 300,000 ac- 
 cording to the last census, who shall be 
 entitled to the right of suffrage therein." 
 1 N. Y. Laws 1880 (April 22), 261, ch. 
 142. 
 
 An act to amend Laws 1872, ch. 570, en- 
 titled " an act to ascertain, by proper 
 proofs, the citizens who shall be entitled to 
 the right of suffrage in the State of New 
 York, except in the city and county of New 
 York and the city of Brooklyn," and to 
 repeal Laws 1871, ch. 572, entitled, &c. 
 1 N. T. Laws 1880 (May 28), 668, ch. 
 465. 
 
 An act to amend Laws 1873, ch. 824, 
 entitled an act to amend Laws 1872, ch. 
 570, § 19, entitled, &c., and to repeal Laws 
 1871, ch. 572, entitled, &c. 1 N. Y. Laws 
 1880 (May 28), 716, ch. 508. 
 
 An act to provide for the appointment of 
 a board of elections and of registers, can- 
 vassers, inspectors, and poll-clerks in the 
 city of Brooklyn, and to fix their compen- 
 
ELECTION. 
 
 185 
 
 sation. . 1 N. Y. Laws 1880 (May 31), 742, 
 oh. 528. 
 
 An act " to ascertain by proper proofs the 
 citizens who shall be entitled to the right 
 of suffrage in cities of 16,000 inhabitants 
 or upwards, and the towns and villages 
 abutting against the boundaiy of any such 
 cities." 1 N. Y. Laws 1880 (June 22), 
 861, ch. 576. 
 
 Ballots ; their nature and requisites. 
 Under a constitutional provision directing 
 that election of judges shall be by joint 
 ballot of the general assembly, the election 
 must be by some manner of voting — such 
 as depositing a ticket or ball in an urn or 
 box — which enables the voter to preserve 
 secrecy as to the vote cast. The privilege 
 of secrecy is essential to vote by ballot, 
 when that word is deliberately and strictly 
 used. An election by viva voce vote is null 
 and void. Supreme Ct. 1877, State v. 
 Shaw, 9 5. C. 94. 
 
 " No person shall print any ballot for 
 use at any election for choice of any na^ 
 tional, state, district, county, city, or town 
 officers, or shall distribute at any such 
 election, any printed ballot, containing the 
 names of more than three candidates, un- 
 less the same are of plain white paper, and 
 in weight not less than that of ordinary 
 printing paper, and are not more than five 
 nor less than four and a half inches in 
 width, and are not more than twelve and 
 a half nor less than eleven and a half in- 
 ches in length, and unless the same are 
 printed with black ink on one side of the 
 paper only, and contain no printing, en- 
 graving, device, or mark of any kind upon 
 the back of the ballot. The names of can- 
 didates shall be printed at right angles 
 with the length of the ballot, in capital 
 letters not less than one eighth nor more 
 than one quarter of an inch in height; and 
 no name of any person appearing upon any 
 ballot as a candidate for any office shall be 
 repeated thereon with respect to the same 
 office. Nothing herein contained shall au- 
 thorize the refusal to receive or count any 
 ballot for any want of conformity with the 
 requirements of this act." Mass. Laws 
 1880 (March 12), 45, ch. 92, § 1. 
 
 Punishment for violation of the above 
 provisions prescribed. Id. § 2. 
 
 Ballots " shall be upon plain white print- 
 ing paper, and without any impression, 
 device, mark, or other peculiarity whatso- 
 
 ever upon or about them to distinguish one 
 ballot from another in appearance, except 
 the names of the several candidates, and 
 they shall be printed with plain black ink." 
 N. Y. Laws 1880 (May 24), 547, ch. 366, 
 §1. 
 
 " Every ballot shall have a caption (as 
 provided by law), but such caption shall 
 be printed in one straight line in black 
 ink, with plain type of the size now gener- 
 ally known and designated as ' Great 
 Primer Koman Condensed Capitals,' and 
 the names of all candidates shall be printed 
 in plain type, with letters of a uniform 
 size." 76. § 2. 
 
 " It shall be unlawful for any person to 
 print, or distribute, or to cast any ballot 
 printed or partly printed contrary to the 
 provisions of this act, or to mark the bal- 
 lot of any voter, or to deliver to any voter 
 such marked ballot for the purpose of 
 ascertaining how he shall vote at any elec- 
 tion." /ft. § 3. 
 
 Violation of any of the above provisions 
 declared punishable by fine and imprison- 
 ment, lb. § 4. 
 
 Any elector may vote any ballot en- 
 tirely written or " any printed ballot, which 
 in outward appearance complies with all 
 the requirements of this act, upon the face 
 of which he has personally made or caused 
 to be made erasure, correction, or insertion 
 of any name by pencil- mark or otherwise." 
 lb. § 5. 
 
 Condnct of elections. Where a sick 
 person is brought in a carriage to the win- 
 dow of a school-house in which an election 
 is held, and reaches out his ballot to one of 
 the judges, who extends his hand through 
 the window, but not being able to reach 
 far enough, a person standing by hands it 
 to the judge, in whose sight it is until re- 
 ceived by him, such person's vote cannot 
 be rejected on the ground of not having 
 been personally given. Supreme Ct. 1878, 
 Clark V. Robinson, 88 III. 498. 
 
 Construction and operation of a statute 
 of New York [Laws 1872, ch. 675, § 13], 
 requiring that in the city of New York 
 inspectors of election shall be appointed 
 by the board of police, and shall be se- 
 lected four for each district, two of them 
 from each political party, — considered 
 with reference to a case presented where 
 the Republican organization and two com- 
 peting Democratic organizations — the 
 
186 
 
 ELECTION. 
 
 Tammany Hall Democracy and Irving Hall 
 Democracy — claimed to be represented; 
 and held that it was the duty of the board 
 to take into consideration only the two 
 dominant political parties into which the 
 people of the State were divided — parties 
 organized and acting on broad State issues 
 — without I'egard to subordinate or infe- 
 rior organizations or factions, whether 
 belonging partially or wholly to either of 
 the great parties, or entirely independent 
 of them; that the board should not look 
 solely to that portion of either of the two 
 parties which supported the entire State 
 ticket and should not exclude from consid- 
 eration a portion of either party which, 
 under a local organization, rejected a single 
 one of the candidates nominated by the 
 State convention. Supreme Ct. 1879, Peo- 
 ple V. Wheeler, 18 Hun (N. Y.), 540. 
 
 " An act to promote honest elections " 
 forbids any person to be inspector of elec- 
 tion or clerk of the polls unless he can read 
 and write English; and ajuthorizes appoint- 
 ment of watchers of election, two in each 
 election district, on behalf of each political 
 organization presenting a candidate; and 
 gives these watchers authority and powers 
 to scrutinize the balloting and count. It 
 also prescribes many stringent regulations 
 tending to prevent fraud in elections. 
 N. Y. Laws 1880 (Mar. 11), 157, ch. 56. 
 
 Majority. The constitution of Indiana 
 provides, in reference to the adoption of 
 amendments thereto, among other things, 
 that " it shall be the duty of the general 
 assembly to submit such amendment or 
 amendments to the electors of the State, and 
 if a majority of the said electors shall ratify 
 the same, such amendment or amendments 
 shall become a part of this constitution," 
 An act of the general assembly, proposing 
 certain amendments and submitting them 
 to the people, at an election when certain 
 officers were to be chosen, provided that 
 " any qualified elector, at the time he votes 
 for officers or, at such election, if he does 
 not vote for any officers, may vote for or 
 against any amendment," and that "if a 
 majority of electors shall then ratify any 
 of said amendments, the same shall be a 
 part of the constitution." No means were 
 provided by the act by which the whole 
 number of votes cast at the election could 
 be ascertained. Under these provisions, 
 proposed amendments of the constitution 
 
 were submitted to the people, — among 
 others one changing the time of the presi- 
 dential election from October to Novem- 
 ber, — at the same time with a general 
 election of officers. They received more 
 than half the votes cast upon the single 
 question of adopting the amendments, but 
 apparently less than half the whole number 
 of votes cast for officers. Upon the ques- 
 tion whether the amendments were adopted, 
 — Held, that it requires at least a majority 
 of all the votes cast at the same election to 
 ratify a constitutional amendment. As 
 the act of March 10, 1879, was defective 
 for not providing for a count of the aggre- 
 gate number of votes cast throughout the 
 State on the day of election, or some means 
 to find out the whole number of votes cast, 
 by which it might be learned what pro- 
 portion of the number cast in favor of the 
 ratification bore to the whole number, 
 there was no source from which the court 
 could ascertain whether the amendment 
 received a majority of aU the votes cast at 
 the election or not. As the amendment 
 was submitted upon the day of general 
 spring elections throughout the State, and 
 as there were, by law, officers to elect at 
 the same in the various counties, It must 
 be presumed that other votes than those 
 for or against the amendment were cast at 
 the same time. From the peculiar ballots 
 used in voting upon the amendment, many 
 electors might have voted " no," or " yes," 
 upon the question of the amendment, 
 which votes would not be counted; such 
 should be counted in estimating the whole 
 number of electors voting. The constitution 
 must remain as it was before the amend- 
 ment was submitted, until it should af^- 
 matively appear that the amendment was 
 ratified. For want of affirmative proof it 
 must be held that the amendment was not 
 ratified by a constitutional majority. It 
 requires a majority of the electors of the 
 State to ratify an amendment to the con- 
 stitution, though the whole number of 
 votes cast at the election at which the 
 amendment is submitted may be taken as 
 the number of electors in the State. Su- 
 preme Ct. 1880, Matter of Constitutional 
 Amendments, 22 Alb. L. J. 147. 
 
 Tlie canvass. The presumption of the 
 legality of a vote in no way depends upon 
 the omission to challenge or object to it, or 
 any presumed knowledge of the judges of 
 
ELECTION. 
 
 187 
 
 election, but it arises from the fact of its 
 having been deposited in the ballot-box. 
 When once deposited it will be presumed 
 to be a legal vote until there is evidence to 
 the contrai-y. Supreme Ct. 1878, Clark v. 
 Robinson, 88 III. 498. 
 
 Thei-e is no warrant of law for rejecting 
 a numbered ballot because it is folded with 
 one that is not numbered, lb. 
 
 Votes of persons of foreign birth, who 
 had only made declaration of intention to 
 become citizens, and who .were duly chal- 
 lenged, should not be counted by the can- 
 vassers. Ih. 
 
 There were two candidates for the office 
 of circuit clerk, one of whom was E. E. 
 Clark. A ballot cast for " E. Clark " for 
 clerk of the circuit court, and another for 
 " Clark " for the same office, were not 
 counted for E. E. Clark. Held, that they 
 should have been counted for him. lb. 
 
 At an election where there were but two 
 candidates for circuit clerk, — E. E. Clark 
 and William E. Robinson, — Held that three 
 votes cast respectively for " W. E. Robso," 
 " Robertson," and " W. E. Robers," for 
 clerk of the circuit court, should be 
 counted for William E. Robinson. On 
 the fourth the name " E. E. Clark," in 
 the printed ballot, was erased, and the 
 
 word " Robin " written on the margin 
 
 of the left of the words " for circuit clerk," 
 with a light mark at the end of the name, 
 half an inch long. Held, that the vote 
 should have been counted for Robinson. 
 lb. 
 
 A ballot at an election had the name 
 of "Clark" written on it, and " W. E. 
 Robinson" printed, with the words "for 
 clerk of the circuit court " erased. Clark 
 claimed that it should have been counted 
 for him: that the person casting it must 
 have mistaken the two lines and have re- 
 erased "for clerk of the circuit court" 
 when he meant to erase the name " W. E. 
 Robinson." Held, that the canvassers 
 were right in declining to indulge such 
 conjecture. There was nothing in the ap- 
 pearance of the ballot to show a mistake : 
 it was a ballot for two persons without 
 designation of the office: it could not be 
 counted for either. lb. 
 _ Under the Illinois statute the vote of an 
 unregistered voter which has been received 
 by the judges of election on his affidavit 
 will not be rejected because the other proof 
 
 of his qualification was made by a person 
 not a householder and registered voter. lb. 
 
 Under the laws of Maine directing the 
 governor and council to ascei'tain by a can- 
 vass of returns what county officers are 
 elected at the general election, they cannot 
 lawfully count the votes in a return which 
 bears the autographic signature of one of 
 the selectmen of the town only, while the 
 names of the other two are written by other 
 hands than their own. Wherever the con- 
 stitution or laws of the State require the 
 official signature of a public officer, he 
 must personally affix his signature or mark ; 
 the duty cannot be executed by attorney, 
 or delegated. [56ilf"e. 90.] 1877, Opinion 
 of the Justices, 68 Me. 587. 
 
 Nor can the governor and council law- 
 fully count the votes of a town, the re- 
 turns of which are not attested by the 
 town-clerk. He is the recording officer; 
 and without his attestation there is no 
 evidence that there has been any vote cast. 
 lb. 
 
 As respects the evidence upon which the 
 governor and council are authorized to act, 
 their power is confined, except in special 
 cases where enlarged powers have been con- 
 ferred by statute, to acting upon legal re- 
 turns duly transmitted [64 Me. 590] . lb. 
 
 The Maine canvass of Nov., 1879. 
 In Maine, when the governor and council 
 decide that there is no return from a city, 
 on which representatives can be summoned 
 to attend and take their seats in the legis- 
 lature, no authority is given to the governor 
 and council to order a new election. If it 
 appears to the House of Representatives 
 that there was an election of representa- 
 tives in fact, they should admit them to 
 their seats, though no return thereof was 
 made to the secretary of state. The rep- 
 resentative is not to be deprived of his 
 rights because municipal officers have 
 neglected their duty. Opinion of the Jus- 
 tices, 1880 (Jan. 3), Me. Laws 1880, 225. 
 
 The governor and council, in perform- 
 ing the duty of determining, from the re- 
 turns from various towns, what represen- 
 tatives are elected, may allow an erroneous 
 return, or one that is informal or defective, 
 to be aided and corrected by an attested 
 copy of the record, as by statute provided. 
 The object of the constitutional provisions 
 respecting elections is to furnish as many 
 safeguards as may be against a failure, 
 
188 
 
 ELECTION. 
 
 either through fraud or mistake, correctly 
 to ascertain and declare the will of the 
 people as expressed in the choice of their 
 officers and legislators. Hence the require- 
 ment that not only shall the return be 
 made on the spot, in open town meeting, 
 but a record of the vote shall be made 
 at the same time and authenticated in like 
 manner. If, by accident, or wilful neglect, 
 there is an error or omission in the re- 
 turn, it is allowable to refer to the dupli- 
 cate statement made in the record to 
 correct it. lb. 
 
 A return signed by less than a majority 
 of the selectmen of a town or the alder- 
 men of a city may be valid. Most cities 
 are required by law to have as many as 
 seven aldermen, and none have less than 
 five. To constitute a quorum it is only 
 necessary to have a majority of the whole 
 number present, and when such a quorum 
 is present a majority of the quorum may 
 transact business. Supposing the number 
 to be seven, four would constitute a legal 
 quorum; and three, being a majority of 
 that quorum, could legally act, although 
 the fourth should refuse to join them or 
 should oppose their action. Consequently 
 if a return from a city having five or 
 seven aldermen is signed by three of them, 
 it may be a valid and legal return, because 
 only four may have been present, and, in 
 such a case, three (being a majority of 
 those present) could legally act, although 
 the fourth should oppose their action and 
 refuse to join them. When such a return 
 is laid befoi-e the governor and council 
 they cannot know, and they have no right 
 to assume, that the return is not valid. lb. 
 
 It is immaterial whether the aldermen 
 returned to the governor and council the 
 detailed vote of each ward separately, or 
 whether they returned the result of all the 
 votes of all the wards for each candidate 
 together. Either mode is a satisfactory 
 way of reaching the same result. Sub- 
 stance only is sought for in such matters. 
 Nor is it a material matter that, instead of 
 returning all the names of persons voted 
 for, there is a return of votes as " scatter- 
 ing," provided that, however such votes 
 may be added or subtracted, some candi- 
 dates, or set of candidates, appear to be 
 chosen by a plurality of the votes thrown. 
 The governor and <!ouncil cannot officially 
 know, nor have they the right to ascertain, 
 
 that the votes returned as "scattering" 
 were not actual ballots, with the word 
 "scattering " written thereon. Nor is the 
 election of candidates to be chosen by a 
 plurality of votes to be defeated because 
 the whole number of votes or ballots may 
 be stated erroneously or not stated at all. 
 Ih. 
 
 Returns from towns and cities which are 
 not attested by the town, plantation, or 
 city clerk, are not valid. The attestation 
 of the clerk is a prerequisite to any action of 
 the governor and council in counting votes 
 [68 Me. 588]. lb. 
 
 The governor and council must act upon 
 the returns forwarded to the secretary of 
 state. If they purport to be made, signed, 
 and sealed up in open plantation or town 
 meeting, they constitute the basis of the 
 action of the canvassing board. No pro- 
 vision is found in the constitution or in 
 any statute of this State, by virtue of which 
 they would be authorized to receive evi- 
 dence to negative the facts therein set 
 forth. They therefore have no such power. 
 The statement of the municipal officers is, 
 in that respect, conclusive, lb. 
 
 A return signed by only two persons, 
 purporting to be the selectmen of a town, 
 may be valid and sufficient evidence of the 
 vote of the town. If the other selectman 
 had deceased prior to the meeting, the sur- 
 vivor might act, and his action would be 
 legal. The canvassing board are to be 
 governed by the returns. Evidence would 
 not be admissible to prove the fact that 
 there were but two selectmen of the town. 
 The governor and council cannot officially 
 know that there are only two. 76. 
 
 A return cannot be rejected because of 
 evidence that one of the persons signing it 
 as a selectman was not at the time a citizen 
 of the United States. Although not a citi- 
 zen, he might be selectman de facto. And 
 evidence outside the return, to impeach his 
 citizenship, is not admissible. lb. 
 
 The governor and council cannot reject 
 returns because of statements therein con- 
 tained showing that some of the ballots 
 received and counted had distinguishing 
 marks, such as are prohibited by the statute. 
 Such marks are ground for rejecting the 
 ballot when it is offered. But when the 
 ballot has once been received in the ballot- 
 box, neither the selectmen nor the governor 
 and council can refuse to count it. lb. 
 
ELECTION. 
 
 189 
 
 It is not good ground for rejecting a re^ 
 turn that, instead of stating against the 
 names of candidates written one under the 
 other, the abbreviations "ditto," "do," or 
 ditto-marks are used to signify that the 
 candidates named underneath received 
 the same number of votes as the one who 
 heads the list. The word " ditto " and its 
 abbreviation, " do," and the dots or marks 
 that stand for the word ditto, are of common 
 use, and have a perfectly well-defined mean- 
 ing, known to persons generally. That 
 meaning should not be disregarded. Ih. 
 
 On what grounds and evidence the gov- 
 ernor and council may reject a return as 
 false or forged. lb. 
 
 When two lists of votes are returned to 
 the office of the secretary of state by the 
 clerk of any city, town, or plantation, and 
 both are duly certified, the return first re- 
 ceived at the office of the secretary must be 
 the basis of the action of the governor and 
 council. If defective, or not a true copy 
 of the record, it can be corrected, or the 
 defects supplied, only in accordance with 
 the provisions of the statutes relating there- 
 to, lb. 
 
 The official returns required from the 
 municipal officers of the several plantations, 
 towns, and cities are not required to be 
 written with scrupulous nicety or technical 
 accuracy, and are not to be set at naught 
 because the penmanship may be poor, the 
 language ungrammatical, or the spelling 
 erroneous. It is enough if the returns can 
 be understood, and, if understood, fuU 
 effect should be given to their natural and 
 obvious meaning. When that meaning is 
 ascertained there should be no hesitation 
 in giving to it full effect. lb. 
 
 The governor and council have no right 
 to summon a person to attend and take his 
 seat in the Senate or House of Representa- 
 tives, who, by the returns before them, 
 was not voted for, or, being voted for, was 
 defeated. To summon one for whom no 
 votes had been cast would be a deliberate 
 violation of official duty. To summon 
 those whom the returns show were not 
 elected would be equally such violation. 
 Either would be intruders without right 
 into a legislative body. The summons 
 thus given would be void, as in excess of 
 any powers conferred by the constitution. 
 Opinion of the Justices, 1880 (Jan. 16), 
 Me. Laws 1880, 247. 
 
 Holders of summonses which are void 
 for the reason that the governor and coun- 
 cil have failed to coiTectly perform the 
 constitutional obligation resting upon them 
 have no right to take a part in the organiz- 
 ation or in any subsequent proceedings of 
 the house to which they are wrongfully 
 certified. They are not in fact members. 
 But the members rightfully elected, as 
 shown by the official returns, and the opin- 
 ion of the court upon the propositions here- 
 tofore by the governor presented to the 
 court, are entitled to appear and act in the 
 organization of the houses to which they 
 belong, unless the House and Senate, in 
 judging of the election and qualification of 
 members, shall determine to the contrary. 
 A member without a summons, who ap- 
 pears to claim his sea^, is prima facie en- 
 titled to equal consideration with a member 
 who has a summons. He is not to be de- 
 prived of the position belonging to him on 
 account of the dereliction of those whose 
 duty it was to have given him the usual 
 summons. The absence of that evidence 
 may be supplied by other evidence of mem- 
 bership. The House and Senate have the 
 same right to consider and determine 
 whether, in the first instance, such persons 
 appear to have been elected, and, finally, 
 whether they were in fact elected, as they 
 have of any and all the persons who appear 
 for the purpose of composing their respect- 
 ive bodies. lb. 
 
 If objection was made to the admissibil- 
 ity of the illegally summoned persons, and 
 the Houses took no action thereon, then 
 an organization of House or Senate would 
 be illegal and void. lb. 
 
 Without a legal organization formed, 
 and legal officers chosen, by seventy-six 
 members, present and voting, in the House 
 of Representatives, and by sixteen mem- 
 bers, present and voting, in the Senate, 
 upon the given measure, no officers can be 
 chosen, or law passed, or business done, ex- 
 cept to adjourn. It is the House or Sen- 
 ate, when formed and organized, that has 
 the power to compel such attendance, and 
 it is not within the power of persons who 
 are merely members elect to do so. The 
 attendance may, under our constitution, be 
 compelled by such penalties as each House 
 may provide. Until a legal organization 
 has been effected, there is no House to pro- 
 vide penalties for such purpose. lb. 
 
190 
 
 ELECTION. 
 
 If objection is seasonably made, votes 
 of persons who, although summoned, do 
 not appear by the official returns lawfully 
 counted to have been elected, cannot be 
 counted in making up a quorum, unless 
 they have been adjudged elected by the 
 House, n. 
 
 The qualifying oaths under the constitu- 
 tion or statute may be administered to the 
 members elect of either branch in any 
 numbers, though a quorum must appear 
 and be qualified before proceeding to elec- 
 tion of speaker; and if the whole number 
 of votes for speaker is less than a quorum, 
 and there is nothing upon the record to 
 show that a quorum was present and act- 
 ing, there would be no election, lb. 
 
 At what precise date the terms of office 
 of the governor and council expire; and 
 how members-elect of legislature may 
 qualify during an interval in which there 
 is no governor or council; and who may 
 be acting governor, and his powers, — see 
 Ih. 
 
 Persons legally elected members of the 
 House of Representatives, and whose elec- 
 tion clearly appears by the returns, if law- 
 fully counted, have the right, notwith- 
 standing no summons has been issued to 
 them by the governor and council (if no 
 other persons have been summoned and 
 claim to sit for the same seats) to take part 
 in the organization, until the House has 
 decided against their claim to do so. lb. 
 
 Circumstances may exist which will jus- 
 tify and render legal an organization of a 
 Senate or House of Representatives, by 
 persons legally elected senators and repre- 
 sentatives, but many of whom have not 
 received a, certificate of election or sum- 
 mons from the governor and council. lb. 
 
 When a person receives a summons as a 
 member of the House of Representatives, 
 and returns the same to the governor, be- 
 fore the assembling of the legislature, and 
 resigns his seat, thereby makes a vacancy 
 in the House which may be filled by a 
 new election. It is necessary to regard 
 such resignation as irrevocable ; for if, when 
 once made, it could be recalled at will, the 
 municipal officers could never know that 
 the seat was vacated by resignation. One 
 who has thus resigned cannot be compelled 
 to attend as a member. Ih. 
 
 In case the official returns of the votes 
 cast for governor should be lost, concealed, 
 
 or inaccessible, by accident or fraud, it is 
 competent to count the votes for governor, 
 by using certified copies of the official 
 record of the several cities, towns, and 
 plantations in the State. Neither the 
 carelessness nor the turpitude of the offi- 
 cers charged with the making or the cus- 
 tody of the returns can be suffered to defeat 
 the will of the people, as expressed in the 
 election, so long as the legislature can 
 ascertain it from the records thus made. 
 lb. 
 
 Organization of the two houses of a leg- 
 islature, in which persons enough in num- 
 ber to form a quorum took part, having 
 severally received a summons from the 
 governor and council so to do, but not 
 having been lawfully elected — the sum- 
 monses being founded upon a method of 
 counting the returns which had been ad- 
 judged erroneous, — declared illegal and 
 invalid. Opinion of the Justices, 1880 
 (Jan. 23), Me. Laws 1889, 264. 
 
 Duties of canvassers, generally. The 
 duties of an ordinaiy board of canvassers 
 are simply ministerial; the board has no 
 disci'etion or judicial power, and cannot 
 decide upon the fact of election in any 
 other manner than by examination of the 
 returns. If some votes are cast for " Leon- 
 ard Clark "and others for "L. Clark," 
 canvassers discharge their duties properly 
 by counting them separately, as they ap- 
 pear upon the ballots or returns, without 
 indulging a conjecture that all were in- 
 tended for Leonard Clark. In the case 
 of a contested election, duly brought be- 
 fore a legislative body or a judicial tri- 
 bunal, evidence of extrinsic facts may 
 be received, such as that there was 
 no Clark who was a candidate except 
 Leonard. Such proof will authorize a tri- 
 bunal clothed witli power to receive it to 
 allow the votes according to the intent of 
 the voters. But a board of canvassers or 
 examiners cannot receive such extrinsic 
 evidence, but is confined to the returns 
 duly presented, and must count them as 
 they appear on their face. Supreme Ct. 
 1879, Clark v. Board of Examiners, 126 
 Mans. 282. 
 
 Under the North Carolina election law 
 of 1877 [loT.s- 1877, ch. 275], the board of 
 county canvassers has no authority to go be- 
 hind the registry of voters or revise the action 
 of the registrars and their associate judges 
 
ELECTION. 
 
 191 
 
 of election, or to discard votes upon ascer- 
 taining that they were cast by persons not 
 entitled to vote. Their power is to canvass 
 only the retui-ns ; not the qualifications of 
 the electors. They may and must deter- 
 mine the authenticity and regularity of the 
 returns themselves; but, when received, 
 these must be counted as importing abso- 
 lute verity, as far as the county canvassers 
 are concerned, in determining the aggre- 
 gate vote and its i-esult. Supreme Ct. 1880, 
 Peebles v. Davie County, 82 N. C. 385. 
 
 — and effect of their decision. As 
 against a person holding an office by virtue 
 of an election for a term of office which 
 has expired, the person so holding over is 
 estopped from denying that his successor 
 was duly elected, when such successor shows 
 that he was declared elected by the proper 
 board of canvassers. He cannot avoid the 
 effect of the decision of the canvassers by 
 simply holding on to the office and claim- 
 ing that the decision of the canvassers was 
 erroneous, or that the electors who cast the 
 votes were not legal electors, or that fraud 
 was practised, which, when investigated, 
 would show a different result. If, in such 
 case, he was a candidate for re-election, he 
 must himself commence proceedings by quo 
 warranto against the party claiming the 
 office, for the purpose of having the judg- 
 ment of the canvassers reversed; and he 
 cannot hold on to the office upon his mere 
 claim that the judgment of the canvassers 
 was erroneous. If he was not a contestant 
 for the office, his duty is to surrender the 
 official papers, records, and moneys to the 
 person duly declared elected, upon his hav- 
 ing duly qualified. Supreme Ct. 1879, La 
 Pointe V. O'MaUey, 46 Wis. 35. 
 
 In a contest of an election, or in a pro- 
 ceeding for the delivery of books and papers 
 pertaining to an office, some effect must be 
 given to the result of an election as declared 
 by the officers who are appointed to ascer- 
 tain and declare in the first instance such 
 result. Whether the duties of the canvas- 
 sers appointed by law for such purpose be 
 ■ministerial only or quasi judicial, the result, 
 as ascertained and declared by them, must 
 be taken to be the true result until the con- 
 trary is made to appear. And when the 
 result of such canvass shows the election 
 of an individual to a particular office, and 
 he qualifies within the time and in the man- 
 ner prescribed by law, he is entitled to the 
 
 office as against every other person laying 
 claim thereto, until the result of the elec- 
 tion so declared is set aside by the judg- 
 ment of some competent court, in a direct 
 proceeding for that purpose. He is not 
 required to institute a proceeding to have 
 the judgment which has already been given 
 in his favor confirmed by the judgment of 
 a court, before he can enter upon the duties 
 of the office. If it be alleged by any one 
 that the result thus ascertained and declared 
 is not the true result, and that there is mis- 
 take, fraud, or illegality, which, when made 
 to appear, will impeach such result, it is 
 for the party charging such mistake, fraud, 
 or illegality, to initiate proceedings to avoid 
 it on that account, and not the duty of the 
 person declared elected to confii'm it by the 
 judgment of a court. lb. 
 
 Revision of canvassers' errors. Ap- 
 plication for a mandamus to compel a board 
 of county canvassers to assemble and re- 
 count the votes cast at a recent election is 
 too late where, since the institution of the 
 action, the board of State canvassers has 
 acted on the returns transmitted to them, 
 and issued a commission to the person 
 elected on the face of the returns. Under 
 such circumstances judicial action in the 
 premises would be whoUy unavailing. No 
 judicial order can change or affect the re- 
 sult. Supreme Ct. 1879, O'Hara v. Powell, 
 80 N. C. 103. 
 
 Supreme court of New York enabled to 
 correct, by mandamus, errors committed 
 by county canvassers in the canvass of 
 elections. iV. Y. Laws 1880 (May 27), 
 662, ch. 460. 
 
 Contest of elections. In a contested 
 election case the revising tribunal should 
 not reject the vote received without chal- 
 lenge or objection nierely because the voter 
 was not registered, but should require 
 affirmative proof that he was not entitled 
 to vote. If the vote of an unregistered 
 person is received by the inspectors or 
 judges, and no challenge is interposed, the 
 presumption is that the person was known 
 to the judges to be a legal voter. [78 III. 
 170.] Supreme Ct. 1878, Kuykendall v. 
 Harker, 89 M. 126. 
 
 A case may arise requiring a court called 
 to determine a contest over an election to 
 reject the entire returns from a district or 
 precinct on the ground of general objections, 
 such as that the ballots counted were not 
 
192 
 
 ELECTION. 
 
 the ones cast, or that the returns have been 
 falsely and fraudulently made. But this 
 ought not to be done for mere irregularities 
 in the proceedings of the election officers ; 
 nor upon suspicion of wilful wrong ; there 
 should be clear proof of fraud tending to 
 vitiate the result as an entirety. Supreme 
 Ct. 1878, Jones v. Caldwell, 21 Kan. 186. 
 
 In what cases excess of ballots avoids an 
 election and warrants ordering another, 
 see Rankin v. Pitkin, 50 Iowa, 313. 
 
 A person by the name of Peter Mason 
 voted at an election . In a contest of the elec- 
 tion a man of that name was called as a wit- 
 ness, whose testimony showed that he was 
 of foreign birth and had never been natural- 
 ized. Held, that, as he was found in the 
 same county, it would be presumed, from 
 the identity of name, that the witness was 
 the person who voted. Supreme Ct. 1878, 
 Clark V. Robinson, 88 111. 498. 
 
 The mode prescribed by act of July 2, 
 1839, the constitution of 1873, and the act 
 of May 19, 1874, for the determination of 
 contested elections, — explained, with ref- 
 erence to the election of a prothonotary. 
 Re Barber, 86 Pa. St. 392. 
 
 The statute {Laws 1874, ch. 37, p. 29), 
 — providing a special mode by which the 
 qualified voters of a county or municipal 
 corporation may contest the result of an 
 election held upon the question whether a 
 corporate subscription shall be made to the 
 stock of an internal improvement company, 
 has not devested the jurisdiction of equity 
 to enjoin an issue of bonds pursuant to a 
 subscription, if the election has not been 
 properly conducted. Ct. of Appeals, 1879, 
 Redd i>. Henry County, 31 Gratt. (Va.) 
 695. 
 
 In the proceeding under the statute, the 
 provisions of the law rnust indeed be pur- 
 sued; but a literal compliance in every 
 particular, however unessential, is not 
 required. Substantial compliance with 
 the law in evei-y essential feature is all 
 that is necessary. The failure to com- 
 ply strictly with the provisions which are 
 not mandatory, but merely direotoiy, will 
 not vitiate the proceedings, so as to render 
 the subscription invalid. Those directions 
 which are not of the essence of the thing 
 to be done, but which are given with a 
 view merely to the proper, orderly, and 
 prompt conduct of the business, and by a 
 failure to obey which the rights of those 
 
 interested will not be prej.udiced, are not 
 commonly to be regarded as mandatory, 
 and if the act is performed, but not in, 
 the time or in the precise mode indicated, 
 it may still be sufficient, if that which is 
 done accomplishes the substantial purpose 
 of the statute, lb. 
 
 The order of the county court directing 
 the sense of the qualified voters to be 
 taken directed the election to be held by 
 the commissioners of election in conformity 
 to law. Though the order does not ex- 
 pressly require the sheriff to act, so far 
 as the agency of the sheriff is rendered 
 necessary by the law, although not named 
 in the order, he is within its operation. Ih. 
 
 The commissioners of election are the 
 body to compute and ascertain the number 
 of registered voters in the county, the 
 number of votes cast at the election, the 
 number voting for and the number voting 
 against subscription. In ascertaining and 
 reporting the number of registered voters 
 in the county, they are to be guided and 
 controlled by the registration books. But 
 where the register had noted on the book 
 the death or removal of a person registered, 
 
 — Held, it was proper to omit his name, 
 from the count. lb. 
 
 Offences. The petition or declaration 
 under Ky. Gen. Stat. ch. 47, art. 2, §§ 1, 2, 
 
 — providing that any money or thing bet 
 upon an election shall be forfeited to the 
 Commonwealth and may be recovered from 
 the winner by any appropriate action in the 
 name of the Commonwealth, — need not 
 aver that defendant bet on the election 
 of a person designated in the petition; or 
 that he has been indicted and convicted 
 of the offence of betting on the election. 
 Ct. of Appeals, 1877, Commonwealth v. 
 Avery, 14 Bush (Ky.), 625. 
 
 Nor is such petition defective because it 
 alleges a bet " on the result of the elec- 
 tion " instead of a bet " on the election," 
 which is the language of the statute. The 
 expressions are substantially synonymous. 
 lb. 
 
 The statute is not unconstitutional in 
 respect of its superadding a civil action to 
 recover the value of the thing won to a 
 fine (of *100), to be enforced by indict- 
 ment. The fine under the indictment and 
 the recovery in the civil action constitute 
 but one punishment, lb. 
 
 A short time before the primary election, 
 
ELECTION. 
 
 193 
 
 Gaston and Drake, who were partners in 
 the practice of law, both being of opinion 
 that, if Drake should be elected district at- 
 torney, their business, both civil and crim- 
 inal, would be greatly increased, agreed 
 that Drake should be a candidate for that 
 office, and that if he were elected, they 
 would share equally the labors and 
 profits. Drake was elected; and Gaston 
 brought suit praying an accounting and 
 his share of the fees of office. Held, that 
 the contract was void as against public 
 policy, on account of its tendency to in- 
 duce Gaston to use influence from self- 
 interest and not for the general good to 
 secure the election. Irrespective of any 
 engagement to use one's influence, the 
 tendency of such a contract is to induce it. 
 Supreme Ct. 1879, Gaston v. Drake, 14 
 Nev. 175. 
 
 An engagement to pay money to a can- 
 didate in consideration that he withdraws 
 in favor of another is void; even though 
 only to reimburse him for expenses. Su- 
 p-erne Ct. 1878, Ham v. Smith, 87 Pa. 
 St. 63. 
 
 Stringent provisions prohibiting and 
 punishing bribery of electors, and any 
 efforts by treating, promises, threats, &c., 
 to influence the vote of any elector. Any 
 candidate for office participating in a 
 violation, declared disqualified for office. 
 Various requests made to candidates with 
 intent that the vote of the person asking 
 shall be influenced by the candidates' con- 
 sent, declared punishable. OJiio Laivs 1879 
 (May 1), 75. 
 
 Provisions in an act entitled " An act 
 regulating elections," providing for the 
 closing of liquor-shops on election day, and 
 for punishment of sales, are not unconsti- 
 tutional because their subject is not ex- 
 pressed in the title. The purpose of such 
 provisions is not the regulation of the 
 liquor traffic, but to preserve the peace at, 
 and promote the security of, elections ; and 
 the provisions are strictly germane to the 
 general purpose of the law. Ct. of Ap- 
 peals, 1879, English v. State, 7 Tex. App. 
 171. 
 
 A statute forbidding sale of liquors on 
 election day includes by the word " day " 
 the period of twenty-four hours beginning 
 at midnight before election morning and 
 ending at midnight of election night. 
 Sales of liquors made in the evening after I 
 13 
 
 the polls are closed are within the pro- 
 hibition. Supreme Ct. 1879, Kane v. Com- 
 monwealth, 89 Pa. 522. S. P. Lawrence 
 V. State, 7 Tex. App. 192. 
 
 Prosecution under Federal laws. As 
 a conviction under Rev. Stat. § 5431, of 
 uttering a counterfeit U. S. security, does 
 not, under the laws of New York, disfran- 
 chise the defendant, it does not warrant an 
 indictment against him for registering 
 preparatory to voting. 2d Circ. (N. Y.) 
 1876, United States v. Barnabo, 14 Blatchf. 
 74. 
 
 Proof that defendant, when offering a 
 naturalization certificate to show his right 
 to vote, knew that it had been issued with- 
 out his attending court or taking an oath, 
 will not warrant a conviction for using such 
 certificate knowing it to have been unlaw- 
 fully issued. 2d Circ. (N. Y.) 1877, United 
 States w. Burley, 14 Blatchf. 91. 
 
 An indictment based on Rev. Stat. 
 § 5520, for conspiracy to prevent by force, 
 &c. , a citizen lawfully authorized to vote 
 from giving his support and advocacy in a 
 legal manner in favor of a lawfully quali- 
 fied person as a member of Congress, need 
 not set out the acts of advocacy and sup- 
 port which the conspiracy was formed to 
 prevent. 5th Circ. (La.) 1878, United 
 States V. Goldman, 8 Woods, 187. 
 
 When poll-books, ballots, and other 
 papers relating to an election have, by 
 virtue of the process of a court of the 
 United States, come into its possession, 
 where they are retained to be used as evi- 
 dence in prosecutions pending in that 
 court, they cannot be taken from its cus- 
 tody by the order of a State court, on the 
 ground that the law of the State places 
 them in the keeping of the inspector of 
 elections. Both the State and the Federal 
 courts have the power to require the pro- 
 duction of ballots, poll-books, and other 
 papers relating to an election, when they 
 are necessary and proper evidence in pros- 
 ecutions for offences of which those courts 
 respectively have jurisdiction, notwith- 
 standing the fact that the State law places 
 their inspection with the election inspector. 
 The court which first obtains, by its pro- 
 cess, possession of papers and documents 
 which are proper evidence in a prosecution 
 pending in such court, has the right to re- 
 tain them until they have been used in 
 evidence, and no other court of concurrent 
 
194 
 
 ELECTION. 
 
 jurisdiction can, without its leave, take 
 them from its custody; or require its oiBcers 
 to produce them before its grand jury. 5th 
 Circ. {Ala.) 1879, Exp. Turner, 3 Woods, 
 603. 
 
 Constitutionality of U. S. legislation 
 over State elections. The provisions of 
 the Revised Statutes punishing neglect of 
 duty by officers of elections for congressmen ; 
 or bribing, interfering with, &c., any super- 
 visor of election, or marshal, or deputy, in 
 respect to his attendance or duties at such 
 election ; and authorizing circuit courts to 
 appoint supervisors , and marshals to appoint 
 special deputies, and prescribing their duties 
 at such elections, being the substance of the 
 enforcement act of May 31, 1870, and the 
 supplement of Feb. 28, 1871, are not uncon- 
 stitutional. The circuit courts have juris- 
 diction of indictments under these laws, 
 and a sentence in pursuance of a verdict of 
 condemnation is lawful cause of imprison- 
 ment, from which this court has no power 
 to relieve on habeas corpus. 
 
 1. This legislation is not unconstitu- 
 tional because not providing a complete 
 system. In making regulations for the 
 election of representatives, it is not neces- 
 sary that Congress should assume entire 
 and exclusive control thereof. Congress 
 has a supervisory power over the subject, 
 and may either make entirely new regula- 
 tions, or add to, alter, or modify the reg- 
 ulations made by the State. In the 
 exercise of such supervisory power. Con- 
 gress may impose new duties on the officers 
 of election, or additional penalties for 
 breach of duty, or for the perpetration of 
 fraud; or provide for the attendance of 
 officers to prevent frauds and see that the 
 elections are legally and fairly conducted. 
 
 2. The exercise of this power by Congress 
 cannot, properly, cause any collision of 
 regulations or jurisdiction, because the 
 authority of Congress over the subject is 
 paramount, and any regulations it may 
 make necessarily supersede inconsistent 
 regulations of the State. This is involved 
 in the power to " make or alter." There 
 is nothing in the relation of the State and 
 the national sovereignties to preclude the 
 co-operation of both in the matter of elec- 
 tions of representatives. If both were 
 equal in authority over the subject, col- 
 lisions of jurisdiction might ensue; but 
 the authority of the national government 
 
 being paramount, collisions can only occur 
 from unfounded jealousy of such authority. 
 
 3. The provision which authorizes the 
 deputy-marshals to keep the peace at the 
 elections is not unconstitutional. The 
 national government has the right to use 
 physical foi-ce in any part of the United 
 States to compel obedience to its laws, and 
 to carry into execution the powers con- 
 ferred upon it by the constitution. 
 
 4. The provisions adopted for compelling 
 the State officers of election to observe the 
 State laws regulating elections of represen- 
 tatives, not altered by Congress, are within 
 the supervisory powers of Congi-ess over 
 such elections. The duties to be performed 
 in this behalf are owed to the United 
 States as well as to the State; and their 
 violation is an offence against the United 
 States which Congress may rightly inhibit 
 and punish. This necessarily follows from 
 the direct interest which the national gov- 
 ernment has in the due election of its 
 representatives, and from the power which 
 the constitution gives to Congress over this 
 particular subject. 
 
 5. It was not beyond the power of Con- 
 gress to vest in the circuit courts the ap- 
 pointment of supervisors of election. The 
 constitution says that " Congress may by 
 law vest the appointment of such inferior 
 officers, as they think proper, in the pres- 
 ident alone, in the courts of law, or in the 
 heads of departments." Considerations a£ 
 propriety may recommend that the appoint- 
 ment of officers whose duties appeitain to 
 one department should not be lodged in an- 
 other ; but the matter is left to the discre- 
 tion of Congress. Supreme Ct. 1S79, Exp. 
 Siebold, 100 U. S. 371. See also Exp. 
 Clarke, Id. 399; United States v. Goldman, 
 3 Woods, 187. 
 
 Revision of registry. " Registration " 
 in Rev. Stat. §§ 2011-2015 — authorizing 
 proceedings, on petition of citizens, to scrut- 
 inize a registration of voters for election of 
 representative or delegate to Congress — is 
 used, not in any technical sense, but in its 
 general meaning of list, catalogue, sched- 
 ide, or register. Any official list of pec- 
 sons made and iutended to be used for 
 identifying voters at an election is subject 
 to the review authorized by the act of 
 Congress. The fact that such list may 
 also be intended for other uses, — as assess- 
 ment of taxes, — aud may contain names of 
 
ELECTION. — EMBEZZLEMENT. 
 
 195 
 
 persons who are not voters, does not pre- 
 vent its being scrutinized under the act. 
 M Circ. (Del.) 1880, Ee Supervisors of 
 Election, 1 Fed. Reporter, 1. 
 
 In Delaware the clerks of the peace are 
 required to furnish to the inspector of elec- 
 tion, on each hundred, — or where a hundred 
 is divided into two or more election dis- 
 tricts, for each election district, — a certified 
 alphabetic list of the names of all the free 
 white male citizens of the age of twenty- 
 one years and upwards, residing and as- 
 sessed in such hundred or election district. 
 Held, that such list is a registration of 
 voters within the meaning of the above 
 sections of Revised Statutes. A list need 
 not be made so as to be conclusive evidence 
 of the right of persons enumerated to vote, 
 m order to bring it within the meaning of 
 the act. lb. 
 
 Powers of national officers. Unless a 
 disturbance of the peace has actually oc- 
 curred, or violence has been committed, or 
 one or the other threatened, or actual fraud 
 is attempted, or the supervisor is in actual 
 need of protection, in the room of the 
 judges of election, a deputy-marshal of 
 election has no right to be in said room, 
 against the orders of the judges of election, 
 during the progress of the voting. But if 
 there be actual disturbance of the peace, 
 or other actual violence committed or 
 threatened, or if the supervisor be in actual 
 need of protection, or fraud be attempted 
 in the said room, then the deputy-marshal 
 may enter the room for the purpose of dis- 
 charging the duties imposed on him by 
 Kev. Stat. § 2022. 4(A Circ. (Va.) 1879, 
 United States v. Gitma, 3 Hugh. 549 ; 7 Re- 
 porter, 361. 
 
 ELEVATOR. A person who desired to 
 insert an advertisement visited the building 
 of the paper, towards midnight, hoping to 
 find some one who, notwithstandingthe late 
 hour, would receive his notice. The count- 
 ing-room, upon the ground-floor, was closed 
 for the night, and the lights in the stair- 
 ways and halls above had been extinguished 
 or turned down. While groping his way 
 upstairs to the composing-rooms, he came 
 in the dark, and unai^ares, upon the doors 
 of the elevator-way, which had been care- 
 lessly left open ; he fell through and was 
 badly hurt. He sued the proprietors of the 
 
 paper, claiming that leaving the doors open 
 and the hall dark was a neglect of their 
 duty to the public. Held, that he could 
 not recover. 
 
 1. It may be that proprietors of a shop, 
 oiBce, or newspaper-room are understood to 
 give a general invitation to customers to 
 visit it, and are bound to keep the premises 
 in good order for their safe-coming, yet 
 this invitation is good only during business 
 hours. Shutting up the business-rooms 
 and turning out the lights is some notice to 
 the general public that business is over for 
 the day, and that their visits are no longer 
 expected or welcome. 
 
 2. If the proprietors were negligent, that 
 did not excuse the advertiser for his care- 
 lessness. Finding no light, he should have 
 turned back and procured one, and might 
 have complained afterward of the neglect; 
 By undertaking to grope through a dark 
 unknown passageway, at midnight, he took 
 the risk of the accidents that might befall 
 him. Supreme Cf. 1879, Parker ». Port- 
 land Publishing Co., 69 Me. 173; 9 Cent. 
 L. J. 108. 
 
 The rule that one of two joint wrong- 
 doers cannot sue the other for indemnity 
 or contribution does not forbid the general 
 tenant of a building, who has been charged 
 in damages in favor of a person falling 
 through an elevator hatch way, from recover- 
 ing an indemnity from the person by whose 
 actual negligence it was left open. In front 
 of a building in Boston there was a hatch- 
 way in the sidewalk, leading into the base- 
 ment. The persons using it, apparently 
 subtenants of the tenant on the ground 
 floor, negligently left it open; in conse- 
 quence of which a traveller upon the side- 
 walk fell and was injured. She sued the 
 general lessee and occupant of the build- 
 ing, and recovered damages, not upon 
 ground of actual negligence, but upon his 
 general relation to the building and re- 
 sponsibility for its condition. Held, that he 
 might maintain an action against the per- 
 sons using the hatchway, and whose neglect 
 to close it caused the accident, to recover 
 reirabui'sement. Supreme Ct. 1879, Church- 
 hill V. Holt, 127 Mai!>!. 16.5. 
 
 EMBEZZLEMENT. The offence. Un- 
 der the law of Texas the offences of 
 theft and embezzlement are now entirely 
 
 Embezzlement. Receipt of deposits by officers I long course of embezzlements by casliier, p. 39; 
 of insolvent banks, p. 33. Directors not liable for I meaning of tlie word, p. 153. 
 
196 
 
 EMBEZZLEMENT, 
 
 separate and distinct. The Penal Code 
 defines embezzlement under two separate 
 heads, the first being the embezzlement or 
 misapplication of public money, and the 
 second the embezzlement of money by 
 private persons, including attorneys who 
 fraudulently apply or convert the money or 
 property of their clients. To constitute 
 embezzlement by a private person it is 
 necessary (1) that the accused occupy some 
 one of several fiduciary relations specified; 
 (2) that the money or property belonged 
 to his principal ; (3) that it came to the 
 possession of the accused by virtue of his 
 fiduciary relation to his principal. An in- 
 dictment rriust sufficiently charge each of 
 these constituents. Ct. of Appeals, 1878, 
 Griffin v. State, 4 Te.x. App. .390. 
 
 The statutes defining embezzlement vary 
 so much in different jurisdictions that the 
 chief guide in determining what constitutes 
 the offence must be the statute of the par- 
 ticular State and the decisions under it. 
 Decisions of other States are to be consulted 
 ■with great caution. History of the stat- 
 ute creating and defining the offence. lb. 
 
 Embezzlement comprises the fraudulent 
 misappropriation or conversion to his own 
 use by a consignee or a bailee, without the 
 consent of his principal or employer, of any 
 money or property of such principal or em- 
 ployer, or of the proceeds of such property 
 after sale. Defendant was indicted for the 
 embezzlement of an organ, which, accord- 
 ing to the evidence, he had leased from the 
 owner, and subsequently pawned for a loan 
 of money. The court below instructed for 
 conviction in case the jui-y found that the 
 defendant embezzled the proceeds of the 
 organ. Held, that the charge was erro- 
 neous, because the defendant was not in- 
 dicted for embezzlement of proceeds, but 
 of the property itself; and also because, 
 under the statutory definition of the offence, 
 embezzlement cannot consist in the con- 
 version of proceeds of trust property, other 
 than such proceeds as have accrued from 
 the sale of it. Cl. of Appeals, 1879, 
 Baker v. State, 6 Tex. App. 344. 
 
 The statutorj' offence of embezzlement 
 originated in a necessity which resulted 
 from the inapplicability of the common law 
 of larceny to breaches of trust by persons 
 occupying fiduciary relations. All author- 
 ities treat it as akin to larceny, and tlie 
 Code of Texas affixes the same penalty to 
 
 the two offences. Concisely defined, it is 
 the fraudulent appropriation of another's 
 personal property by one to whom it has 
 been entrusted. The fraudulent conversion 
 may be consummated in any manner capar 
 ble of effecting it; and its commission is a 
 question of fact, and not of pleading, when 
 the indictment charges that the defendant 
 did embezzle, fraudulently misapply, and 
 convert to his own use the property en- 
 trusted to him. Ct. of Appeals, 1879, 
 Leonard v. State, 7 Tex. App. 417. 
 
 — under recent statutes. An Indiana 
 statute defining anew the crime of embezzle- 
 ment and its punishment extends them to 
 attorney s-at-law as follows: "Any attor- 
 ney-at-law, or person engaged in making 
 collections for others, who, having money 
 or other thing of value jn his possession 
 or under his control, received for his or her 
 client or employer, shall refuse to pay over 
 or deliver the same to his or her client or 
 employer, or the person or persons by them 
 designated to receive the same, less the 
 charges thereon, on reasonable demand^ 
 shall be deemed guilty of embezzlement," 
 punishable by fine or imprisonment. Ind. 
 Laios 1879, (March 21), 126, ch. 48. 
 
 "Every conductor, clerk, or other em- 
 ployee of a railroad company who shall in 
 the course of his employment come into 
 possession of a local or coupon railroad 
 ticket, and shall sell or barter the same, 
 give the same away, or appropriate the 
 same to his own use, with the intent to 
 defraud the railroad company," shall be 
 deemed guilty of embezzlement, and be 
 punishable by fine or imprisonment. Ind. 
 Laws 1879 (March 29), 127, ch. 49, § 1. 
 
 Indictment. An indictment for em- 
 bezzlement which charges the offence 
 substantially in the language of the act 
 prohibiting it and prescribing the punish' 
 ment is good. And if it contain several 
 counts, the fact that one (or more) of them 
 is defective upon its face, or has been re- 
 jected by the grand jury, will not vitiate 
 the residue, if there be any which are good. 
 Quarter Sessions, 1S64, Commonwealth o. 
 Hill, 2 Pearson (Pa.), 432. 
 
 Indictment for embezzlement charged 
 that the accused was agent for a certani 
 incorporated express company, and that, as 
 such, he received $10,000 to be transported 
 to a consignee at St. Louis; but further 
 alleged that the money belonged to a certain 
 
EMBEZZLEMENT. — EMINENT DOMAIN. 
 
 197 
 
 bank; and neither stated that the express 
 company had any property in the money, 
 nor that any fiduciary relation existed be- 
 tween the bank and the accused. Held, 
 that the indictment was fatally defective 
 in substance, necessitating the reversal of 
 the conviction and the dismissal of the 
 case. Ct. of Appeals, 1878, Griffin v. State, 
 4 Tex. App. 390. 
 
 An indictment for embezzlement under 
 Rev. Stat. § 5209, should show the facts 
 relied upon as constituting the offence. 
 To use the word "embezzle" alone, is 
 not enough ; for this is not a word of def- 
 inite common-law meaning, but is used in 
 the statutes to designate a variety of crimes 
 which a person has the opportunity to com- 
 mit, by reason of his being in some office 
 or confidential employment. 1st Circ. 
 (Mass.) 1879, United States v. Conant, 9 
 Cent. L. J. 129. 
 
 Defences. Where a party charged with 
 embezzlement was, at the time of commit- 
 ting the offence, in the actual employment 
 of the person or corporation whose property 
 was embezzled, the question whether he 
 was directly hired by that person or cor- 
 poration, or not, is unimportant. If he was 
 employed for it, and by virtue of such em- 
 ployment i-eceived the money and fraudu- 
 lently embezzled it, he may be convicted. 
 Quarter Sessions, 1864, Commonwealth v. 
 Hill, 2 Pearson (Pa.), 432. 
 
 It is not a defence to an indictment for 
 embezzlement of cotton, the property in 
 which is laid in a national bank, to show 
 that under the national banking law such 
 a bank is incapacitated to own personal 
 property of that description. Ct. of Ap- 
 peals, 1879, Leonard t. State, 7 Tex. App. 
 417. 
 
 EMINENT DOMAIN. Under the con- 
 stitution of Illinois, the property and fran- 
 chises of incorporated companies may be 
 subjected to public necessity, as well as the 
 property of individuals; and the exercise 
 of the right and power of eminent domain 
 can never be so construed or abridged as to 
 prevent the general assembly from appro- 
 priating such property, where the public 
 exigency demands it. Whatever exists in 
 any form, whether tangible or intangible, 
 is subject to the exercise of this power. 
 
 Eminent domain. Condemnation of lands for 
 particular purposes is also mentioned under such 
 titles as Canal; Highway; Kailkoad; Tukn-' 
 
 The interest a city railway company may 
 have in certain streets, derived by contract 
 with the city prohibiting their use by any 
 other company, is no part of the company's 
 franchise, but is in the nature of prop- 
 erty, and is an incorporeal right. A fran- 
 chise emanates from the sovereign power 
 of the State alone. Property, in its broadest 
 and most comprehensive sense, includes all 
 rights and interests in real and personal 
 property, and also in easements, franchises, 
 and incorporeal hereditaments. Supreme 
 Ct. 1877, Metropolitan City Ry. Co. v. 
 Chicago, &c. Ry. Co., 87 III. 317. 
 
 The mortgagor, and not the mortgagee, 
 of land taken for a public improvement is 
 the " owner " who is entitled to notice and 
 an opportunity to claim compensation. Ct. 
 of Errors, 1877, Whiting v. New Haven, 
 45 Conn. 303. 
 
 A statute authorizing a city to order the 
 owners of lands to fill them to a certain 
 grade, to abate a nuisance, and providing 
 that, on failure to comply with the order, 
 the mayor and aldermen may raise the 
 grade thereof, and the expense incurred 
 shall be a lien on the land filled ; that any- 
 one dissatisfied with the assessment of the 
 expense of raising the grade may, within 
 a certain time after notice of the same, 
 give notice to the mayor and aldermen of 
 his dissatisfaction, " and the city shall 
 thereupon take said land, and shall within 
 sixty days file in the registry of deeds " a 
 description of the same, and a statement 
 that it is taken under the provisions of the 
 act; and that a person whose land is taken 
 may have a trial by jury " to determine the 
 damage so done him, making due allowance 
 for the improvement by raising the grade 
 of such land," — is not unconstitutional be- 
 cause it does not allow damages for the 
 loss and inconvenience occasioned by the 
 proceedings of the city, in filling the land 
 before the title was taken, and by the de- 
 lay in making the assessment. The statute 
 is not passed under the right of eminent 
 domain, but under the police power. Laws 
 passed in the legitimate exercise of this 
 power are not obnoxious to the constitu- 
 tional prohibition, merely because they do 
 not provide compensation to the individual 
 who is inconvenienced by them. He is 
 
 PIKE, &c. Power of municipal corporations to 
 take land for improvements is under Municipal 
 
 CoiiPOKATION. 
 
198 
 
 EMINENT DOMAIN. — EQUITY. 
 
 presumed to be rewarded by the common 
 benefits secured. Supreme Ct. 1880, Ban- 
 croft B. Cambridge, 126 Mass. 438. 
 
 A State law purporting to authorize the 
 manager of a railroad owned by the Com- 
 monwealth to take land for a passenger 
 station for the use of that and other rail- 
 roads, and providing no other mode of 
 compensation to the owner of the land so 
 taken than that such land shall be paid for 
 from the earnings of the railroad owned by 
 the Commonwealth, is unconstitutional, 
 even if such earnings will probably be 
 sufficient to meet all claims for land dam- 
 ages. The owner of the land taken may 
 have a writ of prohibition to the county 
 commissioners to prevent them from pro- 
 ceeding. Supreme Ct. 1879, Connecticut 
 River R. R. Co. v. Franklin County, 127 
 Mass. 50. 
 
 A law imposing an assessment upon 
 lands for a local improvement, without 
 giving to the owner of the property notice 
 and an opportunity to be heard, is uncon- 
 stitutional and void. It is taking property 
 without due process of law ; for notice and 
 a hearing are essential to " due process." 
 To prescribe the kind and manner of the 
 notice is discretionary with the legislature ; 
 but to afford some reasonable notice and 
 opportunity for a hearing is indispensable. 
 The facts that the owner may have had 
 notice by accident, or may have had a 
 hearing as a favor, or that the assessment 
 has in fact been fairly made, are not sufii- 
 cient. The law must require notice and 
 give the right to a hearing. Ct. of Ap- 
 peals, 1878, Stuart v. Palmer, 74 N. Y. 
 183. 
 
 ninor Decisions on Eminent Domain. 
 One street-railroad company may be au- 
 thorized to use the track of another com- 
 pany, on making compensation: 72 N. Y. 
 330. Power of canal commissioners to use 
 lands contiguous to canal, or to take mater- 
 ials from them, when necessary in making 
 extraordinary repairs: 71 /rf. 276. Intei-- 
 fering with riparian owner's access to land- 
 ing from navigable waters, by building 
 railroad in front of his lot, is not taking 
 his private property: 125 Mass 253. In- 
 directly impairing usefulness or value of 
 
 Equity. Minor decisions on accounting, p. 32. 
 Enforcement of charitable use, p. 77. Wlien Circuit 
 court can entertain a bill to revise a State judg- 
 
 property is not " taking" it: 99 U. S. 635. 
 A chattel which the owner offered to sell 
 but refused to let, if afterwards appro- 
 priated to government use, must be con- 
 sidered property taken ; the owner cannot 
 be required to take it back with compensa- 
 tion for use: 14 Ct. of CI. 84. Principles 
 of estimating or valuing property taken: 
 98 U. S. 403. When Federal courts may 
 entertain a suit involving question of exer- 
 cise of e. d. by a State: Id. 403. Neces- 
 sity of taking land for erection of workshops, 
 &e., may be contested in proceedings to 
 condemn it: 53 Cal. 223. In defence of 
 such proceedings the legal existence of 
 company may be controverted: 72 N. Y. 
 245. A statute authorizing lands to be 
 occupied for purposes of general drainage 
 is not unconstitutional; this is a pubUe 
 use: Id. 1. Inchoate right of dower does 
 not effect condemnation of lands; but if 
 husband has deceased, widow may claim 
 compensation: 69 Me. 537. Giving land- 
 owner revocable facilities for crossing 
 and drainage, across strip of land taken, 
 does not diminish his compensation: 125 
 Mass. 1. Mortgagee out of possession 
 not entitled to join in proceedings for land 
 damages: 126 7rf. 1. When improvements 
 made after possession taken may be em- 
 braced in award: 31 N. J. Eq. 31. 
 
 EQUITY. How to discriminate between 
 legal and equitable remedies in Federal 
 courts ; 99 U. S. 378. Jurisdiction of 
 Arkansas supreme court to entertain a 
 bill of review : 33 Ark. 161. E. does not 
 interfere with collecting tax for iiTegu- 
 larities in the proceedings not affecting 
 the substantial results : 1 Dak. T. 131. 
 Unless necessary to prevent multiplicity 
 of suits, a bill of peace will not be enter- 
 tained until complainant has established 
 his title at law: 30 N. J. Eq. 135. Though 
 e. is the proper tribunal, yet, if the law of 
 the State gives an action at law on a stock- 
 holder's individual liability, a circuit court 
 may entertain such action between citizens 
 of different States: 99 U. S. 25. A court 
 of e. may compel a person within its juris- 
 diction to do an act, such as signing a 
 deed, affecting the title to lands outside 
 the jurisdiction : Id. 298. E. may enter- 
 tain a biU to adjudicate the relative rights 
 
 ment, p. 84. Equitable jurisdiction of Federal 
 courts, p. 131. Equity practice preseived in Fed- 
 eral courts, p. 131. 
 
EQUITY. — ESTOPPEL. 
 
 199 
 
 under their charters of two corporations to 
 use waters of the same stream ; and may 
 enjoin suits at law - 30 N. J. Eq. 145. E. 
 may enforce payment of insurance where 
 there was a complete contract for a policy, 
 ■but the loss occurred before the policy was 
 delivered: 31 Gratt. (Va.) 862. E. may 
 compel a manufacturing company to trans- 
 fer shares on its books : 76 N. Y. 365. 
 One asking relief from judgment at law 
 must show both a good defence and a good 
 reason for omitting to make it at law : 55 
 Miss. 823. A mistake apparent on the 
 face of the deed — here, want of seal and 
 granting clause — may be reformed with- 
 out extrinsic proof : 69 Mo. 442. E. may 
 aid transferee of negotiable instrument, 
 who holds by delivery for consideration, 
 where formal indorsement in writing was 
 omitted by accident : 29 N. J. Eq. 547. 
 Whatever the form, any writing clearly 
 appropriating money or property to a par- 
 ticular person is, in e., an assignment : 30 
 Id. 171. One named trustee in trust of 
 doubtful validity may file bill to ascertain 
 his powers and duties ; and it is not a bill 
 of interpleader between grantor and bene- 
 ficiaiy : 11 S. C. 56. Courts of e. follow 
 the statutes of limitation, and, independent 
 of those statutes, dismiss claims which 
 have become stale : 99 U. S. 201. 
 
 ERROR. To warrant the supreme court 
 in entei'taining a writ of error to a circuit 
 court to revise a judgment for a less amount 
 than $5,000, upon the ground of the collat- 
 eral effect the judgment may have in an- 
 other action, it must appear that the judg- 
 ment conclusively settles the rights of the 
 parties in a matter actually in dispute, the 
 sum or value of which exceeds the required 
 amount. To show this aflBrmatively de- 
 volves on the plaintiff in error. Prima 
 facie, the amount of the judgment against 
 a defendant in an action for money deter- 
 mines the supreme court's jurisdiction in 
 his behalf until the contrary is shown. Su- 
 preme Ct. 1877, Troy v. Evans, 97 U. S. 1. 
 
 Action to recover proceeds of goods sold 
 for non-payment of internal revenue tax 
 was held an action to enforce a revenue law 
 
 Error. Jurisdictional amount on appeal, p. 24. 
 Transmission of original exhibits disapproved, p. 
 24. Jurisdiction of circuit court on writ of error 
 defined anew, p. 85. 
 
 Estoppel. No estoppel in notable cases of 
 altered bill or note, p. 20. Bank not bound bv 
 a cashier's oral promise, p 36. A national bank 
 
 and reviewable on error, though the sale 
 was by a special agreement. Supreme Ct. 
 
 1878, Pettigrew v. United States, 97 U. S. 
 385. 
 
 Interest and costs are disregarded in 
 ascertaining the amount in dispute for the 
 purposes of a writ of error to the supreme 
 couit of the District of Columbia. Supreme 
 Ct. 1879, Railroad Co. v. Trook, 100 U. S. 
 112. 
 
 If plaintiff's demand and the judgment 
 below are for moi-e than the jurisdictional 
 sum, yet, if defendant disputes only a por- 
 tion which is less than that sum, there is 
 no appellate jurisdiction. Supreme Ct. 
 
 1879, Tintsman v. National Bank, 100 
 U. S. 6. 
 
 A writ of error does not bring up an ap- 
 plication for a new trial made upon the 
 ground of alleged disqualification of the 
 judge before whom the cause was tried. 
 Ct. of Appeals, 1879, Hunt v. People, 76 
 N. V. 89. 
 
 Where the accused is entitled to a writ 
 of error as of right, if the proceedings be- 
 low cannot be revised because original pa- 
 pers needful have been stolen from the 
 clerk's office, there must be a rever- 
 sal. Supreme Ct. 1877, State v. Reed, 67 
 Mo. 36. 
 
 After a conviction has been reversed upon 
 writ of error in consequence of erroneous 
 instructions to the jury on the trial, it will 
 no longer prevent a second trial on the 
 same indictment. Ct. of Errors, 1879, 
 Smith V. State, 41 N. J. L. 598. 
 
 ESTOPPEL. Only matter in writing 
 can give rise to an e. affecting the title to 
 lands in a court of law : 57 Ala. 193. De- 
 cision of commissioners in insolvency does 
 not operate like a judgment, as an e. : 45 
 Conn. 22. Party must have acted on the 
 faith of a representation to enable him to 
 claim an equitable e. : 31 N. J. Eq. 583. 
 Owner who with full knowledge stands by 
 and permits land to be sold, without assert- 
 ing his claim, is estopped : 33 Ark. 465. 
 Purchaser of land who has assumed prior 
 mortgage cannot dispute it: 74 N. V. 88. 
 Persons who have assumed a corporate 
 
 bound by cashier's receiving special deposit, p. 36. 
 Municipality estopped by recitals in negotinbla 
 bonds, p. 51. Claimant not estopped bj; memo- 
 randa in the department, p. 94. Receiving pay- 
 ment is, p. 95. What dedication of lands to pub- 
 lic uses is, pp. 143, 144. Circumstantial evidence 
 in case of homicide, p. 231. 
 
200 
 
 ESTOPPEL. — EVIDENCE. 
 
 name and contracted as a corporation will 
 not be allowed to deny corporate liability : 
 4 Mo. App. 429. Stockholders are es- 
 topped from disputing a corporate con- 
 tract, made by the directors, of which the 
 corporation has had and retains the bene- 
 fit : 97 U. S. 13. Stockholder cannot 
 impeach stock issued in exchange for prop- 
 erty while corporation retains the property: 
 69 Mo. 611. A city will be estopped from 
 alleging irregularities in proceedings of 
 their officers, by which the city has prof- 
 ited, if there were competent power and 
 jurisdiction : 73 N. Y. 238. County can- 
 not dispute recitals in its railroad bonds 
 showing an election in favor of the subscrip- 
 tion for the purpose of defeating the recov- 
 ery by a honajide purchaser: 99 U. S. 636. 
 A State cannot be estopped; hence its ac- 
 ceptance of a bonus from a corporation 
 does not preclude it from disputing the 
 corporate existence: 2 Pearson {Pa.), 374. 
 The doctrine does not run against the gov- 
 ernment founded upon acts of its officers; 
 or upon legal proceedings against it resting 
 on their consent: 98 U. S. 433. 
 
 EVIDENCE. Judicial notice. Where 
 countries have been acquired by the United 
 States, its courts take judicial notice of the 
 laws which prevailed there up to the time 
 of such acquisition. Such laws are not 
 foreign, but those of an antecedent gov- 
 ernment. Supreme Ct. 1878, United States 
 V. Perot, 98 U. S. 428. 
 
 The court will take judicial notice of 
 things in the common knowledge and use 
 of the people through the country, and 
 may adjudge a patent void for want of 
 novelty, or without specific proof that the 
 thing patented has long been in general 
 use. Supreme Ct. 1878, Terhune v. Phil- 
 lips, 99 U. S. 592. 
 
 The court of claims will take judicial 
 notice of the leading and controlling events 
 in the history of the country and of the 
 official relations of the principal actors 
 therein to the government; and, of opera- 
 tions of the army and navy of the United 
 
 States in the conquest of California, and 
 immediately subsequent thereto, and the 
 action of the executive and legislative 
 branches of the government thereon, so far 
 as they were of a public nature. Applica- 
 tion of this principle in determining effect 
 of official acts of Fremont. 1877, De Celis 
 V. United States, 13 Ci. of CI. 117. 
 
 Courts take judicial cognizance of the 
 territorial extent of the sovereignty and 
 jurisdiction exercised by their own govern- 
 ment, and of the political subdivisions of 
 their country, and their relative positions, 
 though not of their precise boundaries, 
 otherwise than as defined by public stat- 
 utes. But whether a particular locality is 
 or is not within a particular county is not 
 a fact judicially known to the courts. Ct. 
 of Appeals, 1879, Boston v. State, 5 Tex. 
 App. 383. 
 
 Burden of proof. The doctrine as to 
 the bui'den of proof of the defence of in- 
 sanity in criminal cases is this. The sanity 
 of the accused is presumed, and the prose- 
 cution may in the first instance rest upon 
 that presumption. The burden of over- 
 throwing the presumption and of showing 
 insanity is upon the defence. If evidence' 
 is introduced by the defence tending to 
 establish insanity, then the general ques- 
 tion is presented to the court and jury 
 whether the act complained of was com- 
 mitted by a person responsible to the crim- 
 inal law. Upon this question the pre- 
 sumption of sanity and the evidence are 
 all to be considered, and the prosecution 
 holds the affirmative; so that if a reason- 
 able doubt exists whether the prisoner was 
 sane or not, he is entitled to the benefit of 
 the doubt and to an acquittal. Ct. of Ap- 
 peals, 1878, Brotherton v. People, 75 N. Y. 
 159. Consult Crime. 
 
 Confessions and admissions. Confes- 
 sions are divided by elementary writers 
 into two classes: (1) Judicial confessions, 
 made before a magistrate or court, in the 
 course of legal proceedings ; and (2) extra- 
 judicial confessions, or those made else- 
 
 Estray. Constitutionality of laws of, p. 22. 
 
 Evidence. Testimony of accomplice as state's 
 evidence, pp. 9, 10. Detective not an accomplice, 
 p. 9. Corroborating accomplice, p. 11. Effect of 
 treasury transcripts, p. 11; of other accounts, p. 
 12. Evidence of adulteration of food, p. 15; of 
 adultery, p. 16 : of advancement, p. 16. Kemarka- 
 ble case of evidence of adverse possession, p. 17. 
 Proof of alibi, p. 19. Manufactured by attorney to 
 
 obtain a divorce, p. 32. Inspecting forged cheeks' 
 by magnifying glass, p. 35. Failure of bank 
 prini&J'ncie evidence of msolvency through previ- 
 ous thirty days, p. 36. Of special contract between 
 shipper and carrier, p. 74. Under civil damage 
 law, p. 89. Evidence in Federal courts, p. 132. 
 Evidence of intent, p. 135 ; of insanity, p. 135 ; of 
 death, p. 142 ; meaning of the word, p. 154. 
 
EVIDENCE. 
 
 201 
 
 where than before a court or magistrate. 
 This latter class embraces, not only ex- 
 press confessions, but also all admissions 
 from which guilt may be inferred. In rul- 
 ing upon the admissibility of a confession 
 of the latter class, the material inquiry is 
 whether it was made voluntarily, or was 
 obtained by the influence of hope or fear, 
 of a temporal nature, applied by a third 
 person to the prisoner's mind. This in- 
 quiry is for the determination of the judge 
 presiding at the trial, in view of the age, 
 situation, and character of the accused, 
 and of the circumstances imder which the 
 confession was made. Ct. of Appeals, 
 
 1878, Speer v. State, 4 Tex. App. 474. 
 
 In important criminal trials, if the pros- 
 ecution resorts to confessions of the accused 
 as evidence against him, great care should 
 be exercised lest, in the mode of obtaining 
 the confession or in the use made of it, in- 
 justice be done the accused. The entire 
 statement of the accused, embodying the 
 confession or admission relied on, goes to 
 the juiy; but they are not bound to give 
 equal credence to all portions of the state- 
 ment. It is for them to determine, in 
 view of all the circumstances of the case, 
 what parts they will believe. Ct. of Ap- 
 peals, 1878, Riley v. State, 4 Tex. App. 538. 
 
 Confessions made freely, without com- 
 pulsion or persuasion, are entirely compe- 
 tent, and may serve both as a confession 
 of guilt and as evidence of the animus with 
 which the act was done. Ct. of Appeals, 
 
 1879, Pocket v. State, 5 Tex. App. bb\i. 
 No inflexible rule controls the admission 
 
 of a subsequent confession made after a 
 previous one was induced by improper in- 
 fluence. In such cases the inquiry is 
 whether, in view of all the circumstances, 
 the improper influence had been so ex- 
 purgated as to remove all doubt of the 
 spontaneity of the last confession. If this 
 admits of a doubt, the confession should 
 be excluded. Ct. of Appeals, 1879, Walker 
 V. State, 7 Tex. App. 245. 
 
 Presley being put on trial for placing an 
 obstruction on a railroad track, the chief 
 evidence offered against him was proof of 
 a confession obtained from him by a detec- 
 tive. It appeared that the detective, being 
 employed for the purpose, visited Presley, 
 and hinted to him that he, the detective, 
 had lost property by the railroad company, 
 and "wanted to get even with it;" and 
 
 asked him, in effect, where would be a 
 good place to wreck a train. Presley des- 
 ignated a place. The detective asked him 
 how he knew. He answered, because he 
 had tried it; and in further conversation 
 he described the whole process by which he 
 had arranged the obstruction to throw the 
 train off the track, afterward described in 
 the indictment. For the defence objection 
 was made that the confession, thus ob- 
 tained, was not voluntary within the sense 
 of the law. Held, that it was competent 
 evidence. The false impression made upon 
 his mind by the detective that the latter 
 was about to cooperate with him in repeat- 
 ing the offence did not prevent the con- 
 fession from being deemed voluntary. Su- 
 preme Ct. 1877, Presley v. State, 59 Ala. 98. 
 
 After the arrest of a clerk, nineteen yeais 
 old, for larceny of his employer's goods, 
 and while out on bail, the employer said to 
 him, " I am satisfied there are other re- 
 ceivers whom we have not yet discovered. 
 I should like to have you make a clean 
 breast of this matter;" and the clerk there- 
 upon made a confession. Held, that the 
 words contained by the employer contained 
 no promise or threat ; and that the confes- 
 sion was admissible in evidence against 
 the clerk on his trial for the larceny. 
 Prima facie, all confessions are voluntary, 
 and it is for the party objecting to their 
 admission as evidence to show that they 
 were uttered under such pressure of hope 
 or fear as to raise a doubt of their accuracy. 
 The fact that a defendant may think it 
 will be better for him if he confesses, or 
 thinks it will be worse for him if he does 
 not confess, is immaterial, if that condition 
 of mind is brought about by his own inde- 
 pendent reasoning. It is when that state 
 of mind is induced by promises or threats, 
 or other inducement from without, that the 
 confession is to be rejected. In this case 
 there was no promise or threat; there was 
 at the most only an implied belief that the 
 accused was guilty and a desire that he 
 should tell what he knew. Supreme Ct. 
 1878, Commonwealth v. Sego, 125 Mass. 
 210. 
 
 A person employed by the proprietor of 
 the Biddle House, in Detroit, to take charge 
 of and manage the kitchen and dining- 
 room of the house through the winter sea- 
 son brought suit against the proprietor and 
 employer, claiming that the latter had pre- 
 
202 
 
 EVIDENCE. 
 
 vented his properly performing the contract 
 on his part by interfering with the manage- 
 ment of plaintiff's department and breaking 
 up his arrangement. Among other evidence 
 of such interference he offered a letter writ- 
 ten by defendant, not to plaintiff nor in 
 any correspondence to which he was a 
 party, but addressed to the Detroit Free 
 Press. It purported to correct a previous 
 account given in the paper of " Current 
 events at the Biddle House dining-room; " 
 described inconveniences and losses suf- 
 fered by the hotel through the employment 
 of colored waiters, and closed with the 
 statement, " I said ' go ' and they went, I 
 hope to trouble me no more." This letter 
 appeared in the paper over the defendant's 
 signature. Held, that it was clearly ad- 
 missible. Supreme Ct, 1879, Beecher v. 
 Pettee, 40 MicJi. 181. 
 
 On a trial for murder, the prosecution 
 proved that foot-prints were found on the 
 premises where the assassination had been 
 pei-petrated, and was further allowed, over 
 objection by the defence, to prove that the 
 examining magistrate compelled the de- 
 fendant to make his foot-prints in an ash- 
 heap, and that the footprints so made 
 corresponded with those found on the 
 premises where the homicide was commit- 
 ted. The ground of objection was that the 
 evidence was incompetent because violative 
 of the guaranty in the Bill of Eights that 
 " one accused of crime shall not be com- 
 pelled to give evidence against himself." 
 But held (reviewing authorities), that such 
 evidence is not within the prohibition. 
 Ct. of Appeals, 1879, Walker «. State, 7 
 Tex.App. 245. 
 
 Documentary proofs. " Comparison of 
 a disputed writing with any writing proved 
 to the satisfaction of the court to be gen- 
 uine shall be permitted to be made by wit- 
 nesses in all trials and proceedings; and 
 such writings and the evidence of witnesses 
 respecting the same may be submitted to 
 the court and jury as evidence of the gen- 
 uineness, or otherwise, of the writing in 
 dispute." 1 N. Y. Laws 1880 (Feb. 28), 
 141, ch. 36. 
 
 The record kept by a person employed in 
 the Signal Service of the United States, 
 whose public duty it is to record truly the 
 facts therein stated, is competent evidence 
 of such facts. Supreme Ct. 1878, Evanston 
 t>. Gunn, 99 U. S. 660. 
 
 A deposition taken in another State by 
 commission was objected to, because it 
 was transmitted in an envelope closed up 
 and sealed with gum or paste, in the way 
 almost universally pursued at the present 
 day, instead of being closed up under the 
 commissioner's "seal." It appeared that 
 the document came directly from the hand 
 of the commissioner without the least in- 
 terference. Held, that it would be a fla- 
 grant sacrifice of sense to form to reject the 
 deposition on the sole gi-ound that the com- 
 missioner followed modern usage instead 
 of the ancient way. When the regulation 
 originated, the present method was tm- 
 known, and it was customary to use a 
 private or official seal, on wax, in order to 
 secure the package, and to betray the fact 
 if it were tampered with. No doubt it is 
 better at present to follow the terms of the 
 statute; but the spirit ought not to be 
 blindly sacrificed to the letter, and where 
 the package is carefully closed up and se- 
 curely sealed according to modern practice, 
 and there is no suspicion, the deposition 
 ought not to be rejected because the act of 
 sealing was not done in the exact mode in- 
 dicated by the words of the law. Supreme 
 Ct. 1879, Van Sickle v. Gibson, 40 Mich. 
 170. 
 
 The authorities warrant the following 
 conclusions : — 
 
 1. That a county judge is a magistrate 
 warranted to hold an examining court. 
 
 2. That when a witness has testified he- 
 fore an examining court on the investiga- 
 tion of a criminal charge against any person, 
 the testimony taken before such examining 
 court, in the manner prescribed by law, 
 may be used as testimony on the trial, 
 upon satisfactory proof being made that 
 the witness whose testimony is offered has 
 neither died since testifying, or been pre- 
 vented from attending by the opposite 
 party, or that he cannot, after diligent in- 
 quiry, be found, or his whereabouts ascer- 
 tained; and that the testimony so taken 
 and reduced to writing before an examin- 
 ing magistrate may be used either by the 
 prosecution or the accused. 
 
 3. That when a witness has testified on a 
 former trial of the case, it is competent for 
 either party to prove what the witness, it 
 he has since died, testified on the former 
 trial. 
 
 4. That, in either case, the bare fact that 
 
EVIDENCE. 
 
 203 
 
 the witness was out of the State at the 
 time of the second trial is not, of itself, 
 sufficient ground for admitting proof of his 
 former testimony in a criminal prosecution. 
 Ct. of Appeals, 1879, Sullivan v. State, 6 
 Tex. App. 319. 
 
 Minor Decisions on Evidence. 
 
 General rule for determining sufficiency 
 of circumstantial e., — stated: 5 Tex. App. 
 256; 6 Id. 42. Preponderance of e. suf- 
 fices to prove adultery as a ground of 
 divorce; to exclude reasonable doubt is not 
 necessary: 88 III. 548. Whether, if e. in 
 support of alibi raises a reasonable doubt, 
 defendant should be acquitted: 59 Ga. 142; 
 48 Iowa, 583; 4 Tex. App. 202. Judicial 
 notice as to Clarke's grant: 61 Ind. 97. 
 Courts may take judicial notice that in a 
 large city many courts are simultaneously 
 in session in different rooms; 87 III. 115. 
 Judicial notice taken of the mercantile Cus- 
 tom of mutual credits, under which business 
 establishments furnish each other's cus- 
 tomers or clerks with goods and charge 
 them to each other: 39 Mich. 108. One 
 who claims to have a deed of lands lying 
 in another State construed according to 
 decisions of that State must make, on the 
 trial, formal proof of such decisions: 56 
 Ala. 260. Appellate court cannot pay re- 
 gard to foreign laws unless proof of them 
 appears by the record: 32 Ohio St. 163. 
 Court win take judicial notice of corporate 
 existence of company recognized in a pub- 
 lic statute: 51 Tex. 569. 
 
 The jury may presume that child of 
 two deaf mutes was born deaf : 60 Ga. 
 329. On trial for shooting. State need not 
 prove shot or ball in the weapon ; if there 
 were none, defendant may show that: 82 
 N. C. 597. Adult presumed capable of 
 exercising ordinary care: 22 Kan. 296. 
 Intendments in favor of sustaining com- 
 position as working a discharge : 71 N. Y. 
 20. The presumption that the legislature 
 observes every constitutional requirement 
 in the passage of laws applies, notwith- 
 standing the law is a special or local one: 
 57 Ala. 49. In absence of all e. as to in- 
 tention, money furnished by a third person 
 to a wife should be presumed a loan on her 
 husband's credit, rather than a gift: 31 
 Gralt. (Va.) 219. Burden of proof in 
 action on the covenants of seisin and 
 against encumbrances: 51 Iowa, 321. 
 
 Action of a county court can be shown 
 only by its record: 97 U. S. 272. Witness 
 may describe marks on barrel-heads with- 
 out first proving the loss of the heads : 14 
 Blatchf. 381. Proof of unsatisfied judg- 
 ment for same demand does not sustain 
 plea of former action pending: 77 N. Y. 
 164. What e. of title, either by chain of 
 conveyances or by actual possession, is suf- 
 ficient to sustain action for injury to free- 
 hold: 71 Id. 380. The fact that chimney 
 was built in violation of ordinance is some 
 e. of negligence in action for damages for 
 fire spread from chimney: 72 Id. 26. If 
 part only of a contract was reduced to 
 writing, the residue may be proved by 
 parol: 82 N. C. 57. Market price of com- 
 modity may be ascertained by offers to sell 
 in ordinary market as well as by actual 
 sales: 72 A"". Y. 451. Parol e. not admis- 
 sible to vary the clause " with shipper's 
 reconsignment option: " 8 Ben. 46. Testi- 
 mony founded on knowledge based on 
 telegram only, held, hearsay, though the 
 telegram was read: 51 Iowa, 360. 
 
 Party's declarations are admissible to 
 prove intent in change of domicile : 8 Re- 
 porter, 163; 9 Cent. L. J. 5. Presumption 
 of marriage from cohabitation, reputation, 
 &c. , may be repelled by proof of separation, 
 disclaimer, and subsequent ceremonial mar- 
 riage of one of the parties: 71 N. Y. 423. 
 Unsigned agreement may be received in e. 
 as part of res gestce, to show actual contract; 
 76 Id. 97. Proof of positive unsoundness 
 (not mere lameness) of a horse, existing 
 three weeks after sale, is relevant to show 
 breach of warranty: 56 Ala. 202. Proof 
 that complainant had intercourse with ano- 
 ther man, dating less than seven and a half 
 months before the birth, is inadmissible 
 unless there is proof that the birth was 
 premature: 126 Mass. 176. AV'hat proof 
 of light or lewd conduct of prosecutrix 
 with other men is admissible in defence 
 of an indictment for seduction: 51 Iowa, 
 112. 
 
 Admission that one sold goods and lost 
 the money must be taken as a whole, and 
 excuses failure to pay over : 8 Ben. 233. 
 Explanation given by accused of his pos- 
 session of stolen goods maybe proved: 4 
 Tex. App. 246. Informing a person that 
 he is accused does not impair competency 
 of his confession : 14 Blatchf. 381. Effect 
 of confession may be met by proof that 
 
204 
 
 EVIDENCE. — EXECUTION.' 
 
 accused was drunk when he made it: 51 
 Iowa, 495. 
 
 The printed statute-book of Louisiana 
 held admissible in Alabama: 60 Ala. 252. 
 A book of the general history of a country 
 is not competent e. of its laws; they must 
 be proved by testimony of experts, or pub- 
 lished reports of decisions: 7 Oreg. 51. A 
 transcript from the treasury books is not 
 conclusive on the government; a mistake 
 in it may be corrected: 100 U. S. 8. Effect 
 of certified copy of muster-rolls in State 
 adjutant-general's office, of volunteers serv- 
 ing the United States during the Rebellion: 
 67 Ind. 582. Exemplification of Maine 
 judgment held insufficient in New York, 
 because certificate verified only " the fore- 
 going attestation," when there were two 
 in the record: 76 N. Y. 103. There may 
 be proof of a deed signed by the grantor's 
 mark without direct testimony that the 
 grantor made the mark: 11 S. C. 429. In 
 an action against a fiscal officer, — here a 
 county treasurer, and his sureties, — his 
 books are e. of moneys received by him 
 without being e. of payments made: 9 Id. 
 149. 
 
 EXCEPTION. Short-hand minutes can- 
 not be brought into the record on error, 
 even in a capital case, and where ex- 
 ceptant is too poor to pay for long-hand 
 transcript, proceedings must be in Eng- 
 lish, and short-hand is not English : 63 Ind. 
 327. Bill may be signed by successor 
 of deceased judge who tried the cause. 4 
 Mo. App. 436. Statute authorizing clerk 
 to sign bill in case of death of judge does 
 not apply in case of resignation : 9 Neb. 38. 
 
 EXECUTION. If any person, as prin- 
 cipal, agent, or attorney, with intent to 
 deprive any bond fide resident of Indiana 
 of his rights, under the statutes, of exempt- 
 ing property from levy and sale on exe- 
 cution or in attachment or garnishment, 
 " shall send or cause to be sent out of the 
 State of Indiana any claim for debt, to be 
 collected by proceedings in attachment, 
 garnishment, or other mesne process, when 
 the creditor, debtor, and person or corpora- 
 tion owing for the earnings intended to be 
 reached by such pi'oceedings in attachment 
 are each and all within the jurisdiction of 
 the courts of the State of Indiana," he 
 shall be deemed guilty of a misdemeanor, 
 punishable by fine. Ind. Laws 1879, 
 (March 7), 44, ch. 25, § 1. 
 
 " Any person who shall, either directly 
 or indirectly, assign or transfer any claim 
 for debt against a citizen of Indiana, for 
 the purpose of having the same collected 
 by proceedings in attachment, garnishment, 
 or other process, out of the wages or per- 
 sonal earnings of the debtor in courts out- 
 side of the State of Indiana, when the 
 creditor, debtor, and person or corporation 
 owing the money intended to be reached by 
 proceedings in attachment are each and aU 
 within the jurisdiction of the courts of the 
 State of Indiana," shall be deemed guilty 
 of a misdemeanor, punishable by fine. Id. 
 §2. 
 
 Minor Decisions on Execntion. 
 
 Public property devoted to public uses, 
 and necessary for carrying on the operation 
 of the government, is not subject to seizm-e 
 and sale on e. : 8 Reporter, 298. Lands 
 held by a city for public purposes, or ground 
 rents arising therefrom and forming a part 
 of its public revenues, are not subject to e. : 
 99 U. S. 149. Articles manufactured to 
 order upon agreement that, as piled and 
 counted for the purchaser, they shall be- 
 come his property, are not liable to e. 
 against maker from the time of piling and 
 counting , though they are not paid for, and 
 all ordered are not made : 100 Id. 124. Rail- 
 road not liable to be sold in portions on e., 
 but should be subjected to payment of 
 debts by means of a receivership: 3 Woods, 
 434. Hay cut on land fraudulently con- 
 veyed by husband to wife may be taken 
 on e. for husband's debt-s: 125 Mass. 398. 
 Communion service of a church is not liable 
 to e. on a judgment against trustees for 
 pastor's salary: 82 N. C. 241. A statute 
 exempting property applies against the 
 State unless it is excepted: 8 Reporter, 489. 
 Ala. Const. 1868, pt. 14, § 1, exempts any 
 personal property not exceeding $1,000 
 which a debtor may select from his prop- 
 erty subject to payment of debts; that he 
 has other property not so subject makes no 
 difference : 57 Ala. 40. As against debts 
 already contracted, a law exempting proper- 
 ty from e. cannot be enlarged: 58 Ala. 62. 
 Property is not exempt from a judgment 
 for alimony ; it is not a debt founded on 
 contract: 65 Ind. 239. Movable shop of 
 photographer not exempt as a tool or in- 
 strument: 48 Iowa, 70. The enumeration 
 in S. C. Const, pt. 2, § 32, of personal 
 property exempt from e. is complete; the 
 
ikXECUTION. — EXECUTOR. 
 
 205 
 
 legislature cannot grant additional exemp- 
 tions: 11 S. C. 333. E. issued prematurely 
 not necessarily void: 8 Cent. L. J. 185. 
 Renewal of dormant e. by indorsed consent 
 of debtor is good in absence of fraudulent 
 collusion to injure other creditors ; bringing 
 new action is not necessary: 11 S. C. 79. 
 Levy on real property may be made with- 
 out going on the premises by indorsing 
 description on the warrant: 25 Int. Rec. 
 Rec. 201. Priority of a levy on the fran- 
 chises and property of a street railroad over 
 an earlier mortgage given to secure bonds 
 made for the market, but improperly ap- 
 propriated by officers of the company to 
 secure their private debts: 41 Mich. 274. 
 Withdrawing watchman is not abandon- 
 ment of marshal's levy: 8 Cent. L. J. 185. 
 Sale of lands, on e., to wife of sheriff, is 
 voidable, not void: 56 Ala. 233. E. sale 
 sustained on judgment by confession, 
 though statement was indefinit e: 71 iV. Y 
 58. 
 
 EXECUTOR. " When letters have been 
 granted upon the estate of any person pre- 
 sumed to be dead, by reason of his or her 
 absence from the State, and no intelligence 
 concerning him or her for a period of 
 seven years, any payment made to such 
 executor or administrator by any debtor of 
 the person presumed to be dead, or any pay- 
 ment by such executor or administrator, to 
 any creditor of the person presumed to be 
 dead, in the proper discharge of his office, 
 shall be good and valid in law, and shall 
 operate as a discharge to any party so 
 making such payment, though it should 
 afterwards appear that the person presumed 
 to be dead be actually alive at the time of 
 the granting of the said letters." Del. 
 Laios 1879 (Jau. 29), 194, ch. 132, § 1. 
 
 Payments made in distribution of the 
 personal estate of such person shall like- 
 wise be good. Id. § 2. 
 
 Any executor or administrator with will 
 annexed, appointed and qualified in an- 
 other State or Territory, and empowered 
 by the will to sell or convey real estate, 
 enabled to sell and convey lands lying in 
 Kansas. Kan. Laws 1879 (Mar. 12), 206, 
 ch. 102. 
 
 Foreign executor, administrator, trustee, 
 or guardian enabled to sell corporate shares 
 belonging to the estate, except in specified 
 cases. Mass. Laws 1880' (Apr. 22), 170, 
 ch. 220. I 
 
 " In case any resident of this State shall 
 die, who, at the time of his death, and for 
 a period of five years or more immediately 
 prior thereto, was conducting and cari-yiiig 
 on, in his sole name, any business in this 
 State, or who, at the time of his death, 
 was so conducting and carrying on any 
 business having relation with other States 
 or foreign countries, the right to use the 
 name of said deceased for the purpose of 
 continuing and carrying on such business 
 shall survive; and in all cases where the 
 right hereby given is exercised, such riglit 
 to the use of such name shall form a part 
 of the personal estate of such deceased, 
 and shall pass or be disposed of or be ac- 
 counted for as such, and the right hereby 
 given may be exercised under the provi- 
 sions of this act, in the case of all persons 
 who have died within three years last 
 past. " XN.Y. Laws 1880 (June 15) , 813, 
 ch. 561. 
 
 Certificate to be executed by person con- 
 tinuing business, and filed and published. 
 County clerk to keep book in which to 
 record certificates. His fee. Service of 
 papers in suits arising in business thus 
 conducted, — regulated. lb. §§ 2-5. 
 
 Minor Decisions on Executor. 
 The rule sustaining acts of de facto offi- 
 cer does not support transfer of assets 
 by administrator acting under void letters; 
 there cannot be a de facto owner of prop- 
 erty : 57 Ala. 510. Oral appointment of 
 trustee by probate judge is invalid, and 
 sureties in bond given by appointee are 
 not liable : 126 Mass. 105. A judge or 
 justice may commission a person to act as 
 surrogate in a particular case; that is not 
 a public office : 71 N. Y. 238. Personal 
 property vests, not in next of kin or dis- 
 tributees, but in e. or administrator; and 
 he is the pi'oper party to sue for a conversion : 
 13 Ct. of CI. 7. A right to receive a paid- 
 up life policy passes to the personal repre- 
 sentatives: 8 iJe/jorter, 549. Administrator 
 may compromise disputed claim, but cannot 
 give away rights of the estate : Id. 616. 
 When a trust or power is given to an e. by 
 that term, he does not take by virtue of 
 his office, but because he is the person des- 
 ignated ; the trust, &c., does not vest in 
 the office, but in the man answering the 
 description : 24 Minn. 180. Rights of an e. 
 who has made unequal advancements to leg- 
 
206 
 
 EXECUTOR. — EXPRESS COMPANY. 
 
 atees, in respect to reimbursement: 10 S. 
 C. 208. An action of tort for negligence 
 or deceit may be prosecuted against the 
 personal representative of the wrong-doer 
 deceased : 41 N. J. L. 193. The court 
 cannot apportion commissions between two 
 executors upon its view of relative value 
 of service; each is entitled to half : 6 Mo. 
 App. 250. Limits of surrogate's authority 
 to decree payment by e. of debt in advance 
 of final accounting: 71 N. Y. 217. Pre- 
 sentation of claim to e. or administrator 
 before he has published notice to pi-esent 
 claims is good: 77 Id. 294. Creditors may 
 be ordered brought in before decree for 
 accounting and payment of legacy is passed 
 against e. : 81 N. C. 28. If will directs 
 gift to be severed at once, and paid, the 
 legacy vests at once: 76 N. Y. 133. On 
 what grounds purchaser at administrator's 
 sale may be relieved from purchase for 
 irregularities in the proceedings: 55 Miss. 
 323. 
 
 EXPRESS COMPANY. Nature of the 
 business. The peculiar obligations and 
 engagements of an express company are 
 such as cannot appropriately be assumed 
 by a railroad corporation. The duties of 
 the two species ni carriers are quite dis- 
 tinct. The legislatures which have granted 
 railroad charters have not, in general, ex- 
 pected them to carry money, bullion, bonds, 
 bank-notes, valuable papers, jewels, and 
 other small articles of great value; nor 
 are they usually authorized — still less re- 
 quired — by their charters, to receive 
 notes, drafts, or other choses in action for 
 collection and return- of proceeds, or to 
 receive and forward freight with the bills 
 and charges of the forwarder attached, 
 to be collected from the assignee on deliv- 
 ery, and returned to the shipper, and in 
 connection with such business to afford to 
 the public, under a single contract, and on 
 assured responsibility, safe, reliable, and 
 speedy transportation from and to all 
 points accessible by the use of two or more 
 railroads. Many of the services rendered 
 by express carriers, and appropriate to their 
 peculiar functions, are not such as are by 
 law imposed on railroads. Hence if rail- 
 Exemption. Of personal proper!}' from execu- 
 tion, KxEciiTioN. Of homestead, Mojiestead. 
 Of pro)n'rt\' from taxation, Tax. 
 
 Kxrmplion from taxes in California, p. 65; land 
 and homestead exemption there, p. 65. Of car- 
 riers from full common-law liability, p. 67; from 
 
 road companies should be allowed to eject 
 expresses from their roads, they would not 
 be fully competent, and certainly could not 
 be compelled, to supply their places, and 
 consequently the country would be without 
 express facilities. As they are under no 
 legal obligations to render such accommo- 
 dations to the public, and could not be 
 compelled to render them, they could, after 
 ejecting the express carriers, monopolize 
 the business, dictate oppressive rates, while 
 affording less safety, celerity, and conve- 
 nience to customers. And, as expresses 
 have become a general convenience, it is 
 the duty of all railroad companies to make 
 proper provision for all who wish to carry 
 express matter over their respective roads. 
 The express business of the country is sec- 
 ond only to railroad transportation, and 
 has so interwoven itself into present busi- 
 ness methods that it cannot be relinquished 
 without producing an abrupt and disas- 
 trous revulsion. It has grown into im- 
 mense proportions, and has become a 
 necessity. It has attained its present en- 
 larged usefulness under the fostering care 
 of the railroads themselves, including the 
 defendant company. It is profitable to 
 the railroads, and useful and convenient to 
 the public. The right of the public to have 
 quick, reliable, and safe carriage of goods, 
 through expressmen, has been recognized 
 for forty years. This general recognition 
 by the public and by railroad corporations, 
 in connection with its admitted utility, 
 stamps it as legitimately entitled to the 
 benefit of railroad carriage. Slh Circ. 
 {Term.'), Dinsmore u. Louisville, &c. Ey. 
 Co., 2 Fed. Reporter, 465. 
 
 Liabilities. An express company is not 
 liable to the owner of fruit which it has un- 
 dertaken to carry, for decay during a delay 
 caused by the destruction of a railroad bridge 
 on the route, carried away by an unexpected 
 freshet of extraordinary violence ; provided 
 the express company made the best exer- 
 tions which the circumstances permitted to 
 forward the fruit by other means. The 
 railroad company, rather than the express, 
 is liable, if any one is, for the fall of the 
 bridge; and the risk of the fruit during an 
 
 liabilitv for live-stock or perishable properly, pp. 
 69, 71'; under special contracts, p. 64. Of direc- 
 tors, from liability for losses througit niisnianage- 
 ment, p. 122. Of insane persons, from criminal 
 responsibility, pp. 135, 136. 
 
EXPRESS COMPANY. 
 
 207 
 
 unexpected delay attributable to its perish- 
 able nature is upon the owner, not upon 
 the express. Supreme Ct. Commission, 
 1878, American Exp. Co. v. Smith, 33 
 Ohio St. 511. 
 
 As a railroad train, in which Madan was 
 travelling, drew near to the city of New 
 York, the agent of a city express company 
 came through the cars, soliciting baggage 
 for delivery. Madan gave him the check 
 for his trunk, with his address. The agent 
 gave him a printed receipt, on which he 
 had marked in pencil the date, the number 
 of the check, and the address, and imme- 
 diately passed onward among the other 
 passengers. Nothing was said between 
 the two as to the contents of the printed 
 paper, and the car was too dark for Madan 
 to read it where he sat. He put it in his 
 pocket, knowing it related to the carriage 
 of his baggage, but not knowing particu- 
 larly what it contained. The baggage was 
 not delivered. In a suit brought by Madan 
 to recover for the loss, the company relied 
 upon special clauses in the receipt limiting 
 the liability. Held, that special clauses in 
 a receipt delivered under such circumstan- 
 ces do not relieve the carrier from his 
 common-law liability for the full value. 
 Such facts do not justify the inference or 
 implication that the plaintiff assented to 
 be bound by the special contract contained 
 in the receipt. He has a right to regard a 
 paper tendered under such circumstances 
 as being intended simply as a voucher 
 given to enable him to follow and identify 
 his property ; and if he has no notice that 
 it is intended to subserve any other pur- 
 pose, or that it embodies the terms of a 
 special contract, his omission to read it is 
 not necessarily negligence. When a per- 
 - son receives a paper as a contract, or knows 
 or has reason to suppose that it contains 
 a special conti-act, he may be bound to ac- 
 quaint himself with its contents, and his 
 retaining it without reading may render its 
 terms obligatory upon him. But when a 
 paper is given and taken under circum- 
 stances warranting the supposition that it 
 is intended as a mere receipt or voucher, 
 such a rule cannot be applied. Ct. of 
 Appeals, 1878, Madan v. Sherard, 73 N. Y. 
 329. 
 
 A jeweller in Wheeling sent by his er- 
 rand boy to the Wheeling office of the 
 Adams Express Company a small package 
 
 containing an uncut diamond worth $125, 
 to be carried to New York city and there 
 delivered as per address. The boy deliv- 
 ered the package to the agent in charge of 
 the Wheeling oflSce and paid the expressage 
 which he asked, viz.: 30 cents. The ac- 
 counts by the errand-boy and the agent as 
 to what took place at the interview differed, 
 on the questions whether the boy was asked 
 the value of the parcel. But uo receipt 
 was offered or asked. The parcel was never 
 delivered ; what became of it was not clearly 
 shown. Upon the weight of the evidence 
 the case, as presented to the court, was that 
 there was no sufficient proof of any express 
 contract limiting the common-law liability 
 of the express company as a carrier, nor 
 anything to show but that the loss was at- 
 tributable to the fault — probably theft — of 
 the company's servants. But the express 
 company proved that it was the uniform 
 course of their business to limit their lia- 
 bility upon each article carried to fifty 
 dollars, unless a greater value was stated 
 and an extra rate paid ; that a condition to 
 this effect was inserted in printed receipts 
 which their agents habitually gave to their 
 customers ; and that the jeweller who sent 
 this parcel very well knew this usage of 
 theirs, had often seen their receipts, and 
 had often sent parcels distinctly subject to 
 this condition. Held, that on the admitted 
 facts, and irrespective of the dispute as to 
 whether value was asked and not given, 
 the express company was liable for the en- 
 tire value. An express company is subject, 
 as a common or public carrier, to the duty 
 of transporting the goods of all persons 
 who apply; and this duty the law compels 
 him to perform on reasonable terms ; and 
 it imposes on him responsibilities in carry- 
 ing far different from those imposed on 
 private carriers. Every consignor has a 
 right to have his goods transported by a 
 common carrier on reasonable terms, and 
 a right to require that the common carrier 
 shall deliver them safely to the consignee, 
 unless prevented from so doing by the act 
 of God or the public enemy, except when 
 he agrees that the common carrier may be 
 exempted from this obligation in certain 
 contingencies. If he pays the price of 
 transportation demanded by the carrier, 
 and nothing is said at the time about the 
 carrier being relieved from his common-law 
 responsibilities, he must have the right of 
 
208 
 
 EXPRESS COMPANY. 
 
 holding the common carrier to those respon- 
 sibilities, though he knew, from having 
 read a public advertisement, that the com- 
 mon carrier regarded them as erroneous 
 and unjust, and desired* all persons for 
 whom he transported goods to relieve him 
 of a portion of them, or even that he was 
 accustomed to publish that he would not 
 transport goods for any one, unless he, the 
 common carrier, was, in part at least, ex- 
 empted. A carrier has no right to fix 
 arbitrarily the terms and conditions on 
 which he alone will transport goods; and 
 his claim to have such a right, and his at- 
 tempt to exercise it by his public advertise- 
 ment, though known to the consignor, 
 cannot justly be regarded as assented to by 
 the consignor, simply because the consignor 
 has applied to have his goods transported. 
 If the common carrier means to insist on 
 the modifications of his common-law re- 
 sponsibilities mentioned in his public ad- 
 vertisement, he should tell the consignor 
 so at the time when the goods are offered for 
 transportation. The consignor then could 
 accept his terms, or decline to have the goods 
 transported, or, if he deemed the terms on 
 which the common carrier proposed to 
 transport them unreasonable, he could in- 
 sist that they should be transported by the 
 connnou carrier on reasonable terms, and 
 if he refused, he could sue him, and the 
 courts would have to determine whether 
 the excuse was reasonable. But if the car- 
 rier, instead of informing the consignor 
 that he means to insist on his advertised 
 tei-ms, accepts the goods and receives his 
 price for transportation, he must be re- 
 garded as waiving those terms, and as 
 transporting according to the terms and 
 responsibilities imposed by the common 
 law. It is far more reasonable, under such 
 circumstances, to infer, from his silence, 
 that the common carrier had receded from 
 his pretensions, to avoid litigation with the 
 consignor, than that the consignor had 
 agreed to relieve the common carrier from 
 any of his common-law responsibilities. 
 Suppose the case were reversed, and the 
 consignor was to advertise publicly that 
 he would transport his goods over the road 
 or in the vehicle of the common carrier 
 only on the terms of the common carrier 
 being absolutely responsible in every case 
 for their loss, even when their loss was 
 caused by the act of God or the public 
 
 enemy; and suppose the common carrier 
 had read this notice, and afterwards the 
 consignor applied to have goods transported 
 by the common carrier, and paid the price 
 of transportation without saying anything 
 about the responsibilities to which the com- 
 mon carrier was to be held, no one would 
 say that the common carrier ought to be 
 regarded as assenting to the terms of trans- 
 portation stated in the consignor's adver- 
 tisement; and yet to draw this inference 
 would be far more reasonable than it would 
 be to infer that the consignor had assented 
 to the terms of the common carrier which 
 he knew he advertised, for the consignor is 
 not bound to send except upon the terms 
 which he arbitrarily fixes ; but the common 
 carrier has no right arbitrarily to fix his 
 terms, but is bound to transport on reason- 
 able terms. Therefore, although a common 
 carrier has advertised publicly that he will 
 transport no goods except upon condition 
 that his common-law responsibilities are 
 modified in a certain manner, and the con- 
 signor reads such advertisement, and, know- 
 ing its terms, applies to have his goods 
 transported, and pays the price demanded, 
 yet, if nothing is said at the time about the 
 responsibilities of the common earner, the 
 latter will be subject to all his common-law 
 responsibilities, and the consignor cannot 
 be considered as having assented to his ad- 
 vertised terms of transportation. [Re^aew- 
 ing many cases.] Ct. of Appeals, 1879, 
 Brown v. Adams Exp. Co., 15 W. Va. 812. 
 
 New statutory regulations. An act 
 " in relation to foreign express companies, 
 definingtheir duties and providing penalties 
 for a failure to comply with the provisions 
 of this act, ' ' declares that express companies 
 regularly engaged in transporting property 
 over any railroad, river, canal, or other 
 thoroughfares of the State of Indiana, and 
 receiving or agreeing to receive compensa- 
 tion for such services, are common carriers. 
 hd. Laws 1879 (Mar. 29), 146, ch. 56, § 1. 
 
 They must file certificates of organiza- 
 tion in each county in which their business 
 is conducted, or where they have an agency 
 or ofiice. Id. § 2. 
 
 They may sue or be sued ; bnt not until 
 after they have complied with § 2 of this act 
 can they maintain suit against a citizen, for 
 any claim arising out of transactions con- 
 nected with their express business. Id- 
 §3. 
 
EXPRESS COMPANY. — EXTRADITION. 
 
 209 
 
 Express companies, or persons carrying 
 on an express business, required to obtain 
 a license and pay tax of three fourths of 
 one per cent of gross receipts of all express 
 business done within the State, — goods or 
 merchandise in transit through the State 
 excepted. Me. Laws 1S80 (Mar. 19), 286, 
 ch. 244. 
 
 EXTRADITION. Powers of legisla- 
 ture. A law of a State, — here, Ohio act of 
 March 23, 1875, — which is in aid of the 
 provisions of the Federal constitution and 
 laws of Congress on the extradition of 
 fugitives from one State to another, does 
 not conflict with them, but prescribes the 
 procedure in respect to matters on which 
 the Federal laws are silent, is not invalid. 
 The power of Congi'ess is not exclusive in 
 such a sense as prevents the States from 
 legislating in aid of its enactments. The 
 construction and operation of the Ohio law 
 explained. Supreme Ct. 1878, Exp. Am- 
 mons, 34 Ohio St. 518 ; Wilcox v. Nolze, 
 Id. 520. 
 
 Warrant. If the governor of one Stat« 
 makes a requisition on the governor of 
 another State for the surrender of a fugi- 
 tive from justice, and the case is shown to 
 be within the provisions of the constitution 
 of the United States and the act of Con- 
 gi-ess on the subject, no discretion is vested 
 in the latter governor, but it is his impera- 
 tive duty to issue his warrant of ex- 
 tradition. Supreme Ct. 1877, Work v. 
 Corrington, 34 Ohio St. 64. See also Hart- 
 man V. Aveline, 63 Ind. 344. 
 
 If a warrant for the' surrender of a fugi- 
 tive from justice is obtained in a case in 
 which it should not have been issued, a 
 governor may revoke it, whether issued by 
 himself or his predecessor. And where 
 such warrant has been revoked by the 
 governor, no inquiry will be made, in a 
 proceeding on habeas corpus on behalf of 
 the alleged fugitive, as to the grounds of 
 such revocation, although, at the time 
 of the revocation the fugitive may have 
 been in custody of the agent of the de- 
 manding State. Supreme Ct. 1877, Work 
 V. Corrington, 34 Ohio St. 64. 
 , A person arrested in a suit for malicious 
 
 prosecution, founded upon his acts done in 
 ' performance of a duty of presenting a 
 requisition and obtaining extradition of 
 a fugitive from justice of one State found 
 within another, is entitled to be discharged 
 14 
 
 on a habeas corpus issued from a United 
 States district court, if it appears that the 
 acts done were called for by his commis- 
 sion and the requisition. The governors 
 of States and their agents, in acting in 
 cases of inter-state extradition, proceed 
 under authority of acts of Congress, and 
 those acts are a justification of whatever 
 is done within their authority. E. Dist. 
 of N. Y. 1876, Petition of Titus, 8 Ben. 
 411. 
 
 BeTision of execntive decision. To 
 warrant arresting in one State a fugitive 
 from justice from another State, and com- 
 mitting him for extradition, the prisoner 
 must have been in the State where the 
 crime was committed and have fled from it. 
 E. Dist. of 7a.l878, Exp. McKean, 3 Hugh. 
 23. S. P. Jones v. Leonard, 50 Iowa, 106. 
 
 It would not be proper for the Federal 
 judiciary to interfere with the inquiry 
 while still pending before the governor; 
 but after it has terminated, and he has 
 taken final action by committing the ac- 
 cused for extradition, a court of the United 
 States may, on habeas corpus, revise the 
 proceedings so far as to discharge the ac- 
 cused if it is evident that the acts of Con- 
 gress regulating them have not been 
 obeyed. E. Dist. of Va. 1878, Exp. Mc- 
 Kean, 3 Hugh. 23. 
 
 A fugitive from one State, found in an- 
 other and delivered up on extradition pro- 
 ceedings, and returned to the State from 
 which he fled, will not be discharged by a 
 Federal court or judge, on habeas corpus, 
 upon the plea that he is held for trial for a 
 different crime from that charged against 
 him in the extradition proceedings. Mod- 
 ern doctrine is that an accused cannot 
 plead, in defence of his trial on the princi- 
 pal charge, that he was unlawfully or ir- 
 regularly arrested or brought into the 
 jurisdiction ; but for that wrong must seek 
 his remedy against the persons chargeable. 
 Dist. of N. J. 1878, Matter of Noyes, 17 
 Alb. L. J. 407. 
 
 Bights of accused. Under the provi- 
 sion of the United States constitution re- 
 specting the rendition of fugitives from 
 justice, and the laws regulating the same, 
 a citizen of another State, extradited 
 therefrom to Texas, may be there tried 
 for a different offence than that alleged 
 against him in the requisition on which ha 
 was extradited. The doctrines of interna- 
 
210 
 
 EXTRADITION — FALSE IMPRISONMENT. 
 
 tional extradition in this respect, whether 
 based on comity or on treaty stipulations, 
 have no application to the extradition cases 
 arising between the different States. Ct. 
 of Appeals, 1878, Ham v. State, 4 Tex. 
 App. 645. 
 
 As between nations, it is now the Amer- 
 ican as well as British doctrine, that there 
 can be no extradition unless the offence 
 for which the party is surrendered is ex- 
 pressly provided for by treaty stipulation. 
 As between nations, ordinarily, a pre- 
 liminary trial is had before some judge 
 or magistrate, founded on complaint made 
 under oath, and upon his arrest the party 
 is brought before a judicial officer, who 
 examines into, and hears the evidence of, 
 criminality, " and if, on such hearing, the 
 evidence is deemed sufficient to sustain 
 the charge," it is made the duty of the 
 examining judge or magistrate to certify 
 the same to the proper executive authority, 
 that a warrant may issue for the surrender 
 of such fugitive. And without any treaty 
 stipulation to that effect, it may now be con- 
 sidered as a well-established doctrine of in- 
 ternational extradition that good faith and 
 comity require of the nation to which the 
 fugitive is surrendered that he be tried only 
 upon the specific offence for which he was 
 surrendered, and that he cannot be held 
 to answer for another and different offence. 
 lb. 
 
 The relations between the States, as 
 created by the general government, render 
 their status and intercourse different in 
 most material respects, civilly and politi- 
 cally, from that subsisting between inde- 
 pendent nations. And this difference is 
 especially apparent in the difference, here- 
 tofore alluded to, existing as to the modes 
 of procedure in extradition. Moreover, in 
 
 their relations and intercourse, nations are 
 naturally jealous and suspicious of each 
 other; hence the exactitude of their treaty 
 stipulations. Not so with the States. 
 Mutual confidence and trust were the 
 foundation-stones and pillars upon which 
 they erected the Federal edifice. It was 
 the implicit faith and confidence which 
 each State had in the other's honor and in- 
 tegrity in maintaining this guaranty that 
 the life, liberty, and property of her citi- 
 zens would be protected in any other State 
 to which he might go or be sent, to the 
 same extent and by the same laws which 
 shielded and protected the individual citi- 
 zen of that other State, that induced the 
 enactment of the extradition provision "in 
 the constitution, in the mandatory and 
 positive language used. There is no pro- 
 hibition that one surrendered and extra- 
 dited cannot be tried for any other offence 
 than the one for which he was extradited. 
 Good faith and comity leave that entirely 
 to the discretion of the State which had 
 the right to demand him. Having once 
 rightfully obtained possession of his per- 
 son, she is only limited in her treatment 
 of him to the responsibility of seeing that 
 the same privileges and immunities which 
 her laws would afford to one of her own 
 citizens are extended and guaranteed to 
 him. lb. 
 
 The decision of the commissioner upon 
 the effect of the evidence adduced on 
 extradition proceedings under a foreign 
 treaty, to show the actual guilt of the 
 fugitive claimed, is conclusive. No other 
 judicial officer has power to revise his de- 
 cision on the weight of proof. 2d Circ. 
 {N. Y.) 1877, Matter of Vandervelpen, 
 14 Blatchf. 137; Matter of Wiegand, Id. 
 370. 
 
 F. 
 
 FALSE IMPRISONMENT. Is the il- 
 legal resti'aint of the person of any one 
 against his will. It generally includes an 
 assault and battery, though there may be a 
 false imprisonment without touching the 
 person. But there must always be a de- 
 tention, and the detention must be unlaw- 
 ful and against the will. On trial of an 
 
 indictment it appeared that the defendants 
 went to the pi'osecutor's house at night, 
 called him out of bed, represented to him 
 in changed voices that they were in search 
 of a stolen horse, and offered to pay him 
 to accompany them. He mounted behind 
 one of the defendants on his horse, and 
 went voluntarily, without threat or vio- 
 
FALSE IMPRISONMENT. — FIXTURES. 
 
 211 
 
 lence. After riding a quarter of a mile in 
 a gallop he complained of the discomfort 
 of this mode of transportation, and dis- 
 mounted ; when he discovered he was the 
 victim of a hoax, and was left in the road 
 by defendants. Held, that this was not a 
 case of false imprisonment, for the pros- 
 ecutor went voluntarily. Supreme Ct. 
 1879, State ». Lunsford, 81 A''. C. 528. 
 *An action of false imprisonment does 
 not lie for an arrest made under a warrant 
 regularly issued in due form. The officer 
 is protected by the warrant. And the 
 liability of the prosecutor is to an action 
 on the case for malicious prosecution, and 
 not to an action of trespass for false im- 
 prisonment. Supreme Ct. 1878, Chrisman 
 V. Carney, 33 Ark. 316. 
 
 Minor Decisions on False Imprisonment. 
 
 Telegrams between complainant, the 
 police, and other persons relative to an 
 arrest, — held, admissible as res gestce in 
 action for it: S3 Ark. 316. Compelling a 
 defendant who has been sentenced to fine 
 and imprisonment for violating city ordin- 
 ance, to work out the fine by labor on the 
 streets, is actionable: 67 Ind. 474. 
 
 FALSE PRETENCE. For two persons 
 to unite in taking an office for which they 
 pay no rent, making there a fictitious show 
 of business, by which a person visiting them 
 in search of employment is deceived, and 
 asserting to him that they can and will 
 give him a situation in the proposed busi- 
 ness, by means of which he is induced to 
 pay them money by way of deposit, is ob- 
 taining money by false pretences. [Dis- 
 approving 22 N. Y. 413.] Supreme Ct. 
 1878, People v. Winslow, 39 Mich. 505. 
 
 An indictment for obtaining a check, 
 calling for the payment of money, by 
 means of false pretences, should describe 
 the check by setting out its substance at 
 least, or allege a substantial reason for the 
 failure to, do so. SupremmCt. 1878, Bon- 
 nell V. State, 64 Ind. 498. 
 
 An indictment against the " foreman 
 of a gang of hands " laboring for the re- 
 ceiver of a railroad company, charged the 
 defendant with having made a false report, 
 in writing, that a certain person (fictitious) 
 was entitled to a sum for labor performed 
 for the receiver as one of such gang, and 
 
 with having procured another to personate 
 such fictitious person and receive from the 
 paymaster of the receiver the amount 
 which the pay-roll, founded upon such 
 false report, showed to be due to such 
 fictitious person, all which was charged to 
 have been done with felonious intent. Held : 
 
 1. Such indictment was fatally defective 
 for want of an averment that it was the 
 duty of defendant to employ such laborers 
 for the receiver, and that such duty was 
 known to the persons to whom he reported, 
 and whose duty was to prepare the pay-roll. 
 
 2. A payment by the paymaster to him, 
 personating such fictitious person, without 
 identification, was negligence with which 
 the receiver was chargeable, lb. 
 
 Minor Decisions on False Pretences, 
 
 Stating " I have drawn a check in your 
 favor and shall pay your debts (specifying 
 them) with the money," is not a punishable 
 pretence: 127 Mass. 446;' nor is the ob- 
 taining payment of a just debt by false 
 means: 126 Id. 467. Paying for goods in 
 a bogus check, and stating that " it is good, 
 and the maker has a business," held, in- 
 dictable : 73 N. Y. 78. 
 
 FEDERAL REPORTER. See Re- 
 porter. 
 
 FINDING. An employee in a paper- 
 mill, found in an envelope which she picked 
 up from the floor of the room wherein she 
 was at work assorting rags and paper- 
 stock, two f 50 bank-notes. The envelope 
 was probably brought to the mill as part of 
 some lot of refuse paper and rags purchased 
 as materials. The employee and finder 
 gave the notes to one of the proprietors to 
 ascertain whether they were genuine, and 
 upon his promise to return them On his 
 refusal so to do an action for their value 
 was brought in her behalf; the real owner 
 of the notes being unknown. Held, that, 
 as between the finder and the owner of the 
 factory and paper-stock in which the notes 
 were found, the notes were the property of 
 the finder, and that plaintiff was entitled 
 to recover. [11 R. I. b&S.] Supreme Ct. 
 1878, Bowen v. Sullivan, 62 Ind. 281. 
 
 FIXTURES. General nature. There 
 is no universal test wheieby the character 
 of what is claimed to be a fixtuie can be 
 determined in the abstract. Neither the 
 
 False representations. As working conversion l Fixtures. As to real and personal property, 
 goods, p. 113. I see ReaL Pkopebty ; Peesokal Pbopekty. 
 
212 
 
 FIXTURES. 
 
 mode of annexation nor the manner of use 
 is in all cases conclusive. The question 
 usually depends on the express or implied 
 understanding of the parties concerned. 
 [13 Mich. 23; 31 Id. 440; 37 Id. 539; 38 
 Id. 30; 38 Id. 92; 39 Id. 777.] Supreme 
 Ct. 18r9, AVheeler v. Bedell, 40 Mich. 693; 
 Ferris o. Quimby, 41 Mich. 202. 
 
 The term " fixtures " is always applied 
 to articles of a personal nature which have 
 been affixed to land. It has acquired by 
 contradictory decisions of the courts a 
 vague and ambiguous meaning. The cases 
 cannot be reconciled with each other, and 
 no uniform rule can be drawn from them. 
 In its correct sense, the term includes 
 such things only of a personal character 
 as have been annexed to the realty, and 
 which may be afterwards severed and 
 removed by the party who united them, or 
 his personal representatives, against the 
 will of the owner of the freehold. It is 
 often used, however, to designate those 
 articles which are not by law removable 
 when once attached to the freehold, as well 
 as those which are severable. Supreme Ct. 
 1879, Freeman v. Lynch, 8 Neh. 192. 
 
 At one time the law of fixtures was seem- 
 ingly more an arbitrary designation of 
 things which were and things which were 
 not fixtures, than defined rules founded on 
 certain and fixed principles. More recent 
 decisions have, to some extent, brought 
 order out of confusion, and have established 
 certain rules which make the true test of 
 a removable fixture at least to depend not 
 so much on the mere fact of use of a 
 ligature, a bolt, or a screw, as upon con- 
 structive annexation, the intention of the 
 party making the same, and the uses which 
 the article bears to the uses of the freehold. 
 When the article annexed is an accessory 
 necessary to the enjoyment of the freehold, 
 and was erected as a benefit to the inherit- 
 ance as an addition thereto, then, as a 
 general rule, it becomes a fixture which 
 partakes so much of the realty that its 
 ownership rests with the fee to the land, 
 and it is not subject to removal, except 
 by consent. But when erected for a mere 
 temporary purpose, and with the express 
 or implied intention or agreement that it 
 shall not be a peimanent annexation to the 
 freehold, then, as to a trade fixture at least, 
 for reasons of public policy and " in favor 
 of trade and to encourage industry," it be- 
 
 comes a fixture removable against the will 
 of the owner of the freehold, if effected at 
 the proper time. Supreme Ct. 1878, Moody 
 V. Aiken, 50 Tex. 65. 
 
 Instances. Ordinary gas-fixtures, whe- 
 ther chandeliers or brackets, although 
 screwed and cemented to the gas-pipes, are 
 in the nature of furniture. Supreme Ct. 
 1879, Towne v. Fiske, 127 Mass. 125. See 
 also, to nearly the same effect, Heysham v. 
 Dettre, 89 Pa. St. 506; and, to the con- 
 trary, Wheeler v. Keeler, 31 N. J. Eg. 181. 
 
 A portable hot-air furnace, resting by 
 its own weight upon the ground, put into a 
 house by a person rightfully in possession 
 under an agreement for a deed, does not 
 become part of the realty, though connected 
 with the house by a cold-air box and hot- 
 air pipes and registers in the usual manner. 
 A person in possession of a house and land 
 under an agreement with the owner for a 
 deed put a hot-air furnace into the house, 
 and then sold and constructively delivered 
 the furnace to a third person. Afterwards, 
 but while the furnace remained in the 
 house, it was attached by an officer in an 
 action by the owner of the house against 
 the person with whom he had made the 
 ageement for a deed. The purchaser re- 
 moved the furnace; and, while it was in 
 his possession, the officer seized it on an 
 execution issued in the above-mentioned 
 action, and sold it. Held, that even if the 
 furnace was a part of the realty when pnt 
 into the house, the purchaser could main- 
 tain an action against the officer for the 
 conversion of it by him after it was removed 
 from the house. Supreme Ct. 1879, Towne 
 V. Fiske, 127 Mass. 125. See, to nearly 
 same effect, Heysham v. Dettre, 89 Pa. St. 
 506; Bewicku. Fletcher, 41 iWcA. 625; and 
 contra, Wheeler r. Keeler, 31 N. J. Eq. 181. 
 
 A boiler composed of distinct sections 
 was placed by the owner of a machine-shop 
 inside a brick casing built on the ground. 
 The sections wflghed fom- hundred pounds 
 each, and rested on an iron plate which 
 rested on the inside of the casing. On the 
 top of the casing, but not fastened to it, 
 were iron plates, which could be removed, 
 and each section taken out, without dis- 
 turbing the brickwork. Water-pipes and 
 steam-pipes were connected with each sec- 
 tion by holes cut through the casing, but 
 could be detached therefrom. The boiler 
 in connection with the steam engine, shaft- 
 
FIXTURES. 
 
 213 
 
 ing, &c., was adapted to the machine-shop 
 and business, and was used in such busi- 
 ness. Held, that the boiler was a part of 
 the realty as between mortgagor and mort- 
 gagee; and that an agreement between the 
 seller of the boiler and the owner of the 
 property, made when the latter bought 
 the boiler, that the boiler should remain 
 the personal property of the seller until 
 paid for, did not bind a subsequent mort- 
 gagee without notice of the realty. Su- 
 preme Ct. 1879, Southbridge Sav. Bank v. 
 Exeter Machine Works, 127 Mass. 542. 
 
 Machinery not made expressly for the 
 use in the building in which it is placed, 
 but capable of beneficial use if removed 
 or set up in some other building, is person- 
 alty or realty according to the intent or 
 understandmg' fairly deducible from the 
 ciicumstances. Supreme Ct. 1878, Robert- 
 son V. Corsett, 39 Mich. 777. 
 
 Where land and machineiy put upon it 
 are held by different titles, and a steam- 
 engine is afterwards put in to run the 
 machinery, the engine partakes of the char- 
 acter of the machinery, and does not become 
 part of the realty, lb. 
 
 A saw-mill and its appointments are 
 prima facie part of the realty, and should 
 be so treated, if no agreement, understand- 
 ing, or intent is shown to change their 
 character. Ih. 
 
 A planing machine, weighing three tons, 
 introduced through the doorway and fast- 
 ened to the floor by cleats, bolts, screws, 
 and rivets, but removable without injury 
 to the building, was mortgaged as a chattel 
 after a mortgage had been given on the 
 premises, describing them as land, without 
 mentioning buildings or referring to its 
 uses. There was nothing which necessa- 
 rily showed that the mortgagee of the realty 
 had been induced to rely upon the machine 
 as security. Held, that the presumption 
 was that it remained a chattel. Supreme 
 Ct. 1879, Wheeler v. BedeU, 40 Mich. 693. 
 
 Machinery owned by tenants in a mort- 
 gaged building was sold with the building 
 by bill of sale apart from the deed of the 
 realty. The assignee of the purchaser re- 
 moved it after foreclosure, but before pos- 
 session was taken, and the foreclosure 
 purchaser sued him in trover. Held, proper 
 to show that it had always been treated as 
 personalty by the owners, who had a right 
 to keep it apart from the realty and free 
 
 from the mortgage, which was not taken in 
 reliance on it. Supreme Ct. 1879, Ferris 
 V. Quimby, 41 Mich. 202. 
 
 It is not the policy of the law to sepa- 
 rate houses occupied by families from the 
 realty, and treat such houses as personal 
 property for the purpose of collecting taxes, 
 simply because they are not placed on a 
 brick or rock foundation. Such houses, 
 where it is evident that they are intended 
 as permanent annexations to the freehold, 
 become a part of the realty, and pass with 
 a conveyance of it, and that, too, without 
 regard to the character of the foundations. 
 Supreme Ct. 1879, Freeman v. Lynch, 8 
 Neb. 192. 
 
 A steam-engine, securely and perma- 
 nently bolted to a foundation set in the 
 ground, with the boilers as a necessary 
 adjunct thereto, together with the shaft- 
 ing, belting, couplings, and pulleys to 
 communicate the power ; also water-wheels 
 and a water-wheel governor which were in- 
 corporated with the realty and were also 
 embraced in a chattel mortgage were held 
 not to pass by a chattel mortgage as 
 against a subsequent mortgage of the 
 realty. Supreme Ct. 1879, Keeler v. Keeler, 
 31 N. J. Eg. 181. 
 
 A ferry-boat with chain and buoys, &c., 
 is not a fixture of the realty, although the 
 chain by which it is run is fastened to the 
 boat and to an island in the river. Su- 
 preme Ct. 1879, Cowart v. Cowart, 3 Lea 
 (Tenn.), 57. 
 
 Bight of removal. If fixtures which a 
 lessee has a right to remove while in pos- 
 session of the premises are left until such 
 premises are surrendered, without agree- 
 ment reserving to the lessee the right of 
 removal, the lessor takes title to them as 
 part of the realty [12 Wis. 164]. And the 
 fact that the lessee, before surrendering 
 the possession, asked the lessor if he might 
 leave the fixtures in the room rented, 
 which was a store, and that the lessor 
 replied he was willing that they should be 
 left, as they might help him to rent the 
 store, cannot be held to imply a license to 
 the lessee to re-enter and remove such fix- 
 tures. Supreme Ct. 1879, Josslyn v. Mc- 
 Cabe, 46 Wis. 591. 
 
 Minor Decisions on Tixtnres. 
 A gang-edger in a saw-mill is a trade t. 
 which tenant can remove during his term, 
 
214 
 
 FIXTURES. — GAS-LIGHTING. 
 
 but cannot reclaim afterwards, not even 
 if landlord has detached it : 40 Mich. 581. 
 Gas-chandeliers are subject of larceny if 
 tenant might remove them, though ven- 
 dor might not : 14 Bush (Ky.), 31. 
 
 FLORIDA. Limits of the northern and 
 southern judicial districts of Florida de- 
 clared anew. Terms of the district and cir- 
 cuit courts to be held at Tampa, commenc- 
 ing on the first Monday of March. Act of 
 Feb. 3, 1879, ch. 43, 20 Stat, at L. 280. 
 
 FORGERY. Making a false city certi- 
 ficate of money due is f . , although the city 
 has not corporate power to issue such cer- 
 tificates : 68 Mo. 150; but for a person to 
 make and sign as agent a promissory note 
 or the like, in the name of a principal for 
 whom he is not authorized so to sign, is 
 not f.: 15 Hun (N. Y.), 155 ; nor falsely 
 subscribing a person's name to the recom- 
 mendation of a medicine: 2 Pearson (Pa.), 
 351 ; nor altering a paper — here, by inter- 
 lineations in a lease — done with intent to 
 conform it to purpose of parties : 89 Pa. St. 
 432. Private memorandum-book of public 
 officer is not a subject of £. ; 3 Col. 571. 
 Forging an order for goods may be punish- 
 able, though not addressed to any one : 2 
 Lea (Tenn.), 513. That the instrument 
 uttered was so badly spelled it could not 
 deceive is no defence: 61 Ala. 33. 
 
 FOSTER. The Law of Joint Partner- 
 
 ship and Real Estate, by Edwaed Johk 
 Foster, London, Eng. ' 
 
 FRAUD. Action lies for fraudulently 
 conspiring to induce plaintiff to visit Mas- 
 sachusetts with intent to procure his ar- 
 rest and compel him to settle a claim, 
 although he did not object to the arrest in 
 that action : 125 Mass. 503. Making a 
 representation With knowledge that it is 
 understood in a sense which is deceptive 
 may be actionable deceit: 38 Mich. 1. A 
 sale, made by a committee of a corpora- 
 tion, of its lands to a company of which 
 the committeemen were members, — con- 
 demned : 2 Pearson {Pa.), 84. It is not 
 f . for agent to omit repeating information 
 he has once given to principal : 76 N. Y, 
 36. One who discovers a mine can buy 
 the land without di8closing*to the owner 
 his knowledge ; but if he makes any false 
 statements to the owner, the latter may 
 have the sale cancelled : 7 Oreg. 491. 
 What kinds of f . in obtaining a judgment 
 warrant a court of equity in setting the 
 judgment aside : 98 U. S. 61. One im- 
 peaching his own mortgage against a bona 
 fide holder for value, because obtained by 
 f ., must show not only f., but that he was 
 not negligent : 9 S. C. 20. Oral misrep- 
 resentations may be proved, notwithstand- 
 ing there were misrepresentations in 
 writing: 38 Mich. 1. 
 
 G. 
 
 GAMING. A statute expressed in gen- 
 eral terms, enabling any person losing 
 money at a game of chance to recover 
 it back, ought not to be construed as 
 applicable in favor of the proprietor of 
 a gaming establishment, — here a faro 
 bank. It is not the intention of such a 
 statute to encourage persons to make 
 gaming a business by protecting them 
 against losses. The courts will, in such 
 a case, look beyond the mere letter, and 
 will administer the law according to its 
 spirit and objects. Supreme Ct. 1879, 
 Brown v. Thompson, 14 Bush {Ky.), 
 538. 
 
 Minor Decisions on Gaming. 
 
 The use of any table used for g., even a 
 board laid across sticks, is punishable as a. 
 " table used for gaming " : 61 Ala. 1. One 
 who only bets upon the result of a game 
 is not punishable under a statute against 
 ' ' playing "the game ; nor is he accessory : 53 
 Cal. 246. Punishment by city authorities 
 for violating ordinance by g. does not bar 
 prosecution by State for violation of State 
 law: 6 Baxt. (Tenn.) 567. 
 
 GAS-LIGHTING. Householdei-sarenow 
 expected to know that a mixture of gas 
 and air is explosive; and a disregard of 
 that fact may be contributive negligence. 
 
 Gas-lighting. Relations between a city or village and a gas company, Municipal Cokfokatios. 
 
GAS-LIGHTING. -.GEORGIA. 
 
 215 
 
 '. Lanigan, being ■well aware that the gas was 
 escaping into the cellar under his store, 
 sent servants into the cellar with a light; 
 and an explosion ensued, by which much 
 injury was done. He sued the gas-light 
 company, and gave evidence showing that 
 the leak was ascribable to carelessness of 
 their workmen in failing to close the ser- 
 vice-pipe properly when sent by the com- 
 pany, a short time previous, to cut off the 
 supply. Held, that he could not recover, 
 because the proximate cause of the explo- 
 sion was the introduction of the light. 
 This was a heedless act; not that of a man 
 of ordinary prudence and discretion. Cl. 
 of Appeals, 1877, Lanigan v. New York 
 Gas-light Co., 71 iV. F. 29. 
 
 The presumption is against the claim of 
 a gas company that its charter exempts it 
 from general laws of the State applicable 
 to its business. The general rule is that 
 where a corporation, acting under a spe- 
 cial charter, is invested with franchises to 
 be exercised to subserve the public inter- 
 est, the terms upon which the corporation 
 may be required to discharge its duties to 
 the public are subject to legislative super- 
 vision and control, unless it clearly appears 
 from the terms of the charter that it was 
 the intention to exempt it from such inter- 
 ference. Supreme Ct. 1878, State v. Co- 
 lumbus Gas Light, &c. Co., 34 Ohio St. 
 572. 
 
 A corporation formed under a special 
 charter was empowered and vested with an 
 exclusive right for twenty years to manu- 
 facture and sell gas for lighting the city of 
 Columbus, and the charter contained no 
 provision as to the price to be charged for 
 gas, nor any regulation as to meters. 
 Held, that the company was subject to the 
 general law of the State on those subjects, 
 passed after its charter. lb. 
 
 minor Decisions on Gas-lighting. 
 
 Surplus profits of gas company repre- 
 sented by certificate issued to stock- 
 holders, but not actually divided, are 
 taxable : 76 N. Y. 202. Nature of the 
 privilege of laying gas-pipes in city 
 streets : 38 Mich. 154. 
 
 GEORGIA has adopted in 1§77 (Dec. 
 5), a new constitution, which super- 
 sedes the constitution of 1868 and 
 any amendments thereof. The follow- 
 
 ing is a digest of the new provisions it 
 contains, — nothing being said (for 
 want of space) about sections of the 
 old constitution which are, either ver- 
 batim or substantially, repeated in the 
 new one — and all those likely to be 
 of interest outside the State are given 
 in full. The captions are the headings 
 in the official printed copy of the in- 
 strument, as furnished to the Year 
 Book by the state department of the 
 State of Georgia. 
 
 Bill of rights. Preamble. " To per- 
 petuate the principles of free govern- 
 ment, insure justice to all, preserve peace, 
 promote the interest and happiness of the 
 citizen, and transmit to posterity the en- 
 joyment of liberty, we, the people of Geor- 
 gia, relying upon the protection and 
 guidance of Almighty God, do ordain and 
 establish this constitution." 
 
 "All government, of right, originates 
 with the people, is founded upon their will 
 only, and is instituted solely for the good 
 of the whole. Public officers are the trus- 
 tees and servants of the people, and at all 
 times amenable to them." Ga. Const. 
 1877, art. 1, § 1, IT 1. 
 
 " No person shall be deprived of the 
 right to prosecute or defend his own cause 
 in any of the courts of this State, in per- 
 son, by attorney, or both." Id. art. 1, 
 § 1, f 4. 
 
 " No person shall be compelled to give 
 testimony tending in any manner to crimi- 
 nate himself." Id. art. 1, § 1, 1[ 6. 
 
 " Neither banishment beyond the limits 
 of the State, nor whipping, as a punish- 
 ment for crime, shall be allowed." Id. 
 art. 1, § 1, 1[ 9. 
 
 " No person shall be compelled to pay 
 costs, except after conviction on final trial." 
 Id. art. 1, § 1, IT 10. 
 
 " The writ of habeas corpus shall not be 
 suspended." Id. art. 1, § 1, H 11. 
 
 " All men have the natural and inalien- 
 able right to worship God, each according 
 to the dictates of his own conscience, and 
 no human authority should, in any case, 
 control or interfere with such right of con- 
 science." Id. art. 1, § 1, IT 12. 
 
 " No money shall ever be taken from 
 the public treasury, directly or indirectly, 
 in aid of any church, sect, or denomination 
 
216 
 
 GEORGIA. 
 
 of religionists, or of any sectarian institu- 
 tion." Id. art. 1, § 1, f 14. 
 
 " No law shall ever be passed to curtail 
 or restrain the liberty of speech or of the 
 press; any person may speak, write, and 
 publish his sentiments, on all subjects, 
 being responsible for the abuse of that lib- 
 erty." /(f. art. 1, § 1, K 15. 
 
 " The civil authority shall be superior 
 to the military, and no soldier shall, in 
 time of peace, be quartered in any house, 
 ■without the consent of the owner, nor in 
 time of war, except by the civil magis- 
 trate, in such manner as may be provided 
 by law." Id. art. 1, § 1, If 19. 
 
 " The people have the right to assemble 
 peaceably for their common good, and to 
 apply to those vested with the powei's of 
 government, for redress of grievances, by 
 petition or remonstrance." Id. art. 1, 
 § 1, 1[ 24. 
 
 " All citizens of the United States, resi- 
 dent in this State, are hereby declared 
 citizens of this State ; and it shall be the 
 duty of the general assembly to enact such 
 laws as will protect them in the full enjoy- 
 ment of the rights, privileges, and immu- 
 nities due to such citizenship." Id. art. 1, 
 § 1, H 25. 
 
 " In all prosecutions or indictments for 
 libel, the truth may be given in evidence; 
 and the jury in all criminal cases shall be 
 the judges of the law and the facts. The 
 power of the judges to grant new trials in 
 cases of conviction is preserved." Id. 
 art. 1, § 2, 1[ 1. 
 
 " No conviction shall work corruption of 
 blood or forfeitm-e of estate." Id. art. 1, 
 § 2, IT 3. 
 
 " All lotteries, and the sale of lottery 
 tickets, are hereby prohibited; and this 
 prohibition shall be enforced by penal 
 laws." Id. art. 1, § 2, H 4. 
 
 "Lobbying is declared to.be a crime, 
 and the general assembly shall enforce 
 this provision by suitable penalties. " Id. 
 art. 1, § 2, ir 5. 
 
 " The general assembly shall have the 
 power to provide for the punishment of 
 fraud, and shall provide, by law, for reach- 
 ing property of the debtor concealed from 
 the creditor." Id. art. 1, § 2, 1[ 6. 
 
 " In cases of necessity private ways may 
 be granted upon just compensation being 
 first paid by the applicant. Private prop- 
 erty shall not be taken or damaged for 
 
 public purposes, without just and adequate 
 compensation being first paid." Id. art. 
 
 1, § 3, ir 1. 
 
 " No bill of attainder, ex post facto law, 
 retroactive law, or law impairing the obli- 
 gation of contracts, or making irrevocable 
 grants of special privileges or immunities, 
 shall be passed." Id. art. 1, § 3, H 2. 
 
 "No grant of special privileges or im- 
 munities shall be revoked, except in such 
 manner as to work no injustice to the cor- 
 porators or creditors of the incorporation," 
 Id. art. 1, § 3, 1[ 3. 
 
 " Laws of a general nature shall have 
 uniform operation throughout the State, 
 and no special law shall be enacted in any 
 case for which provision has been made by 
 an existing general law." Id. art. 1, § 4, 
 111. 
 
 " Legislative acts in violation of this 
 constitution, or the constitution of the 
 United States, are void, and the judiciary 
 shall so declare them." Id. art. 1, § 4, 
 112. 
 
 "The people of this State have the in- 
 herent, sole, and exclusive right of regu- 
 lating their internal government, and the 
 police thereof, and of altering and abolish- 
 ing their constitution whenever it may be 
 necessai-y to their safety and happiness.'' 
 Id. art. 1, § 5, U 1. 
 
 " The enumeration of rights herein con- 
 tained as a part of this constitution shall 
 not be construed to deny to the people any 
 inherent rights which they may have hith- 
 erto enjoyed." Id. art. 1, § 5, 1[ 2. 
 
 Elective franchise. "In all elections 
 by the people, the electors shall vote by 
 ballot." /<i. art. 2, § 1, f 1. 
 
 "Every male citizen of the United 
 States (except as hereinafter provided), 
 twenty-one years of age, who shall have 
 resided in this State one year next preced- 
 ing the election, and shall have resided six 
 months in the county in which he offers to 
 vote, and shall have paid all taxes which 
 may hereafter be required of him and which 
 he may have had an opportunity of paying, 
 agreeably to law, except for the year of the 
 election, shall be deemed an elector: Pro- 
 vided, that no soldier, sailor, or marine in 
 the military or naval service of the United 
 States shall acquire the rights of an elector 
 by reason of being stationed on duty in 
 this State ; and no person shall vote who, if 
 challenged, shall refuse to take the follow- 
 
GEORGIA. 
 
 21T 
 
 itig oath or affinnation : • I do swear (or 
 afflrm) that I ain twenty-one years of age, 
 have resided in this State one year, and in 
 this county six months, next preceding 
 this election. I have paid all taxes which 
 since the adoption of the present constitu- 
 tion of this State, have been required of 
 me previous to this year, and which I have 
 had an opportunity to pay, and I have not 
 voted at this election.' " Id. art. 2, § 1, 
 112. 
 
 " The general assembly may provide 
 from time to time for the registration of 
 all electors, but the following classes of 
 persons shall not be permitted to register, 
 vote, or hold any office or appointment of 
 honor or trust iu this State, to wit: (1.) 
 Those who shall have been convicted, in 
 any court of competent jurisdiction, of 
 treason against the State, of embezzlement 
 of public funds, malfeasance in office, brib- 
 ery, or larceny, or of any crime involving 
 moral turpitilde, punishable by the laws of 
 this State with imprisonment in the peni- 
 tentiary, unless such person shall have 
 been pardoned. (2.) Idiots and insane 
 persons." Id. art. 2, § 2, f 1. 
 
 " Electors shall in all cases, except for 
 treason, felony, larceny, and breach of the 
 peace, be privileged from arrest during 
 their attendance on elections, and in going 
 to and returning from the same. " Id. art. 
 2, § 3, 1[ 1. 
 
 "No person who is the holder of any 
 public money, contrary to law, shall be 
 eligible to any office in this State until the 
 same is accounted for and paid into the 
 treasury." Id. art. 2, § 4, f 1. 
 
 "No pei'son who, after the adoption of 
 this constitution, being a resident of this 
 State, shall have been convicted of fighting 
 a duel in this State, or convicted of sending 
 or accepting a challenge, or convicted of 
 aiding or abetting such duel, shall hold 
 office in this State, unless he shall have 
 been pardoned; and every such person 
 shall, also, be subject to such punishment 
 as may be prescribed by law." Id. art.. 2, 
 § 4, 1[ 2. 
 
 "The general assembly shall, by law, 
 forbid the sale, distribution, or furnishing 
 of intoxicating drinks within two miles of 
 election precincts, on days of election, — 
 State, county or municipal — and pre- 
 scribe punishment for any violation of the 
 same." Id. art. 2. § 5, IT 1. 
 
 Legislative department. Forty-four 
 senatorial districts prescribed; and the 
 counties to compose each (-being nearly, 
 but not precisely the same as under Const. 
 1888), designated. Id. art. 3, § 2, f 1, 2. 
 
 Number and apportionment of represen- 
 tatives prescribed. Id. art. 3, § 3, If 1, 2. 
 
 Elections for members of general as- 
 sembly to be held on first Wednesday in 
 October, 1880, and thereafter biennially, 
 until the day is changed by law. Id. art. 
 
 3, § 4, IT 3. 
 
 Regular meetings of general assembly to 
 commence on the first Wednesday of No- 
 vember, 1878, and biennially thdfeafter, 
 until the day shall be changed by law. 
 Id. art. 3, § 4, H 4. 
 
 Official oath of senators and repre- 
 sentatives prescribed. Id. art. 3, § 4, If 5. 
 
 Four yeai-s' previous citizenship in the 
 State (instead of two) , required from sen- 
 ators. Id. art. 3, § 5, If 1. 
 
 And two years' (instead of one) from 
 representatives. Id. art. 3, § 6, If 1. 
 
 " The general appropriation bill shall em- 
 brace nothing except appropriations fixed 
 by previous laws, the ordinary expenses of 
 the executive, legislative and judicial de- 
 partments of the government, payment of 
 the public debt and interest thereon, and 
 for support of the public institutions and 
 educational interests of the State. All 
 other appi'opriations shall be made by 
 separate bills, each embracing but one 
 subject." Id. art. 3, § 'Z, If 9. 
 
 " No bill or resolution appropriating 
 money shall become a law unless, upon its 
 passage, the yeas and nays, in each house, 
 are recorded." Id. art. 3, § 7, If 12. 
 
 " No bill shall become a law unless it 
 shall receive a majority of the votes of all 
 the members elected to each house of the 
 general assembly, and it shall, in every 
 instance, so appear on the journal." Id. 
 art. 3, § 7, If 14. 
 
 " All special or local bills shall originate 
 in the house of representatives." How they 
 shall be framed, considered, and reported. 
 Id. art. 3, § 7, If 15. 
 
 " No local or special bill shall be passed, 
 unless notice of the intention to apply 
 therefor shall have been published in the 
 locality where the matter or thing to be 
 effected may be situated, which notice 
 shall be given at least thirty days prior to 
 the introduction of such bill into the gene- 
 
218 
 
 GEORGIA. 
 
 ral assembly, and in the manner to be pre- 
 scribed by law. The evidence of such 
 notice having- been published shall be ex- 
 hibited in the general assembly before such 
 act shall be passed." Id. art. 3, § 7, f 16. 
 
 "No law, or section of the Code, shall 
 be amended or repealed by mere reference 
 to its title, or to the number of the section 
 of the Code ; but the amending or repealing 
 act shall distinctly describe the law to be 
 amended or repealed, as well as the altera- 
 tion to be made (omitting a clause that 
 this provision shall be deemed only direc- 
 tory)." Id. art. 3, § 7, IT 17. 
 
 "The general assembly shall have no 
 power to grant corporate powers and priv- 
 ileges to private companies, except banking, 
 insurance, railroad, canal, navigation, ex- 
 press and telegraph companies ; nor to make 
 or change election precincts; nor to estab- 
 lish bridges or ferries ; nor to change names 
 or legitimate children; but it shall pre- 
 scribe by law the manner in which such 
 powers shall be exercised by the courts." 
 Id. art. 3, § 7, H 18. 
 
 " The general assembly shall have no 
 power to relieve principals or securities 
 upon forfeited recognizances from the pay- 
 ment thereof, either before or after judg- 
 ment thereon, unless the principal in the 
 recognizance shall have been apprehended 
 and placed in the custody of the proper 
 officer." W. art. 3, § 7, t 19- 
 
 " The general assembly shall not author- 
 ize the construction of any street passenger 
 railway within the limits of any incorpor- 
 ated town or city without the consent of 
 the corporate authorities." Id. art. 3, § 7, 
 120. 
 
 Subordinate officers of the two houses; 
 and limit of expenses. Id. art. 3, § 8. 
 
 iri- 
 
 Pay (and mileage) of members of gene- 
 ral assembly. Id. art. 3, § 9, If 1- 
 
 " All elections by the general assembly 
 shall be viva voce, and the vote shall appear 
 on the journal of the house of representa- 
 tives." How they shall be held and con- 
 ducted. Id. art. 3, § 10, If 1. 
 
 " All life-insurance companies now doing 
 business in this State, or which may desire 
 to establish agencies and do business in the 
 State of Georgia, chartered by other States 
 of the Union, or foreign States, shall show 
 that they have deposited with the comp- 
 troller-general of the State in which they 
 
 are chartered, or of this State, the insurance 
 commissioner, or such other officer as may 
 be authorized to receive it, not less than 
 one hundred thousand dollars, in such se- 
 curities as may be deemed by such officer 
 equivalent to cash, subject to his order, as 
 a guarantee fund for the security of the 
 policy holders." Id. art. 3, § 12, 1 1. 
 
 " When such showing is made to the 
 comptroller-general of the State of Georgia 
 by a proper certificate from the State offi- 
 cial having charge of the fund so deposited, 
 the comptroller-general of the State of 
 Georgia is authorized to issue to the com. 
 pany making such showing a license to do 
 business in the State, upon paying the fees 
 required by law." Id. art. 3, § 12, f 2. 
 
 " All life-insurance companies chartered 
 by the State of Georgia, or which may 
 hereafter be chartered by the State, shall, 
 before doing business, deposit with the 
 comptroller-general of the State of Georgia, 
 or with some strong corporation, which may 
 be approved by said comptroller-general, 
 one hundred thousand dollars, in such se- 
 curities as may be deemed by him equiva- 
 lent to cash, to be subject to his order, as 
 a guarantee fund for the security of the 
 policy holders of the company making such 
 deposit, all interest and dividends arisiDg 
 from such securities to be paid, when due, 
 to the company so depositing. Any such 
 securities as may be needed or desired by 
 the company may be taken from said de- 
 partment at any time by replacing them 
 with other securities equally acceptable to 
 the comptroller-general, whose certificate 
 for the same shall be furnished to the com- 
 pany." Id. art. 3, § 12, f 3. 
 
 " The general assembly shall, from time 
 to time, enact laws to compel all fire-insur- 
 ance companies doing business in this State, 
 whether chartered by this State or other- 
 wise, to deposit reasonable securities with 
 the treasurer of this State, to secure the 
 people against loss by the operations of said 
 companies." Id. art. 3, § 12, 1[ 4. 
 
 •" The general assembly shall compel all 
 insurance companies in this State, or doing 
 business therein, under proper penalties, 
 to make semi-annual reports to the gover- 
 nor, and print the same at their own ex- 
 pense, for the information and protection 
 of the people." Id. art. 3, § 12, % 5. 
 
 Power of the general assembly over 
 taxation. "The right of taxation is a 
 
GEORGIA. 
 
 219 
 
 sovereign right, — inalienable, indestruct- 
 ible, — is the life of the State, and right- 
 fully belongs to the people in aU republican 
 governments, and neither the general as- 
 sembly, nor any, nor all other departments 
 of the government established by this 
 constitution, shall ever have the authority 
 to irrevocably give, grant, limit, or restrain 
 this right; and all laws, grants, contracts, 
 and all other acts whatsoever, by said gov- 
 ernment, or any department thereof, to 
 afiect any of these purposes, shall be and 
 are hereby, declared to be null and void for 
 every purpose whatsoever ; and said right 
 of taxation shall always be under the com- 
 plete control of, and revocable by, the State, 
 notwithstanding any gift, grant, or contract 
 whatsover, by the general assembly." Id. 
 ait. 4, § 1, 1 1. 
 
 " The power and authority of regfulating 
 railroad freight and passenger tariffs, pre- 
 venting unjust discriminations, and requir- 
 ing reasonable and just rates of freight and 
 passenger tariffs, are hereby conferred upon 
 the general assembly, whose duty it shall 
 be to pass laws, from time to time, to regu- 
 late freight and passenger tariffs, to pro- 
 hibit unjust discriminations on the various 
 railroads of this State, and to prohibit 
 said roads from charging other than just 
 and reasonable rates, and enforce the 
 same by adequate penalties." Id. art. 4, 
 § 2, IT 1. 
 
 " The exercise of the right of eminent 
 domain shall never be abridged, nor so 
 construed as to prevent the general assem- 
 bly from taking the property and franchises 
 of incorporated companies, and subjecting 
 them to public use, the same as property of 
 individuals ; and the exercise of the police 
 power of the State shall never be abridged, 
 nor so construed as to permit corporations 
 to conduct their business in such manner 
 as to infringe the equal rights of individuals, 
 or the general well-being of the State." 
 Id. art. 4, § 2, H 2. 
 
 " The general assembly shall not remit 
 the forfeiture of the charter of any corpora- 
 tion now existing, nor alter or amend the 
 same, nor pass any other general or special 
 law for the benefit of said corporation, ex- 
 cept upon the condition that such corpora- 
 tion shall thereafter hold its charter subject 
 to the provisions of this constitution; and 
 every amendment of any charter of any 
 corporation in this State, or any special 
 
 law for its benefit, accepted thereby, shall 
 operate as a novation of said charter, and 
 shall bring the same under the provisions 
 of this constitution: Provided, that this 
 section shall not extend to any amendment ■>, 
 for the purpose of allowing any existing 
 road to take stock in or aid in the building 
 of any branch road." Id. art. 4, § 2, If 3. 
 
 "The general assembly of this State 
 shall have no power to authorize any cor- 
 poration to buy shares or stock in any other 
 corporation in this State or elsewhere, or 
 to make any contract or agreement what- 
 ever with any such corporation, which may 
 have the effect, or be intended to have the 
 effect, to defeat or lessen competition in 
 their respective businesses, or to encourage 
 monopoly; and all such contracts and agiee- 
 ments shall be illegal and void." Id. art. 
 4, § 2, 1[ 4. 
 
 " No railroad company shall give or pay 
 any rebate, or bonus in the nature thereof, 
 directly or indirectly, or do any act to mislead 
 or deceive the public as to the real rates 
 charged or received for freights or passage; 
 and any such payments shall be illegal and 
 void, and these prohibitions shall be en- 
 forced by suitable penalties." Id. art. 4, 
 § 2, IT 5. 
 
 "No provision of this article shall be 
 deemed, held, or taken to impair the obli- 
 gation of any contract heretofore made by 
 the State of Georgia." Id. art. 4, § 2, 
 1I-6. 
 
 " The general assembly shall enforce the 
 provisions of this article by appropriate 
 legislation." W. art. 4, § 2, 1 7. 
 
 Executive department. "The officers 
 of the executive department shall consist of 
 a governor, secretary of state, comptroller- 
 general, and treasurer." Id. art. 5, § 1, 
 
 111. 
 
 " The executive power shall be vested in 
 a governor, who shall hold his office during 
 the term of two years, and until his suc- 
 cessor shall be chosen and qualified." Ke- 
 elections restricted. Compensation. Id. 
 art. 5, § 1, f 2. 
 
 Election of governor to be held biennially; 
 and on first Wednesday in October (com- 
 mencing 1880) until general assembly shall 
 change the day. Id. art. 5, § 1, IT 3- 
 
 Restrictions on granting pardons ; ap- 
 plicable chiefly to pardon of treason. Par- 
 dons and reprieves, how to be reported. 
 Id. art. 5, § 1, IT 12. 
 
220 
 
 GEORGIA, 
 
 No law shall be enacted at called (i. e. 
 extra or special) sessions of the general 
 assembly, except such as shall relate to the 
 object stated in the governor's proclama- 
 tion convening them. Id. art. 5, § 1, U 13. 
 
 Governor empowered to require informa- 
 tion from executive officers; and to exam- 
 ine treasurer and comptroller-general, and 
 inspect their accounts. Suspensions of 
 officers authorized. Id. art. 5, § 1, IJ 19. 
 
 Election, compensation, and qualifica- 
 tions for secretary of state, comptroller- 
 general, and treasurer, prescribed anew. 
 Id. art. 5, § 2, t 1, 7. 
 
 Judiciary. The supreme court shall 
 consist of a chief justice and two associate 
 justices. A majority of the court shall 
 constitute a quorum. Id. art. 6, § 2, ^ 1. 
 
 " When one or more of the judges are 
 disqualified from deciding any case, by in- 
 terest or otherwise, the governor shall des- 
 ignate a judge, or judges, of the superior 
 courts to preside in said case." Id. art. 6, 
 § 2, IT 2. 
 
 " No judge of any court shall preside in 
 any case where the validity of any bond — 
 Federal, State, corporation, or municipal — 
 is involved, who holds in his own right, or 
 as the representative of others, any mate- 
 rial interest in the class of bonds upon 
 which the question to be decided arises." 
 Id. art. 6, § 2, t 3. 
 
 Terms of office of above-mentioned 
 judges. Id. art. 6, § 2, IT 4. 
 
 " The general assembly may provide by 
 law for the appointment of some proper 
 person to preside in cases where the presid- 
 ing judge is, from any cause, disqualified." 
 Id. art. 6, § 4, IT 9- 
 
 " In any county within which there is, 
 or hereafter may be, a city court, the judge 
 of said court, and of the superior court, 
 may preside in the courts of each other in 
 cases where the judge of either court is 
 disqualified to preside." Id. art. 6, § 5, 
 
 1[1- 
 
 Term of office, jurisdiction, and mode of 
 electing justices of the peace, prescribed 
 anew. Id. art. 6, § 7, f 1, 3. 
 
 The like as to notaries public. Id. art. 
 
 6, § 8. t 1- 
 
 " The jurisdiction, powers, proceedings, 
 and practice of all courts or officers invested 
 ■with judicial powers (except city courts) 
 of the same grade or class, so far as regu- 
 lated by law, and the force and effect of 
 
 the process, judgment, and decree, by such 
 courts, severally, shall be uniform. This 
 uniformity mast be established by the gen- 
 eral assembly." Id. art. 6, § 9, If 1. 
 
 Attorney-general to be elected by the 
 people. Id. art. 6, § 10, If 1- 
 
 Judges of supreme and superior courts, 
 and solicitor-general, to be elected by the 
 general assembly. Mode of election, and 
 of filling vacancies. Id. art. 6, § 12, % 1. 
 
 Their salaries, and that of attorney-gen- 
 eral. Id. art. 6, § 13, IT 1- 
 
 Qualifications of solicitor-general. Id. 
 art. 6, § 14, If 1. 
 
 " The power to change the venue in civil 
 and criminal cases shall be vested in the 
 superior courts, to be exercised in such 
 manner as has been, or shall be, provided 
 by law." Id. art. 6, § 17, 1 1. 
 
 The general assembly may prescribe 
 any number, not less than five, to consti- 
 tute a trial or traverse jury in courts other 
 than the superior and city courts. Id. art. 
 6, § 18, H 1. 
 
 How grand and traverse jurors shall be 
 selected and paid. Id. art. 6, § 18, If 2, 3. 
 
 Finance, taxation, and pnblic debt. 
 " The powers of taxation over the whole 
 State shall be exercised by the general as- 
 sembly for the following purposes only: 
 
 " For the support of the State govern- 
 ment and the public institutions ; 
 
 "For educational purposes, in instruct- 
 ing children in the elementary branches of 
 an English education only; 
 
 " To pay the interest on the public debt; 
 
 " To pay the principal of the public 
 debt; 
 
 " To suppress insurrection, to repel in- 
 vasion, and defend the State in time of 
 war; 
 
 " To supply the soldiers who lost a limb, 
 or limbs, in the military service of the 
 Confederate States, with substantial arti- 
 ficial limbs during life." Id. ai-t. 7, § 1, 
 
 in- 
 
 " All taxation shall be uniform upon the 
 same class of subjects, and ad valorem on 
 all property subject to be taxed, within the 
 territorial limits of the authority levying 
 the tax, and shall be levied and collected 
 under general laws. The general assembly 
 may, however, impose a tax upon such do- 
 mestic animals as, from their nature and 
 habits, are destructive of other property." 
 Id. art. 7, § 2, 1 1. 
 
GEORGIA. 
 
 221 
 
 " The general assembly may, by law, 
 exempt from taxation all public property, 
 places of religious worship or burial; all 
 institutions of purely public charity; all 
 buildings erected for and used as a college, 
 incorporated academy, or other seminary 
 of learning; the real and personal estate of 
 any public library, and that of any other 
 literary association, used by or connected 
 with such library; all books and philo- 
 sophical apparatus; and all paintings and 
 statuary of any company or association, 
 kept in a public hall, and not held as mer- 
 chandise, or for purposes of sale or gain: 
 Provided the property so exempted be 
 not used for purposes of private or cor- 
 porate profit or income." Id. art. 7, § 2, 
 12. 
 
 "No poll tax shall be levied except for 
 educational purposes, and such tax shall 
 not exceed one dollar, annually, upon each 
 poll." Id. art. 7, § 2, 1[ 3. 
 
 " All laws exempting property from tax- 
 ation, other than the property herein enu- 
 merated, shall be void." Id. art. 7, §2, 
 114. 
 
 " The power to tax corporations and 
 corporate pi'operty shall not be surrendered 
 or suspended by any contract or grant to 
 which the State shall be a party." Id. art. 
 7, § 2, 1[ 5. 
 
 " No debt shall be contracted by or on 
 behalf of the State, except to supply casual 
 deficiencies of revenue, to repel invasion, 
 suppress insurrection, and defend the State 
 in time of war, or to pay the existing pub- 
 lic debt; but the debt created to supply 
 deficiencies in revenue shall not exceed, in 
 the aggregate, two hundred thousand dol- 
 lars." Id. art. 7, § 3, 1 1. 
 
 " All laws authorizing the borrowing of 
 money by or on behalf of the State shall 
 specify the pui-poses for which the money 
 is to be used, and the money so obtained 
 shall be used for the purpose specified, and 
 for no othei-." Id art. 7, § 4, t 1- 
 
 " The credit of the State shall not be 
 pledged or loaned to any individual, com- 
 pany, corporation, or association, and the 
 State shall not become a joint owner or 
 stockholder in any company, association, 
 or corporation." Id. art. 7, § 5, H 1. 
 
 " The general assembly shall not author- 
 ize any county, municipal corporation, or 
 political division of this State, to become 
 a stockholder in any company, corporation. 
 
 or association, or to appropriate money for, 
 or to loan its credit to any coiporation, 
 company, association, institution, or indi- 
 vidual, except for purely charitable pur- 
 poses. This restriction shall not operate to 
 prevent the support of schools by municipal 
 corporations within their respective limits, 
 provided that if any municipal corporation 
 shall offer to the State any property for 
 locating or building • a capitol, and the 
 State accepts such offer, the corporation 
 may comply with such offer." Id. art. 7, 
 §6,11. 
 
 " The general assembly shall not have 
 power to delegate to any county the right 
 to levy a tax for any purpose, except for 
 educational purposes in instructing chil- 
 dren in the elementary branches of an 
 English education only; to build and re- 
 pair the public buildings and bridges; to 
 maintain and support prisoners ; to pay 
 jurors and coroners, and for litigation, 
 quarantine, roads, and expenses of courts; 
 to support paupers and pay debts heretofore 
 existing." 7rf. art. 7, § 6, 1 2. 
 
 " The debt hereafter incurred by any 
 county, municipal corporation, or political 
 division of this State, except as in this 
 constitution provided for, shall never ex- 
 ceed seven per centum of the assessed value 
 of all the taxable property therein, and no 
 such county, municipality, or division 
 shall incur any new debt, except for a 
 temporary loan or loans, to supply casual 
 deficiencies of revenue, not to exceed one 
 fifth of one per centum of the assessed 
 value of taxable property therein, without 
 the assent of two thirds of the qualified 
 voters thereof, at an election for that pur- 
 pose, to be held as may be prescribed by 
 law ; but any city, the debt of which does 
 not exceed seven per centum of the assessed 
 value of the taxable property at the time 
 of the adoption of this constitution, may 
 be authorized by law to increase, at any 
 time, the amount of said debt, three per 
 centum upon such assessed valuation." 
 Id. art. 7, § 7, 11. 
 
 " Any county, municipal corporation, or 
 political division of this State, which shall 
 incur any bonded indebtedness under the 
 provisions of this constitution, shall, at or 
 before the time of so doing, provide for the 
 assessment and collection of an annual tax, 
 suiBcient in amount to pay the principal 
 and interest of said debt within thirty 
 
222 
 
 GEORGIA. 
 
 years from the date of the incurring of said 
 indebtedness." Id. art. 7, § 7, If 2. 
 
 " The State shall not assume the debt, 
 nor any part thereof, of any county, muni- 
 cipal corporation, or political division of 
 the State; unless such debt shall be con- 
 tracted to enable the State to repel inva- 
 sion, suppress insurrection, or defend itself 
 in time of war." Id. art. 7, § 8, 1[ 1. 
 
 " The receiving, directly or indirectly, 
 by any officer of the State or county, or 
 member or officer of the general assembly, 
 of any interest, profits, or perquisites aris- 
 ing from the use or loan of public funds in 
 his hands, or moneys to be raised through 
 his agency for State or county purposes, 
 shall be deemed a felony, and punishable 
 as may be prescribed by law, a part of 
 which punishment shall be a disqualifica- 
 tion from holding office." Id. art. 7, § 9, 
 
 iri. 
 
 " Municipal corporations shall not incur 
 any debt until provision therefor shall have 
 been made by the municipal government." 
 Id. art. 7, § 10, U 1. 
 
 General assembly forbidden to appro- 
 priate money to pay certain obligations 
 (particularly some incurred in the civil 
 war), or to pass any law or authorize any 
 suit to sustain said obligations. Id. art. 
 7, §11,1 1. 
 
 " The bonded debt of the State shall 
 never be increased, except to repel inva- 
 sion, suppress insurrection, or defend the 
 State in time of war." Id. art. 7, § 12, 
 
 11- 
 
 The proceeds of the sale of certain rail- 
 roads, and any other property owned by 
 the State, " shalK be applied to the pay- 
 ment of the bonded debt of the State, and 
 shall not be used lor any other pm-pose 
 whatever, so long as the State has any 
 existing bonded debt." Id. art. 7, § 13, 
 
 1[1- 
 
 The general assembly directed to raise, 
 by taxation, each year, a sinking-fund, to 
 pay off and retire the bonds of the State 
 which have not yet matured. Temporary 
 use of the fund. Id. art. 7, § 14, H 1. 
 
 Quarterly reports from comptroller-gen- 
 eral and treasurer. Id. art. 7, § 15, If 1- 
 
 " The general assembly shall not, by 
 vote, resolution, or order, grant any dona- 
 tion or gratuity in favor of any person, 
 corporation, or association." Id. art. 7, 
 § 16, 1[ 1. 
 
 " The general assembly shall not grant 
 or authorize extra compensation to any 
 public officer, agent, or contractor, after 
 the service has been rendered or the con- 
 tract entered into." Id. art. 7, § 16, If 2. 
 
 The public printing to be let by contract. 
 Id. art. 7, § 17, If 1. 
 
 Education. " There shall be a thorough 
 system of common schools for the educa- 
 tion of children in the elementary branches 
 of an English education only, as nearly 
 uniform as practicable, the expenses of 
 which shall be provided for by taxation or 
 otherwise. The schools shall be free to 
 all children of the State ; but separate 
 schools shall be provided for the white and 
 colored races." Id. art. 8, § 1, If 1. 
 
 State school commissioner ; his term 
 and compensation. Id. art. 8, § 2, If 1. 
 
 " All taxes that may be assessed on such 
 domestic animals as, from their nature 
 and habits, are destructive to other prop- 
 erty," added to the moneys from other 
 sources formerly set apart and devoted to 
 the support of common schools. Id. art. 
 8, § 3, If l._ 
 
 "Authority may be granted to counties, 
 upon the recommendation of two grand 
 juries, and to municipal corporations, upon 
 the recommendation of the corporate au- 
 thority, to establish and maintain public 
 schools iu their respective limits by local 
 taxation ; but no such local laws shall take 
 effect until the same shall have been sub- 
 mitted to a vote of the qualified voters in 
 each county or municipal corporation, and 
 approved by a two-thirds vote of persons 
 qualified to vote at such election; and the 
 general assembly may prescribe who shall 
 vote on such question." Id. art. 8, § 4, 
 
 Ifl- 
 
 Existing local school systems shall be 
 preserved ; and schools not common schools 
 may participate in the educational fund. 
 Id. art. 8, § 5, If 1. 
 
 Donations, &c. to the University of Geor- 
 gia, authorized. Id. art. 8, § 6, Tf 1. 
 
 Homestead and exemptions. "There 
 shall be exempt from levy and sale by 
 virtue of any process whatever, under tlie 
 laws of this State, except as hereinsvfter 
 excepted, of the property of every head of 
 a family, or guardian, or trustee of a fam- 
 ily of minor children, or every aged or in- 
 firm person, or person having the care and 
 support of dependent females of any age, 
 
GEORGIA. — GIFT. 
 
 223 
 
 who is not the head of a family, realty or 
 personalty, or both, to the value in the ag- 
 gregate of sixteen hundred dollars. Id. 
 art. 9, § 1, f 1. 
 
 Waiver of exemption authorized. Power 
 to alienate or encumber homestead, lim- 
 ited. Exemptions authorized by the Code 
 preserved. Debtor may increase an ex- 
 emption of property, less in value than that 
 allowed, to the full limit. Former home- 
 steads, and vested rights under former 
 laws, saved. Their sale. Id. art. 9, § 
 3-9. 
 
 Militia. The general assembly author- 
 ized anew to provide as to the militia ; but 
 officers and men shall not have pay or ra- 
 tions when not in active service. Id. art. 
 10, § 1, IT 1-3. 
 
 Counties and connty officers. " Each 
 county shall be a body corporate, with 
 such powers and limitations as may be 
 prescribed by law. All suits by or against 
 a county shall be in the name thereof; and 
 the metes and bounds of the several coun- 
 ties shall remain as now prescribed by 
 law, unless changed as hereinafter pro- 
 vided." Id. art. 11, § 1, 1 1. 
 
 " No new county shall be created." Id. 
 art. 11, § 1, H 2. 
 
 " County lines shall not be changed, un- 
 less under the operation of a general law 
 for that purpose." Id. art. 11, § 1, If 3. 
 
 " No county site shall be changed or re- 
 moved, except by a two-thirds vote of the 
 quali&ed voters of the county, voting at an 
 election held for that purpose, and a two- 
 thirds vote of the general assembly." Id. 
 art. 11, § 1, IT 4. 
 
 " Any county may be dissolved and 
 merged with contiguous counties, by a 
 two-thirds vote of the qualified electors of 
 such county, voting at an election held for 
 that purpose." Id. art. 11, §1,15. 
 
 " The county officers shall be elected by 
 the qualified voters of th^ir respective 
 counties, or districts, and shall hold their 
 offices for two years. They shall be re- 
 moved on conviction for malpractice in 
 office, and no person shall be eligible to 
 any of the offices referred to in this para- 
 graph, unless he shall have been a resident 
 of the county for two years, and is a quali- 
 fied voter." Id. art. 11, § 2, l 1. 
 
 " Whatever tribunal or officers may here- 
 after be created by the general assembly 
 for the transaction of county matters shall 
 
 be uniform throughout the State, and of 
 the same name, jurisdiction, and remedies, 
 except that the general assembly may pro- 
 vide for the appointment of commissioners 
 of roads and revenue in any county." Id. 
 art. 11, §3,11. 
 
 The laws of general operation in 
 force in this State. These laws desig- 
 nated anew. Id. art. 12, 1 1-4. 
 
 Vested rights under former laws ; judg- 
 ment already rendered ; and officers in 
 office, — saved. Id. art. 12, 1 5-7. 
 
 Effect to be attributed to ordinances of 
 the convention, — prescribed. Id. art. 12, 
 18. 
 
 Amendments f o the constitution. Man- 
 ner of proposing amendments to the con- 
 stitution; or of calling a convention to 
 revise it. Id. art. 13, § 1, 1 1, 2. 
 
 Mode of submitting the constitution to 
 the people, and of proclaiming the result. 
 Id. art. 13, §2, 11, 2. 
 
 United States district courts. Cer- 
 tain counties transferred from the northern 
 to the southern (judicial) district ; and the 
 southern district divided into two divisions. 
 Act of Congress of Jan. 29, 1880, § 1. 
 
 A term of the circuit court and of the 
 district court for the southern district of 
 Georgia shall be held at Macon in said 
 State on the first Mondays of May and 
 October in each year. Id. § 2. 
 
 Regulations prescribed for determining 
 in which district or division various suits 
 must be brought, or crimes prosecuted; 
 and governing transfer of causes from one 
 district or division to another, or removal 
 of causes from a State to a Federal court; 
 and directing how jurors shall be sum- 
 moned, and process served for the two 
 divisions. Id. § 4-9. 
 
 GIAUQUE. The United States Elec- 
 tion and Naturalization Laws. By Florian 
 GiAuquE. Cincinnati: Robert Clarke & 
 Co. 
 
 GIFT. It is not necessary to a complete 
 gift of money in trust that the beneficiary 
 should be put in possession or even be in- 
 formed of the gift. Mrs. Boone deposited 
 money in a savings-bank, stating to the 
 bank officers that she desired it to be held 
 in trust for her two nieces; and the bank 
 gave her two pass-books, in which the 
 money was entered to her credit in trust 
 &c. She kept the books until her death; 
 and it was not until after that event that her 
 
224 
 
 GIFT.— GUARANTY. 
 
 nieces learned that the deposits had been 
 made. They then claimed the money, but 
 the administrator refused to recognize their 
 right. Held, that enough had been done 
 to pass the title and to constitute Mrs. 
 Boone a trustee; and that the moneywas 
 not assets of her estate, but must be paid 
 over to the beneficiaries. The retention of 
 the pass-book by her, and her withholding 
 from the beneficiaries any information of 
 her intention, did not prevent her acts from 
 taking effect and creating a complete trust. 
 Ct. of Appeals, 1878, Martin v. Funk, 75 
 N. Y. 134. 
 
 Ney, a depositor in a savings-bank, de- 
 livered her bank-book, accompanied by an 
 assignment of her deposits, to Emery, upon 
 an oral agreement that Emery should draw 
 for her what money she wanted during her 
 lifetime, and pay the balance, if any, left 
 at her death to her son. In pursuance of 
 this agreement Emery paid to Ney certain 
 sums of money before her death, and the 
 balance remaining after her death he paid 
 to her son, who was appointed executor of 
 her will. Held, that the delivery and as- 
 signment to Emery constituted a valid gift, 
 and that the son was not bound to account 
 as executor for the money so received by 
 him. Supreme Ct. 1878, Davis v. Ney, 125 
 Mass. 590. 
 
 Minor Decisions on Gift. 
 
 Deposit in savings-bank may be given in 
 view of death by delivery of the book : 124 
 Mass. 472. Present of a mare carries a 
 colt foaled afterward: 33 Ark. 207. 
 
 GOSDABD. A Treatise on the Law of 
 Easements. By John Leyboukn God- 
 DAED, Esq., Barrister-at-Law. Second 
 edition. Much enlarged by Hon. Edmund 
 H. Bennett, LL.D. Boston: Houghton, 
 Mifflin, & Co. 
 
 The leading topics of the five chapters 
 are: The nature of easements; The various 
 modes of acquiring them ; Their extent and 
 mode of user; Their disturbance and the 
 remedies therefor; Their extinction, sus- 
 pension, and revival. 
 
 GOIRAND. The French Code of Com- 
 merce and Most Usual Commercial Laws, 
 with a Commentary and Compend of 
 the Judicial Organization, Procedure, 
 &c. By Leopold Goirand. London: 
 
 Gold Banks may change to currency banks, l 
 p.l. I 
 
 Stevens & Sons. New York: 
 Voorhis, & Co. 
 
 GUARANTY. The rule laid down in 
 Massachusetts and New York cases for dis- 
 tinguishing original from collateral engage- 
 ments, viz. : That where the main object 
 of the promise is a benefit accruing directly 
 to the promisor, and which he did not be- 
 fore enjoy, and the promise to pay the debt 
 of another is a mere incident, then the ac- 
 cidental or incidental fact that the promise 
 includes the answering for the debt of ano- 
 ther will not bring it within the statute; 
 but where the main object is to obtain the 
 release of the person or the property of the 
 debtor, or 9ther forbearance or other bene- 
 fit to him, then it is within the statute, 
 though a new consideration moves directly 
 to the promisor [3 Mete. 396; 98 Mass. 
 297; 21 N. Y. 412], — approved; andAeM, 
 that a promise by the president of a bank 
 to a depositor, that if the latter will not 
 check out his funds, but permit them to 
 remain in the bank, the former will pay 
 the total deposit if the bank should close, 
 is within the statute of frauds, and cannot 
 be enforced if not reduced to writing. St. 
 Louis Cl. of Appeals, 1878, Walther v. 
 Merell, 6 Mo. App. 370. 
 
 A guaranty is presumably co-extensive 
 with the obligation of the principal debtor; 
 if the guarantor intends any restrictions or 
 limitations he should see that they are ex- 
 pressed in his guaranty. One who was 
 buying a horse offered in part-payment a 
 note made by a third person, then long over^ 
 due. The seller declined this until the 
 buyer indorsed upon the note " I guarantee 
 the within note;" when the seller accepted 
 it. Held, that this was a guaranty of pay- 
 ment, and not merely that the note was 
 collectible. Supreme Ct. 1878, WincheU «. 
 Doty, 15 Hun {N. Y.), 1. 
 
 Minor Decisions on Guaranty. 
 Stipulation on back of note, " I guarantee 
 the payment of within note " is a g., not 
 an indorsement; is assignable; and passes 
 by indorsement of note : 60 Ind. 350. 
 Guarantor of collection is not liable unless 
 creditor uses due diligence to collect; 76 
 N. Y. 445. Guarantor of bond and mort- 
 gage is discharged by delay (14 months) to 
 foreclose, during which time buildings are 
 
 Guaranty, National bank can guarantee paper 
 which it sells, p. 38. 
 
GUARDIAN. — HEALTH. 
 
 225 
 
 burned: 72 Id. 523. A g. of a note, given 
 with a note, is upheld by the note's consider- 
 ation ; and this need not be stated in the g. if 
 it is indorsed on, or distinctly refers to, the 
 note: 49ifcf. 135. Extrinsic circumstances 
 may be received to show that a g. not clear- 
 ly continuing was intended and accepted 
 as such: 73 iV. F. 335. 
 • GrUARDIAN. There cannot be two law- 
 ful guardians of the same ward at the same 
 time in the same State. The appointment 
 of a second guardian for the same ward is 
 void, although the second appointment was 
 made under the belief of both the first and 
 second, that the right of the first, as such, 
 had been extinguished by her marriage; 
 and the bond of such second guardian is 
 not a good statutory bond, but is a good 
 common-law obligation. Ct. of Appeals, 
 1878, Cotton v. Wolf, 14 Bush (Xy.), 238. 
 While marriage of a female guardian 
 may be sufficient cause for her removal, in 
 the absence of any consent by her husband 
 that she should remain guardian, it does 
 not dissolve the relation of guardian and 
 ward. A female guardian who abandons 
 her right to the custody of her wards and 
 
 their estate, under the belief that her mar- 
 riage had extinguished her right, with her 
 sureties, remains responsible for the estate 
 then in her hands, and for all other moneys, 
 choses in action, and other estate that should 
 have been collected or taken control of by 
 her as guardian after that time. lb. 
 
 A guardian under a will shall be exempt 
 from giving surety when the testator has 
 requested that no bond or no sui'ety be 
 taken ; but shall in all cases give his own 
 bond ; and probate judge may require surety 
 for cause. Guardian failing to give bond 
 thus required is considered to have declined 
 the trust. Mass. Laws 1880 (Feb. 26), 35, 
 ch. 34. 
 
 Minor Decisions on Gnardian. 
 G. appointed in loyal States is not ex- 
 empt from liability for loss of assets re- 
 moved to foreign country by the fact that 
 his purpose was to protect them from con- 
 fiscation as rebel property by the United 
 States: 1 Fed. Reporter, 14. Release by 
 succeeding g. cannot discharge original g. 
 for loss of assets by unlawful investment. 
 lb. 
 
 H. 
 
 HABEAS CORPUS. A justice of the 
 supreme court of the United States may ex- 
 ercise his power of granting the writ of 
 habeas corpus, wherever he may be; and 
 may hear the case, though not within the 
 circuit to which he has been assigned. If 
 the case is one involving appellate jurisdic- 
 tion, — as where revision of a decision by 
 the circuit court is prayed, — he can either 
 hear and determine the application him- 
 self, or postpone it to be heard in the first 
 instance by the supreme court. The latter 
 course is very proper where questions of 
 great moment and difficulty are involved. 
 It is only where the hearing will involve 
 original jurisdiction (as in 14 How. 103) 
 that the supreme court cannot take cogniz- 
 ance of it upon a reference by a justice. 
 
 Healtll. Quarantine laws, Qcakantine. 
 Powers of city authorities over sanitary matters. 
 Municipal corporation. 
 
 New law of Wisconsin for detecting adultera- 
 tions of food, pp. 14, 15; of Louisiana, for punishing 
 them, p. 15. Notable English decisions on same 
 
 15 
 
 Supreme Ct. 1879, Ezp. Clarke, 100 U. S. 
 399. 
 
 HARRIS. Hints on advocacy, intended 
 for practice in any of the courts. With 
 suggestions as to opening a case, exami- 
 nation-in-chief, cross-examination, re-ex- 
 amination, reply, conduct of a prosecution 
 and of a defence in criminal trial, with illus- 
 trative cases that have occurred. By Rich- 
 ard Hakeis, Barrister-at-law. American 
 edition, by W. H. Stevenson, St. Louis. 
 
 Prepared for beginners ; but appears 
 judicious and useful; and has been highly 
 commended. 
 
 HEALTH. The recent enactments 
 establishing the National Board of 
 Health may develop importance. The 
 
 subject, p. 15. New laws of Pennsylvania and 
 Virginia, as to diseased cattle, p. 24. Baker on 
 Quarantine, p. 34. Health of animals in transpor- 
 tation, pp. 69, 71. Recent laws protecting health 
 of children, pp. 78, 80. 
 
22a 
 
 HEALTH. — HIGHWAY. 
 
 act creating it was approved March 3, 
 1879. Seven citizen members, appoint- 
 ed by the President, and paid ten del-- 
 lars for each day's actual service, and 
 four officers, detailed from the depart- 
 ments, and serving -without other pay 
 than their general salaries, compose the 
 board. It is designed to be a sort of 
 " Sanitary Commission," supervising, 
 from Washington as headquarters, 
 health matters throughout the country, 
 so far as State authorities maj' permit. 
 At first little else was given it to do 
 than to ' ' collect information " and to 
 "advise" the departments at Wash- 
 ington and the governors of States 
 upon questions relating to public health. 
 More recentlj^ somewhat specific duties 
 have been assigned. Thus, in view of 
 the danger of importing disease from 
 abroad, an act of June 2, 1879, pro- 
 vides that when a contagious or in- 
 fectious disease is known to exist in 
 any foreign port, the National Board of 
 Health may make rules to be observed 
 by any vessels wishing to come to this 
 country, and may have a medical offi- 
 cer stationed at such port for the time 
 being, and no vessel shall leave for 
 America without a certificate from that 
 medical officer, showing her sanitary 
 condition and that she has complied 
 with her whole duty. Then, as to the 
 danger of carrjing diseases from one 
 place within the United States to 
 another, the National Board of Health 
 is directed to co-operate with State 
 authorities in improving and enforcing 
 quarantine rules ; or, if the State 
 authorities do not act, the National 
 Board may prepare proper rules, and if 
 these are approved by the President he 
 may have them enforced. The con- 
 suls' reports of the sanitarj' condition 
 of foreign ports, which used to be 
 made to the supervising surgeon-gen- 
 eral, are now du'ected to be made to 
 the National Board, and this board is 
 
 also to procure weekly reports from 
 representative places all over this 
 country. It has received liberal ap- 
 propriations to enable it to perform 
 these duties. 
 
 National Board of Health established' 
 and its organization and duties prescribed. 
 Act of March 3, 1879, ch. 202, § 1, 20 Stat, 
 at L. 37. 
 
 A statute of Florida constitutes a board 
 of health for each incorporated city or 
 town, and gives them extended powers to 
 establish quarantine whenever their place 
 is suffering from or threatened by any 
 malignant, contagions, or infectious dis- 
 ease. Fla. Laws 1879 (Mar. 11), 101, ch. 
 3162. 
 
 Powers of the Massachusetts State Board 
 of Health, under Stat. 1871, ch. 167, § 2, 
 to restrict or prohibit the business of 
 slaughtering or rendering. Sawyer v. 
 State Board of Health, 125 Mass. 182. 
 
 HEARD. The principles of pleading 
 in civil actions. By Fkanklin Fiske 
 Heard. 12mo. Boston: Little, Brown, 
 & Co. A volume in the Student Series. 
 
 HIGHWAY. The public have only an 
 easement in a highway, that is, the right 
 of passing and repassing along it. The 
 soil ordinarily remains in the owner ; hence, 
 where one stops in the road and miscon- 
 ducts himself by foul and abusive lan- 
 guage, and threatening gesticulations, he 
 becomes a trespasser, and the owner has 
 the right to abate the nuisance which he is 
 creating. Supreme Ct. 1879, State v. 
 Davis, 80 N. C. 351. 
 
 To run and race a horse along a public 
 road, to the danger and inconvenience of 
 persons travelling along it, is a misde- 
 meanor ; no necessity being shown. Roads 
 are not intended for any such use, but for 
 the ordinary and usual travel of the public. 
 There may be necessity for riding at great 
 speed along even the public road, as in 
 oases of sickness, or to give a neighbor 
 notice of great personal danger or dam- 
 age to his property ; but such necessity is 
 always matter of defence to be shown. 
 Supreme Ct. 1873, State v. Battery, 6 Baxt. 
 {Term.) 545. 
 
 Stones and stumps left, temporarily, after 
 repairing the highway, entirely off the 
 
 Highway. Dedication of lands for, pp. 143, 144. 
 
HIGHWAY. 
 
 227 
 
 travelled way, and where they cannot im- 
 pede vehicles, &o. do not constitute a de- 
 fect in the highway. And if a horse takes 
 fright at the appearance of such objects ; 
 or if, being frightened by something else, 
 — here, by the approach of some cows 
 wearing boards on their horns, — he runs 
 away and damage ensues, the town is not 
 liable. The duty and liability of the 
 town are discharged by maintaining in good 
 condition and repau-, and free from ob- 
 structions, a wrought road of suitable 
 width for all the needs of public travel. 
 Towns are not insurers against the possible 
 and infinite idiosyncracies of the various 
 horses which may travel over a road. Su- 
 preme Ct. 1878, Perkins v. Fayette, 68 
 Me. 152; 1879, Farrell v. Oldtowu, 69 
 Me. 72. 
 
 To warrant holding a town liable for in- 
 jury sustained by a traveller's horse taking 
 fright and running away in consequence of 
 some unusual and terrifying object, such as 
 an eight-ton boiler left in the road over 
 night by persons who were dragging it from 
 one place to another, or a heap of blocks of 
 split granite lying by the roadside, near 
 but not on the travelled path, there must 
 be proof that the town authorities had 
 notice that such objects existed under cir- 
 cumstances rendering them dangerous. 
 Supreme Ct. 1878, Bartlett v. Kittery, 68 
 Me. 358; 1879, Farrell v. Oldtown, 69 
 Id. 72. 
 
 The fact that a horse generally safe 
 and tractable becomes for the moment un- 
 manageable through fright or other ac- 
 cidental cause does not impair the right 
 of his owner and driver to recover for an 
 injury sustained by defective condition of 
 the highway. Kennedy was engaged in 
 carting brick from a dock in the city of 
 New York. Through the negligence of 
 the city authorities the dock was defective 
 in this respect, that there was no string- 
 piece laid along the edge to- hinder wheels 
 from going over. While Kennedy was 
 backing his cart to procure a load, his horse 
 became unmanageable by some sudden 
 fright, and, notwithstanding every effort 
 on his driver's part to restrain him the ani- 
 mal backed off the dock and was drowned. 
 Held, that the city was liable for the loss. 
 Ct. of Appeals, 1878, Kennedy v. New 
 York, 73 N. Y. 365. 
 
 Although a municipal corporation is only 
 
 bound to the exercise of reasonable skill 
 and diligence in keeping its streets safe and 
 convenient, and is not bound to keep them 
 in such a condition that damage may not 
 be caused thereon by horses running away, 
 yet where, without any fault on the part 
 of a driver, his horse becomes frightened 
 and unmanageable, or runs away, and this, 
 with a culpable defect in the highway, 
 produces an injury, the municipality is 
 liable, provided the injury would not have 
 been sustained but for such defect; the 
 fact that the horse was at the time beyond 
 the control of the driver is no defence. 
 Ring was driving a blind horse upon a New 
 York city street ; the horse became fright- 
 ened, and commenced to run. Ring was 
 unable to restrain him or to guide him 
 with any precision. The street was thirty 
 feet wide; a pile of ashes had been negli- 
 gently allowed to accumulate, extending 
 eleven feet into the street, a loaded wagon 
 was in the street next to the heap of ashes, 
 leaving a clear roadway of about twelve 
 feet. In passing the wagon plaintiff's 
 horse ran so near a hydrant at the side of 
 the street that his sleigh struck it, and he 
 was thrown out and injured. The hydrant 
 was two and a half feet high, with a nozzle 
 about six inches from the top, which pro- 
 jected over the gutter about four inches; 
 the gutter was twelve inches wide. Upon 
 the trial of an action brought by Ring to 
 recover damages for the injury, the referee 
 found defendant guilty of negligence in 
 allowing the pile of ashes to remain in the 
 street, but there was no evidence that the 
 hydrant was not properly placed. Held, 
 that the liability of the city rested entirely 
 upon the obstruction caused by the ashes ; 
 and that as that obstruction 8id not cause 
 the accident, a judgment for plaintiff was 
 erroneous. Supreme Ct. 1879, Ring v. Co- 
 hoes, 77 N. Y. 83. 
 
 It is a well-settled rule that care must be 
 taken, while the work of repairing a high- 
 way is in progress, to prevent injuries to 
 passengers therefrom ; and omitting proper 
 warnings by barriers, lights, &c., with a 
 view to the safety of public travel, is negli- 
 gence ; so, objects calculated to frighten 
 horses of ordinary gentleness, if necessary 
 to be employed in the work of reparation, 
 should be so hidden or concealed as to be 
 harmless to careful, prudent travellers. 
 The agents of a turnpike company caused 
 
228 
 
 HIGHWAY. — HOMESTEAD. 
 
 a quantity of stones to be piled on the side 
 of its road near to a bridge, in the repara- 
 tion of which they were to be used, and 
 allowed them to remain there; horses of 
 ordinary gentleness were more or less 
 frightened at them, of which fact the com- 
 pany had notice. Eggleston's mare, which 
 was of a kind and gentle disposition, while 
 being driven by him in a careful and 
 proper manner, came to the bridge, saw 
 the stones, was seized with a sudden fright, 
 and jumped from the bridge, breaking 
 her leg, and injuring the plaintiff and his 
 wagon. Held, that the company was liable 
 for the injury so occasioned. Supreme Ct. 
 1879, Eggleston v. Columbia Turnp. Koad, 
 18 Hun {N. r.), 146. 
 
 One who accepts invitation of another 
 person to ride with him, the latter being 
 ovscer and driver of the vehicle, and hav- 
 ing the entire control over it, while the 
 other rides as guest, does not occupy 
 any relation of principal towards the 
 driver as his agent, such that negligence 
 on the part of the driver can be imputed 
 to the passenger. Ct. of Appeals, 1877, 
 Dyer v. Erie Ky. Co., 71 N. Y. 228. 
 
 Negligence of the driver of a private 
 conveyance, in which a person is volunta- 
 .rily riding at the time of receiving injury 
 from a defective highway, is imputable to 
 the passenger, and defeats an action by 
 him. Supreme Ct. 1879, Otis v. Janes- 
 ville, 47 Wis. 422. 
 
 Minor Beci^ous on Highway. 
 
 Statute authorizing establishment of 
 highways does not prevent common-law 
 dedication : 5.5 Miss. 612. Public right in 
 road may be acquired by mere long user: 
 69 Mo. 463. ' A man cannot dedicate lands 
 of his wife and children for a h. ; nor 
 will they be bound by user: Id. 642. Su- 
 pervisors should consider cost as well as 
 utility in deciding to establish h. : 47 Iowa, 
 30. To describe injury sustained on high- 
 way as " inflammation of the periosteum 
 of the tibia " complies with rule to specify 
 nature of injury; the words have become 
 Anglicised: 69 Me. 194. Overseer of h. 
 or agent, sued for act as such, cannot defend 
 at expense and without consent of town 
 or principal, after one judgment passed 
 
 against him: 74 iV. K. 310. City is liable 
 for default of its officers in keeping a street 
 in good condition, if they have actually 
 used it as a street, though it may not have 
 been legally laid out: 75 N. Y. 45. That 
 a bridge over a street was high enough to 
 allow ordinary carriages to pass does not 
 defeat claim of one attempting to pass 
 with an unusually high vehicle; the suf- 
 ficiency of the bridge is for the jury: 
 Id. 45. Liability of person leaving caus- 
 tics on h. to owner of horse whose feet are 
 injured: 44 Wis. 388. When injunction 
 lies to prevent obstruction of h. : 13 W. 
 Va. 476. Failure to take the street or a 
 safer sidewalk, when one is not aware that 
 the one taken is unsafe, is not contributive 
 negligence: 90 III. 61. Omission, before 
 crossing a city street, to look both ways 
 for coming vehicles, is not necessarily 
 contributive negligence: 126 Ma.>!s. 391. 
 Traveller's former knowledge of defect 
 does not, alone, charge him with con- 
 tributive negligence; presumption is that 
 it has been mended: 76 i\^. Y. 329. 
 
 HILL. The Law of Commission. By 
 Edwaed J. Hill. 
 
 Treats of the law governing the contracts 
 peculiar to commission-merchants, with 
 special reference to the usages of the Chi- 
 cago Exchange. It explains " option" or 
 "time" contracts; and others of like 
 character. 
 
 HOMESTEAD. A recent Indiana law, 
 — providing for a homestead, and exempt- 
 ing it from sale on execution, and ex- 
 empting certain personal property from 
 attachment and sale on execution, or dis- 
 tress for rent, is a comprehensive home- 
 stead law exempting an amount of 
 property, either real or personal, not ex- 
 ceeding $600 in value, owned by any resi- 
 dent householder, from sale on execution, 
 or any other final process from a court, for 
 any debt growing out of or founded upon 
 a contract, express or implied, after the 
 taking effect of this act. But the ex- 
 emption shall not affect any laborers' or 
 mechanics' lien, nor lien for the purchase- 
 money of the real property exempted, nor 
 exempt any property from taxation, or 
 from sale for taxes. Ind. Laws 1879 
 (March 29), 127, ch. 50. 
 
 Homestead. Other exemptions. Execution. | Exemptions in California, p. 65. What debts are 
 Abandonment of homestead, pp. 2, 5. What is I embraced by " contracted," p. 150. Famil}', aad 
 a dwelling-house within law of burglary, p. 64. I head of family, pp. 1D5, 157. 
 
HOMESTEAD. —HOMICIDE. 
 
 229 
 
 Minoi Decisions on Homestead. 
 A constitutional provision exempting 
 "every h. not exceeding eighty acres," 
 prevents the legislature from reducing the 
 exemption below that quantity, but does 
 not forbid their allovping a more liberal 
 one: 56 Ala. 49. The provision of N. C. 
 Const, art. 10, § 2, is self-executing, and 
 secures the right independent of further 
 legislation: 92 N. C. 474. Necessity of 
 legislation to give effect to constitutional 
 provisions, and its effects : 13 W. Va. 686. 
 H. exemption laws inoperative against 
 previously-contracted debts : 80 N. C. 187 ;■ 
 6 Baxt. (^Tenn.) 225. H. is a statutory 
 right; law should be liberally construed, 
 but cannot be extended on equitable 
 grounds : 67 Mo. 308. " Owner," in h. 
 laws, includes any person having a claim or 
 interest in the property, though less than 
 the absolute fee: 38 Mich. 168. Some ac- 
 tual occupancy as a home is essential: 59 
 Ata. 635. Actual residence on the prem- 
 ises is necessary : 52 Cal. 629 ; Id. 630; 
 14 Busk {Ky.), 210. Mere intention to 
 reside does not constitute a h. ; but tem- 
 poraiy removal is not a forfeiture : 14 Bush 
 (Ky.), 210; lb.; 50 Tex. 249. Dwelling- 
 house, stores, and storehouses, on the same 
 lot, allowed as a h. : 13 Neu. 65. H. is not 
 exempt from demands of the State against 
 the owner for money collected officially; 
 here by a collector of taxes: 60 Ga. 76. 
 A person cannot have two homesteads at 
 once ; leaving one and making another 
 forfeits the first, notwithstanding the re- 
 turn: 59 Ala. 569. Removing to another 
 county and voting there is an abandonment 
 of a h. : 88 111. 199. It is not an abandon- 
 ment of a h. to remove for a temporary 
 purpose, such as to educate children: 50 
 Tex. 269; or on account of ill-health: 19 
 Bank. Reg. 382 ; 4 Law Sj- Eq. Reporter, 
 684. Abandonment of h. does not trans- 
 fer the exemption, but extinguishes it: 90 
 Ul. 474. Mode of conveying husband's 
 h. ; and requisites of wife's acknowledg- 
 ment: 61 Ala. 232. Manner of wife's con- 
 veying her interest : 47 Iowa, 47. How 
 
 wife's assent to conveyance must be evi- 
 denced: 89 III. 320. Wife's separate es- 
 tate may be a II. ; how it may be alienated: 
 61 Ala. 98; Id. 129. Agreement of sepa- 
 ration, or bequest in lieu of h. unaccepted, 
 does not bar wife's right : 53 Cal. 715. 
 Wife's absence from home, not in aban- 
 donment of husband, does not impair her 
 h. right: 51 Tex. 150. Effect of wife's 
 abandonment of husband on her right of 
 h. : 68 Mo. 388. Widow's h. right is 
 good against heirs as well as creditors : 33 
 Ark. 399; but cannot be created after hus- 
 band's death: lb. Widow not entitled to 
 h. in lands of husband who died leaving 
 children: 80 N. C. 169. Relative rights 
 of widow and heirs where there are no 
 children: 30 Gratt. (Va.) 404. Effect of 
 widower's removal as against infant chil- 
 di-en: 14 Bush (Ky.), 585. 
 
 HOMICIDE. Injury not fatal, done to 
 a trespasser by the action of a spring-gun 
 set by the owner of the land, will not ne- 
 cessarily sustain an indictment for an as- 
 sault with intent to murder, merely because 
 the circumstances are such that, if death 
 had ensued, the homicide would have been 
 murder. There may be murder without 
 actual intent to kill; but the offence of as- 
 sault with intent to murder requires proof 
 of the existence of that intent as matter of 
 fact. Supreme Ct. 1877, Simpson v. State, 
 59 Ala. 1. 
 
 It is not lawful for a land-owner to set 
 spring guns or plant other deadly weapons 
 upon his premises for the dangerous bodily 
 injury of trespassers. Any rule of this sort 
 sanctioned by early English cases [3 Barn. 
 & Aid. 304] is inconsistent with the poli- 
 cies and institutions of this country [14 
 Conn. 1; 31 Id. 479]; and has been set 
 aside by statute in England. By our law 
 the principle that a man may rightfully 
 use as much force as is necessary for the 
 protection of his person and property is 
 subject to this qualification, that he shall 
 not, except in extreme cases, inflict great 
 bodily harm, or endanger human life. The 
 preservation of human life, and of limb 
 
 Homicide. Action for causing death. Death. 
 Crimes involving homicide, Abortion ; Man- 
 SLAUGHTEK ; MuKDER. Justification on the ground 
 of self-defence. Self-defence. 
 
 Killing unborn child and producing abortion dis- 
 tinct offences, p. 8. No accomplice in involuntary 
 manslaughter, p. 9. Admitting the person who 
 did the killing as state's evidence against the one 
 
 who hired him to do it, p. 10. Homicides by- 
 members of Union army while occupying seceded 
 territory, not cognizable by local courts, p. 26. 
 Assault with intent to kill, p. 30. Damages for 
 death of drunken man, p. 89. Capital punishment 
 in Texas, p. 136; in Virginia, p. 136. Suing un- 
 der State law for death caused on the high seas, 
 p. 142. 
 
230 
 
 HOMICIDE. 
 
 and member, from grievous harm is of more 
 importance to society than the protection 
 of property. For the prevention of a bare 
 trespass upon property, not the dwelling- 
 house, human life cannot be taken, nor 
 grievous bodily harm inflicted. The land- 
 owner has not the right to visit on the tres- 
 passer a higher penalty than the law would 
 visit. There are but few offences the law 
 suffer.? to be punished with death. There 
 is no offence which is lawfully punished by 
 the laceration of the body, or by loss of 
 limb or member. If a land-owner is vexed 
 by secret trespasses, and their repetition, 
 his own vigilance must, within the limits 
 of the law, find means of protection. 
 Stronger enclosures and a more constant 
 watch must be employed, and a stricter 
 enforcement of the remedies the law pro- 
 vides should be sought. The secrecy and 
 frequency of the trespasses would not jus- 
 tify the owner in concealing himself, and, 
 ■with a deadly weapon, taking the life of, 
 or grievously wounding, the trespasser, as 
 he crept stealthily to do the wrong intend- 
 ed. What difference is there in his con- 
 cealing his person and weapon, and inflict- 
 ing unlawful violence, and contriving and 
 setting a mute, concealed agency or instru- 
 mentality which will inflict the same, or, it 
 may be, greater, violence? In each case 
 the intention is the same, and it is to exceed 
 the degree of force the law allows to be ex- 
 erted. In the one case, if the trespasser 
 came not with an unlawful intent, if his tres- 
 pass was merely technical, if it was a child, a 
 madman, or an idiot, carelessly andthought- 
 lessly entering and wandering on the prem- 
 ises, the owner would withhold all violence, 
 or he could exercise a discretion and grad- 
 uate his violence to the character of the 
 trespass. The mechanical agency is sen- 
 sitive only to the touch ; it is without mercy 
 or discretion ; its violence falls on whatever 
 comes in contact with it. Whatever may 
 not be done directly cannot be done by 
 circuity and indirection. lb. 
 
 There may be cases where the accused 
 will be held free from responsibility for 
 homicide if the injury inflicted by him was 
 not of a fatal character, and the death is 
 attributable to grossly-erroneous medical 
 treatment. But if the wound inflicted was 
 a mortal one, the fact that death was has- 
 tened by the administration, of remedies — 
 here, morphine — given in good faith but 
 
 injudiciously, will not diminish the crim- 
 inal responsibility of the accused. Su- 
 preme Ct. 1878, People v. Cook, 39 Mich 
 236. 
 
 Upon a trial for murder, evidence was 
 introduced that deceased had declared his 
 intention of seducing the sister of the ac- 
 cused ; that on the night before the shoot- 
 ing the deceased and the sister were out 
 late together; that on the morning of the 
 shooting the sister visited the deceased ; 
 that she returned home, took her wearing- 
 apparel, told her family that she was going 
 , away with the deceased, and left home ; that 
 in doing these things she was under the in- 
 fluence of drugs administered to her by 
 deceased in order to accomplish the seduc- 
 tion; and that the accused shot the de- 
 ceased in order to prevent it. HeU, that 
 although a homicide may be justified when 
 necessarily done in preventing a rape, the 
 present case was not within the principle. 
 Even conceding that the deceased had 
 used and was likely to use fraudulent means 
 by administering drugs to excite the pas- 
 sions, or overcome the resistance he other- 
 wise would have encountered, these were 
 fraudulent and not forcible means resorted 
 to, which would and did not create that 
 necessity for immediate action on the part 
 of the accused which alone would justify 
 the taking of life. Ample time and oppor- 
 tunity existed to enable the accused to re- 
 sort to other available and adequate means 
 to prevent the anticipated injury. The 
 evil threatened could have been prevented 
 by other means within the reach and power 
 of the accused. Supreme Ct. 1878, People 
 V. Cook, 39 Mich. 236. 
 
 An officer is not justified in killing a 
 prisoner in his custody upon a charge of 
 misdemeanor, who attempts to escape; not 
 even if he cannot be otherwise retaken. 
 Whether such right ought to be allowed in 
 all cases of felony is doubtful ; it certainly 
 does not exist as to misdemeanors. The 
 belief that prevails that a public officer 
 may lawfully kill a prisoner who fails to 
 obey his command to halt is a very errone- 
 ous and fatal doctrine. Officers should 
 understand that it is their duty to use such 
 means to secure their prisoners as will en- 
 able them to hold them in custody without 
 resorting to the use of firearms or danger- 
 ous weapons, and that they will not be 
 excused for taking life in any case where, 
 
HOMICIDE. — HUBBELL. 
 
 231- 
 
 with diligence and caution, the prisoner 
 could be otherwise held. Supreme Ct. 
 1879, Reneau v. State, 2 Lea (Term.), 
 720. 
 
 Neither the desperate, dangerous char- 
 acter of the deceased, nor the fact that he 
 had previously made threats" against the 
 accused, can be, standing alone, competent 
 evidence for the defence on a trial for mur- 
 der. It is only when antecedent threats, 
 coupled with some overt act at the time of 
 the killing, tending to carry them into 
 effect, have been proved, that the general 
 character of the deceased for violence be- 
 comes competent; as, when it serves to ex- 
 plain his actions at the time of the killing ; 
 or when, it having been known to th^ 
 accused, it was calculated to induce a 
 reasonable belief on his part that killing 
 the assailant was necessary in hi§ own de- 
 fence. Ct. of Appeals, 1879, Hudson o. 
 State, 6 Tex. App. 565. 
 
 In a trial for murder it is competent for 
 the prosecution to introduce part of the 
 vertebral column in' which was imbedded 
 the bullet which caused the death, for the 
 purpose of showing the relative positions 
 of the parties when the shot was fired. If 
 the killing is admitted and the defence is 
 that it was done in self-defence, this does 
 not render the exhibition incompetent ; for 
 it may have an important bearing on the 
 question whether the shot was fired in 
 self-defence or not. St. Louis Ct. of Ap- 
 peals, 1877, State u. Weiners, 4 Mo. App. 
 492. 
 
 On a trial for homicide, where the pros- 
 ecution relies upon circumstantial evidence 
 to connect the prisoner with the killing, it 
 is competent to show, as a link in the 
 chain of such evidence, that a bullet taken 
 from the body of the deceased, and one 
 taken from a tree near the spot where his 
 body was lying, fitted the moulds found in 
 the possession of the prisoner. Nor is the 
 exhibition and comparison of the bullets 
 and moulds in view of the jury erroneous. 
 Supreme Ct. 1880, State v. Outerbridge, 
 82 N. C. 619. 
 
 Minor Decisions on Homicide. 
 A killing is presumably criminal ; what 
 proof of self-defence or accident will rebut : 
 iBaxl. (Term.) 246; Id. 331. The kill- 
 ing of a passenger by a collision of rail- 
 road trains is presumably felonious : 61 
 
 Ga. 500, 567. To be too drunk to in- 
 tend to kill, one would need to be too drunk 
 to form an intent to shoot : 59 Ga. 
 154. In action by representative for neg- 
 ligently causing a death, plaintiff's case 
 must show affirmatively that the death was 
 caused by defendant's negligence, and that 
 no negligence of deceased contributed : 45 
 N. y. Superior Ct. 345. 
 
 HOT SPRINGS. The act of Congress 
 of March 3, 1877, as to rights of occupants 
 within the Hot Springs reservation, does not 
 devest the jurisdiction of the State circuit 
 court to try conflicting rights to possession. 
 Supreme Ct. 1878, James v. Belding, 33 
 Ark. 536. 
 
 HOUSTON. Reports of Cases decided 
 in the Court of Oyer and Terminer and the 
 Court of General Sessions of the Peace and 
 Jail Delivery of the State of Delaware. 
 By John W. Houston, Associate Justice. 
 Vol. I. 
 
 HOWELL. The Law and Practice as 
 to Probate, Administration, and Guardian- 
 ship in the Surrogate Courts in Common 
 Form and Contentious Business. Including 
 all the Statutes, Rules, and Orders to the 
 Present Time. With a Collection of Forms. 
 By Alfred Howell. Toronto: Carswell 
 &Co. 
 
 A practical manual of probate or surro- 
 gate business in the Canadas. It gives 
 the Surrogate courts act — Rev. Stat, of 
 Ontario, ch. 46 — and the act respecting 
 guardians of infants; The rules of courts 
 and forms of probate business, both unop- 
 posed and litigated, and a treatise em- 
 bracing probate of wills; Administration; 
 Limited appointments; Parties, procedure, 
 trial, &c., of suits in surrogates' courts; 
 and other germane subjects. English 
 rules and statutes are exhibited in an 
 appendix. 
 
 HUBBELL. Legal Directory for Law- 
 yers and Business Men, containing Names 
 of Attorneys, &c. ; and a Synopsis of tlie 
 Collection Laws of each State and of 
 Canada, with Instructions for taking De- 
 positions, Execution and Acknowledgment 
 of Deeds, Wills, &o., and Times for hold- 
 ing Courts. For the Year commencing 
 Dec. 1, 1879. J. H. Hubbell, editor. 
 Tenth year. New York : Hubbell & 
 Co. 
 
 The first half of each of these annual 
 volumes comprises a concise statement, 
 
232 
 
 HUBBELL, — HUSBAND AND WIFE. 
 
 under the names of the States respectively, 
 of the existing statute law on such topics 
 as Acknowledgments; Assignments; At- 
 tachments; Claims against estates; Cor- 
 porations ; Deeds ; Depositions ; Descent ; 
 Divorce; Dower; Execution; Exemptions, 
 Interest ; Limitations ; Married women ; 
 Mortgages ; Promissory notes ; Taxes ; 
 Wills. The second half gives organizar 
 tion and terms of courts, and names of 
 attorneys in various localities, recommend- 
 ed by the conductors of the work, likewise 
 arranged under names of States. 
 
 HUSBAND AND WIFE. Marriage. 
 No license shall be issued authorizing the 
 marriage of a white person with a negro, 
 mulatto, or Mongolian. Cal. Laws 1880 
 (April 5), ch. 74, § 1. 
 
 Intermarriages of whites and negroes 
 or Indians (mulattoes and half-breeds in- 
 cluded) made punishable. ;S. C. Laws 1879 
 (Dec. 12), No. 5, § 1. And see same as 
 to negroes, Va. Laws 1879 (March 3), 
 207, ch. 252. 
 
 Marrialge of a man to a woman whom he 
 has seduced, induced by fear of disgrace or 
 prosecution for the offence, is not voidable 
 for duress. Supreme Ct. 1878, Honnett v. 
 Honnett, 33 Ark. 156. 
 
 Two persons cannot marry themselves. 
 At the close of a public religious meeting, 
 in Massaohiisetts, the man who had occu- 
 pied the pulpit and conducted the exercises 
 stepped down the aisle, and a woman joined 
 him; they clasped hands and declared that 
 they took each other as wife, and as hus- 
 band, respectively; and the man then 
 ofiEered prayer. About fifty persons were 
 present as audience ; but no magistrate or 
 clergyman took any part in the ceremonial. 
 The parties were not Friends, nor was the 
 ceremony shown to be according to the 
 usages of any religious sect; there was no 
 dispute, however, that they performed it in 
 good faith, intending it as, and believing 
 it would be, a valid marriage. They had 
 taken out the certificate of intention to 
 marry prescribed by the State law, and 
 returned with a statement upon it that they 
 had been married to each other by public 
 
 Husband and wife. Divorce and Alimony, 
 Divorce. 
 
 Abandonment of husband or wife, pp. 2, 5. 
 Abatement of divorce suit, by death of plaintiff, 
 p 5; of husband's suit for injuries to his wife while 
 alighting from street railroad car, by her death, 
 p. 6. Crime of adultery, p. 16. Validity of laws 
 
 mutual vows. They thereafter lived to- 
 gether as husband and wife; and the man 
 was indicted for lewd and lascivious co- 
 habitation. Held : 
 
 1. Such facts do not, according to the 
 law of Massachusetts, constitute a valid 
 marriage. In that State, when the ques- 
 tion arises directly on the sufficiency of the 
 acts done to constitute the parties husband 
 and wife, there must be proof of the pres- 
 ence of a third person officiating, or at 
 least believed to officiate as a justice or 
 minister. Without such proof there can- 
 not be, except in the specially excepted 
 ease of Quakers, a valid marriage. [Ee- 
 viewing early statutes and several deci- 
 sions.] 
 
 2. Such facts do not warrant a conviction 
 under the Gen. Stat. ch. 165, § 6, for it- 
 requires that the persons charged should 
 have cohabited " lewdly and lasciviously." 
 This requires an actual evil intent. Per- 
 sons who live together in good faith, be- 
 lieving that they have been lawfully 
 married to each other, are not punishable 
 merely because their opinion of the validity 
 of the ceremony is erroneous. Supreme 
 Ct. 1879, Commonwealth v. Munson, 127 
 Mass. 459. 
 
 On a trial of an indictment for bigamy, 
 which charged the accused with having 
 married Clara, in West Virginia, while 
 Fannie, whom he had previously married 
 in Wisconsin, was still living and undi- 
 vorced from him, the only evidence of the 
 second marriage consisted in admissions, 
 clearly proved and explicit, made by the 
 prisoner. Held, that in Vii'ginia and West 
 Virginia (though not everywhere), such 
 evidence is sufficient. [2 Va. Cos. 95 ; 17 
 Gratt. 582; 21 Id. 800.] Ct. of Appeals, 
 1878, State v. Goodrich, 14 W. Va. 831. 
 
 The accused then offered proof that, 
 about a year and a half before his mar- 
 riage to Fannie, he had married Sarah 
 in Ohio. She, after the marriage with 
 Fannie, and before the marriage to Clara, 
 procured a divorce from him. This offer 
 was not coupled with any distinct offer 
 to prove that she continued living at 
 
 as to mixed marriages, p. 93; ante-nuptial agree- 
 ment releasing dower, p. 111. What cruelty war- 
 rants divorce, p. 151; what desertion, p. 152. 
 Familv, and head of family, pp. 155, 157. Spouse's 
 right Ijy descent, p. 171. Divorce, p. 177. Bight 
 of homestead, p. 229. 
 
HUSBAND AND WIFE. 
 
 233 
 
 the time of the marriage to F.annie. 
 Beld, that the evidence should, have been 
 admitted, and would, if believed, estab- 
 lish a defence. If, when the accused 
 went through the ceremony of marrying 
 Fannie, he had a lawful wife living, that 
 ceremony was a niiUity, and did not stand 
 in the way of his subsequently marrying 
 Clara. True, it was a bigamy ; but it was 
 not the bigamy for which he was indicted. 
 Under the indictment the prosecution was 
 bound to prove the two marriages which 
 were alleged; to establish a case warranting 
 the conclusion that, at the time of the wed- 
 ding with Clara, the marriage with Fannie 
 was a valid, subsisting marriage. More- 
 over, the accused was not indictable in 
 West Virginia for a bigamous mai'riage 
 contracted in Wisconsin. And it was not 
 necessary for the prisoner to make formal 
 proof that, when the second marriage took 
 place, Sarah was still living. The pre- 
 sumptions in favor of innocence and of 
 continuance of fact would warrant the jury 
 in presuming this, unless the prosecution 
 should introduce evidence rendering it 
 doubtful, lb. 
 
 The fact that a white man and a negress 
 were married in a State where such inter- 
 marriages are not forbidden does not pro- 
 tect them, if they remove to Tennessee and 
 there cohabit, from punishment under Laws 
 1870, ch. 39. The rule is [5 Humph. 13] 
 that marriages solemnized accoi'ding to the 
 law and usages of the country where made 
 are good in Tennessee ; but it is the man- 
 ner and form of marriage, and not the 
 capacity of the parties to contract the mar- 
 riage, which is embraced. Each State has 
 its peculiar regulation — some more, some 
 less, strict and formal. The general rule 
 that a marriage good in the place where 
 made shall be good everywhere is intended 
 to prevent a mischief that would otherwise 
 grow out of a difference of formal and local 
 regulations. A respect for and recognition 
 by each State of the legal ceremonial of 
 marriage in another is all that is meant or 
 intended. Each State is sovereign, with 
 the inherent and reserved right to declare 
 and maintain its own political economy for 
 the good of its citizens, and cannot be sub- 
 jected to the recognition as lawful of an 
 act contravening its public policy and 
 against good morals, because it was done in 
 a State having no prohibition against it. 
 
 Supreme Ct. 1872, State v. Bell, 7 Baxt. 
 C^'enn.) 9. 
 
 Upon a trial for violation of a statute for- 
 bidding intermarriage between a white 
 person and a negro, the prosecution must 
 show, by competent, affirmative evidence, 
 that there was a marriage, and that the 
 parties were one white and one negi'o ; proof 
 that a woman cohabited with a negro, with 
 a witness's opinion that she looked like a 
 white woman, is not enough to sustain a 
 conviction. Ct. of Appeals, 1880, Moore v. 
 State, 7 Tex. App. 608. 
 
 — when presumed. Proof of actual 
 marriage between two persons repels any 
 presumption of marriage of one with some 
 other person founded on reputation merely; 
 for the presumption against bigamy must 
 prevail : Ct. of Appeals, 1877, Jones v. 
 Jones, 48 Md. 391 ; and see Hunt's Appeal, 
 86 Pa. St. 294. 
 
 Marriage will not be presumed from co- 
 habitation and reputation if such marriage 
 would be unlawful; as, where persons are 
 one white and one black, and the statute 
 law of the domicile forbids intermarriage 
 between the two races. Supreme Ct. 1878, 
 Oldham v. Mclver, 49 Tex. 556. 
 
 Even in cases where marriage may be 
 presumed from cohabitation and reputation, 
 such as actions for dower, the presumption 
 will not be indulged where the circum- 
 stances show that the cohabitation com- 
 menced without marriage. The effect of 
 any presumption of a marriage in fact at 
 the commencement of cohabitation is en- 
 tirely destroyed; and in order to establish 
 a marriage subsequent to the commence- 
 ment of such unlawful and meretricious 
 conduct, • by continued cohabitation, con- 
 duct, and declarations of the parties, or by 
 reputation, there should be such affirmative 
 evidence showing that the subsequent rela- 
 tions of the parties were changed, and 
 that that i^hich was meretricious and un- 
 lawful in its commencement had been 
 rendered lawful. Supreme Ct. 1879, Wil- 
 liams V. Williams, 46 Wis. 464. 
 
 — between former slaves. The effect 
 of the adoption of Tex. Const. 1869, art. 
 12, § 27, was that all persons who were for- 
 merly held in bondage, and who in such 
 condition lived together as husband and 
 wife, and were so living together in that 
 State at the date of the adoption of the 
 instrument, were legally married. The ab- 
 
234 
 
 HUSBAND AND WIFE. 
 
 rogation of that constitution by the con- 
 stitution of 1876 cannot be construed as 
 annulling such marriages, nor as exempting 
 such persons from prosecution for subse- 
 quent unlawful marriages. Cl. of Appeals, 
 1&79, Steward v. State, 7 Tex. App. 326. 
 
 Two slaves, negroes, went through the 
 form of marriage, lived together as husband 
 and wife for a number of years, and died 
 leaving issue before emancipation. Held, 
 that under the statutes passed under and 
 since S. C. Const. 1868 was adopted, said 
 persons were to be considered in law as 
 husband and wife, and their children legit- 
 imate and capable of inheriting from each 
 other under the statute of distributions. 
 Supreme Ct. 1877, Davenport v. Caldwell, 
 10 S. C. 317. 
 
 S. P. Where the two slaves were still 
 living at emancipation and the passage of 
 the act of 1865. State v. Whaley, Id. 500. 
 
 Connections between slaves, which ter- 
 minated before the emancipation, have not 
 been turned into valid marriages. Supreme 
 Cl. 1876, Cartelou v. Doe, 56 Ala. 519. 
 
 Wife's separate property. In order to 
 charge the separate estate of a married 
 woman for services not rendered for the 
 benefit of it, the original contract of hiring 
 must include an engagement to give such 
 charge. A promise made after the services 
 have been performed, to make a charge as 
 security for the compensation due, is in- 
 operative. A young woman who had grown 
 up as an adopted child in the family of Mr. 
 .and Mrs. Wagner continued, after she be- 
 came of age, to render domestic services ; 
 but expressed an expectation of payment, 
 and this was promised. The husband 
 failed in business . The wife had a separate 
 estate. During her last illness the wife 
 said she would make, and she did make, a 
 bequest in compensation for the services ; 
 but her property proved insufficient to pay 
 her debts. The servant then brought suit, 
 upon the theory of the separate estate hav- 
 ing been charged. Held, that no promise 
 made after the services were rendered could 
 have this effect. Ct. of Appeals, 1877, Eisen- 
 lord V. Snyder, 71 N. Y. 45. 
 
 The old English cases, the modern Eng- 
 lish cases, and the various decisions of 
 American courts upon the doctrine of the 
 common law and of equity, relative to a 
 married woman's separate estate, and to 
 the questions how it may be charged for her 
 
 debts or engagements, especially one which 
 she makes as surety for her husband, have 
 been very elaborately reviewed and classified 
 by Green, J. in an opinion filling more 
 than 100 pages, in which the following 
 conclusions are reached: 
 
 1. A married woman, as to property 
 settled to her separate use, is to be regarded 
 as &feme sole, and has a right to dispose of 
 all her separate personal estate, and the 
 rents and profits of her real estate accruing 
 during coverture, as if she were a feme 
 sole ; unless her power of alienation is re- 
 strained by the instrument creating the 
 estate. 
 
 2. Such restraint upon her power of 
 alienation will not be implied from her 
 being authorized to dispose of the propeiiy 
 in a particular manner. The restraint 
 must be either expressed, or so clearly in- 
 dicated as to be equivalent to an express 
 restraint. 
 
 3. The jus disponendi is an incident to 
 the ownership of a separate estate,- and can 
 only be taken away, or limited, by express 
 words, or by an intent so clear as to be the 
 equivalent of express words. 
 
 4. The liability of the separate estate to 
 the payment of all debts incurred by a mar- 
 ried woman is also an incident to ownership 
 of the separate estate ; and it can only be 
 taken away, or limited, by express words, 
 or by an intent so clear as to be the equiva- 
 lent of express words. 
 
 5. But these incidents — liability to the 
 payment of her debts, and her jus dispo- 
 nendi — extend no farther than to all her 
 separate personal property, and the rents 
 and profits of her separate real estate accru- 
 ing during coverture. 
 
 6. The corpus of her separate real estate 
 is in no manner affected by the equitable 
 doctrine of a separate estate which was de- 
 vised to prevent the acquisition by the 
 husband of his marital rights to all her 
 personal property and the rents and profits 
 of her real property during coverture. 
 
 7. The common law effectually protected 
 the corpus of her real estate ; and her com- 
 mon-law disability to make any contract or 
 incur any debt, during the coverture, which 
 will affect or charge the corpus of her real 
 estate, is still in force, whether such real 
 estate be separate property or not. It can 
 only be affected or charged by conveyance or 
 specific lien, in which her husband unites, 
 
HUSBAND AND WIFE. 
 
 235 
 
 and which she executes after privy exa- 
 mination; or by a vendor's lien, when one 
 has been reserved; unless the instrument 
 creating her separate estate expressly au- 
 thorizes her to dispose of it or charge it 
 otherwise. 
 
 8. The debts of a married woman, for 
 which her separate estate is liable, arise 
 from any transaction out of which a debt 
 would arise if she were a feme sole ; except 
 that she is not liable for a bond or covenant, 
 which she has signed and sealed, but which 
 was given without any consideration, as she 
 is not estopped in a court of equity from 
 denying the consideration. 
 
 9. The consideration which will support 
 her debt or contract, so as to make her 
 separate estate liable, need not inure to her 
 own benefit, or that of her separate estate, 
 but it may inure for the benefit of her hus- 
 band or of any third person, or simply be 
 a prejudice to the other contracting party. 
 
 10. But such contract, to be binding on 
 her separate estate, must be in writing, 
 when it binds her to pay the debt of her 
 husband or any other person. 
 
 11. Application or modification of the 
 above principles required by the W. Va. 
 Code, — explained. Ct. of Appeals, 1879, 
 Radford v. Carwile, 13 W. Va. 572. 
 
 For some recent statutes on wife's sep- 
 arate property and independent business, 
 see Married Woman. 
 
 — or services. The act, N. Y. Laws 
 1860, ch. 90, § 2, authorizing a married 
 woman " to perform any labor or service 
 on her sole and separate account," does 
 not wholly abrogate the rule of the com- 
 mon law entitling the husband to the ser- 
 vices and earnings of the wife; she may 
 still allow him to claim and appropriate 
 the fruits of her labor, and, in the absence 
 of an election on her part to labor on her 
 account, or of circumstances showing her 
 intention to avail herself of the privilege 
 conferred by the statute, the husband's 
 common-law right is unaffected. Where, 
 therefore, the husband and wife are living 
 together and mutually engaged in pro- 
 viding for the support of themselves and 
 their family, and there is nothing to in- 
 dicate an intention on the part of the wife 
 to separate her earnings, the husband may 
 maintain an action in his own name to re- 
 cover them. Ct. of Appeals, 1878, Buk- 
 beck V. Ackroyd, 74 N. Y. 356. 
 
 Dealings between linsband and wife. 
 
 A pension check payable to the order of 
 Aldrich was received by his attorney from 
 the United States pension office and in- 
 dorsed by Aldrich. The attorney took the 
 check and went with Aldrich and his wife - 
 to a savings bank, and deposited, with 
 their consent, a part of the amount of the 
 check in the name of the wife, and gave 
 her the rest of the amount. Held, that 
 the amount deposited remained the prop- 
 erty 'of the husband, and was liable to at- 
 tachment by his creditors. Though such 
 a gift may be so far valid as to give the 
 wife a right to the property, at the death of 
 the husband, as against his heirs or ex- 
 ecutors, it is invalid as to his creditors. 
 Supreme Ct. 1879, Spelman v. Aldrich, 126 
 Mass. 113. 
 
 Husband and wife enabled to make par- 
 tition of land they may own together, by 
 agreement and deed. 1 N. Y. Laws 1880 
 (May 28), 676, ch. 472. 
 
 Suits. A wife may maintain an action 
 for loss of her husband's society and sup- 
 port against a third person, — ^here, her 
 husband's father, — who wrongfully in- 
 duces and procures her husband to aban- 
 don her or send her away. But proof is 
 necessary that the defendant's acts were 
 malicious. Doctrine in England and 
 America, of jurisdiction over breach of 
 marital relations,— explained. Supreme 
 Ct. 1878, Westlake v. Westlake, 34 Ohio 
 St. 621. 
 
 "A married woman may bring and 
 maintain an action in her own name 
 against any person or body corporate for 
 damages for an injury to her person or 
 character, the same as if she were sole; 
 and the money recovered shall be her 
 separate property, and her husband, in 
 such case, shall not be liable for costs." 
 Ind. Laws 1879 (March 25), 160, § 6. 
 
 Kinor Decisions on Husband and Wife. 
 Promise to marry. Impotent man is 
 not liable in damages for his breach of 
 promise to marry: 41 N. J. L. 13. Plain- 
 tiff suing for breach of promise must allege 
 and prove offer on her part to marry ; but 
 it need not be express: 4 Mo. App. 94; and 
 proof of her ill repute for chastity is com- 
 petent in mitigation, but offering it in 
 bad faith is ground of aggravation, of 
 damages: lb. 
 
236 
 
 HUSBAND AND WIFE. 
 
 Husband's rights and liabilities. Ef- 
 fect of ante-nuptial settlement upon marital 
 rights of husband; and when it will create 
 a separate estate in wife: 14 W. Va. 338. 
 When husband acquires wife's funds, not 
 by marital right, but upon promise to in- 
 vest for her, and buys land in his own 
 name, a trust results : 6 Baxi. {Tenn.) 364; 
 but clear proof is required: Id. 406. 
 Curtesy; and the operation of trusts in 
 marriage settlements, — explained : 30 N. J. 
 Eq. 639. Seisin, in law, of a reversion 
 by the wife during coverture, gives the 
 husband curtesy: 6 Mo. App. 416. Hus- 
 band, rather than next of kin, may deter- 
 mine burial-place of wife, and may remove 
 remains after burial: 1 Am. L. Reu. N. S. 
 57; and is presumably liable for expenses of 
 his wife's funeral: i Mich. 591. Husband 
 is not liable for injury done by wife in 
 driving on the highway merely because he 
 owned the horse and carriage: 41 Mich. 
 214. Enactments merely enabling a wife 
 to acquire and hold separate property do 
 not, by implication, impair her husband's 
 common-law liability for her debts con- 
 tracted before marriage: 11 S. C. 323; 
 and if one did, it would be void for impair- 
 ing the obligations of contracts: Id. Hus- 
 band is not liable for labor employed by 
 the wife on her individual credit in build- 
 ing their home, merely because he saw ^he 
 work proceeding, but only where he has in 
 some manner made the contract his own : 
 7 Baxt. {Tenn.) 411. English doctrine as 
 to liability for necessaries: 42 L. T. n. s. 
 577; 22 Alh. L. J. 91. 
 
 Wife's disabilities. Wife's agency is 
 presumed in resisting trespass on the home- 
 stead in husband's absence: 21 Kan. 18. 
 To what extent the presumption of marital 
 coercion has become relaxed: 49 Md. 460. 
 This presumption may be rebutted by proof 
 that wife acted willingly: 38 Mich. 744; 
 34 Ohio St. 127; as, where she produced 
 abortion on another woman by husband's 
 counsel, but in his absence: 34 Ohio St. 
 127 ; and it only arises where husband was 
 personally present at the offence : 77 N. Y. 
 411; and it is not conclusive: Ih. Married 
 woman cannot constitute an attorney to 
 convey her lands: 7 Baxt. (Tenn.) 122. 
 Wife's absence from home, not in abandon- 
 ment of husband, does not impair her 
 homestead I'ight: 51 Tex. 150. Since Gen. 
 Stat. ch. 108, § 3, married woman's deed 
 
 with covenants of warranty will pass, by 
 estoppel, an after-acquired title, even 
 against her grantee: 125 Mass. 25. 
 
 Her separate property. Nature of the 
 wife's separate estate in Alabama, and of 
 husband's liability for necessaries; and how 
 the estate may become charged: 59 Ala. 
 431. Improvements on family residence 
 owned by wife — here a carriage-house, &o. 
 — are not "necessaries " : 61 Id. 12. What 
 rights should be accorded to a wife living 
 where separate property is allowed in pro- 
 ceeds of sale of her lands lying in a State 
 (Texas) where the common law never 
 prevailed: 60^Za. 380. Wife may enforce 
 a resulting trust in lands bought with her 
 money by her husband, in her own name, 
 except against 6ona_/i(/e purchasers without 
 notice: 58 Id. 84. In what manner wife's 
 separate estate may be conveyed or ex- 
 changed: 61 Id. 416. Alabama married 
 women's acts have not enabled wife, even 
 with husband, to mortgage separate estate: 
 Id. 391. The statute authorizes sched- 
 uling property of a married woman only; 
 and protects only the thing scheduled: 33 
 Ark. 611. Filing schedule of woman's 
 property does not affect rights of husband 
 she subsequently marries; nor protect 
 property acquired in exchange for the things 
 scheduled: Id. 611. Management of her 
 landed property is not carrying on a 
 business within N, Y. married women's 
 act; and post-dated check made by her 
 husband does not bind her unless a charge 
 on the property. 71 N. Y. 199. Wife's 
 promise, made upon her father's advancing 
 money to buy her a farm, that the sum 
 should be repaid in event of her death, 
 held, a charge upon the property and en- 
 forced against her devisee: Id. 280. A 
 wife may be surety on appeal for another 
 person : 74 Id. 82. A married woman hay 
 ing land may bind herself by an engage- 
 ment to assume a mortgage upon it as part 
 of the price : 75 /rf. 103. Married women's 
 acts do not impair marital rights where 
 marriage took place and property was ac- 
 quired before the law: 81 N. C. 267; Id. 
 279. A husband's interest in lands ac- 
 quired by his wife before S. C. Const. 
 1868, art. 14, § 8, is not affected by it; the 
 language does not demand a retrospective 
 construction :11S. C. 71 ; Id. 323. Equity 
 does not enforce a wife's general engage- 
 ments against her separate property, but 
 
HUSBAND AND WIFE. 
 
 237 
 
 only such as are made on some under- 
 standing that they are to be paid out of it: 
 7 Baxt. (Term.') 360. Married women's 
 act of Alabama has not (1877) enlarged a 
 wife's capacity of contracting; she cannot 
 bind herself for her husband's debt ; and 
 she cannot reclaim payments made on 
 such note; 59 Ala. 183. The enabling 
 married women's acts in Illinois: 89 III. 
 427. Ind. Laws 1879, 160, enabling mar- 
 ried women to make contracts, does not 
 invalidate contracts made before its pass- 
 age: 67 Ind. 42. Wife's separate property 
 not subject to lien for.money advanced to 
 husband for family expenses: 51 Iowa, 182. 
 Married woman carrying on separate busi- 
 ness; and liability of her property therein 
 to her husband's creditors: 125 Mass. 421 ; 
 \2^ Mass. 332; 7d. 411. For supplies used 
 in cultivating plantation owned (or hired) 
 by wife, her separate property is liable: 55 
 Miss. 63. Power of married woman to 
 bind her estate by contract to pay for at- 
 torney's services: Id. 66. 
 
 Conveyances. In Maryland, under a 
 deed to the two, each takes the entirety; 
 and the survivor takes the whole : 49 Md. 
 402. Husband indebted to wife may pre- 
 fer her: 38 Mich. 253. Gift of chattels by 
 husband to wife is valid against subsequent 
 mortgagee from husband ; does not require 
 marked change of possession if they dwell 
 together ; and may be proved by prepon- 
 derance of evidence: 40 Mich. 24. Va- 
 lidity of gift by wife to husband considered 
 with reference to his subsequent iU-treat- 
 ment of her, and her abandonment of him : 
 30 N. J. Eq. 215. Wife may have her 
 gratuitous transfer of her property to her 
 husband induced by his false though not 
 fraudulent representations, vacated in 
 equity; notwithstanding there was an 
 intent to defraud creditors : 73 N. Y. 498 ; 
 see also 86 Pa. St. 512. Husband can 
 convey to wife his interest in lands deeded 
 to them jointly since N. Y. Laws 1860, ch. 
 90 ; and she can give purchase-money mort- 
 gage: 76 N. Y. 262. In equity a wife is 
 bound by a mortgage given by her and her 
 husband for purchase-money of lands pur- 
 chased by them in the name of the wife: 56 
 Ala. 456; Id. 471. Husband's executing 
 a declaration, indorsed on his wife's deed, 
 that he consents to it, is not a compliance 
 with a statute requiring that the separate 
 property of a wife can be conveyed only by 
 
 " joint deed " of herself and husband: Id. 
 589. Substantial compliance with statute 
 prescribing form of married woman's ac- 
 knowledgment is sufficient: 88 Pa. St. 64. 
 A contiagent remainder to take effect upon 
 the death of a married woman who holds 
 the particular estate for life may be de- 
 feated by a feoffment with livery of seisin by 
 both: 10 S. C. 392. Validity of conveyance 
 by married woman, living in another State, 
 of her separate real property lying in Ten- 
 nessee; and necessity and sufficiency of pri- 
 vate examination and registration: 7 Baxt. 
 (Tenn.) 557. Effect of deed to a wife to 
 create a separate estate; and of' her uniting 
 in execution of her husband's deed without 
 being a party: 14 W: Va. 322. 
 
 Rights of creditors. The married wo- 
 men's acts do not aid transfers of property 
 from husband to wife in fraud of hus- 
 band's creditors: 57 Ala. 246. Any col- 
 lusive arrangement between husband and 
 wife to use her name in holding the title 
 and carrying on the business will expose 
 the property involved to claims of husband's 
 creditors, though originally hers: 90 III. 
 351. Creditor of husband may reach his 
 wages, given by him to his wife, and in- 
 vested by her in land, by creditor's bill 
 under Gen. Stat. ch. 113, § 2, cl. 11; 125 
 Mass. 11. Crop raised on husband's (lease- 
 hold) land by labor paid for by wife be- 
 longs to husband, and maybe taken for his 
 debts ; one raised upon wife's land by hus- 
 band's labor, &c. , belongs to wife : 55 Miss. 
 60. Application of the law of domicile to 
 rights of husband's creditors over personal 
 property of wife brought into Missouri: 
 6 Mo. App. 263. A rag carpet made by a 
 married woman by her own labor, held, 
 not claimable by her husband's creditors on 
 the ground of her services belonging to her 
 husband: 2 Pearson (Pa.), 216. Creditor's 
 suit does not lie to charge debts of married 
 woman, sole trader upon her separate 
 estate; she is suable at law: 46 Wis. 655. 
 
 Suits. Husband may sue in his own 
 name for money which he lost at play, not- 
 withstanding it was his wife's separate 
 property: 56 Ala. 388. Right of action 
 for married woman's loss of time and med- 
 ical expenses incurred through her personal 
 injury is in husband ; but if he permits her 
 to ineltide these items in her action for the 
 injury, he is estopped from suing again : 47 
 Iowa, 465. Husband can testify against 
 
238 
 
 HUSBAND AND WIFK - ICE. 
 
 ■wife to attack made upon him by her and 
 others ; this is no breach of marital confi- 
 dence: 38 Mich. 117. By Code § 2805, a 
 married woman deserted by her husband is 
 restored to all rights of suing and being 
 sued, of a single one: 7 Baxt. {Term.) 360. 
 Husband's action for negligent injury to 
 wife does not abate by his death: 75 N. Y. 
 192. A statute that a married woman may 
 sue at law or in equity in all cases as if 
 single, &c., does not enable her to sue at 
 law on an equitable right: 49 Md. 1. Wife 
 residing in another State, who pleads, in 
 Michigan, coverture in defence of a con- 
 tract made by her at home, must prove the 
 
 law of her State disabling her from con- 
 tracting: 39 Mich. 62. Mamage does not 
 prevent suing woman for previous debts: 
 55 Miss. 557. Since act of March 27, 1874, 
 wife has very general powers to contract; 
 and she and her husband may be sued on 
 the common counts: 41 N. J. L. 35. Pro- 
 cedure to enforce contract of mamed 
 woman for goods sold whether on her own 
 credit or as agent for her husband : Id. 454. 
 Confession of judgment by wife as surety 
 for husband is invalid: Id. 469. Wife 
 may su6 or be sued, as respects separate 
 property, without joining husband: 13 W. 
 Va. 373. 
 
 I. 
 
 ICE. The ice upon a pond or stream 
 may be sold by parol. Coats, being the gen- 
 eral owner of land in which was a pond, sold 
 the ice which had formed upon the pond, to 
 Higgins, for fifty cents. The bargain was 
 made orally, one winter's day, as the par- 
 ties stood in view of the ice ; and the money 
 was paid; the ice being still uncut. A fort- 
 night afterward Loder offered Coats five 
 dollars for the same ice ; which offer was 
 accepted. Higgins notified Loder of his 
 claim and forbade him to cut the ice; but 
 he cut it, and removed and sold it. Hig- 
 gins brought replevin ; and the defence was 
 that he had no title because, the ice being 
 still unsevered when he bought it, was part 
 of the realty and not a subject of sale by 
 parol. Held, that he was entitled to re- 
 cover. Ice, although still lying on the 
 water where formed, is not lilce crops or 
 fruit connected with the soil by roots 
 through which they are gaining nourish- 
 ment. It is only a portion of the water 
 which has become temporarily fixed by 
 freezing. No doubt it belongs to the gen- 
 eral land-owner as possessor of the water 
 where it is formed, and would pass with a 
 sale of the realty; but to hold that it must 
 be classed as realty instead of as personalty, 
 when the owner of the freehold chooses to 
 sell it by itself, would be absurd. It can- 
 not be treated as subject to the rules gov- 
 erning crops, emblements, and fixtures, for 
 it derives nothing from and contributes 
 nothing to the land, but can only be used 
 and sold as personalty; and its only use 
 
 tends to its immediate destruction. It 
 should be dealt with in law according to 
 its uses in fact, and any sale of ice already 
 formed, as a distinct commodity, should be 
 treated as a sale of personalty, whether it 
 is still in the water or has been taken out 
 of the water. Supreme Ct. 1879, Higgins 
 V. Kusterer, 41 Mich. 318. , 
 
 The general owner of land, having the 
 right to appropriate and use a reasonable 
 quantity of the water of a stream flowing 
 through it, has the right to pond or detain 
 the water temporarily until it freezes, and to 
 cut, appropriate, and sell the ice. The water 
 gathered or held by his dam is his, subject 
 only to the exception that the beneficial 
 enjoyment of owners below must not he 
 interfered with. And the right to use and 
 sell the water in its liquid form is only a 
 part of his right. When the form is 
 changed into ice by cold, he has the right 
 to use it in its congealed form, and has the 
 same right to sell it and permit it to he 
 gathered before it has returned to its 
 liquid state, as he had to use and dispose 
 of it when in the latter condition. There 
 can be no difference as to his rights grow- 
 ing out of the state of the water. This 
 right may be assigned and may be pro- 
 tected, in an assignee, by action. [Disap- 
 proving 12 How. Pr. 218.] Supreme Ct. 
 1878, Myer v. Whitaker, 5 Abb. N. Cos. 
 (_N. S.) 172. 
 
 A grant, by the owner of land, of the 
 right to overflow his land by means of 
 a dam on the stream below, gives the 
 
ICE. — INDECENCY. 
 
 239 
 
 grantee the exclusive right to gather there 
 the ice which may form over such land, on 
 waters of the pond thus made. lb. 
 
 To thaw one's neighbor's ice is a con- 
 version. The owner of a building con- 
 sisting of a 'beer-room and an ice-room, 
 connected by slides, gave a chattel mort- 
 gage of the building to defendant, and a 
 bill of sale of the ice in the ice-room to 
 plaintiffs. Defendant took possession of 
 the building under the mortgage, stored 
 beer in the beer-room, and gave plaintiffs 
 notice to remove the ice; which, however, 
 they did not do, nor did they ever demand 
 it from defendant. Defendant opened the 
 slides between the two rooms, and allowed 
 a current of air to pass over the ice and 
 into the beer-room, cooling the beer, and 
 causing a more rapid melting of the ice 
 than would otherwise have occurred; but 
 did not claim to own the ice, nor otherwise 
 interfere with it. Held, that defendant 
 was liable for the ice so destroyed, within 
 the rule that the wrongful destruction of 
 goods by one not the owner is a conversion 
 of them. It was not an answer to the suit 
 to say that defendant did not manually in- 
 tei-fere with the ice. Supreme Ct. 1878, 
 Aschermann v. Philip Best Brewing Co., 
 45 Wis. 262. 
 
 ILLINOIS. Constitutional amend- 
 ment. " The general assembly may pass 
 laws permitting the owners of lands to 
 construct drains, ditches, and levees for 
 agi'icultural, sanitary, or mining pur- 
 poses, across the lands of others, and pro- 
 vide for the organization of drainage 
 districts, and vest the corporate authorities 
 thereof with power to construct and main- 
 tain levees, di-ains, and ditches, and to 
 keep in repair all drains, ditches, and lev- 
 ees heretofore constructed under the laws 
 of this State, by special assessments upon 
 the property benefited thereby." III. Const. 
 as amended 1877, art. 5, § 31. 
 
 IMMIGRATION. " The acts of every 
 State and municipal officer or corporation 
 of the several States of the United States 
 in the collection of head-moneys prior to 
 Jan. 1, 1877, from the master, consignee. 
 
 Imprisonment. Arrest in civil actions. Arrest. 
 As a punishment for crime, Crime. 
 
 Cutting off queue of Cliinaman imprisoned, un- 
 lawful, p. 81. Commutation of imprisonments in 
 Wisconsin, p. 1.36. Confinement for extradition, p, 
 209. Hoaxing one who goes willingly not false 
 imprisonment, p. 210. Habeas coitus, p. 225. 
 
 or owner of any vessel bringing passen- 
 gers to the United States from a foreign 
 port, pursuant to the then-existing laws of 
 the several States, shall be valid, and no 
 action shall be maintained against any 
 such State or municipal officer or corpora- 
 tion for the recovery of any moneys so paid 
 or collected prior to said date." Act of 
 June 19, 1878, ch. 327, 20 Stat, at L. 177. 
 
 INCEST. Involves assent of both par- 
 ties ; there can be no conviction of incest 
 with a girl under the age of consent. Su- 
 preme Ct. 1878, De Groat v. People, 39 
 Mich. 124. 
 
 INDECENCY. An indictment for hav- 
 ing in one's possession an obscene or inde- 
 cent drawing or picture, or exhibiting or 
 giving one, &c., need not specify in words 
 how or in what respect the picture is 
 unlawful, more fully than to follow the 
 language of the statute. An indictment, 
 sustained, as to this point. Supreme Ct. 
 1879, Fuller v. People, 92 III. 182. 
 
 See also, as to sufficiency of these indict- 
 ments, McNair o. People, 89 ///. 441. 
 
 " Public highway " is not equivalent to 
 "public place," in an indictment for inde- 
 cency or affray in a public place ; there may 
 be a spot in a legal highway which by rea- 
 son of disuse or of local shelter may not be 
 within the reasons of such statute. Su- 
 preme Ct. 1878, Williams v. State, 64 Ind. 
 553. 
 
 The indictment aveiTed that defendant 
 published certain obscene pictures, to wit, 
 figures of naked girls. The court admit- 
 ted evidence that the defendant took pho- 
 tographic piotm-es of two young girls naked 
 down to the waist, and instructed the jury 
 that if they found such pictures to be 
 obscene and indecent, and to have been 
 delivered to the girls, they should con- 
 vict the defendant. Held, erroneous. The 
 allegation that the defendant printed and 
 published pictures -and figures of naked 
 girls was not sustained by proof that he 
 printed and published pictures and fig- 
 ures of girls for the greater part clothed. 
 The government, having described the pic- 
 tures, was bound by the description given. 
 
 Indecency. Cognate crimes, see. Abortion; 
 Adultery; Assault; Bawdy-house; Incest; 
 Rape; Seduction. 
 
 Decov letter to detect dealer in prohibited arti- 
 cles, p. "8. Keeping a boat as a bawdy-house, p. 
 45. Employing children in indecent vocations for- 
 bidden, p. 79. 
 
240 
 
 INDECENCY. — INDIAN. 
 
 Supreme Ct. 1878, Commonwealth u. De- 
 jardin, 126 Mass. 46. 
 
 INDIAN. The act of Congress of June 
 30, 1834, § 16, re-enacted Kev. Stat. §§ 
 2154, 2155, provides that, whenever, in 
 the commission, " by a white person," of 
 any crime, &c., within the Indian country, 
 the property of any friendly Indian is 
 taken, &o., if the offender cannot be made 
 ' to pay the value, or cannot be brought to 
 trial, the value may be made good out of 
 the treasury of the United States. A 
 negro stole cattle from an Indian, in the 
 Indian country, and was tried and con- 
 victed. As he could not pay the value, a 
 suit was brought in the court of claims to 
 obtain payment from the treasuiy. The 
 defence was that the case was not within 
 the statute because the larceny was not by 
 a white person. Held, that the term 
 " white person," in the Revised Statutes, 
 must be given the same meaning it had in 
 the original act of 1834. Congress has 
 nowhere manifested an intention of using 
 it in a different sense. While the negro, 
 under the operation of the constitutional 
 amendments, has been endowed with cer- 
 tain civil and political rights which he did 
 not have in 1834, he is no more, in fact, a 
 white person now than he was then. He 
 is a citizen of the United States, and free. 
 No State can abridge his privileges and 
 immunities as a citizen, or deny him the 
 equal protection of the laws ; but his race 
 and color are the same, and he is no more 
 included now within the descriptive term 
 of a white person than he has ever been. 
 If, then, this term was used in the act of 
 1834 to exclude the liability of the United 
 States for the depredations of the negroes 
 in the Indian country, it must be consid- 
 ered as having been so used in the Revised 
 Statutes. The question is simply as to the 
 meaning of the words ' ' white person, ' ' when 
 used as words of description in a statute 
 making the United States liable for the 
 acts of the persons described. No rights 
 of the negro himself, as a citizen or other- 
 wise, are in any way involved. Supreme 
 Ct. 1879, United States v. Ferryman, 100 
 U. S. 235. 
 
 It cannot well be contended that the 
 term " white person," as here used, means 
 no more than "not an Indian;" in other 
 words, that the intention' of Congress was 
 to make the United States liable in the 
 
 way indicated for all injuries to the prop, 
 erty of friendly Indians by persons en- 
 gaged in crime within the Indian territory 
 who were not themselves Indians. There 
 was earlier legislation on the subject which 
 extended the obligation of, the United 
 States to ofEences by any citizen or other 
 person. In 1834 the obligation was re- 
 stricted to offences by a white person. The 
 reason for it was that the Cherokee Nation 
 was about to remove to a new home west 
 of the Mississippi, and it was thought that 
 if the United States made themselves haUe 
 only for such depredations as were com- 
 mitted by the whites, the Indians would 
 be less likely to tolerate fugitive blacks in 
 their country. Although the reason of the 
 change no longer exists, the statute stands 
 unchanged ; and a claimant cannot recover 
 unless he brings himself within its terms. 
 lb. ' 
 
 Indians maintaining tribal relations are 
 not subject to the criminal jurisdiction of 
 United States courts for acts done by them 
 within Indian country. The political de- 
 partment of the national government having 
 always treated the Indian tribes as distinct 
 political communities, quasi sovereignties, 
 and independent of our government though 
 dwelling within our limits, and as tribes, 
 under partial subjection, the courts are 
 bound to follow the same rule. The dis- 
 trict court cannot try one Indian for mur- 
 der of another done in Indian conntiy. 
 W. Dist. of Ark., Exp. Reynolds, 18 Alb. 
 L. J. 8. 
 
 But whenever Indians, formerly mem- 
 bers of a tribe, abandon that relation, scat- 
 ter themselves among the citizens of the 
 United States, and live as people of the 
 United States, they are merged in the mass 
 of our people, owing complete allegiance 
 to the government of the United States, 
 and equally with the citizens thereof sub- 
 ject to the jurisdiction of the courts. lb. 
 
 Whether an individual partially of Indi- 
 an descent is independent of jurisdiction 
 of our courts as an Indian, or amenable to 
 it as a subject of the national or state gov- 
 ernment is to be determined (if the ques- 
 tion depends on race, not on residence), 
 not upon the quantum of Indian blood, but 
 upon the condition of hi^ father. The rule 
 of the civil law, partus sequitur patrem, 
 governs in this class of cases. lb. 
 
 The criminal courts of the State of Wis- 
 
INDIAN. — INDICTMENT. 
 
 241 
 
 oonsin are not deprived of jurisdiction to 
 try an Indian for adultery with a white 
 woman, committed within the Oneida res- 
 ervation in that State. The general doc- 
 trine as to the Indians is that, in the ab- 
 sence of any treaty or stipulation, the 
 United States, as to tribes not within any 
 State, have full jurisdiction to pass laws 
 for their government in both civil and 
 criminal matters ; and that those who reside 
 within the limits of any of the States, like 
 all other inhabitants or residents, or per- 
 sons found within the boundaries of such 
 States, must be subject to the laws there- 
 of, unless by some treaty with the United 
 States, or by the provisions of the Federal 
 constitution, they are exempted from its 
 jurisdiction. Unless the jurisdiction of 
 the State over the territory occupied by the 
 Indians within its boundaries is prohibited 
 by the act admitting the State into the 
 Union, or by some existing treaty with 
 the Indians occupying such territory at the 
 time of its admission, there does not seem 
 to be any authority in Congress to pass 
 laws for the government or control of such 
 Indians, or anything to prohibit the States 
 from passing such laws, except the pro- 
 vision of the constitution which authorizes 
 Congress to regulate commerce with the 
 Indian tribes. Under this provision of the 
 constitution, Congress has passed laws reg- 
 ulating trade with the Indians, requiring 
 the taking out of licenses for that purpose, 
 prohibiting the selling of intoxicating liq- 
 uors to them, and enacting other things 
 which come within the power to regulate 
 commerce ; but it never has been contend- 
 ed that under this provision Congress had 
 the power to pass laws generally for the pun- 
 ishment of crimes committed on these res- 
 ervations, either by the Indians or by other 
 persons. The laws, treaties, and decisions 
 relating to the government of the Indians, 
 elaborately reviewed. Supreme Ct. 1879, 
 State V. Doxtater, 47 Wis. 278. 
 
 Minor Decisions on Indian. 
 Title of Sioux half-breeds to lands re- 
 served for them in the territory of Minn. 
 99 U. S. 291. Title of Cherokees to their 
 lands : 8 Cent. L. J. 453. Lands reserved 
 
 to individual I. are taxable; those to tribe 
 are not; complaint for refund of taxes 
 must aver that lands were reserved to a 
 tribe, not to an individual: 63 Ind. 497. 
 History and operation of Maine statutes, 
 and nature of the I. title to lands : 69 Me. 
 473. An I. cannot claim payment from 
 the treasury for property stolen from him, 
 though in I. country, by a negro; but 
 only when by a white person : 100 U. S. 
 235. I. agent cannot issue voucher to 
 charge government for price of articles 
 bought: 13 Ct. of CI. 217. Process from 
 district court of Idaho cannot be served 
 within the reservation: 98 U. S. 476. 
 Validity of leases by Seneca Nation of New 
 York Indians to lands in their reservation: 
 19 Hun (N. r.), 540. 
 
 INDIANA. Important amendments 
 to the constitution were submitted to 
 the people at an election held in April, 
 1880. The chief' changes proposed 
 consisted in defining anew the right of 
 suffrage and the residence requisite ; 
 appointing November instead of Octo- 
 ber for general elections ; modifying 
 legislative power as to compensation of 
 oflBcers and as to creation of courts ; 
 and limiting power of municipal cor- 
 porations to contract debts. The ques- 
 tion whether the amendments were 
 ratified was brought before the su- 
 preme court, which decided that they 
 had not been. See the opinion, Elec- 
 tion ; also see Constitution. Journ- 
 als say that there has been a rehearing 
 of the cause, and that the court ad- 
 hered to its decision. 
 
 Two terms of the district and circuit 
 courts for the district of Indiana to be held 
 in each year; the time and length to be 
 fixed by the judge of the court. Duties of 
 clerk, marshal, and district attorney. Dep- 
 uty clerk and marshal may be appointed. 
 Act of June 18, 1878, ch. 289, 20 Stat, at 
 L. 166. 
 
 INDICTMENT. Mere irregularities in 
 convening grand jury do not vitiate i. . 14 
 
 Indiana. Adoption of constitutional amend- 
 ments, p. 104. Foreign corporations in Indiana, 
 p. 121. How many votes are a majority, p. 186. 
 
 16 
 
 Indictment. What is indictable, Crime; and 
 the titles of crimes having specific names. 
 
 Indictment good, notwithstanding forty-eight 
 
242 
 
 INDICTMENT. —INJUNCTION. 
 
 Blatchf. 5. Proper practice on challenge 
 to individual grand juror elaborately ex- 
 plained: 1 Dak. T. 63. Affinity between 
 grand juror and accused is not ground of 
 abatement: 1 Lea (Tenn.), 671. District 
 attorney's name may be signed by his sworn 
 assistant : 8 Reporter, 772. I. is not demur- 
 rable because the alleged date of the oflEence 
 is back of the period limited for prosecut- 
 ing: 38 Ark. 129. What particularity in 
 specifying the acts constituting the fraud 
 is needful in an i. for defrauding or attempt- 
 ing to defraud the government under the 
 internal revenue or pension laws: 1 Fed. 
 Reporter, 49 ; 25 Int. Rev. Rec. 10. Suf- 
 ficiency of denial, in i. for causing mis- 
 carriage, that the act was necessary for 
 preservation of woman's life: 89 III. 571. 
 Requisites and sufficiency of i. for produc- 
 ing abortion : 127 Mass. 15; for embezzling 
 a savings-bank book: Id. 20. " Stab " not 
 essential in i. for malicious stabbing; 
 " cut " -will do: 7 Baxt. (Tenn.) 64. 
 
 INFANT. The contract of a minor, 
 made without the consent of his father, for 
 necessaries, or for employment in a legiti- 
 mate business by means of which necessaries 
 could be obtained, is not void in any such 
 sense as to take a case of an injury sus- 
 tained by such minor through the negligence 
 of one working with him out of the rule 
 that the master is not liable to one servant 
 for the neglect of another in the same em- 
 ployment. The minor is the servant of his 
 
 employer within the rule, notwithstanding 
 his nonage. To require that in such cases 
 parties employing minors should be held 
 thereby to be insurers against the risb 
 usually incident to such employment, would 
 virtually result, in many instances, in an 
 undue restraint upon this important class 
 of our citizens in obtaining the means of a 
 legitimate livelihood, and would tend to 
 promote idleness and consequent demoral- 
 ization. The mere fact that an employee 
 is under the age of twenty-one years should 
 not shield him from the usual responsibihty 
 incident to an honest employment volun- 
 tarily assumed by himself. This rule, 
 however, should not be enforced against a 
 child of tender years, who evidently would 
 not have the requisite discretion and expe- 
 rience to be a suitable employee in a danger- 
 ous business. Supreme Ct. 1879, Houston, 
 &o. R. R. Co. V. Miller, 51 Tex. 270. 
 
 minor Decisions on Infant. 
 
 Domicile of legitimate 1. is that of father 
 if living, and 1. cannot change it: 31 N. J. 
 Eq. 194. An engagement of an i. to be- 
 come surety may be made obligatory by 
 confirmation after majority ; it is not abso- 
 lutely void: 11 S. C. 412. 
 
 INJUNCTION. An action cannot be 
 maintained to restrain an officer authorized 
 by law to make arrests, from making a 
 threatened arrest of complainant for an al- 
 leged violation of statute, upon the ground 
 
 grand jurors were not summoned ; and some who 
 came were not qualified, p. 7. Wliat irregularities 
 abate indictment, p. 7. Indictment for burglary in 
 a dwelling-house, where there are distinct tenements 
 in same building, p. 54. Indictments, how found 
 and tried in California, p. 55. On trial of indict- 
 ment in Federal court, accused may be witness in 
 his own behalf, p. 133. Sending "infernal ma- 
 chine," or annoying letter; misconducting on pub- 
 lic conveyance; or kindling fire so as to spread; 
 made indictable, p. 336. 
 
 Individual liability. Of stockholders or direc- 
 tors. Corporation ; and the titles of leading classes 
 of corporations ; Banking ; Express ; Insurance 
 Co.: Kailroad. 
 
 Of trustees of association of Shakers, on a war- 
 ranty of cabbage-seed, p. 31. Of shareholder in 
 national bank, p. 39. Of directors, through losses 
 through mismanagement, pp. 39, 122. Of share- 
 holder of building association, p. 54. Of mail-car- 
 rier for letter lost, p. 70. Of directors, generally, 
 for mismanagement, pp. 122, 123. Of stodcholders, 
 p. 124. Of judge, for erroneous sentence, where he 
 imposed line and imprisonment when the law said 
 fine or imprisonment, p. 130; or wrongfully rejected 
 a sheriff's bond, p. 131. 
 
 Indorsement. Bank must ascertain genuineness 
 of indorsement before paying check, p. 35. Whether 
 
 indorsement to national bank of note which it may 
 not buy enables it to sue, p. 37. National bank 
 can make indorsement " without recourse," p. 38. 
 Indorsement of bill of lading, p. 46. Indorsee for 
 a precedent debt takes " for value," p. 47. To the 
 contrary, p. 48. Transfers of bills or notes, p. 49. 
 Liability of indorsers, p. 49. Indorsement, by secre- 
 tary of treasury, on claim papers in the depaitment 
 does not bind claimant, p. 94. 
 
 Inevitable accident. Entire crew sick with 
 yellow fever is, p. 9. 
 
 Infant. Modern legislation as to children, 
 Child; relation of parent and child generally. 
 Parent ; award of custody of child on divorce, 
 Divorce. 
 
 Abduction of children, in North Carolina, p. 8. 
 New laws and societies for prevention of cruelty to 
 children, p. 78. 
 
 Infringement. Of copyright. Copyright. 01 
 patent. Patent. Of trademark, Tradejiark. 
 
 Infringement of the New York Insurance Map, 
 p. 115 ; of Seidell's Book-keeping, p. 115: of a 
 chromo, p. 115; of the Postoffice Directory, pp. Ho, 
 117 ; of Offenbach's Vcrt-Vert, p. 116; of a chromo 
 worsted-work pattern. The Huguenot.n6;of Amen- 
 can contributions to the Encyclopedia Brifannica, 
 p. 116; of drawings and paintings, p. 117; of D'Al- 
 maine's songs, p. 117. 
 
mjUNCTIOX. — INNKEEPER. 
 
 243 
 
 that the acts for which the arrest is threat- 
 ened are not a violation of the statute and 
 that complainant will suffer great damage 
 in his business if the threat is carried into 
 execution. Whether complainant has been 
 guilty of a violation of a statute cannot be 
 determined in such an action, but is proper 
 matter for trial in a common-law court and 
 by a jury. The people, as well as the ac- 
 cused, have the right to a jury trial of the 
 question. Ct. of Appeals, 1878, David !'. 
 American Soc. for the Prevention, &c., 75 
 N. Y. 362. 
 
 KinoT Decisions on Injunction. 
 
 Collection of unlawful tax by United 
 States collector may be enjoined: 3 Hugh. 
 227. Lumbermen may be enjoined from 
 floating down river logs which will destroy 
 government works for improving the river : 
 25 Int. Reo. Rec. 322. A State officer may 
 be enjoined from administering a law im- 
 pairing the obligation of a contract with 
 the State: 8 Reporter, 39. City officers 
 may be bound by an i. against a city, on 
 actual notice, though not parties, nor per- 
 sonally served: 16 Off. Pat. Gaz. 627. I. 
 does not lie to restrain one person from 
 completing purchase of public lands from 
 the U. S., because complainant claims to 
 make the same purchase : 52 Cal. 430. 
 Equity may enjoin a nuisance, — here a 
 noxious slaughter-house, — notwithstand- 
 ing the party has been acquitted on an 
 indictment, and has not been shown liable 
 for damages at law: 87 III. 450. City may 
 be enjoined from collecting a tax to pay a 
 debt which it has incurred by violation of 
 a limit which is imposed by the constitu- 
 tion: 90 ///. 104. Under reformed codes, i. 
 lies against collection of illegal tax: 61 Ind. 
 29. I. may be employed to prevent a rail- 
 road company from continuing to occupy 
 plaintiff's land unlawfully: 73 N. Y. 579. 
 I. lies to restrain continuing nuisance, — e. 
 g. stagnant pond, — at suit of one specially 
 injured: 76 N. Y. 410. Deceitful or fraud- 
 ulent use of the name of a manufacturer or 
 corporation may be enjoined, irrespective 
 of its being a technical trademark: 45 iV. Y. 
 Superior Cl. 258. I. does not lie to redress 
 au injury already done, as to compel res- 
 toration of a structure which has been 
 wrongfully removed: 2 Pearson (Pa.), 320. 
 
 INNKEEPER. Rights. Obtaining ac- 
 commodations at hotel, or boarding or 
 
 eating house, with intent to defraud, de- 
 clared punishable by fine or imprisonment. 
 What is evidence of fraudulent intent. 
 Iowa LaiDs 1880 (March 22), 75, ch. 76. 
 
 In Tennessee, " all keepers of hotels, 
 boarding-houses, and lodging-houses, wheth- 
 er licensed or not, shall have a lien on all 
 furniture, baggage, wearing-apparel, or 
 other goods and chattels brought into any 
 such hotel, boarding-house, or lodging- 
 house, by any guest or patron of the same, 
 to secure the payment by such guest of all 
 sums due for board or lodging." Tenn. 
 Laws 1879 (March 14), 147, ch. 109. 
 
 Iowa and Tennessee have passed laws 
 such as are common in other States, pro- 
 tecting from innkeeper's liability any pro- 
 prietor of a hotel or inn, who provides 
 a safe for property of guests, and posts no- 
 tices thereof. Iowa Laios 1880 (March 26), 
 175, ch. 181; Tenn. Laws 1879 (March 
 26), 185, ch. 145. 
 
 Liability. A hotel-keeper is not liable 
 for a loss occasioned by the personal negli- 
 gence of the guest himself; as where the lat- 
 ter leaves valuable jewelry overnight in an 
 unlocked valise, in an ordinary coat-room, 
 covered only by the check given for hand- 
 baggage; and it is stolen. Supreme Ct. 
 1878, Elcox V. Hill, 98 U. S. 218. 
 
 The defendant, an innkeeper, issued in- 
 vitations for a " Fourth of July party " at 
 his inn; he furnishing music, a supper, and 
 stabling for the horses, for $2. In pur- 
 suance of one of these invitations plaintiff 
 attended, stabled his horse with the de- 
 fendant, danced, and had supper, paying 
 therefor i|2. He also drank at the inn, 
 liquors being chai'ged for in addition to the 
 $2. In an action brought to recover for an 
 injury to plaintiff's horse, — Held, that the 
 relation of innkeeper and guest did not 
 exist. The plaintiff came, not as to an 
 inn or hotel, but as to a ball-room, for the 
 purpose of engaging in the dance. He 
 was to pay a certain charge for admission, 
 and this charge included the care of his 
 horse. Still he was not a traveller and did 
 not come in that character. He would 
 have had no right to come if he had not 
 been invited. Supreme Cl. 1879, Fitch w. 
 easier, 11 Hun {N. Y.), 126. 
 
 General Hancock engaged and occupied 
 rooms at the St. Cloud Hotel in New York 
 city, under au arrangement with the pro- 
 prietor, by which certain rooms were as- 
 
244 
 
 INNKEEPER. — INSANITY. 
 
 signed to the General and his family for 
 tlie whole winter, and were to be paid for 
 by him, unless he was sooner ordered away 
 on military duty. The St. Cloud Hotel is 
 kept on the European plan ; and the price 
 to be paid for the rooms in question was 
 made to vary according to whether meals 
 supplied from the restaurant were included, 
 which was at the tenant's option ; the re- 
 sult, however, was that he occupied the 
 rooms at a fixed price per month for the 
 apartments only, paying for whatever was 
 ordered from the restaurant extra. Val- 
 uable jewels of Mrs. Hancock were stolen 
 from the rooms during the tenancy, and 
 she sued the proprietors of the St. Cloud 
 on alleged liability as innkeepers. The 
 defence was that as the plaintiif occupied 
 the rooms under a special contract as to 
 time and price, she was a boarder only. 
 Held, that the facts established clearly the 
 relation of innkeeper and guest. The 
 plaintiff had no permanent or fixed resi- 
 dence elsewhere, and even her stay at the 
 hotel in question depended for its dm-ation 
 upon the pleasure of the government, as 
 her husband was liable to be ordered to 
 military service at any moment. The St. 
 Cloud Hotel was kept as a hotel in every 
 sense of the term, and was clearly dis- 
 tinguishable from a mere boarding-house. 
 Ascertaining and fixing the price to be 
 paid for accommodations, and specifying 
 the probable duration of the stay at the 
 hotel, did ijot necessarily deprive the occu- 
 pant of the character of guest. The effect 
 of such a theory would be to deprive the 
 visitor at a hotel of the character of a 
 guest, if he took the precaution to ascertain 
 in advance the price which would be 
 charged for his entertainment, whether he 
 contemplated a stay of a day or a week. 
 The mere fact that the price charged at 
 hotels is made to depend upon the length 
 of the stay of the visitor cannot be con- 
 trolling upon the question whether he 
 should be regarded as a guest. It is well 
 understood that hotels are now conducted 
 upon a system essentially different from 
 that which prevailed a century ago, and 
 hence the rules of law which must govern 
 should, in some degree, conform to such 
 
 Insanity. Insanity aa avoiding contract, Con- 
 tract. As a defence for crime, Chime. Testa- 
 mentary iiuapacitv, Will. 
 
 Amiy officer wto sent iu hia resignation while 
 
 change. Supreme Ct. 1879, Hancock v 
 Rand, 17 Hun (N. Y.), 279. 
 
 Minor Decisions on Innkeeper. 
 That a guest was slightly intoxicated is 
 not conclusive of fault contributing to 
 larceny of his property in the night ; the 
 question is for the jury: 60 Go. 185. 
 Guest's property, because exempt from ex- 
 ecution, is not therefore exempt from lien: 
 47 Iowa, 501. Horse is not exempt from 
 lien for keep because exempt from execu- 
 tion: 14 Bush {Ky.), 230. One only leav- 
 ing horse at inn stable while he lodges 
 elsewhere is not guest, and cannot claim 
 innkeeper's liability as to the horse: 68 
 Me. 489. 
 
 IXSANITT. There are various degrees 
 of unsoundness of mind, having different 
 results, and for which different remedies are 
 provided. When the question arises, under 
 Georgia Code, § 2306, —providing that a 
 trust estate may be created for the benefit of 
 any . . . person non compos mentis, — whether 
 the beneficiary was sufiiciently imbecile or 
 insane to sustain a trust in a will, the rule 
 of decision is, that if there be such a de- 
 gree of unsoundness or imbecility of mind 
 as to incapacitate one from managing the 
 ordinary business of life, and such ordinary 
 estates as people usually possess, it will 
 authorize the maintenance of the trust and 
 the authority of the trustee. Supreme Ct. 
 1877, Gray v. Obear, 59 Ga. 675. 
 
 Persons acquainted with the beneficiary, 
 as well as experts, may give an opinion as 
 to his mental capacity. But declarations 
 by the testator are not competent. lb. 
 
 The doctrine that non-pi-ofessional wit- 
 nesses should be allowed to state their 
 opinion as to the sanity of the party, de- 
 rived from their acquaintance with, and 
 observation of his conduct, appearance, and 
 actions, has become too well settled to ad- 
 mit of doubt or controversy at this time. 
 [Following 41 Tex. 125; 5 Tex. App. 320j 
 56 N. H. 227; and overruling 13 Tex. 563.] 
 Ct. of Appeals, 1879, Webb v. State, 5 Tex. 
 App. 596. 
 
 The law presumes every person of mature 
 years to be of sound mind and competent 
 to commit crime. If the defence be insan- 
 
 insane, bound by it, p. 25. Moral insanity disa])- 
 pvoved as a defence for crime, p. 1 35. Must nisauiO' 
 be proved, or is raisins a reasonable doubt enouglii 
 p. 136. Sexual excitement by drugs, p. 230. 
 
INSANITY. 
 
 245 
 
 ity, it is to be proved substantially as an 
 independent fact, and the burden of proof 
 is on the accused. Upon this issue he goes 
 forward and the State rebuts. Ct. of Er- 
 rors, 1878, State v. Hoyt, 46 Conn. 330; 
 And see Sayres v. Commonwealth, 88 Pa. 
 St. 291. Consult Ckime. 
 
 For rulings that moral insanity or an 
 irresistible, uncontrollable impulse or in- 
 clination to commit an act, notwithstand- 
 ing one knows it to be an ofEence, may be 
 in clear cases a defence, — see Sayres v. 
 Commonwealth, 88 Pa. St. 291; Brown v. 
 Commonwealth, 14 Bush (Ky.), 398. 
 
 Legislation of Michigan establishing and 
 regulating the Kalamazoo asylum for the 
 insane reviewed; and the question whether, 
 when a person is brought to the asylum by 
 the request of his relatives, or, he being a 
 pauper, by the poor authorities, as insane, 
 and the superintendent in good faith makes 
 a careful investigation and examination, 
 leading him to the honest belief that such 
 person is insane and a proper person for 
 restraint and treatment, and he detains and 
 treats him accordingly, the superintendent 
 is liable to an action for false imprisonment 
 because it is afterward made to appear that 
 the person was not in fact insane; or 
 whether the competent request and his 
 good faith ai-e a protection, — considered. 
 ' Van Deusen v. Newcomer, 40 Mich. 90. 
 
 A lunatic restored to the management of 
 his estate cannot impeach a sale of his 
 lands, made by his guardian on the ground 
 that notice of application for the order to 
 sell was not published in precise conformity 
 to law. Lands belonging to Mohr, a luna- 
 tic, were, while his estate was in commis- 
 sion, sold by his guardian, pursuant to an 
 order of a county court, for the purpose of 
 raising money to pay the lunatic's debts 
 Subsequently, the commission in lunacy 
 was superseded ; and Mohr then brought an 
 action in the nature of ejectment, to re- 
 cover the lands from the purchaser at the 
 guardian's sale. No objection was made 
 that the price was not fair ; the plaintiff's 
 case was that the county court had acted 
 without jurisdiction in making the order 
 for the guardian's sale of the lands, be- 
 cause the notice that the guardian would 
 make application for the order was not duly 
 published beforehand, for the full term of 
 four weeks prescribed by the State law gov- 
 erning such proceedings. As the State su- 
 
 preme court had decided [40 Wis. 76] 
 against the purchaser's title, holding that 
 publication as prescribed by the statute was 
 essential to the jurisdiction ; while the 
 United States supreme court [in 2 How. 
 319] had sustained a sale against a like 
 objection; the judges "holding the circuit 
 court in which the cause was tried certified 
 the question to the supreme court. Held: 
 1. The Federal courts are not bound by 
 such a decision of a State court that the 
 order of sale lacked jurisdiction, but should 
 consider and decide the question indepen- 
 dently. The framers of the constitution, 
 in establishing the Federal judiciary, as- 
 sumed that it would be governed, in the 
 administration of justice, by those settled 
 principles then in force in the several States 
 and prevailing in the jurisprudence of the 
 country from which our institutions were 
 principally derived. Among them none 
 were more important than those determin- 
 ing the manner in which the jurisdiction of 
 the courts could be acquired. This neces- 
 sai-ily depended upon the nature of the sub- 
 ject upon which the judicial power was 
 called to act. If it was invoked against the 
 person, to enforce a liability, the personal 
 citation of the defendant, or his voluntary 
 appearance, was required. If it was called 
 into exercise with reference to real prop- 
 erty by proceedings in rem, or of that na- 
 ture, a different mode of procedure was 
 usually necessary, such as a seizure of the 
 property, with notice, by publication or 
 otherwise, to parties having interests which 
 might be affected. The rules governing 
 this matter in these and other cases were a 
 part of the general law of the land, estab- 
 lished in our jurisprudence for the protec- 
 tion of rights of person and property against 
 oppression and spoliation. And when the 
 courts of the United States were invested 
 with jurisdiction over controversies between 
 citizens of different States, it was expected 
 that these rules would be applied for the 
 security and protection of the non-resident 
 citizen. The constitutional provision owed 
 its existence to the impression that State 
 prejudices and attachments might some- 
 times affect injuriously the regular admin- 
 istration of justice in the State courts. 
 And the law of Congress which was passed 
 to give effect to the provision made it op- 
 tional with the non-resident citizen to re- 
 quire a suit against him, whe^ commenced 
 
246 
 
 INSANITY. — INSOLVENCY. 
 
 in a State court, to be transferred to a 
 Federal court. This power of removal 
 would be of little value, and the constitu- 
 tional provision would be piactically de- 
 feated, if the ordinary rules establislied by 
 the general law for acquiring jurisdiction 
 in such cases could* be thwarted by State 
 legislation or the decision of the local court. 
 If the local courts should hold that certain 
 conditions must be performed before juris- 
 diction is obtained, and thus defeat rights 
 of non-resident citizens acquired when a 
 different ruling prevailed, the Federal courts 
 would be delinquent in duty if they follow- 
 ed the latter decision. 
 
 2. As against the lunatic ward, his claims 
 only being in question, omission to publish 
 notice of application for an order to sell his 
 lands should not be deemed a jurisdictional 
 defect ; but at most only error to be cor- 
 rected by review. The statute of Wiscon- 
 sin, which provides for sale of a lunatic's 
 lands for payment of debts, does indeed 
 prescribe, as the general rule, that notice 
 of the application shall be published; but 
 it also says, that if all the persons interested 
 in the estate shall assent in writing to a 
 sale, the publication may be omitted. This 
 shows that publication of the notice is not 
 jurisdictional as towards the ward in lun- 
 acy, but is merely intended for the pro- 
 tection of persons having adversary in- 
 terests in the property. A consent should 
 not be signed by the lunatic ; yet, on the 
 consent of the others, the court could pro- 
 ceed without any publication of notice to 
 bring him in. Moreover, there is no rea- 
 son why publication of notice should be 
 made for other parties than those who held 
 adverse interests. The lunatic could not 
 be affected by such publication any more 
 than by his consent. The application of 
 the guardian to the county court was re- 
 quired by the law only as a check against 
 any improvident action by him. There 
 was nothing in the nature of the proceed- 
 ings which required a notice of any kind, 
 so far as the rights of the lunatic were con- 
 cerned. The law would have been free 
 from objection had it simply authorized, 
 upon the consent of the court, a sale of the 
 lunatic's property for the payment of his 
 
 debts. Supreme Ct. 1879, Mohr v. Mani- 
 erre, Opinion in Clerk's Office. 
 
 Uinor Decisions on Insanity. 
 
 Bill filed for divorce in name of insane 
 wife, and decree thereon, set aside: 89 III. 
 78. Insane person is not debarred from 
 acquiring a settlement: 47 Iowa, 57. 
 Taking poison under an insane impulse 
 caused by disease, depriving the subject of 
 the capacity of governing his conduct in 
 accordance with reason, is not voluntary 
 and he does not " die by his own hand ": 
 76 N. Y. 426. Insane person is not ex- 
 empt from an action for damages for a tort, 
 but is from exemplary damages : 4 Baxt. 
 {Term.) 64. Attempting suicide is not 
 proof of derangement, but may be con- 
 sidered with other facts : 7 Reporter, 357. 
 Lunacy of principal or husband, sufiScient 
 to impair his power of contracting, termi- 
 nates authority previously given to agent 
 or wife to draw checks: 19 Am. L. Reg. 
 N. s. 98. 
 
 Inquisition may be conducted, when ne- 
 cessary, without notice to or presence of 
 alleged lunatic : 62 Ind. 13. Person found 
 lunatic may appeal in per.son: 63 Ind. 524. 
 Finding a person insane by inquisition does 
 not devest his capacity to bring a suit to \,x3r 
 verse the inquisition : 10 S. C. 82. Statu- 
 tory power of court to sell land of lunatic 
 mnst be strictly pursued; if it says petition 
 shall be referred, a reference is essential: 
 72 N. Y. 184. Property of lunatic in com- 
 mission cannot be subjected to debts ante- 
 dating the inquisition, until a maintenance 
 for him and minor children is set apart: 
 81 N. C. 296. 
 
 INSOLTENCT. It is familiar that a 
 United States bankrupt law, while in 
 operation, suspends State laws govern- 
 ing discharges in insolvencj' and admin- 
 istration of insolvent estates. The 
 repeal of that law [see Bankruptcy] 
 revived the various State laws which 
 had been in operation before it took 
 effect ; and even gave life (so it has 
 been held infra) to one passed while 
 it was in operation, and which could 
 
 Insolvency. Revival of State insolvent laws, p. 
 30. Insolvency of bank renders officer, &c., receiv- 
 ing deposit cliargeBble witli embezzlement, p. 36. 
 
 Title of assignee in bankruptcy, pp. 41, 45. Dis- 
 charge, pp. 42, 46. Liabilitv of directors on insolven- 
 cy of bank, p. 122; under Nev. Const pp. 122,123. 
 
INSOLVENCY. 
 
 247 
 
 not, when enacted, take effect. A 
 summary or abridgment, apparently 
 full and satisfactory, of the various 
 State laws as they stood and were re- 
 vived when the bankrupt law was re- 
 pealed, is given in Hubbell's Legal 
 Directory, 1878-79, — and is contin- 
 ued in the subsequent volumes, present- 
 ing the changes from year to j'ear. 
 
 For a verj- lucid general statement of 
 subsequent legislation of the States in 
 this field, see Briistow's Address, 1 Am. 
 Law Rev. n. s. 724. He explains that 
 during the present 3'ear Maryland and 
 California had enacted, and that Maine, 
 Vermont, Massachusetts, and Connec- 
 ticut (none others) had previouslj' 
 passed laws still in force, covering the 
 general ground of a bankrupt law ; that 
 is, providing for a judicial distribution 
 of a debtor's effects among his creditors, 
 and giving him, so far as a State may 
 do so, a discharge. Another species 
 of law of a germane purpose is known 
 in several of the States, bj' which a 
 creditor may make a general assign- 
 ment in trust for the benefit of creditors, 
 but the assignee must give security for 
 the performance of the trust ; and pro- 
 ceeds, in doing so, under judicial scrutinj' 
 and subject to accounting to the court. 
 These laws do not contemplate a dis- 
 charge ; nor do they have any compul- 
 sory operation over debtors. Cases on 
 both kinds of laws, from the standard 
 reports, of general interest, are men- 
 tioned below. 
 
 In view of the State insolvent and 
 assignment laws, there was commenced 
 in 1879, the American Insolvency Re- 
 ports (R. M. Bruno, present editor; 
 New York: H. Campbell & Co.), a 
 periodical, a successor to the National 
 Bankruptcy Register, and devoted to 
 making a com^Dlete exhibit of the cur- 
 rent decisions in the field. It should 
 be consulted, for full research. 
 
 Maryland insolvency laws were much 
 changed hyLaws 1880 (Apiil 14), 263, 
 eh. 172. 
 
 Insolvent laws. While the bankrupt 
 law was in full operation, the legislature of 
 Maine enacted an insolvent law. Held, 
 that though it could not take effect at the 
 time when it should, by its terms, and ex- 
 cept for the supremacy of the bankrupt 
 law, have begun to operate, it was not on 
 that account a nullity. Like State laws 
 on the subject passed before the bankrupt 
 law, it was suspended. When the repeal 
 of that law took effect, the new Maine 
 law, like the earlier ones elsewhere, was 
 allowed operation. Damon's Appeal, 19 
 Am. Law Reg. n. s. 367. 
 
 Assignment laws. Although an assign- 
 ment for creditors may be voidable at 
 their instance, under the statute; as, be- 
 cause it does not embrace all the property 
 of the assignor, it is, notwithstanding, 
 binding upon th^ assignor himself. Ct. of 
 Appeals, 1878, Schuman v. Peddicord, 50 
 Md. 560. Compare Re Beisenthal, 14 
 Blatchf. 146. 
 
 An assignment for creditors will not be 
 set aside because the assignee named, 
 being also clerk of the district court, certi- 
 fied approval of his own bond. The ap- 
 proval is irregular, and the assignee may 
 be required to give other proper security. 
 But even the failure of the assignee to give 
 the bond does not avoid the assignment. 
 Supreme Ct. 1879, Brahmstadt v. McWhir- 
 ter, 9 Neb. 6. 
 
 Fraud committed by an assignor, before 
 making his assignment and independent of 
 it, in conveying or concealing property to 
 the prejudice of creditors, is not ground 
 for setting the assignment itself aside. If 
 the circumstances are such that the as- 
 signee can pursue the property, he should 
 do so, for the benefit of creditors. If he 
 cannot, any creditor may pursue it as if 
 the general assignment had not been made. 
 Supreme Ct. 1878, Wilson v. Berg, 88 Pa. 
 St. 167. Compare Re Beisenthal, 14 Blatchf. 
 146. 
 
 It was not the purpose of § 17 of the 
 Ohio act regulating assignments for cred- 
 itors (as amended Feb. 12, 1863, S. & 
 S. 397), — which provides that all trans- 
 fers, conveyances, or assignments made 
 with intent to hinder, delay, or defraud 
 creditors, shall be declared void at the suit 
 of any creditor, and the probate judge 
 shall appoint an assignee who shall pro- 
 ceed by due course of law to recover pos- 
 
248 
 
 INSOLVENCY. — INSPECTION. 
 
 session of all property so transferred, 
 conveyed, or assigned, and administer the 
 same, — to enlarge the class of transfers 
 or conveyances which § 2 of the statute of 
 frauds declares " shall be deemed utterly 
 void and of no effect." Its purpose was 
 to supply a new remedy to creditors, by 
 authorizing the fraudulent conveyance or 
 transfer to be converted into an assign- 
 ment at the suit of a creditor, and the fund 
 to be distributed, if the creditors so elect, 
 in the same manner as if the debtor had 
 formally assigned the property conveyed 
 for the equal benefit of all his creditors. 
 But the conveyance which lies at the 
 foundation of the proceeding, and upon 
 which alone the statute was designed to 
 operate, is the fraudulent conveyance by 
 the debtor himself. The act has no ap- 
 plication to a conveyance made by a mere 
 trustee of the legal title, although such 
 conveyance is made at the instance of the 
 cestui que trust or beneficial owner, but only 
 to such conveyance as the statute of frauds 
 declares void, and which, being void, 
 leaves the title in the fraudulent grantor, 
 as between him and the creditor. Supreme 
 Ct. 1878, Shorten ». Woodrow, 34 Ohio 
 St. 645. 
 
 An insolvent debtor purchased real es- 
 tate, and, with the fraudulent intent to 
 conceal from his creditors his interest or 
 ownership therein, caused the vendor to 
 convey the premises to a third person, 
 who, at the debtor's request, conveyed the 
 same to the latter's wife. Held, — 
 
 1. Neither of such conveyances falls 
 within the operation of section 17. 
 
 2. The wife, in equity, holds the legal 
 title to the premises conveyed, subject to 
 the right of her husband's creditors to 
 subject the same to the payment of their 
 claims. lb. 
 
 Minor Decisions on Insolvency. 
 
 Assignment, to attorney, for creditors 
 of sundry demands, to enable him to col- 
 lect money for payment of his clients, must 
 be recorded as an assignment for creditors : 
 87 Pa. St. 26. Giving power to convert 
 the assets into money upon such terms as 
 the assignee may think just, &c. , does not 
 avoid an assignment for creditors; for it 
 
 Inspection. Inspection to detect adulteration of 
 food, &o., p. 14. Of cattle, for disease, p. 2-i. 
 Bakisr on Quarantine, p. 36, Inspecting checlis 
 
 does not import power to sell on credit: 9 
 Neb. 6. Assignment for creditors is not 
 void because it conveys simply all the 
 property of the assignor without descrip- 
 tion or schedule; or because it exempts 
 property exempt from execution; or au- 
 thorizes compromises of claims when expe- 
 dient ; or reserves any residue after payment 
 of all debts and expenses: Id. 40. Bank- 
 rupt law does not avoid a voluntary assign- 
 ment for creditors if proceedings for 
 bankruptcy are not instituted: 74 N. Y. 
 317. In what manner assignment for 
 creditors may be impeached for extrinsic 
 facts of fraud : 88 Pa. St. 167. Prefer- 
 ences in assignment do not avoid it, but 
 may be disregarded: 68 Mo. 435. Failure 
 of statutory assignee to give bond devests 
 his title: 24 Minn. 295. Title of stat- 
 utory assignee is not impaired by fail- 
 ure to give the prescribed security : 71 
 N. Y. 502; 1. Am. Insolv. 145; otherwise 
 since iaws 1877: Id. 162. Formal defects 
 in bond of statutory assignee for creditors, 
 not fatal : 45 Wis. 600. Who are suffi- 
 cient as sureties ; and how their sufficiency 
 may be impeached. Id. 564. Verified peti- 
 tion by creditor gives county judge power to 
 order an assignee to account; and contro- 
 verting the petitioner's demand does not 
 devest the jurisdiction : 75 N. Y. 187. 
 Assignment for creditor cannot impeach 
 conveyance by his assignor, which is bind- 
 ing on the latter, unless it was fraudulent as 
 towards the assignee ; he does not take the 
 creditor's rights: 31 N. J. 619. Assignee 
 for ci'editors represents assignor only, and 
 is bound where he would be bound: 88 Pa. 
 St. 368. Assignee for creditors takes sub- 
 ject to equities: 12 E. 1. 9; he takes only 
 the rights of the assignor: Id. 460. As- 
 signee for creditors of tenant takes subject 
 to vendor's lien: 51 Tex. 134. Assignee 
 may sue in court of claims in name of as- 
 signor: 14 Ct. of CI. 819. 
 
 INSPECTION. The duties imposed on 
 inspectors of merchandise in market must 
 be performed personally : 57 Ala. 115. 
 Failure to comply with 1. laws of the State 
 where the goods are cannot avoid securi- 
 ties given on a contract of sale, if the goods 
 are delivered and accepted in another State; 
 
 with magnifying-glass to detect forgeries, p. 35- 
 Riglit of merchant to inspect custom-house files, p. 
 174. Foot-prints in pan of mud, p. 202. Ballet, 231. 
 
INSPECTION. —INSURANCE. 
 
 249 
 
 t. laws have no extra-territorial operation : 
 
 Id. 412. Their constitutionality : 91 III. 357. 
 
 INSURANCE. Insurable interest. 
 
 Married women enabled to insure the lives 
 of their husbands; the policy tO inure to 
 the wife's benefit, or to that of the child- 
 ren or her transferee ; and the pi-oceeds to 
 be free of any claim from her husband or 
 his creditors. Ohio Laws 1879 (June 12), 
 160. 
 
 Application. As a general rule the 
 applicant for insurance has the right to 
 rely upon the agent as acting on behalf 
 of the company in filling the blanks and 
 preparing the application. If the applicant 
 fully and fairly discloses the facts, so that 
 the agent is truthfully informed as to all 
 matters material to the risk and embraced 
 in the questions propounded, and the agent 
 either negligently or intentionally makes 
 omissions or misstatements, so that the 
 application, as it reaches the principal office 
 of the company, is erroneous, though sup- 
 posed and believed by the applicant to be 
 correct, the consequences of the error rest 
 upon the company. A recovery on the policy 
 win not be defeated by error in the appli- 
 cation, attributable to the agent and not to 
 the insured. Supreme Ct. 1879, Phcenix 
 Ins. Co. V. Tucker, 92 HI. 64. To nearly 
 same effect, Smith v. Farmers', &c. Mut. 
 Ins. Co., 89 Pa. St. 287; Connecticut Gen. 
 Life Ins. Co. v. McCurdy, Id. 363. 
 
 The agent of the company made inquir- 
 ies of the owner as to the property, and took 
 notes of his answers, which were correct. 
 After having prepared the policy, and just 
 before delivering it, the agent handed to 
 the owner a printed application, in which 
 the agent had himself written the answers, 
 and told the owner to sign the application. 
 The latter at once did so in the presence of 
 the agent, without reading it or knowing 
 its contents. Held, that the misrepresen- 
 tation of a material fact in such application 
 would not necessarily enable the insurer to 
 avoid payment of the policy. St. Louis 
 Ct. of Appeals, 1878, Dahlberg v. St. Louis 
 Mut. Fire, &c. Ins. Co., 6 Mo. App. 121. 
 
 A stipulation printed upon the back of 
 a policy of insurance: " It is a part of this 
 contract that any person other than the 
 
 Instmment. Alteration of various instruments, 
 p. 20. Forged and raised checks, pp. 35, 36. Con- 
 sequences of sale of counterfeit securities, p. 53. 
 
 Insurance. Notice of abandonment needful, to 
 raise claim for constructive total loss, pp. 1-3. In 
 
 assured, who may have procured this insur- 
 ance to be taken by this company, shall be 
 deemed to be the agent of the assured, and 
 not of the company, under any circum- 
 stances whatever, or in any transaction 
 relating to this insurance," cannot convert 
 the agent who procured the application 
 into a mere agent of the assured. To treat 
 it thus would make it, not a mere restric- 
 tion on an agent's powers, but an attempt 
 of the company to dissolve the relation be- 
 tween itself and its agent, and to establish 
 agency between himself and the appli- 
 cant. On the general question of the oper- 
 ation of statements written by the agent 
 in the application, but adopted and signed 
 by the applicant, there are two classes of 
 decisions : the one class — mostly earlier 
 cases — hold that parol evidence is inad- 
 missible to show that errors in the appli- 
 cation have resulted from participation of 
 the agent in preparing it ; they rest on the 
 idea that the object and effect of the testi- 
 mony is to contradict and vary the written 
 contract. The other class — of later ori- 
 gin, but rapidly increasing in number and 
 favor — declare that the companies must 
 be held responsible for the acts and declar- 
 ations of their agents within the scope of 
 their employment; these cases deny that 
 the rule excluding parol testimony applies, 
 and rest the competency of the evidence on 
 the doctrine of equitable estoppel. [Review- 
 ing many cases.] Strictly, the more ap- 
 propriate remedy would be a suit, founded 
 on the parol evidence, to reform the con- 
 tract. But the tendency is to aUow the 
 facts to be proved by parol and treat them 
 as raising an estoppel. Supreme Ct. 1877, 
 Planters' Ins. Co. v. Myers, 55 Miss. 479. 
 A description, in a fire policy, of the 
 property as being a building " occupied as 
 a dwelling and boarding house," defines 
 the risk, and is a warranty that the prop- 
 erty was so occupied. If in fact the build- 
 ing intended was occupied as a country tav- 
 ern, and contained a bar-room and billiard- 
 room, such as increased the risk, and would 
 have called for a higher premium if the 
 facts had been known to the company, 
 the insured cannot recover. Proof that the 
 application was prepared by an agent of 
 
 chartering insurance company Congress acts only 
 as legislature of District of Columbia, p. 6. Abate- 
 ment by death of stockholder sued to contribute to 
 impaired capital, p. 6. Benefit society not insur- 
 ance company, p. 120. When loss " occurs," p. 164. 
 
250 
 
 INSURANCE. 
 
 la mere evasion of 
 
 Jol testimony when 
 
 ten contract. [Re- 
 
 Ct. of Errors, 1878, 
 
 Martin, 40 N. 
 
 V. Phoenix Ins. 
 
 the company ; that he knew all the facts ; 
 and that the parties both intended to in- 
 sure the premises as they were in fact 
 used, the error being that of the agent; 
 will not warrant a recovery on the policy 
 as it stands. Upon proof of misdescription 
 by the agent without collusion or fraud of 
 the insured, the policy may, in a proper 
 case, be reformed in equity. But in an 
 action at law upon the instrument as is- 
 sued, the rights of the parties must be de- 
 termined by its terms: which cannot be 
 modified by parol evic ance of a different 
 agreement, sought ij6' oe established by 
 showing knowledg^-ofitgeinsurer or the 
 agent of th^gtli^beotidition of the prop- 
 erty. The theorj^that Such parol evidence 
 may be reo^jiBeA^F't&H purpose of raising 
 an estoppel m!^ 
 the rule excluding pi 
 offered to alter a 
 viewing many cases.] 
 Franklin Fire Ins. Co. v 
 J. L. 568. See Blumer 
 Co., 45 Wis. 622. 
 
 Any party soliciting insurance shall be 
 held to be the agent of the party hereaf- 
 ter issuing a policy or a renewal upon the 
 application procured by him, anything in 
 the application or policy to the contrary not- 
 withstanding. Ohio Laws (March 5) 1879, 
 26, ch. 235. 
 
 Conditions. Although the terms of the 
 policy make prepayment of premium strict- 
 ly a condition precedent, yet if the com- 
 pany or its authorized agents, by a general 
 course of dealing, give him reason to be- 
 lieve, and he does believe, that the con- 
 dition is relaxed and he is thus led to delay 
 payment, the company will not be allowed 
 to enforce a forfeiture therefor. Supreme Ct. 
 1878, Hamley v. Life Assoc, 69 Mo. 380. 
 
 A provision against the storing or keep- 
 ing certain fluids and oils is not violated 
 by keeping a fluid not expressly prohibited 
 by the policy, in moderate quantities, for 
 illuminating purposes; nor is this " so 
 using the premises as to increase the risk," 
 within the meaning of the policy. St. 
 Louis Ct. of Appeals, 1878, Wheeler v. 
 American Central Ins. Co., 6 Mo. App. 235. 
 
 A stipulation in an insurance policy 
 against "keeping or using camphene, 
 spirit-gas, burning-fluid, or chemical oils," 
 held, not violated by the use of a fluid, for 
 illuminating purposes, not of the general 
 
 nature of camphene or spirit-gas. U, 
 See also Hicka v. Empire Fire Ins. Co 
 Id. 264. '' 
 
 Mrs. Matson procured 'a policy of in- 
 surance upon her house, which contained a 
 condition that the company should not be 
 liable for a loss occasioned by the use of 
 kerosene oil as a light in any bam or out- 
 house. No such use was habitually made. 
 But, early one morning, her husband took • 
 a kerosene lamp and went into a barn to 
 catch some fowls. He placed the lamp on 
 the end of a plank ; and while he was cha«- 
 ing one fowl another flew against the lamp, 
 upsetting it upon the straw, which took 
 fire, and the bam was destroyed. Suit 
 was brought upon the policy, which was 
 contested upon the ground of a breach of 
 condition. The answer made was that the 
 condition contemplated an habitual light- 
 ing of the bara by kerosene, and a loss 
 directly attributable to its peculiar prop- 
 erties, such as an explosion. Held, that 
 the condition had been violated and the 
 action could not be maintained. In the 
 nature of things, if a loss were caused by 
 kerosene oil, it must have been caused by 
 such use on some particular occasion, and 
 whether or not the oU had been previously 
 used without doing injury would be of no 
 consequence. The intent of the stipulation 
 was to exempt the company from liability 
 for any loss occasioned by kerosene when 
 employed as a lighting material; the in- 
 sured might use kerosene at her own 
 risk, but not at the risk of the company. 
 If the circumstances were such as to 
 satisfy the jury that the loss was occasioned 
 by the use of kerosene, the company was 
 not liable. Ct. of Appeals, 1878, Matson 
 V. Farm Buildings Ins. Co., 73 N. Y. 310. 
 
 A life-insurance company refused to re- 
 ceive the premium on one of its policies, 
 from the holder, on the ground that it had 
 become forfeited by a breach of one of its 
 conditions by the person whose life was in- 
 sured. The holder, without rescinding the 
 contract, brought an action, against the 
 company claiming an implied promise to 
 receive the premiums and keep the policy 
 in force. Held, that the law did not imply 
 such a promise and that the action could 
 not be maintained. Ct. of Errors, 1878, 
 Day V. Connecticut, &c. Life Ins. Co., 44 
 Conn. 480. 
 
 There were three courses open to the 
 
INSURANCE. 
 
 251 
 
 holder of the policy in the circumstances. 
 1. He might elect to consider the policy 
 at an end, in which case he could, in a 
 proper action, recover its jast value. 2. 
 He might institute an equitable proceeding 
 to have the policy adjudged in force, in 
 which case the question of forfeiture could 
 be determined. 3. He might tender the 
 premium and wait till the policy became 
 payable by its terms, and then try the 
 question of forfeiture in a proper action on 
 the policy. The doctrine of implied con- 
 tracts elaborately considered. lb. 
 
 A policy of insurance issued upon the 
 life of Tweed contained a condition to the 
 effect that, if the party whose life was in- 
 sured should, without the written consent 
 of the company, travel upon the seas, or 
 pass beyond the civilized settlements of the 
 United States (excepting the British prov- 
 inces, &c.), the policy should be void. 
 Tweed, ha^dng been arrested, escaped from 
 the custody of the sheriff of the city and 
 county of New York, and was, in the year 
 1876, found in the port of Vigo, in Spain, 
 a distance of about 3,500 miles from New 
 York, where he had gone without defend- 
 ants' consent; and was subsequently brought 
 back to New York as a prisoner. After 
 his death, in a suit on the policy, in which 
 no question was made as to default in pay- 
 ment of premiums or any suggestion that 
 his absence fi'om the United States in any 
 way contributed to his death, — Held, that 
 an important condition upon which the 
 poUcy had been issued and accepted was 
 violated, and that in consequence thereof 
 the contract between the parties came to an 
 end by its own limitation, unless con- 
 tinued in force by some other provision or 
 by a waiver of the provision. 1879, Doug- 
 lass V. Knickerbocker Life Ins. Co., 45 
 -N. Y. Superior Ct. 313. 
 
 Or^rauization of companies. A cor- 
 poration is not deemed an insurance com- 
 pany within the meaning of the prior law 
 requiring a guarantee capital of $100,000 
 in money or securities, when it is an asso- 
 ciation intended only to benefit widows, 
 orphans, heirs, and devisees of deceased 
 members, and no annual dues or premiums 
 are required, and its members receive no 
 money as profit or otherwise. So an 
 association issuing policies on the lives 
 of its members, payable, in case of death, 
 to the widow, orphans, heirs, and devisees 
 
 of the members, and to them alone, and 
 which provides, by its by-laws, that each 
 member may be assessed, for the general 
 expense fund, such sums as may be de- 
 termined upon by the trustees, not to ex- 
 ceed $20 in any one year, is not a life- 
 insurance company under the statute. Su- 
 preme Ct. 1878, Commercial League Assoc. 
 V. People, 90 III. 166. 
 
 A corporation with salaried officers, pay- 
 ing commissions on risks obtained, insur- 
 ing and admitting to membership any one 
 having the requisite conditions of age and 
 health, and requiring no other qualification 
 for membership, cannot evade the insur- 
 ance laws by calling itself a benevolent 
 society and obtaining a ehai-ter as such. 
 St. Louis Ct. of Appeals, 1878, State v. 
 Citizens' Benefit Assoc, 6 Mo. App. 163. 
 Compare Dietrich v. Madison Relief Assoc, 
 45 Wis. 79. 
 
 Though the amount payable is not a 
 gross sum, but a sum graduated by the 
 number of persons in a given class at the 
 time of the death of the insured, and 
 though there is no means of compelling the 
 payment of the assessment made upon the 
 death, and though the insurer is not liable 
 for fie arapupt^alSQwdly collected from 
 mem^js uAn thfe^appening of the loss, 
 the agrTO^j^nt ^nayoe a real contract of 
 insurancff\\vhere/ihere is a payment of 
 a consideratJ<m by one and a promise 
 by the (jyrer to pay upon the happe*- 
 ing of the loss; and where the main 
 object of the existence of the company 
 making such contracts is to do such insur- 
 ing, it is doing an insurance business 
 within the meaning of the statute. lb. 
 
 Where one of the chief objects of a cor- 
 poration is to aid the families of deceased 
 members, the payment of a sum of money 
 to the surviving family of a deceased mem- 
 ber is not a violation of a charter provision 
 against doing an insurance business. St. 
 Louis Ct. of Appeals, 1877, Barbado v. Oc- 
 cidental Grove, 4 Mo. App. 429. 
 
 A New Jersey act concerning insurance 
 companies provides that "all persons en- 
 titled to vote at any election of any insur- 
 ance company in this State may vote in 
 person, or by attorney or proxy, but no 
 proxy shall be voted or allowed or received 
 for more than three years from its date." 
 N. J. Laws 1880 (Feb. 19), 39, ch. 29. 
 
 Marine-insurance companies enabled to 
 
252 
 
 INSURANCE. 
 
 amend their charters, enlarging the scope 
 of the corporate business. 1 N. Y. Laws 
 1880 (May 8), 340, ch. 222. 
 
 Insurance department. A law of Del- 
 aware creates an insurance department, — 
 authorizes appointment of an " insurance 
 commissioner," — and prescribes his duties 
 in detail ; which are chiefly to examine the 
 condition of the companies and take pro- 
 ceedings against any which appear to be 
 insolvent or fraudulently conducted, to 
 require periodic reports, to collect, preserve, 
 and communicate information relative to 
 tlie companies, and generally to see that 
 the laws of the State relative to insurance 
 are faithfully executed. Del. Laws 1879, 
 24, ch. 22. 
 
 The same act prescribes annual state- 
 ments to be made by the companies. It 
 directs what the statements shall contain ; 
 that the commissioner shall issue certificates 
 to such companies ; what the capital of any 
 joint-stock insurance company shall be ; 
 and lihe duty of said conmiissioner when 
 capital stock is impaired twenty per cent. 
 And it requires every company doing busi- 
 ness within the State to deliver to the in- 
 surance commissioner a certified copy of 
 its charter or declaration of organization, 
 and also a certificate, in such form as may 
 be provided by the commissioner, of the 
 name and residence of some person or 
 agent within the State of Delaware upon 
 whom service of process may be made, and 
 all process against such company issued 
 out of the courts of the State of Delaware 
 may then and thereafter be served upon 
 such person or agent so designated. And 
 no person or persons shall procure or solicit 
 any citizen or resident of State of Dela- 
 ware to take out a policy of insurance in 
 any insurance company or corporation not 
 authorized to transact business within the 
 State. Id. 
 
 "No policy of life or endowment as- 
 surance issued by any company incorpor- 
 ated or organized under the laws of this 
 Commonwealth shall become forfeited or 
 void for non-payment of premium after two 
 full annual premiums shall have been paid 
 thereon, in cash, or note, or both; but upon 
 default in any subsequent premium pay- 
 ment such policy shall become subject to 
 the conditions hereinafter expressed. Mass. 
 Laws 1880 (April 23), 182, ch. 232, § 1. 
 
 " In case of default in the payment of a 
 
 third or of any subsequent annual premium 
 on any policy issued as aforesaid, then such 
 policy, without further negotiation or stip, 
 ulation, shall be binding upon the company 
 for an amount of paid-up insurance which 
 the then net value of the policy, less any 
 indebtedness of the assured to the company 
 and a surrender charge as hereinafter pro- 
 vided, will purchase as a net single pre- 
 mium for life or endowment assurance, 
 maturing or terminating at the same time 
 or in the same manner as provided in the 
 original policy contract; that is to say, no 
 condition of the policy contract, other than 
 for the payment of premiums, shall be 
 affected by the provisions of this act; nor 
 shall any change be made in the terms of 
 said contract on account of default in pre- 
 mium payment, after two full annual pre- 
 miums have been paid as provided in § 1 
 of this act, except as herein set forth. 
 The net value of the policy, including all 
 dividend additions declared thereon at the 
 date of said default, shall be ascertained 
 according to the combined experience or 
 actuaries' rate of mortality, with interest at 
 four per cent per annum, — and from such 
 value shall be deducted any indebtedness 
 of the insured to the company, or notes 
 held by the company against the insured, 
 and a surrender charge to be determined as 
 hereinafter provided." Id. ^2. 
 
 "Said surrender charge shall be deter- 
 mined as follows: Assuming the rate of 
 mortality and interest as aforesaid, the pres- 
 ent value of all the normal, future yearly 
 costs of insurance, which by its terms said 
 policy is exposed to pay in case of its con- 
 tinuance, shall be calculated, and eight per 
 cent of this sum shall be the legal surrender 
 charge." Id. § 3. 
 
 Mode of computing value of policy when 
 insurable interest in life of insured has teiv 
 minated after payment of two annual pre- 
 miums. Id. §§ 4, 5. 
 
 Superintendent of the insurance depart- 
 ment may receive registered (as well as 
 other) stocks or bonds as securities from 
 insurance companies ; but they must bear 
 interest at not less than four per cent, and 
 shall not be received or held at a rate above 
 par value. 1 N. Y. Laws 1880 (Feb. 20), 
 111, ch. 22. 
 
 Foreign Insurance companies. The 
 object of the statutes which require in- 
 surance companies desiring to transact 
 
INSURANCE. 
 
 258 
 
 business in another State to deposit with 
 the State treasurer a certain sum as guaran- 
 tee is that such deposits should be for the 
 benefit of those obtaining policies through 
 authorized agents in the State of such com- 
 panies. No assignment of the fund or 
 revocation of such agencies should be al- 
 lowed to defeat the claims of such policy- 
 holders. 5th Circ. (Miss.) 1878, Firemen's 
 Ins. Co. V. Hemingway, 8 Reporter, 741. 
 
 Foreign insurance companies, before 
 transacting business in Kansas, must show 
 that they have a fund of deposit or securi- 
 ties of policy holders amounting to at least 
 1100,000, in excess of all liabilities. How 
 their deposits are to be estimated and 
 their liabilities computed, described in de- 
 tail. Kan. Laws 1879 (Mar. 11), 227, ch. 
 116. 
 
 Similar provisions as to Michigan, requir- 
 ing a fund of $200,000. Mich. Laws 1879 
 (May 13), No. 71. 
 
 An act "to further regulate the admis- 
 sion to this State of fire and marine insur- 
 ance companies from other countries than 
 the U. S.," prescribes anew the terms and 
 conditions, — such as depositing securities 
 and filing an agreement not to ask to re- 
 move suits to Federal courts, — on which 
 companies from foreign lands may do fire 
 or marine insurance business in New York 
 State. 1 N. Y. Laws 1880 (May 27), 615, 
 ch. 428. 
 
 An act " to prohibit unauthorized com- 
 panies and agents from transacting the 
 business of insurance in the State of Wis- 
 consin, and relating to the department of 
 insurance," repealing previous acts, pre- 
 scribes anew the conditions on which in- 
 surance companies may do business within 
 the State ; they relate chiefly to authority 
 of commissioner of insurance. Wis. Laws 
 1880 (March 17), 277rch. 240. 
 
 Minor Decisions on Insurance, 
 Policies. Statements in application, 
 underrating risk or overrating value, may 
 vitiate the policy: 3 Hugh. 421; see 8 Re- 
 porter, 808. A prior i. in favor of moit- 
 gagor will not defeat a policy in the name 
 of the mortgagee ; and if it was drawn loss 
 payable to him, and he paid the premium, 
 he alone may recover, though the policy 
 was nominally issued to both: 90 111. 121. 
 What words of reference in policy to appli- 
 cation are necessary in order to make it a 
 
 part of policy: 72 iV. F. 590. A policy ia 
 not avoided by taking out subsequent i. 
 unless the latter i. is valid and may be en- 
 forced: 31 Gratl. (Va.) 176. If insm-ed 
 delays paying premium and taking policy, 
 he should see that warranties in application 
 are true when policy is issued: 45 Wis. 622. 
 Effect of the qualifying words that the 
 statements are true " so far as the same are 
 known to the applicant and are material to 
 the risk:" 47 Wis. 89. 
 
 Marine policy. A policy "lost or not 
 lost" is valid to cover a contingent as 
 well as an absolute interest, and against 
 past as well as future losses: 98 U. S. 528. 
 Policy in name of agent " on account of 
 whom it may concern " sustained in favor 
 of the true owner of the goods: Id. 528. 
 What evidence may be received in actions 
 on policies on vessels navigating Western 
 rivers as to perils peculiar to those i-ivers, 
 and to show the vessel in question sea- 
 worthy: 32 Ohio St. 77. A vessel beached 
 is not lying "at anchor" within a policy 
 insuring her " while lying at anchor: " 19 
 Hun (N. v.), 28i. Fishing-vessel putting 
 into pox't for bait, held, a deviation dis- 
 charging the insurer: 126 Mass. 70. What 
 is an actual total loss ; and when insured 
 may abandon and recover for constructive 
 total loss of freight: 74 N. Y. 246. Doc- 
 trine of constructive total loss of freight; 
 when it justifies abandonment and claim 
 for total loss; effect of abandonment and 
 of acceptance, — considered elaborately: 
 Id. 246 ; see also 15 Blatclif. 58. 
 
 Fire. Appointing one partner as re- 
 ceiver in action for dissolution does not work 
 such transfer of the firm property or change 
 of possession as to impair i. : 71 N. Y. 
 396. Validity of contract between mort- 
 gagee and company which has insured the 
 premises payable to the mortgagee, designed 
 to protect the mortgagee's interest against 
 acts of mortgagor: 73 N. Y. 161. Devise 
 of the property and death of the insurer, 
 held a breach of a very stringent regulation 
 against alienation: Id. 447. Answering 
 " deed " to inquiry as to applicant's title 
 is not a warranty of title in fee ; any inter- 
 est founded on a deed may suffice: Id. 452. 
 Policy in favor of the beneficial owner of 
 the fee may be valid, notwithstanding the 
 legal title may be in another person : 8 Re- 
 porter, 744; 3 Hugh. 251. Policy is not 
 avoided by applicant's failuie to disclose 
 
254 
 
 INSURANCE. 
 
 contingent right of dower of aJormer owner, 
 still living, under ordinary questions as to 
 applicant's title to the property and any 
 encumbrances on it: 31 Gralt. (Va.) 739; 
 Id. 749. Two workmen sleeping in a house 
 not a compliance with a warranty that a 
 family will live in it: 125 Mass. 274. Cal- 
 ling building a dwelling-house in policy is 
 not warranty that it shall always be occu- 
 pied as a dwelling; and neglect to give 
 notice that it is vacant does not avoid policy, 
 in absence of fraud: 71 N. Y. 508. Tem- 
 porary stoppage of saw-mill for deficiency 
 of water is not within condition in policy 
 avoiding it if the premises become unoccu- 
 pied: 72 iV. Y. 117. Testimony of expert 
 is competent on question whether leaving 
 dwelling-house unoccupied increases risk: 
 74 N. Y. 295. When the words " occupied 
 as a store-house " in a policy are a warranty, 
 and their effect; 49 Tex. 4. Company is 
 liable for clothing insured, though burned 
 while worn away from the insured prem- 
 ises: 51 Iowa, 553. Recovery on a policy 
 on billiard tables, bar-fixtures, stock of 
 liquors, &c., denied, because the property 
 was used in an unlawful business ; a con- 
 tract intended to render an illegal traffic 
 safe and profitable will not be enforced: 
 127 Mass 555. Notice of loss by mother 
 of insured (an infant) not returned was 
 held sufficient: 76 N. Y. 459. If written 
 parts of policy insure a stock of "general 
 merchandise of all kinds usually kept in a 
 country retail store," but a printed condi- 
 tion forbids keeping " turpentine or ben- 
 zine" the condition will be enforced, 
 notwithstanding the articles specified are 
 usually kept in country stores: 89 Pa. St. 
 497. \ Construction of exception in fire 
 policy of damage done by explosion : 14 W. 
 Va. 33. Stipulations in application for 
 fire policy should be construed favorably to 
 applicant: 47 Wis. 89. 
 
 Life. Life i. commended; but practices 
 of agents in efforts to secure business, 
 described and condemned : 58 Ala. 476. 
 Answering " temperate " to questions as 
 to present and past use of liquor, — Held, 
 no warranty that applicant did not formerly 
 drink to excess: 65 Ind. 6. Answer in-ap- 
 plication cannot be extended beyond its 
 
 Intent. Assaults aggravated bj'a special intent, 
 p. 30. Written or printed words, supeVior evidence 
 of intent? j). lU. New Jersey "chosen free- 
 holder" punishable for extravagant appropriations 
 
 terms to raise a warranty; "refer to Dr. 
 M." cannot be warranty that M. is family 
 physician : 74 N. Y. 6. 
 
 Agency. Company is chargeable with 
 premium-money paid to its agent, but not 
 when paid to a broker, unless he pays it 
 over: 90 III. 545. Although policy forbade 
 insuring unoccupied premises, yet if agent 
 insured one and received premiums, com- 
 pany is estopped: 50 Iowa, 561. S. P. 44 
 Wis. 201. Company is only bound by 
 agent's consent to a change of risk where 
 insured has relied upon it to his injury in 
 rightful belief that it was authorized: 73 
 N. Y. 5. If policy requires any waiver of 
 conditions to be indorsed in writing, com- 
 pany is not bound by agent's waiver not 
 indorsed; for insured had no right to rely 
 upon it: Id. 5. Receiving proofs of loss 
 without objection, — Held, a waiver of de- 
 lay, although company had previously dis- 
 puted the policy: Id. 480. Parol agreement 
 amounting to ' engagement to insure may 
 be proved and enforced, notwithstanding 
 rules of company forbid oral agreements: 
 76 N. Y. 567. Company cannot avoid 
 policy for fraud or mistake of its agent; 
 but insured may prove all the facts, and 
 hold the principal as if the wrong had 
 been personally committed or authorized: 
 89 Pa. St. 464. Constitutionality of a 
 statute requiring of an i. company contest- 
 ing a policy unsuccessfully to pay attorney's 
 fees : 50 Tex. 511. Benefit societies as- 
 suring lives of members ought to be very 
 lenient in claiming forfeitures, and the 
 courts will not aid to enforce them: 44 
 Wis. 369 ; Id. 376. Asking agent to re- 
 new former policy, which he promised to 
 do, — Held, not a renewal, because the pre- 
 mium was not paid: 47 Wii. 365. 
 
 Companies. Illinois individual-liability 
 law applies to companies before chartered; 
 89 III. 25. Limit of assessments allowed in 
 mutual i. companies; and authority of 
 managers in laying them : 8 Pa. St. 207. 
 Holder of policy which matured before ap- 
 pointment of receiver has no prior right to 
 payment before distribution among all 
 creditors : 71 N. Y. 222. Receiver of 
 company may sue to recover its assets 
 which have been misapplied; and if he 
 
 without proof of criminal intent, p. 135. Questions 
 of intent in curious cases of detective co-operating 
 with criminal, pp. ] 72, 173. Intent of voter to pre- 
 vail, in canvassing votes, p. 184. 
 
INSURANCE. — INTERNAL REVENUE. 
 
 255 
 
 has so sued, a like action by an individual 
 creditor may be stayed: 77 N. Y. 272. 
 
 INTEREST. "Where a national bank 
 makes to one of its directors a loan of 
 money, which in amount and in rate of 
 interest is in contravention of the national 
 banking act, the borrower is not estopped 
 to defend against a recovery of interest. 
 In rendering judgment on a promissory 
 note given to a national bank in renewal, 
 into which note illegal interest on the 
 original note was incorporated, the whole 
 interest on both notes will be disallowed. 
 So payments made generally on a promis- 
 sory note to a national bank, which note 
 bmbraces illegal interest, will be applied in 
 satisfaction of the principal. Supreme Ct. 
 1877, Bank of Cadiz v. Slemmons, 34 Ohio 
 St. 142. Consult Banking. 
 
 " Interest on loans or forbearance of 
 money, goods, or things in action, when 
 the parties do not agree on the rate, shall 
 be $6 a year on $100, and that rate for a 
 greater or less sum, or for a shorter or 
 longer time, but it may be taken yearly, or 
 for a shorter period in advance ; and no 
 agreement to pay a higher rate shall be 
 valid, unless the same be in writing, signed 
 by the party to be charged thereby ; and 
 in such case it shall not be lawful to con- 
 tract for more than eight per centum per 
 annum." Ind. Laws 1879 (March 10), 43, 
 eh. 24, § 1. 
 
 " When a greater rate of interest than 
 is hereby allowed shall be contracted for, 
 the contract shall be void as to the usu- 
 rious intei'est contracted for: and in an 
 action on such contract, if it appear that 
 interest at a higher rate than eight per cent 
 has been directly or indirectly contracted 
 for, the excess of interest over six per cent 
 shall be deemed usurious and illegal ; and 
 in an action on a contract affected by such 
 usury, the excess over the legal interest 
 may be recouped by the debtor, whenever 
 it has been reserved or paid before the 
 bringing of the suit." Id. § 4. 
 
 " The provisions of this act shall apply 
 to aU contracts made within this State, 
 although they are to be performed without 
 this State; and when a contract shall be 
 made without the State, and a rate of in- 
 
 Interest. Restriction on bank interest, Bank- 
 IKQ. Defence of usury, DsuKY. 
 
 What interest may be taken bj' national bank, 
 pp. 38, 39 ; by building association, p. 54. Insur- 
 able interest, p. 249. 
 
 terest greater than that herein allowed 
 shall be directly or indirectly contracted 
 for, and a mortgage shall be executed to 
 secure the performance of the contract, 
 on lands in this State, such lands shall 
 not be liable for a higher rate of interest 
 than is provided for in this act." Id. § 7. 
 Interest to be seven per cent unless a 
 different rate is contracted for in writing; 
 and this must not exceed ten per cent. 
 Forfeiture of the contract imposed for 
 usury. Directions for computing interest 
 and determining usury in various cases. 
 Action to recover back excessive interest, 
 and a discovery therein authorized ; and 
 defendant enabled to prove usury in his 
 own defence. Contracts to bear same rate 
 of interest after maturity as before. Minn. 
 Laios 1879 (March 5), 69, ch. 66. 
 
 minor Decisions on Interest. 
 
 Service of writ begins i. against surety 
 of defaulting paymaster, if no demand was 
 made before suit brought : 100 U. S. 119. 
 I. is recoverable upon amount of cou- 
 pons from date of demanding payment of 
 them : 15 Blatchf. 131. A legacy of two 
 specified coupon bonds does not pass 
 coupons which have become due at time of 
 testator's death, although they have not 
 been detached from the bonds: 22 Alb. L. 
 J. 271. I. cannot be compounded by force 
 of any provision in the original contract, 
 unless under statute : 41 Mich. 533. The 
 rate of i. promised in the note runs till 
 recovery of judgment: 19 Hun (^N. Y.), 27. 
 
 INTERIOR DEPARTMENT. Audi- 
 tor of railway accounts created in the 
 Interior Department ; for the general pur- 
 pose of securing reports and accounts from 
 railroads west, north, or south of the Mis- 
 souri River, to which the United States 
 have granted aid. Act of June 19, 1878, 
 ch. 316; 20 Stat, at L. 170. 
 
 INTERNAL REVENUE. The act of 
 March 1, 1879, "to amend the laws 
 relating to internal revenue, introduces 
 so many and important changes that it 
 may almost be regarded as remodelling 
 the system. It fills twenty-four pages 
 of the statute book. It makes exten- 
 
 Intemal revenue. Collection of duties. Duties. 
 Taxation generally, Tax. 
 
 Removal of prosecution of internal revenue offi- 
 cer for killing a person who tired or him while on 
 duty, p. 87. 
 
256 
 
 INTERNAL REVENUE, 
 
 sive changes as to the bond and com- 
 pensation of collectors, and as to their 
 powers, particularly in the appoint- 
 ment of internal revenue agents and 
 deputies. The duty imposed on the 
 citizen of making a return of matters 
 on which he is liable to internal revenue 
 tax is enacted anew (these provisions 
 are stated at length, infra) ; new direc- 
 tions are given for seizure and sale of 
 estates (see infra) ; numerous changes 
 are made as to ascertaining and collect- 
 ing taxes from dealers in wines, spirits, 
 and malt liquors ; distillers ; as to 
 stamps on imported liquors ; as to 
 manufacture and sale of tobacco in 
 its various forms ; as to redemption of 
 unused stamps ; for lightening taxa- 
 tion of banks of deposit and savings 
 banks (see infra) ; and amending the 
 language of many provisions of the 
 Revised Statutes. 
 
 Fraudulent issue of stamps. " Any 
 
 collector of internal revenue, or any deputy- 
 collector, or other employee of, or person 
 acting for, such collector, who shall issue 
 any stamp or stamps indicating the pay- 
 ment of any internal revenue tax, before 
 payment in full therefor has been made to 
 the officer or person issuing the same, shall 
 be deemed guilty of a misdemeanor, and 
 shall be iined for each stamp thus issued 
 an amount equal to the face value thereof, 
 in addition to the liability of the collector 
 on his official bond on account of such stamp ; 
 and such collector, deputy-collector, or em- 
 ployee shall be dismissed from office. ' ' Act 
 of March 1, 1879, ch. 125, § 1, 20 Siat. at 
 L. 327. 
 
 Tax returns. How procured from ab- 
 sentees. Penalty for neglect or false 
 return. Examinations. " It shall be the 
 duty of any person, partnership, firm, as- 
 sociation, or corporation, made liable to any 
 duty, special tax, stamp, or tax imposed by 
 law, when not otherwise provided for, — in 
 case of a special tax on or before the thir- 
 tieth day of April in each year, and in other 
 cases before (he day on which the taxes ac- 
 crue, — to make a list or return, verified by 
 oath or affirmation, to the deputy-collector 
 of the district where located, of the articles 
 
 or objects charged with a special duty or 
 tax, the quantity of goods, wares, and mer- 
 chandise made or sold, and charged with a 
 specific or ad valorem duty or tax, the sev- 
 eral rates and aggregate amount, according 
 to the forms and regulations to be prescribed 
 by the commissioner of internal revenue 
 under the direction of the secretary of the 
 treasury, for which such person, partner- 
 ship, firm, association, or corporation is 
 liable: Provided, that if any person liable 
 to pay any duty or tax, or owning, possess- 
 ing, or having the care or management of 
 property, goods, wares, and merchandise, 
 articles or objects liable to pay any duty, 
 tax, or license, shall fail to make and ex- 
 hibit a hst or return required by law, but 
 shall consent to disclose the particulars of 
 any and all the property, goods, wares, and 
 merchandise, articles and objects hable to 
 pay any duty or tax, or any business or 
 occupation liable to pay any special tax as 
 aforesaid, then, and in that case, it shall 
 be the duty of the deputy-collector to make 
 such list or return, which, being distinctly 
 read, consented to, and signed and verified 
 by oath or affirmation by the person so 
 owning, possessing, or having the care and 
 management as aforesaid, may be received 
 as the list of such person : Provided farther, 
 that in case any person shall be absent from 
 his or her residence or place of business at 
 the time a deputy-collector shall call for the 
 annual list or return, and no annual list or 
 return has been rendered by such person 
 to the deputy-collector as required by law, 
 it shall be the duty of such deputy-collector 
 to leave at such place of residence or busi- 
 ness, with some one of suitable age and dis- 
 cretion, if such be present, — otherwise to 
 deposit in the nearest post-office, — a note 
 or memorandum, addressed to such person, 
 requiring him or her to render to such 
 deputy-collector the list or return required 
 by law, within ten days from the date of 
 such note or memorandum, verified by oath 
 or affirmation. And if any person, on 
 being notified or required as aforesaid, shall 
 refuse or neglect to render such list or re- 
 turn within the time required as aforesaid, 
 or whenever any person who is required to 
 deliver a monthly or other return of objects 
 subject to tax fails to do so at the time re- 
 quired, or delivers any return which, in the 
 opinion of the collector, is false or fraudu- 
 lent, or contains any under-valuation or 
 
INTERNAL REVENUE. 
 
 257 
 
 under-statement, it shall be lawful for the 
 collector to summon such person, or any 
 other person having possession, custody, 
 or care of books of account containing en- 
 tries relating to the business of such per- 
 son, or any other person he may deem 
 proper, to appear before him and produce 
 such books, at a time and place named in 
 the summons, and to give testimony or 
 answer interrogatories, under oath, respect- 
 ing any objects liable to tax or the returns 
 thereof. The collector may summon any 
 person residing or found within the State 
 in which his district lies; and when the 
 person intended to be summoned does not 
 i-eside and cannot be found within such 
 State, he may enter any collection district 
 where such person may be found, and there 
 make the examination herein authorized. 
 And to this end he may there exercise all 
 the authority which he might lawfully ex- 
 ercise in the district for which he was com- 
 missioned." Rev. Stat. § 3173, as amended 
 by act of March 1, 1879, ch. 125, § 3, 20 
 Stat, at L. 3 50. 
 
 Seizure and sale of estates. " The 
 officer making the seizure mentioned in the 
 Rev. Stat. § 3197, shall give notice to the 
 person whose estate it is proposed to sell, by 
 giving him in hand, or leaving at his last or 
 usual place of abode, if he has any such with- 
 in the collection district where said estate is 
 situated, a notice, in writing, stating what 
 particular estate is to be sold, describing 
 the same with reasonable certainty, and the 
 time when and place where said officer pro- 
 poses to sell the same; which time shall 
 not be less than twenty nor more than 
 forty days from the time of giving said 
 notice. The said officer shall also cause a 
 notification to the same effect to be pub- 
 lished in some newspaper within the county 
 where such seizure is made, if any such 
 there be, and shall also cause a like notice 
 to be posted at the post-office nearest to 
 the estate seized, and in two other public 
 places within the county; and the place of 
 said sale shall not be more than five miles 
 distant from the estate seized, except by 
 special order of the commissioner of in- 
 ternal revenue. At the time and place 
 appointed, the officer making sucli seizure 
 shall proceed to sell the said estfrte at pub- 
 lic auction, offering the same at a minimum 
 price, including the expense of making 
 such levy, and all charges for advertising, 
 17 
 
 and an officer's fee of $10. When the real 
 estate so seized consists of several distinct 
 tracts or parcels, the officer making sale 
 thereof shall offer each tract or parcel for 
 sale separately, and shall, if he deem it ad- 
 visable, apportion the expenses, charges, 
 and fees aforesaid to such several tracts or 
 parcels, or to any of them, in estimating 
 the minimum price aforesaid. If no per- 
 son offers for said estate the amount of 
 said minimum price, the officer shall de- 
 clare the same to be purchased by him for 
 the United States; otherwise the same 
 shall be declared to be sold to the highest 
 bidder." Making certificate, and other 
 steps to be taken in cases of purchase for 
 the United States, prescribed in detail. 
 Rev. Stat. § 3197, as amended by act of 
 March 1, 1879, ch. 125, 20 Stat, at L. 331. 
 
 Internal revenue tax upon bank in liq- 
 uidation may be remitted if payment of 
 it will diminish the assets needful for pay- 
 ing depositors in full. Act of March 1, 
 1879, ch. 125, § 22, cl. 1, 20 Stat, at L. 351. 
 
 Savings-banks and like institutions de- 
 clared exempt from tax on deposits invested 
 in United States securities, and on $2,000 
 of deposits and nothing in excess thereof, 
 made in the name of and belonging to any 
 one person. Act of March 1, 1879, ch. 
 125, § 22, cl. 3, 20 Stat, at L. 351. 
 
 " An act to amend the laws in relation 
 to internal revenue" makes numerous 
 changes in provisions of the Revised Stat- 
 utes and subsequent session laws governing 
 the details of the manner of collecting in- 
 ternal revenue taxes on distilled spirits. 
 Act of Congress of May 28, 1880. 
 
 Acts of 1880 modify some provisions as 
 to collection of internal revenue tax on 
 manufactures of tobacco. Acts of Congress 
 of June 9 and 16, 1880. 
 
 Minor Decisions on Internal Eevenne. 
 Increase of tax by an act approved in 
 the afternoon does not apply to goods re- 
 moved after payment of the old tax in the 
 forenoon ; the act does not take effect until 
 approval: 97 U. S. 381. Compensation of 
 deputy collector while performing duties of 
 collector during suspension of the latter: 
 99 U. S. 10; 13 Ct. of Cl. 347. Commis- 
 sioner has full power, on an application for a 
 refund of an excessive tax, to consider all 
 the tax ; and a court will not revise his de- 
 cision that the evidence is sufficient to 
 
258 INTERNAL REVENUE. — INTERNATIONAL EXHIBITION. 
 
 sustain the claim: 13 Ct. of CI. 355. What 
 constitutes the obstructing an officer in 
 searching for and seizing taxable goods, 
 which is punishable under Kev. Stat. § 
 3177: 3 Woods, 510. Collector and sure- 
 ties are liable for tax moneys he has col- 
 lected, notwithstanding no formal return 
 was made by taxpayer: 99 U. S. 229. 
 
 Destruction of spirits while in bonded 
 warehouse, by fire, does not discharge bond 
 previously given for payment of the tax: 
 Id. 221. The remedies open to distillers 
 who have lost tax-paid stamps: 13 Ct. of 
 CI. 355. To work in a distillei-y on which 
 no sign is kept is punishable: 15 Blatchf. 
 302. On trial of distiller for defrauding 
 the revenue, prosecution is not confined to 
 proof of a single transaction : 25 Int. Rev. 
 Jiec. 10. Brewers liable to the tax: 99 
 U. S. 225. What tax imposed on smoking- 
 tobacco: 97 U. S. 237. Cigar-dealer can- 
 not, even by permit from commissioner, 
 open boxes already stamped and repack their 
 contents and then sell them without new 
 stamps: 25 Int. Rev. Rec. 132. Delivery 
 of cigars to a pledgee, before stamping, not 
 unlawful: 24 Minn. 423. 
 
 INTERNATIONAL EXHIBITION. 
 Charter. An international exhibition, 
 &c., authorized to be held in New York 
 city in 1883, subject to the supervision and 
 under the auspices of the government of 
 the United States. Act of Congress of 
 April ::3, 1880. 
 
 A commission constituted, " to consist of 
 two commissioners from each State and one 
 from each Territory of the United States, 
 and one from the District of Columbia, to- 
 gether with the members of the com- 
 mittee of finance, as provided in § 10, 
 and the following named persons " (de- 
 signating them by name), "to be desig- 
 nated as the United States International 
 Commission, whose functions shall con- 
 tinue until the close of the exhibition, 
 whose duty it shall be, among other things, 
 to fix the precise date of, and to prepare 
 for and to superintend the holding of, the 
 exhibition upon a site within the corpor- 
 ate limits of the said city of New York." 
 Ih. § 2. 
 
 " The said United States International 
 Commission is hereby created a body cor- 
 
 International. Regulations to prevent collisions 
 at sea, p. 97. Comity forbids English admiralty to 
 arrest United States" ship of war, p. li. Natiiral 
 
 porate, and by that name shall have a cor- 
 porate existence, until the object for which 
 it is formed shall have been accomplished 
 and as such it shall be competent for it to 
 sue and be sued, plead and be impleaded, 
 defend and be defended, in all courts of 
 law and equity in the United States, and 
 may make and have a corporate seal, and 
 may purchase, take, have, and hold, 
 and may grant, sell, and at pleasure dis- 
 pose of all such real and personal estate as 
 may be required in order to carry into effect 
 the provisions of this act." lb. § 3. 
 
 Mode of appointment of commissioners 
 and their alternates, prescribed, lb. § 4, 
 
 The commission shall hold its meetings 
 in New York. Quorum. Rules. Officers. 
 lb. § 5. 
 
 Commission to submit to Congress the 
 arrangements they propose for date of ex- 
 hibition, opening ceremonies, custom-house 
 regulations, &c. lb. § 6. 
 
 " Whenever the President of the United 
 States shall be informed by the governor of 
 the State of New York that provision has 
 been made for the erection of suitable build- 
 ings for the purpose, and for the exclusive 
 control of the grounds and buildings by the 
 corporation herein provided for, the Presi- 
 dent " shall make proclamation setting 
 forth the time and place of the exhibition, 
 &c. , and he shall communicate to the dip- 
 lomatic representatives of all nations, and 
 shall, in behalf of the government and the 
 people, commend the exhibition to all for- 
 eign nations who may choose to take part, 
 ii. § 7. 
 
 The commission is empowered "to re- 
 ceive subscriptions of capital stock to an 
 amount not exceeding $12,000,000, to be 
 divided into shares of |10 each, and each 
 subscriber shall pay not less than ten per 
 cent of his subscription at the time he sub- 
 scribes;" and shall issue certificates of 
 stock which shall be transferable. " All 
 holders of said stock shall be entitled to 
 one vote on each share in the election of a 
 finance committee." " The proceeds of 
 said stock, together with the receipts from 
 any and all other sources, shall be used by 
 said corporation for the erection of suitable 
 buildings, with their appropriate and ne- 
 cessary fixtures and appurtenances, and 
 
 jealousy of nations in matters of extradition con- 
 trasted" with natural contidence among American 
 States, p. 210. . 
 
INTERNATIONAL EXHIBITION. 
 
 259 
 
 for all other expenditures required in carry- 
 ing out the objects of this act." Regular 
 minutes and full accounts with vouchers 
 must be kept, " and the same shall always 
 be open to the iuspection of any member or 
 shareholder in the corporation, or to any 
 committee appointed by such members or 
 shareholders authorized to examine the 
 same." Ih. § 8. 
 
 Manner of calling together the commis- 
 sion; and of opening subscription books; 
 and of election of officers of the com- 
 mission, — prescribed. Ih. § 9. 
 
 A meeting of shareholders directed " and 
 they shall proceed to the election of twenty- 
 five from their number, or from the mem- 
 bers of the commission, who, when elected, 
 shall, if not already so appointed, be ex 
 officio members of said commission, and 
 who, together with the executive officers 
 of said commission, shall constitute a com- 
 mittee of finance." Upon the organization 
 of said committee of finance, the commis- 
 sion shall transfer to it the stock-books 
 and moneys collected, together with all 
 papers and business pertaining to the re- 
 ceiving and collecting of subscriptions of 
 stock, lb. § 10. 
 
 " It shall be the duty of the committee 
 of finance so elected to select suitable de- 
 positories for the deposit of all moneys 
 i-eceived for said commission; to devise 
 methods for raising funds for the com- 
 mission, with which to carry out the pro- 
 visions of this act; to confer and advise 
 with the commission as to all contracts to 
 be made involving the expenditure of 
 moneys; to carefully audit all accounts; to 
 recommend a system of checks and safe- 
 guards, with a view of enforcing economy 
 and efficiency," &c. Directions for quar- 
 terly reports ; and for opening books for 
 further subscriptions. 7J. § 11. 
 
 Time and place of electing offiicers of the 
 commission and members of the committee 
 of finance. Who shall be eligible. Va- 
 cancies, how filled. Ih. § 12. 
 
 The commission " shall prepare a com- 
 plete classification of exhibits, and shall 
 appoint all judges .... and other sub- 
 ordinate officers of the exhibition, and 
 award all premiums, and generally have 
 charge of all intercourse with the repre- 
 sentatives of foreign nations." It may 
 appoint and act by executive committee. 
 lb. § 13. 
 
 " The corporation hereby created shall 
 have authority to issue bonds not in excess 
 of the amount actually paid in upon its 
 capital stock " and secure the payment of 
 the same, by mortgage upon its property 
 and income, lb. § 14. 
 
 Certificates of stock to be printed at the 
 treasury. Counterfeiting them, &o., de- 
 clared punishable in same manner as like 
 offences where United States notes are in- 
 volved. Nothing in this act to create any 
 liability of or claim upon the United States, 
 for debts of or aid to the commission. All 
 contracts made in any State for the pur- 
 poses of the international exhibition shall 
 be subject to the laws thereof. " No 
 member of said corporation, whether share- 
 holder or otherwise, shall be personally 
 liable for any debt or obligation which 
 may be created or incurred by the United 
 States International Commission." lb. 
 §15. 
 
 As soon as practicable after the said ex- 
 hibition shall have been closed, it shall be 
 the duty of said corporation to convert its 
 property into cash, and, after the payment 
 of all its liabilities, to divide its remaining 
 assets among its stockholders, pro rata, in 
 full satisfaction and discharge of its capital 
 stock. lb. § 16. 
 
 Reports from the commission to the 
 President, required, lb. Also, § 17. 
 
 The corporation to exist only until Jan. 
 1, 1885. lb. § 18. 
 
 " The United States shall not in any man- 
 ner or under any circumstances be liable 
 for any of the acts, doings, proceedings, or 
 representations of the said commission, its 
 officers, agents, servants, or employees, or 
 any of them, or for the services, salaries, 
 labors, or wages of said officers, agents, 
 servants, or employees, or any of them, or 
 for any subscriptions to the capital stock, 
 or for any certificates of stock, bonds, 
 mortgages, or obligations of any kind 
 issued by said com mission, or for any debts, 
 liabilities, or expenses of any kind whatever 
 attending such commission or exhibition, 
 or accruing by reason of the same." lb. 
 §19. 
 
 Power reserved to Congress to amend or 
 repeal the act. lb. § 20. 
 
 $1,000,000 must be subscribed, and ten 
 per cent paid in, before corporation can 
 act, except in organizing. lb. § 26. 
 
 New York enabling act. " An act en- 
 
260 
 
 INTERNATIONAL EXHIBITION. — IOWA. 
 
 abling any corporation created by act of 
 Congress of the United States to acquire, 
 hold, use, and improve real estate for the 
 purposes of an international exhibition," 
 is a comprehensive act enabling the United 
 States International Commission to make 
 preliminary surveys and to acquire by light 
 of eminent domain (if they cannot by pur- 
 chase), lands in the city of New York (ex- 
 cept the public parks), needed for the ex- 
 hibition; also to close and use during the 
 exhibition any streets, &c., in the city, 
 running through or contiguous to the ex- 
 hibition grounds. iV. Y. 1 Laws 1880 (May 
 28), 678, ch. 474. 
 
 INTERPRETATION. In the interpre- 
 tation of written constitutions, as well as 
 of statutes, the true inquiry is to ascertain 
 the intention; but here the rules of con- 
 struction as applicable to constitutions 
 and statutes diverge. The courts are not 
 authorized to apply to the language em- 
 ployed in a constitution any technical or 
 abstruse meaning, but are required to 
 give effect to its plain and ordinary sig- 
 nification. " Constitutions ai-e instru- 
 ments of a practical nature, founded on 
 the common business of life, adapted to 
 common wants, designed for common use, 
 and fitted for common understanding. 
 The people make them, the people adopt 
 them, and the people must be supposed to 
 read them with the help of common sense, 
 and cannot be supposed to admit in them 
 any recondite meaning, or any extraordin- 
 ary gloss." [Slorij Const. §451,] Ct. of 
 Appeals, 1879, Hunt u. State, 7 Tex. App. 
 210. Consult "Constitution. 
 
 INTOXICATION. Although intoxica- 
 tion is not a defence to a prosecution for 
 crime, yet it may be proved to show the 
 mental condition of the accused at the time 
 of his act. Temporary insanity produced 
 by drinking to excess does not relieve legal 
 responsibility if the person, being sane 
 
 Intoxication. As avoiding obligation, p. 111. 
 Not an excuse for crime, but may disprove special 
 intent, p. 137. Habitual, entithng to divorce, p. 
 17a. How shown, p. 15T. 
 
 and responsible, voluntarily made himself 
 intoxicated. But, where murder is divid- 
 ed into degiees distinguished by the intent, 
 the intoxication of the accused may be 
 proved to show that, at the time of the kill- 
 ing, he was not capable of the deliberation 
 needful to constitute murder in the first 
 degree. Ct. of Appeals, 1878, Colbath i>. 
 State, 4 Tex. App. 76. S. P. McCarty .,. 
 State, Id. 401 ; and see cases cited supra, 
 p. 137. 
 
 Minor Decisions on Intoxication. 
 
 Effect of confession may be met by proof 
 that accused was drunk when he made it: 
 51 Iowa, 495. I. to avoid a contract must 
 have been such as to deprive the party of 
 reason : Id. 208. I. not a ground for set- 
 ting aside confession of judgment: 2 Pear- 
 son (Pa.), 55. Drunken man walking on 
 railroad track, and run over, held, charge- 
 able with contributive negligence: 87 Pa. 
 St. 405. I. of person making will does not 
 avoid it if it does not prevent him from 
 knowhig what he is about: 38 Mich. 412. 
 
 IOWA. Circuit courts in Iowa to be 
 held at same times and places with district 
 coui-ts. Removal of causes and place of 
 trial of causes regulated with reference to 
 a division of the district into three divisions: 
 northern, southern, and western. Counties 
 to compose these divisions, — designated. 
 Act of Congress of June 4, 1880. 
 
 There has been promulgated a " Revised 
 and Annotated Code," containing all the 
 statutes of the State of a general nature in 
 force July 4, 1880, being the Code of 1873 
 as amended by subsequent statutes, with 
 full notes of the decisions of the supreme 
 court of the State upon the various provis- 
 ions and subjects of the statute down to and 
 including vol. 51 of the Iowa reports; with 
 rules of the supreme court and the organic 
 laws of the territory and State, by William 
 E. Miller. Des Moines: Mills & Co. 
 
 Invention. Patents for inventions, Patent. 
 
 Abandonment of invention of Nicholson pave- 
 mentto the public, p. il;of invention of corset steels, 
 p. 4. 
 
JOURNALS OF CONGRESS. — JUDGMENT. 
 
 261 
 
 J. 
 
 JOURNALS OF CONGRESS. In June, 
 1878, the House of Representatives 
 passed a resolution authorizing the 
 preparation of a General Index of the 
 Journals of Congress from the organiz- 
 ation of the Federal government to the 
 present time. A full explanation of 
 the plan and scope of the work, togeth- 
 er with some valuable suggestions on 
 the subject of indexing, will be found 
 in House of Representatives Report 52, 
 3d session, 45th Congress. Many 
 years will be required for completion 
 of the work, but it will be made avail- 
 able for use by preliminarj' publications 
 during its progi'ess. It is in charge of 
 Albert Ordway, at Washington. 
 
 The index of the first ten Congresses, 
 comprising the period from 1789 to 
 1809, is pubUshed in House of Repre- 
 sentatives Report 1776, 2d session, 
 46th Congress. 
 
 JUDGMENT. A conviction which has 
 been reversed for error in charging the jury 
 does not bar a second trial. There is noth- 
 ing in natural justice to forbid the retrial 
 of a person charged with crime, where 
 there is reasonable ground to believe that 
 on the first essay a just result has not been 
 reached. The rule against putting one 
 twice in jeopardy has grown up under judi- 
 cial decisions to prevent oppressive repeti- 
 tion of charges by government. As expressed 
 in the constitution of New Jersey, it is that 
 " no person shall, after acquittal, be tried 
 for the same offence." A second trial is 
 not interdicted when the first has proved 
 abortive by reason of mistake, misconduct, 
 or accident, History of the doctrine elab- 
 orately reviewed. Ct. of Errors, 1879, 
 Smith V. State, 41 N. L. J. 598. 
 
 It is firmly settled that the constitutional 
 rule giving judgments rendered in one 
 State full faith and credit in every other is 
 
 based upon the assumption that the court 
 in which the judgment was obtained had 
 jurisdiction of the cause, when it pronou need 
 such judgment. That a defendant against 
 whom a judgment is obtained should reside 
 in the State in which the judgment is ren- 
 dered is not necessary; jurisdiction may 
 exist though the defendant be a non-resi- 
 dent of the State, if he be summoned, or 
 appear in person or by attorney. But 
 whether he resides therein or not, he must 
 be summoned, or must appear, in order to 
 give the judgment the effect in another 
 State provided for by the constitution and 
 act of Congress. And it is perfectly com- 
 petent for a defendant in an action in one 
 State, on a judgment rendered in another, 
 to plead and show in his defence that he 
 was not summoned and did not appear in 
 person or by attorney in the suit in such 
 other court; and that, too, even though it be 
 expressly stated in the record of the suit in 
 that court that he was actually summoned 
 or did so appear. The judgment is not 
 conclusive on either of those points, though 
 it may be conclusive on the merits, if the 
 court had jurisdiction of the cause. [Re- 
 viewing many cases.] Cl. ofAppeali, 1878, 
 Bowler ». Huston, 30 Gratt. (Va.) 266. 
 
 One member of a dissolved partnership 
 has no authority, unless specially given, to 
 retain an attorney to defend the other 
 members of the late firm in an action 
 brought against them. Such authority 
 does not result from the partnership itself. 
 Therefore a judgment rendered in another 
 State, against all the members of a part- 
 nership, after the dissolution of the partner- 
 ship does not personally bind a member 
 of said partnership not served with process 
 and not appearing in the case, although 
 the other members were served, or appeared 
 and caused an appearance to be entered for 
 all. lb. 
 
 A judgment under the Code of Procedure 
 of New York against the members of a dis- 
 solved partnership, one of whom was not 
 
 Jndge. Cannot be sued in 
 imprisonment, p. 130. 
 
 for imposing fine and imprisonment where statute says fine or 
 
262 
 
 JUDGMENT. 
 
 served with a process and did not appear in 
 person or by attorney in the suit, is not, 
 as to such person, such a judgment as is 
 contemplated by the constitution and act 
 of Congress. lb. 
 
 When a court of law in the State of 
 Maryland, having jurisdiction of the sub- 
 ject and of the person of the defendant, 
 renders judgment in an action for money, 
 the validity of such judgment cannot be 
 questioned in the courts of West Virginia ; 
 nor will the courts of fhe latter State, in 
 order to ascertain if that judgment ought 
 to have been rendered, look into the trans- 
 action upon which the Maryland judgment 
 is founded. But while this is true general- 
 ly, a judgment of a court of law, rendered 
 in West Virginia, based upon a judgment 
 of a court of law of Maryland, may be in- 
 quired into for equitable causes and equities ; 
 and, if not for all, for most of the causes 
 which would authorize an injunction in 
 equity against a judgment of a court of 
 law of West Virginia. Ct. of Appeals, 1878, 
 Black 0. Smith, 13 W. Va. 780. 
 
 The defendant to such Maryland judg- 
 ment, to whom a day and opportunity has 
 been allowed to make his defence in the 
 courts of law in Maryland which rendered 
 such last-named judgment, against the de- 
 mand for which such judgment was ren- 
 dered, but who has wholly failed to avail 
 himself of them, will not be entertained in 
 a court of equity of West Virginia on a 
 bill seeking relief against a judgment ren- 
 dered in Maryland by a court of law, based 
 upon the Maryland judgment, rendered in 
 consequence of his default, upon grounds 
 which might have been successfully taken 
 in the Maryland court of law, uiiless some 
 reason founded in fraud, accident, or sur- 
 prise, or some adventitious circumstances 
 beyond the control of such defendant, be 
 shown, why the defence was not made in 
 the Maryland court. Ih. 
 
 The constitutional rule that judgments 
 rendered in one State are entitled to full 
 faith and credit in the courts of every other 
 State is fully applicable to judgments en- 
 tered by confession. Ct. of Appeals, 1878, 
 Coleman v. Waters, 13 W. Va. 278. 
 
 And although it should appear the names 
 of the person to whom the bond and war- 
 rant of attorney to confess judgment ai'e 
 addressed, and of the supreme court com- 
 missioner before whom the confession of 
 
 judgment was taken, are the same, yet a 
 court of another State is not justified in 
 presuming from identity of name merely, 
 and without other proofs in the record 
 of identity of person, that the persons 
 were the same, for the purpose of allowing 
 an objection that the attorney could not 
 confess judgment to himself as commis- 
 sioner. The presumption should be in far 
 vor of the judgment, viz. : that the two were 
 different persons bearing the same name. 
 lb. 
 
 UinoT Decisions on Judgment. 
 
 Docket entries may be regarded as the 
 record : 15 Blatchf. 406. " Specialty " 
 properly means some sealed instrument, 
 and is not well used to include a judgment: 
 51 Iowa, 254. Confession of judgment by 
 wife as surety for husband is invaUd: 41 
 N. J. L. 469. Sufficiency of statement for 
 judgment by confession for goods sold, 
 time of purchase being indefinitely stated: 
 71 N. Y. 58. Intoxication not a ground 
 for setting aside confession of judgment: 
 2 Pearson {Pa.), 55. 
 
 Judgment of competent court, against 
 city, conclusively establishes the debt; and 
 plaintiff is not resti'icted from proceeding 
 against any city property unless judgment 
 so provides: 98 [T. S. 381. Judgment re- 
 covered on a bond given by an individual 
 in behalf of his firm, held, a bar to a sub- 
 sequent suit against his partners; although 
 he had become insolvent and plaintiff 
 had proceeded without knowledge of the 
 facts: 99 U. S. 35. A judgment rendered 
 against a person whUe a slave does not 
 conclude him: 8 Cent. L. J. 188; 25 inf. 
 Reo. Rec. 64. Fraudulent concealment 
 by defendant of extent of wrong done 
 does not exempt plaintiff from necessity 
 of presenting his entire demand in his ac- 
 tion : 125 Alass. 330. Service of process 
 beyond the jurisdiction of the court cannot 
 support a judgment unless there is volun- 
 tary appearance : 38 Mich. 765. The 
 jurisdiction to render a judgment may 
 always be questioned in an action upon 
 it ; as by showing that there was no 
 lawful service or appearance : 33 Ohio St. 
 236. Sufficiency of complaint and effect 
 of judgment in suing joint-stock associa- 
 tions in name of president, under Laws 
 1849, ch. 258; 74 N. Y. 334. Judgment 
 recovered against sheriff alone, after his 
 
JUDGMENT. — JURY. 
 
 263 
 
 terra, but unsatisfied, does not bar ac- 
 tion against him and his sureties : 11 S. 
 C. 392. While judgment is superseded 
 pending writ of error, it cannot be used 
 as evidence of title : 3 Col. 26. A de- 
 cree should be so construed as to carry 
 into effect, not defeat, the intention of the 
 court by which it was rendered : 7 Oreg. 403. 
 
 Lien of Federal judgments on real es- 
 tate in Virginia does not depend on re- 
 cording or docketing : 25 Int. Rev. Rec. 
 201; 13 West. Jur. 72S. Lien of judgment 
 is not available for security of one who 
 lends the debtor money to pay it : 82 Ohio 
 St. 210. Recitals in judgment of another 
 State do not forbid defendant sued upon 
 it in Massachusetts from proving that he 
 was not served and did not authorize ap- 
 pearance : 126 Mass. 26. In what cases 
 and on what grounds a judgment rendered 
 by a court of one State may be impeached 
 in another State for the fraud of the party 
 in obtaining it: 6 Baxt. (Tenn.) 376. At- 
 torney has not implied power to release a 
 judgment in favor of his client; even 
 though he holds it as assignee : 87 Pa. St. 
 243. 
 
 Judicial sale. Merger of two newspa- 
 pers in one does not defeat order for publi- 
 cation of notice of sale previously made: 
 99 U. S. 348. A court cannot modify the 
 terms and confirm the sale as modified ; it 
 must either confirm or vacate: 9 Neb. 165. 
 Purchaser of land at a foreclosure sale con- 
 trived in fraud of owner's creditors, held 
 chargeable with the fraud of those whom 
 he employed to bring about the sale, 
 although he did not participate: 31 N. J. 
 Eq. 355. Highest bid does not give abso- 
 lute right, but is only a preferred proposal; 
 confirmation gives the right : 82 TV. C. 
 192. 
 
 JURY. Three important decisions 
 have been rendered by the supreme 
 court, covering the general question of 
 the exclusion of colored men from 
 juries in State courts. Under the civil 
 rights legislation the claim was early 
 made, — not precisely that a negro ac- 
 cused had the right, upon principles 
 analogous to that governing the old 
 jury de mediatate linguce, to have some 
 negroes upon the jury, but, — that both 
 whites and blacks should be included 
 in drawing jurors, so that every cul- 
 prit should enjoy a fair chance of hav- 
 ing some of his own color and race to 
 hear his defence. Three recent cases 
 arose at the same period, which pre- 
 sented the question in three aspects. 
 See Strauder v. West Virginia, 100 
 [/. S. 303 ; Virginia v. Rives, Id. 313 ; 
 Exp. Virginia, Id. 339 ; in Civil 
 Rights. 
 
 In one of these cases, Strauder, a 
 negro, was arraigned in a court of West 
 Virginia for the murder of his wife. 
 His counsel demanded a removal of the 
 trial to the United States court. The 
 jury law of West Virginia, at that date, 
 excluded colored men from jury duty 
 throughout the State ; and this, they 
 argued, deprived their client of that 
 fair and impartial trial which the United 
 States law assures. Their application 
 was denied. Strauder was tried and 
 convicted ; and on a review of the en- 
 tire proceedings before the State su- 
 preme court, the validity of the State 
 
 Jarlsdiction. Various branches of, Admiralty; 
 Bankkuptcy; Equity, &c. Powers of courts, 
 Court. 
 
 British admiralty will not arrest United States 
 ship of war, p. 14. Courts of seceded States had 
 no jurisdiction of crimes or torts by soldiers or ofB- 
 cers of United States forces in occupation, p. 26. 
 Jurisdiction of Federal courts to relieve against ex- 
 .cessive taxation of national banks, p. 34. Organi- 
 zation of California judiciary, p. 59; original 
 jurisdiction of circuit court, pp. &3, 87; its appellate 
 jurisdiction, pp. 84, 87 ; over causes removed, pp. 84, 
 85, 87. Power of State over judicial remedies, p. 
 93. Organization of Connecticut judiciary, p. 103. 
 Courts can appoint arbitrators, p. 130. Judges 
 cannot be sued, p. 130. Equitable jurisdiction of 
 Federal courts, p. 131. Various decisions on courts, 
 p. 133. Jurisdiction of court of claims, p. 134. 
 
 Crime committed on board United States vessel in 
 foreign port, p. 135. Power of courts to allow ex- 
 emplary damages, p. 141. Action for death caused 
 by negligence on the high seas, p. 142. Meaning 
 of "judicial action," p. 160. District court in nd- 
 miralty, p. 176. Jurisdiction of court over govern- 
 ment claim to "Arlington," involved in ejectment, 
 p. 182. Determination of election questions in the 
 " Maine count," and other instances, p. 187. 
 
 Jury. For right of trial by jury; challenge; 
 and whatever relates to the qualiflcafion of a juror 
 to try a particular cause ; and relative functions of 
 judge and jury. Trial. 
 
 No need of summoning 48 grand jurors, p. 7. 
 What disqualification of grand juror abates indict- 
 ment, p. 7. Supreme court decisions as to mixed 
 juries, pp. 90-92. How many make a "jury," p. 
 160. 
 
264 
 
 JURY. 
 
 law and of the composition of the jury 
 was sustained. 
 
 In the second case, Keynolds was 
 arraigned before a State court of Vir- 
 ginia for the murder of a white man. 
 By the jury law of Virginia, all 
 male citizens between twent^'-one and 
 sixty years of age, who are entitled to 
 vote and hold office under State laws, 
 are liable, with exceptions in favor of 
 officers, to serve as jurors. But the 
 selection of names for the jury list 
 of each county is confided to the 
 county judge. He designates the in- 
 habitants of the count}' whom he thinks 
 well qualified for the duty, and from 
 these the actual juries are formed. 
 Hence the practice varied in different 
 counties as to whether colored men 
 were drawn upon the juries or not. 
 In Patrick County, where Eeynolds was 
 put on trial, colored men were uni- 
 formly excluded from the jury list. 
 His counsel made seasonable and for- 
 mal objection to this, but it was over- 
 ruled. Reynolds was tried before a 
 jury of twelve white men, selected from 
 a list from which all negroes had been 
 excluded, was convicted, and sen- 
 tenced to imprisonment. Application 
 was then made to Judge Rives, sitting 
 in the United States circuit court, to 
 order a removal of the cause to the Fed- 
 eral tribunals, on the ground that, un- 
 der the civil rights legislation of 
 Congress, Reynolds had the right to 
 be tried by a United States court, if the 
 laws and coui-ts of the State refused 
 him the privilege of having any per- 
 sons of his own race upon the jury. 
 Judge Rives concurred in this opinion 
 and granted the application. 
 
 In the third case, which also arose 
 in Virginia, Judge Coles, in impanel- 
 ling a jur}-, pursued the same course as 
 was taken in the Rej'nolds case — that 
 of systematically and purposely ex- 
 cluding all negroes. But the counsel 
 for the accused, instead of applying to 
 have the trial removed, instituted a 
 
 criminal proceeding, under United 
 States laws, against the judge for the 
 misconduct of refusing to consider 
 names of negroes. 
 
 The decisions of the supreme court 
 embody, substantially, these posi- 
 tions : — 
 
 1. The civil rights laws do not re- 
 quire that every negro placed upon 
 trial should actually have colored ju- 
 rors ; but they do require that juries 
 shall be chosen without any special ex- 
 clusion of colored men. 
 
 2. If the law of the State directs 
 that all negroes shall be excluded from 
 juries, it is void. If it does not direct 
 this, but allows the officer who chooses 
 the jurors to exclude negroes, and he 
 does exclude them, such State law af- 
 fords no protection to the officer. 
 
 3. If the terms of the State law, or 
 the course pursued by the State officer, 
 amount to a deliberate, complete ex- 
 clusion of aU persons belonging to the 
 same race with the prisoner from the 
 jury, he may have his trial removed to 
 a United States court ; but if they are 
 such as to give a fair chance that such 
 persons may be drawn, all is done 
 which Congress has required, and the 
 circumstance that no colored persons 
 are, in fact, drawn, gives no ground of 
 complaint. 
 
 Accordinglj-, m the Sti-auder case, 
 the decision is that the trial ought to 
 have been removed, because, in this, 
 colored jurors were absolutely excluded. 
 In the Reynolds case, the court says 
 that the trial should not have been re- 
 moved, for the law did not exclude 
 them ; if they were excluded it was by 
 the course pursued in drawing the 
 names. In tlie Coles case, the officer 
 who abused the discretion reposed in 
 him of selecting jurors, by systemati- 
 cally refusing to receive competent per- 
 sons merely because they were black, is 
 held subject to punishment under na- 
 tional law. 
 
JURY. — LANDLORD AND TENANT. 
 
 265 
 
 Minor Becisions on Jury. 
 Old age, alienage, or expression of 
 opinion, of giand juror, not ground of 
 new trial, but only of challenge : 90 III. 
 221. Subscriber to fund for enforcing 
 statute is not disqualified as grand juror to 
 find indictment under it; 32 Ohio St. 353. 
 Unless by a statute, jurors are not entitled 
 to compensation ; they serve at demand of 
 the State for general good: 4 Baxt. {Tenn.) 
 174. Alabama constitution does not re- 
 strict legislation as to prescribing how 
 
 jurors shall be selected: 61 Ala. 33. Law 
 forbidding man opposed to capital punish- 
 ment to sit as juror in trial for murder is 
 not unconstitutional: 60 InrJ. 141. 
 
 JUSTICE OF THE PEACE. A jus- 
 tice cannot be sued for damages for corrupt 
 official misconduct to the injury of a party 
 to a cause before him ; not even if he has 
 given bond : 56 Ala. 190. A justice is 
 not liable, personally, for assuming juris- 
 diction in good faith, but erroneously: 39 
 Mich. 526. 
 
 K. 
 
 EAXSAS. No amendments to the 
 constitution have been adopted by the 
 people since 1876. Two stand to 
 be voted upon in November, 1880. 
 One affects the exemption of property 
 from taxation ; the other, the liquor 
 traffic. 
 
 A term of district and circuit courts au- 
 thorized, at Fort Scott, commencing second 
 Monday of January in each year. Appoint- 
 ment of deputy clerk and deputy marshal 
 authorized. Act of March 3, 18^9, ch. 177, 
 20 Slat, at L. 355. 
 
 A land district constituted and named 
 the Northern Land District. Appointment 
 of a register and a receiver authorized. Act 
 of Congress of May 24, 1880. 
 
 KENTUCKY. Time of biennial meeting 
 of the general assembly changed to com- 
 
 mence on the fourth Monday in Novem- 
 ber. Act of April 27, 1880, 1 Ky. Acts, 
 1879, 120, ch. 1270. 
 
 The reports of the court of appeals are 
 to be known, from and following Bush, 
 vol. 14, as " Kentucky Reports," viz. ^ 79 
 Kentucky, instead of 15 Bwih, and so on- 
 ward. Act of Feb. 10, 1880, 1 Ky. Acts, 
 1879, 21, ch. 193. 
 
 KENTUCKY LAW REPORTER. A 
 monthly magazine devoted to the interests 
 of the legal profession at large, and partic- 
 ularly of the Kentucky bar. J. C. Wells 
 and Frank L. Wells, editors. Frank- 
 fort: Buckley & Lewis. 
 
 KING. The Laws and Rules of Prac- 
 tice in Colorado, together with the Mining 
 Laws of the United States and the State of 
 Colorado, and Mining Decisions. By the 
 late John Q. A. King. Denver: Whipple 
 & Pierson. 
 
 LANDLORD AND TENANT. A con- 
 tract in writing to let, for a precise time 
 and at a definite weekly rate, certain speci- 
 
 Kansas. Eentncky. As to matters applicable 
 to Kansas or Kentucky in common with otlier States, 
 State. 
 
 Kidnappings. New North Carolina statute 
 against abduction, p. 9 ; Coolie servitude, pp. 66, 83. 
 
 Labor. Meaning of "labor," "laborer," &c., 
 p. 160. 
 
 Land. Nature of propertj; in, Eeal Property. 
 The various modes of acquisition and transfer, Ad- 
 verse Possession ; Dedicatios; Deed; Devise; 
 
 fied rooms in a house, divided up into sets 
 of rooms and containing a restaurant, is to 
 be deemed a lease and not a contract be- 
 
 Mortgage; Trust; Will. Contracts for sale 
 of, Vendor, &c. Disposal of government lands. 
 Public Lands. Acquiring land for public or cor- 
 porate uses, Eminent Do:*iain; Highway; Mu- 
 nicipal Corporation; Railroad. Lands of 
 married women, Husband, &c. 
 
 Abandonment of land-rights, p. 4. Remarkable 
 case of adverse possession, p. 16 ; other cases, pp. 
 18, 19. Landscape in Colorado not to be defaced 
 bj' advertisements, p. 19. Grazing lands iu Col- 
 
2G6 
 
 LANDLORD AND TENANT. 
 
 tween boarding-house keeper and lodger, 
 notwithstanding that by its terms the lessor 
 undertakes to serve a private table, and to 
 furnish certain other accommodations, and 
 imposes certain restrictions on the manner 
 of the use and occupation. Supreme Ct. 
 1878, Porter v. Merrill, 124 Mass. 534. 
 
 A stipulation in a lease of certain rooms 
 in a house containing a restaurant, and near 
 several hotels and other restaurants, "to 
 serve a private table " therein, is complied 
 with by an offer to send out for a dinner to 
 such a hotel to be served in such rooms, 
 Ih. 
 
 The owner of a house who neglects to 
 comply with the statute requiring him to 
 provide fire-escapes, &c., is liable to any 
 occupant who sustains injury through the 
 neglect. [Approving 1 ^466. N. Cas. 427, 
 notwithstanding 70 N. Y. 126.] Brooklyn 
 City Ct. 1878, Willy v. MuUedy, 6 Abh. N. 
 Cas. (N. F.) 97. 
 
 A landlord who has demised property, 
 parting with possession and control thereof 
 to a tenant in occupation, is not responsible 
 for injuries arising from defective condition 
 of such premises, when that defect arises 
 during the continuance of the lease. Upon 
 leased premises, a water-pipe and gutter, 
 not defective in their original construction, 
 became stopped up, so that water flowed 
 upon the door-steps of the leased house, 
 forming ice, upon which plaintiff fell and 
 was injured. Held, that as between lessor 
 and lessee, in the absence of contract to 
 the contrary, it is the duty of the latter 
 to repair the pipe, or remove the ice, 
 and for failure in this he is liable, and not 
 the landlord. If the defective condition 
 of the leased premises occasions damage, in 
 order to make the lessor or landlord respon- 
 sible, it is not sufficient to allege ownership 
 merely in him, but the special circumstances 
 creating his liability must be averred. Su- 
 preme Ct. Commission, 1877, Shindelbeck 
 V. Moon, 32 Ohio St. 264. 
 
 Lessee of a newspaper stand in a hotel, 
 for a term of years, cannot prove, in bank- 
 ruptcy proceedings taken against the pro- 
 prietors during the term, for prospective 
 profits of his business during the residue 
 
 orado protected from live-stock of non-residents, 
 p. 24. Land-holding in California restricted, p. 
 66. Descent, p. 171. Land devised to govern- 
 ment to pay national debt, p. 174. Taking land 
 for public use, p. 197. Land under highway, p. 
 
 of the term ; but only for such advance as 
 he could have realized by assigning or sub- 
 letting the stand. S. Disl. of N. Y. 1875 
 Matter of Lelaud, 8 Ben. 254. 
 
 Minor Secisions on Landlord and Tenant, 
 
 Under a letting indefinite as to time, a 
 stipulation for monthly or weekly payments 
 implies that the letting is by the month or 
 week : 40 N. J. L. 128. Construction of a 
 lease of a warehouse and elevator with ref- 
 erence to (1) obligation of lessor to rebuild 
 after fire ; (2) whether a paper executed by 
 t. to third person was a transfer of his right 
 of action : 71 i\A. F. 48. Statutes requiring 
 transfers of chattels to be recorded or fol- 
 lowed by change of possession do not apply 
 to assignment of lease: Id. 341. Obliga- 
 tions of L and t. must be deduced from 
 written lease, if any; it merges oral stipula- 
 tions: 74 N. Y. 531. Two leases executed 
 together — one for eight years and the other 
 for twelve to follow — were construed as one 
 for twenty, and therefore void under a con- 
 stitutional provision forbidding such lease 
 for longer than twelve years: 76 iV. F. 301. 
 
 L.'s lien on crop, for rent, is superior to 
 lien of mortgagee: 33 Ark. 707. What 
 consent by L to t.'s making repairs will 
 subject L's interests to a mechanic's hen 
 for the costs: 41 N. J. L. 39. Sale of 
 growing crop by t. is subject to L's rights 
 to distrain for rent: Id. 392. Oral notice 
 from L that he will expect higher rent next 
 year, not agreed to by t. , does not bind 
 him ; notice in writing should be given, and 
 early enough to entitle L to re-enter if t. 
 does not assent : 6 Mo. App. 488. Lease 
 may give lessor a lien upon all property 
 brought upon the demised premises to se- 
 cure rent; and the lien may be enforced 
 against an assignee, though ignorant of 
 the clause: 76 N. Y. 113. Surety for rent 
 cannot complain that L has sold at an under- 
 valuation property-mortgage to secure the 
 rent, if the surety was himself the buyer. 
 72 A^. F. 133. 
 
 History of the doctrine of tenancies at 
 will, at sufferance, &c., explained, with 
 reference to a letting of premises in the 
 District of Columbia to the government to 
 
 226. Lands of married woman, p, 2-36, Seizure 
 and sale of lands used in violation of revenue laws, 
 P- 257. „. . 
 
 Landlord, May be holdeu for liquor-sellmg oy 
 his tenant, p, S8. 
 
LANDLORD AND TENANT. — LARCENY. 
 
 267 
 
 continue from month to month during its 
 pleasure: 14 Ct. of CI. 493. Lessee is en- 
 titled to enjoy accretions to the tract, not- 
 withstanding lease bounds it by the stream ; 
 they are incident: 89 111. 331. L. /leW not 
 liable for negligence of t.'s servant in leav- 
 ing open the sidewalk coal-hole: 127 Mass. 
 403. Abandonment of premises by t. re- 
 instates 1. in occupancy, notwithstanding 
 t. delivers keys to mortgagee, and the latter 
 sells: 6 Mo. App. 72. Increased value of 
 t.'s interest from association of owners of 
 similar premises to regulate prices is com- 
 petent towards estimating his damages from 
 destruction of building by fire: 71 N. Y. 48. 
 Cropper on shares is not liable for larceny for 
 taking his share without leave : 7 Tex. App. 
 25. Mere right of possession, as of a mort- 
 gagee after default does not sustain proceed- 
 ings of unlawful detainer; there must be the 
 relation of 1. and t. : 33 Arh. 682. Usury 
 in agreement under which premises are 
 occupied may be proved to show it void, 
 and, therefore, that relation of 1. and t. 
 does not exist, in defence of summary pro- 
 ceedings: 76 N. Y. 574. 
 
 LARCENY. One who finds a chattel 
 lost on the highway may take it into pos- 
 session, and his title will be good against 
 every one but the true owner. But if, at 
 the time of taking it, he intends to ap- 
 propriate it to his own use in fraud of the 
 true owner, he is guilty of larceny; other- 
 wise if he takes it with an honest intention 
 to return it and afterwards determines to 
 withhold it. Authorities on larceny by 
 finders of lost articles, — reviewed, and dif- 
 fering views expressed in two opinions. 
 Supreme Ct. 1877, Griggs v. State, 58 Ala. 
 425. 
 
 A person who fraudulently obtains pos- 
 session of the property of another, with 
 intent at the same time he receives it to 
 convert it to his own use, the owner in- 
 tending to part with his possession merely, 
 and not with his title to the property, is 
 guilty of larceny. On a complaint for the 
 larceny of a $20 bill, alleged to be the 
 property of the prosecutor, there was 
 evidence that as he was passing a bar- 
 room, a gui called him in, and he, at her 
 request, gave her money to buy a bottle of 
 
 Larceny. Principles of criminal law applicable 
 to larcenv and otlier crimes, Chime. Requisites of 
 indictment, evidence, and trial, see those titles. An- 
 alogous crimes are Embezzlement, Extoktion, 
 False Puetences, Fokgery, Kobbeey. 
 
 brandy ; that they went upstairs together, 
 and she said this bottle would not be 
 enough for the night, and asked him for 
 more money to buy another bottle ; and that 
 he thereupon gave her a $20 bill to get a 
 quart of brandy, the price of which was $3, 
 not expecting to receive the bill back, but 
 the change, after deducting the price of the 
 brandy ; that the defendant went out and 
 soon returned with another girl, saying 
 she could not get it; that the other girl 
 said she knew where to get it, and the 
 two girls went out and he saw no more of 
 them or his money. Held, that on this 
 evidence, the jury would be warranted in 
 finding the defendant guilty of larceny. 
 Supreme Ct. 1878, Commonwealth v. Barry, 
 124 Mass. 325. 
 
 One who is paid by mistake money to 
 which he is not entitled, and who, upon 
 discovering his mistake, fraudulently con- 
 verts the money to his own use, is guilty 
 of larceny. Bracker, by mistake, paid to 
 Ducker a roll of twenty-dollar gold pieces, 
 supposing it to be a roll of half-dollars. 
 Ducker soon after discovered the mistake, 
 and knew or had the means of knowing 
 who was the owner, but nevertheless ap- 
 propriated the money to his own use and 
 refused on demand to make restitution. 
 Held, that he was guilty of larceny. Oreg. 
 Supreme Ct. Ducker v. State, 19 Am. L. 
 Reg. N. s. 451. 
 
 Barry, in accordance with a preconcerted 
 plan with a confederate, who had a valise 
 checked at a railroad station, entered the 
 baggage-room of the station, and, present- 
 ing a check corresponding with the one on 
 the valise, obtained permission from the 
 baggageman to place a package in the val- 
 ise. While the attention of the baggage- 
 man was called away by the confederate, 
 Barry changed the checks on the valise and 
 a trunk which was standing underneath 
 the valise, and immediately passed out of 
 the room. By means of this substitution 
 of checks the trunk was carried to a sta- 
 tion other than that intended by its owner. 
 The confederate went on the same train 
 with it, and on arrival at the station re- 
 ceived it, took it with him, and rifled it of its 
 contents. Held, that Barry was guilty of 
 
 Larcenv and embezzlement compared, p. 196. 
 Confessio'n of larceny, p. 201. Goods oi guest 
 stolen, pp. 243, 21-1. 
 
268 
 
 LARCENY. 
 
 larceny of the trunk and of its contents. 
 Supreme Ct. 1878, Commonwealth o. Barry, 
 125 Mass. 390. 
 
 There are general rules that to constitute 
 larceny the taking must be such that tres- 
 pass would lie, and that trespass will not 
 lie unless the owner of the property is in 
 actual or constructive possession at the 
 time of the taking; also, that such posses- 
 sion must have existed apart from the 
 charge of the property by the accused as 
 custodian, and that neither the civil nor 
 the criminal action will lie when the own- 
 er's possession has been only by means of 
 the accused's custody. But there have been 
 some modifications of these rules; one is, 
 tliat larceny may be charged when the 
 felonious appropriation is made after the 
 property has reached its ultimate destina- 
 tion ; ordinarily, however, property cannot 
 be said to have reached its ultimate desti- 
 nation while it remains in the personal 
 custody of a servant of the owner. An- 
 other modification is, when the property was 
 received by the accused as servant or custo- 
 dian, from another person who occupies the 
 relation of agent for tiie owner, or who 
 stands in the position of the owner in respect 
 to the possession; then, though the owner 
 has not in person had actual possession, yet 
 the possession of such agent is deemed the 
 owner's possession. The cashier in the 
 office of the State comptroller received a 
 draft transmitted to the comptroller in 
 payment of taxes to the State from the 
 deputy-comptroller, upon the duty of de- 
 positing it in the bank as money of the 
 State. Instead of doing this he appro- 
 priated it to his own use. Held, that this 
 involved a taking amounting to larceny. 
 The State never had, and never could have, 
 the manual possession of the draft, but it 
 could and did have a constructive posses- 
 sion ; and the delivery of the draft to the 
 cashier, being only for a special purpose, 
 gave him only the custody or charge of it 
 within the rule that where the owner has 
 entrusted the servant with the custody only, 
 and not with the possession, and the ser- 
 vant converts the thing to his own use with 
 felonious intent, the case is larceny, al- 
 though the accused had no felonious intent 
 when he took the custody of the thing. 
 Cl. of Appeals, 1878, Phelps v. People, 72 
 N. Y. 334. 
 
 There may be a conviction for larceny in 
 
 stealing a draft alleged in the indictment to 
 be the property of a State named: and it is 
 not proper, where the facts before the grand 
 jury show that the title to the money repre^ 
 sented by such draft was in the State, to lay 
 the property " in some person unknown-" 
 it should be laid in the State. Thus 
 where, upon a trial for larceny in steal- 
 ing a draft, it appeared that the draft 
 was obtained by a county treasurer to be 
 used in paying taxes due from his county 
 to the State; that he indorsed it to the 
 State comptroller and transmitted it to his 
 office; that in the course of business in 
 that office it came to the hands of Phelps, 
 who was the cashier, and whose duty was 
 to deposit the draft in bank for the benefit 
 of the State. Instead of doing so he con- 
 verted it to his own use. BeU, that he 
 was rightly convicted of larceny upon 
 counts in an indictment laying the prop- 
 erty either in the State of New York, or in 
 the State treasurer, or in the comptroller; 
 and that to describe it as the property of 
 some person unknown would have been 
 improper. lb. 
 
 A statute of Maryland prescribing the 
 punishment of a " common thief " allows 
 such character to be shown by "any evi- 
 dence of facts or reputation proving that 
 such person is habitually and by practice a 
 thief." In a prosecution under the law, 
 the State offered a record of conviction for 
 larceny of a watch ; also testimony of an 
 officer to the reputation of the accused 
 several years previous ; also a record of a 
 conviction for winning a watch by a fiaud- 
 ulent trick at cards. All this evidence was 
 received under exceptions. Held, that in 
 order to justify a conviction of the offence 
 created by the act, there must be proof of 
 either facts or reputation sufficient to 
 satisfy the jury that the party accused 
 is by practice and habit a thief. The 
 offence is but a misdemeanor, and it 
 must therefore be prosecuted within one 
 year from the time of its commission. 
 It is necessary, in order to justify a con- 
 viction, that the proof should establish the 
 fact that the accused was a common thief 
 within one year before the prosecution was 
 begun, and therefore evidence of acts of 
 larceny, committed more than a year before 
 the indictment was found, would not be 
 admissible. And evidence of one larceny, 
 standing alone, is not sufficient to prova 
 
LARCENY. — LAWSON. 
 
 269, 
 
 that the accused is by habit and practice a 
 thief, but would be a link in the chain of 
 evidence admissible as tending to prove 
 the issue, and therefore competent with 
 respect to the evidence of the reputation of 
 the accused given by the public officer. 
 Reputation is but a siugle fact, and the 
 whole may be given in evidence, commenc- 
 ing at a period more than a year before 
 the indictment was found. The reputation 
 which the accused bore at a time more than 
 a year before the indictment was admis- 
 sible, though proof that such reputation 
 continued and was borne by the accused 
 within a year before the indictment was 
 found would not justify a conviction. But 
 there was error in admitting the record 
 of the conviction of the accused for win- 
 ning a watch by a fraudulent trick at cards 
 in October, 1875. The statute under which 
 the accused was indicted is a criminal law, 
 and must be strictly construed. The acts 
 by it made legal evidence are only such 
 acts as tend to prove the crime created, 
 and must consequently be acts of thieving 
 and stealing. The record of conviction of 
 having won a watch by fraudulent trick at 
 cards was not of stealing ; it was therefore 
 not admissible evidence on an indictment 
 for being a common thief. Ct. of Appeals, 
 1878, World v. State, 50 Md. 49. 
 
 Minor Becisions on Larceny. 
 A dog is not subject of 1. in North Car- 
 olina: 81 N. C. 527. Taking an estray may 
 be subject of 1. : 7 Tex. App. 470. Taking 
 with guilty knowledge, and keeping with 
 felonious intent, a $10 bill paid to accused 
 in mistake for a $1 bill, is 1. : 58 Ala. 414. 
 Carrying home a bag of coif ee one has picked 
 up in the street is not 1., unless he meant at 
 the outsetto appropriate it : Id. 425. Accept- 
 ing from ii bank a certificate of one's own 
 check, in trust, to expend the proceeds for 
 the bank, but with the intent to appropriate 
 them in fraud of the bank, is 1. : 53 Cal. 
 284. For one hired to pick cotton and 
 keep it until it is weighed at night, to se- 
 crete and convert it, is not 1. unless there 
 was a felonious intent at the time of pick- 
 ing: 61 Ala. 224. Lack of effort, by finder 
 of lost goods who has no notice of owner- 
 ship, to find owner, is not L : 49 Iowa, 73. 
 
 Law. Of a State, when applicable in Federal 
 courts, p. 39. Banlirupt law repealed, p. 41. Spe- 
 cial laws on 33 subjects forbidden in California, p. 
 
 Cropper on shares is not liable for L for 
 taking his share without leave: 7 Tex. App. 
 25. Severing and removing things fixed 
 
 — here, fence-rails, — done feloniously, is 
 I. in Texas: 4 Id. 26. When conversion of 
 money collected by agent may be I. under 
 lowa'Code, § 3909: 49 Iowa, 141. When 
 and how person may be proved guilty of 
 stealing his own property: 7 Tex. App. 659. 
 Distinction between I. and false pretences, 
 
 — explained: 77 iV. Y. 11. 
 
 Shooting and partly skinning a cow in- 
 volves sufficient asportation : 60 Ga. 148. 
 So does opening a box of goods and con- 
 cealing its contents elsewhere in the vessel: 
 Id. 264; and pulling out safe-drawer and 
 meddling with the money in it while in front 
 of the safe : 81 N. C. 560. It is not uncon- 
 stitutional to prosecute for bringing stolen 
 property in the State because accused cannot 
 have compulsory process for witnesses resid- 
 ing there: 67 Mo. 59. Construction of Mis- 
 souri statutes punishing exhumation of 
 corpse, 1. of coffin, &c. : 68 Mo. 208. L. 
 committed by one breaking into a house in 
 the night-time is not part of the burglary, 
 but a distinct ofience; culprit may be pun- 
 ished for both : 38 Barb. (N. Y.) 516. Suffi- 
 ciency of indictment for stealing a money 
 draft, — determined; in respect to aver- 
 ments of value, ownership, and possession: 
 72 N. Y. 334. Requisites of indictment 
 for receiving stolen government bonds: 
 48 Md. 16. " Feloniously " no longer neces- 
 sary in Texan indictment for theft ; ' ' fraud- 
 ulently" is the proper substitute : 6 Tex. 
 App. 238; Id. 455. Indictment for L no 
 longer need allege asportation : Id. 238; 
 Id. 455. Possession of property recently 
 stolen is some evidence of guilt; the weight 
 is for the jury: 49 Iowa, 48. See also 50 
 Iowa, 135; 4 Tex. App. 178. To raise a 
 presumption of guilt of 1. from possession 
 of goods recently stolen, the possession 
 must be actual, though it may not be ex- 
 clusive: 46 Conn. 345. Intent to steal may 
 be presumed from surreptitious intrusion 
 into dwelling-house at night : 53 Cal. 415. 
 Explanation given by accused of his pos- 
 session of stolen goods may be proved: 4 
 Tex. App. 246. 
 
 LAWSON. A treatise on the Contracts 
 of Common Carriers, with Special Refer- 
 
 57. Laws on various pereonal rights, travel, mar- 
 riage, &c., pp. 90-9-t. Invalid law not cured by- 
 being put m a Code, p. 96. State laws imposing 
 
270 
 
 LAWSON. — LEAP-YEAK. 
 
 ence to such as seek to limit their Liability 
 at Common Law, by means of Bills of Lad- 
 ing, Express Receipts, Railroad Tickets, 
 Baggage Checks, &c. By John D. Law- 
 son. St. Louis: W. H. Stevenson. 
 
 The volume opens with an exposition of 
 the liabilities of common carriers, inde- 
 pendent of special contract. The ancient 
 rule is stated and criticised; and the neces- 
 sary and proper exceptions which modern 
 courts have recognized are explained. 
 
 The next topic is the power of common 
 carriers to limit their liability. The his- 
 tory of that relaxation of the common law 
 which permits them in some few jurisdic- 
 tions by notice, in others by special con- 
 tract to which the customer must assent, 
 to limit their liability, is given. Upon a 
 review of the course of decisions in all the 
 States, Mr. Lawson declares the general 
 American doctrine to be that a common 
 carrier has two distinct liabilities: (1) for 
 losses without his fault, in respect to 
 whicji he is liable by the common law 
 as an insurer ; and (2) for losses at- 
 tributable to default or negligence, in re- 
 spect to which he is liable on the same 
 gi-ouud as an ordinary bailee. He may 
 limit his responsibility as an insurer by 
 special contract ; but he cannot by any con- 
 tract exempt himself from responsibility 
 for the consequences of his own negligence, 
 or of negligence of his servant or agent ; 
 contracts of this kind are disallowed be- 
 cause contrary to public policy, and because 
 usually obtained under circumstances which 
 give to the carrier an undue advantage in 
 obtaining the customer's assent. This is 
 a statement of the prevailing American 
 doctrine, though not applicable in Iowa, 
 New York, Texas, and West Virginia. 
 (See, as to West Virginia, Carriers, pp. 
 74, 75.) 
 
 After exhibiting what has been said in 
 leading cases in favor of or against the 
 policy of allowing a limited liability, the 
 effect of mere notices is considered, and 
 the extent to which a carrier's notice inde- 
 pendent of a customer's assent may protect 
 him is explained The doctrine of con- 
 tracts limiting liability is then presented. 
 
 license fees on auctioneers, pedlers, &c., p. 102. 
 License law may be submitted to popular vote, p. 
 ]07. Law of place as to order for goods sent from 
 one State to another, p. 109. State laws as to pro- 
 cedure, how far adopted for Federal courts, p. 131. 
 New general laws as to cruelty, p. 138. What are 
 
 Negligence, deviation, delay, and similar 
 causes of loss distinctly attributable to the 
 carrier's fault are shown not to be, in gen- 
 eral, within such contracts. The interpre- 
 tation of the usual clauses largely occupies 
 this portion of the work. The decisions 
 of the courts upon the familiar phrases in 
 railroad receipts and contracts — what is 
 meant by "baggage;" by "CO. D.;" 
 " dangers of navigation; " " perils of the 
 lake," river, or seas ; " feed and water," ap- 
 plied to live-stock; " good order and con- 
 dition;" " inevitable accident;" "leakage 
 and breakage;" " owner's risk ; " "place 
 of destination;" "privilege of re-ship- 
 ping," and a multitude of others, are col- 
 lated and explained. The necessity of a 
 special consideration to the customer for 
 granting assent to a limitation is the subject 
 of the next chapter. How far these limi- 
 tations may be agreed upon by agents of 
 the parties, and how far connecting car- 
 riers are responsible for each other's stipu- 
 lations, are next treated; and the volume 
 closes with the topics, the burden of proof, 
 and "unreported cases." 
 
 LEAP YEAR. A decision of the 
 Indiana supreme court (see infra, 65 
 Ind. 582) will probably put an end to 
 the petty but vexatious error that in 
 leap-year the 28th and 29th days of 
 February are, in reckoning a period 
 defined as so manj' "da3-s," to be 
 counted as one daj- only. In the thir- 
 teenth century English courts had be- 
 come uncertain whether, in computing 
 the ' ' j-ear and a da}- " allowed in cer- 
 tain legal proceedings, the 29th, when 
 it fell within the term, was to be sepa- 
 rately counted. The question was 
 raised in parliament, which enacted 
 Stat. 21, Hen. III., that, with refer- 
 ence to that question, "The day in- 
 creasing in the leap-year .... and 
 the day next going before shall be ac- 
 counted for one day." Out of this 
 statute, and a not very exact statement 
 of its substance in Blackstone's Com- 
 
 " general" laws, p. 157. "Local" laws, p. 161. 
 Recent progress of law of elections, pp. 182-195. 
 Laws takinR lands for public use, pp. 197, 198. In- 
 solvent laws, p. 246. Assiscnment la\vs, p. 247. 
 Inspection laws, p. 249. New internal revenue 
 laws, p. 255. 
 
LEAP-YEAR. — LEGACY. 
 
 271 
 
 mentaries, grew a notion that for all 
 purposes the two days should be 
 counted as one. It seems to have 
 arisen most often in Indiana, where 
 four instances of its application have 
 been reported. In New York there 
 has long been a somewhat obscure 
 statute directing that the two daj's 
 shall be counted together : but its true 
 meaning is that, in reckoning j'ears 
 or fractions of a 3'ear, the 29th may be 
 disregarded, and it has nothing to do 
 with counting "thirty" or "sixty 
 days." And this explanation has been 
 emphatically given as to the English 
 statute, by the supreme court of Penn- 
 sylvania. It is now adopted, and the 
 earlier cases to the contrarj' are over- 
 ruled, by the supreme court of In- 
 diana. The true rule is that in speaking 
 of a "year," a "half-year's school- 
 ing," " a quarter's rent," or the like, no 
 account is to be taken of Feb. 29th ; 
 but in telling off so many " daj's," it 
 should be counted like an3' other daj'. 
 
 In leap-year the 28th and 29th days of 
 February should be counted as two sep- 
 arate days whenever the question is as to 
 computing a specified number of days or de- 
 termining the expiration of a term of time 
 stated as so many days. The provision of 
 Bev. Stat. 1824, 299, directing them to be 
 considered as one day, has been repealed ; 
 and the statute 21 Hen. III., if in force 
 
 Lease. Lasdlokd, &c. 
 
 Hiring hall by corporation through committee, 
 p. 121. 
 
 Legacy. Law of wills generally, Will. Powers 
 and duties of executors, Executor. Devises, De- 
 vise. 
 
 Legacy to " benevolent enterprises " sustained as 
 charitable, p. 148. 
 
 Legislatare. Powers of, in general, as a branch 
 of a State governmental organization, State. Of 
 any particular State, see its name. Legislation, 
 State or National, on any given subject, is under 
 the title of the subject-matter. 
 
 "Amos on the Constitution " embraces British leg- 
 islation, p. 21. New legislation against cruelty to 
 aiiimals, p. 21. Legislature of California delin- 
 eated in the new constitution, p. 56. What laws it 
 may not pass, pp. 56, 57. Legislation of Pacific 
 States relative to the Chinese, pp. 80-83. Legisla- 
 tion giving an action for damages for causing 
 intoxication, p. 89; affecting jury duty, p. 90. ad- 
 mission to the bar, p. 91 ; other civil rights, p. 91 ; 
 intermarriage of whites and negroes, p. 91. Legis- 
 lative department, how created, p. 107. Legislation 
 
 in Indiana, affects only the question of 
 computing the year and day formerly as- 
 signed to sick persons impleaded. [Over- 
 ruling 5 Ind. 196; 7 Ind. 219; 17 Ind. 220 ; 
 i-Mnd. 35.] Supreme Ct. 1879, Helphen- 
 stine 0. Vincennes Nat. Bank, 65 Ind. 582. 
 
 LEGACY. A bequest of moneys to be 
 used " in the education and tuition of 
 worthy indigent females " is a bequest for 
 a charitable use. When such bequests are 
 made to specified institutions of learning 
 ah'eady in existence, they must be con- 
 strued to mean such an education as such 
 institutions usually give ; and the scheme 
 of the charity is sufficiently certain to 
 support the bequests. Supreme Ct. 1879, 
 Dodge V. Williams, 46 Wis. 70. 
 
 While it is the duty of the courts to care- 
 fully weigh objections made against charit- 
 able bequests, and give effect to any which 
 are sufficient to render the bequests void in 
 law, it is also their duty to uphold such be- 
 quests where it can be done without violat- 
 ing any provision of statute or principle of 
 law. lb. 
 
 Minor Oeoisions on Legacy. 
 
 L. of $500 per year for ten years is an 
 annuity contingent on living ; not a 1. 
 of $5,000 recoverable by representatives: 
 125 Mass. 83. One to whom an executor, 
 mistaking the interpretation of the will, 
 has paid money as bequeathed to him, is 
 not liable to an action for money received 
 by the true legatee: 127 Mass. 22. What 
 legacies have been held vested: 71 N. V. 
 92. Rule that I. is payable at and bears 
 interest from end of a year from testator's 
 
 submitted to the people not invalid, p. 107. Con- 
 tracts by legislation, p. 109. Cooi.ey's constitution- 
 al law embraces legislation of Congress and States, 
 p. 113. Power of legislature as to corporations, 
 p. 118. Whether legislation is needful to make 
 bank directors liable under Missouri constitution, 
 p. 123. Legislation affecting corporations, p. 125; 
 affecting counties, p. 127. New legislation as to 
 suffrage, pp. 183, 184, 185, 186, 193. Constitu- 
 tionality of Federal legislation over State elections, 
 p. 194. The canvass of votes in 1879 for members 
 of the Maine legislature, pp. 187-190. 
 
 Legitimacy. Parent, &c. 
 
 When, after-marriage of parents may legitima- 
 tize, p. 158. Legitimacy of colored persons born 
 in District of Columbia, "p. 175. 
 
 Let. Letting of real property generally. Land- 
 lord, &c. Of chattels, Bailment. 
 
 Liabilitj' of owner of hall let for assemblies, in 
 New York, p. 54; of landlord who lets rooms by 
 the month, p. 243. 
 
 Letter. Of resignation by insane officer, bind- 
 ing, p. 25. In treasury department, indorsed by 
 secretary, p. 94. Sendnig annoying letters pun- 
 
272 
 
 LEGACY. — LIBEL. 
 
 death does not apply when testator plainly 
 intended otherwise: 74 iV. Y. 428. 
 
 LIBEL. " Any false and defamatory 
 printing, writing, sign, picture, represen- 
 tation, or effigy, tending to expose any 
 person to public hatred or ridicule, deprive 
 him of the benefits of public confidence or 
 social intercourse, or designed to blacken 
 or vilify the memory of a deceased person, 
 and tending to scandalize and disgrace his 
 relations and friends, shall be deemed 
 a libel." Ind. Lam 1879 (March 15), 
 154, ch. 64, § 1. 
 
 Punishment prescribed. Id. § 2. 
 
 An editor of a newspaper has no peculiar 
 privilege of publishing what is injurious 
 to another. He can only publish with im- 
 punity that which any other person would 
 have a right to publish in a newspaper. Ct. 
 of Appeals, 1878, Sweeney v. Baker, 13 W. 
 Va. 138. 
 
 A newspaper charged a city physician 
 with causing death by the careless use of 
 trocar in vaccination, after its use had been 
 forbidden by the board of health. Held, 
 that in an action for libel the defendant 
 might show that plaintiff had, in his pres- 
 ence, justified its use. Supreme Cl. 1879, 
 Scripps V. Foster, 41 Mich. 742. 
 
 Physician's testimony as to the condition 
 of sick persons is admissible where no con- 
 fidential relations are violated in giving it. 
 The statute excluding the te.stimony of 
 physicians as to facts learned in attendance 
 upon their patients is merely to prevent 
 the abuse of the confidential relation be- 
 tween a physician and his patient, and is 
 for the latter's protection, lb. 
 
 If the trocar was an improper instru- 
 ment to use in the vaccination of children, 
 and likely to be the cause of such great 
 danger as in the article complained of, the 
 jury might well doubt whether the defend- 
 ant, upon the assurances given him, could 
 reasonably have believed that the city phy- 
 sician could be guilty of the charge of so 
 using it. But if there had been previous 
 discussions in the newspapers, and official 
 
 action condemning the use of the trocar for 
 such purposes, or recommending the use of 
 other instruments to the exclusion thereof 
 and in the light of such official action 
 and discussion the plaintiff had, in presence 
 of defendant,' admitted using the trocar 
 and defended its use in vaccination, surely 
 the defendant, in light of such facts, would 
 be much more likely to believe the state- 
 ments contained in the article to be true. 
 So a jury, in the light of such previous cir- 
 cumstances, mightgive credence to his state- 
 ment of good faith, which, in the absence 
 thereof, they would promptly reject. lb. 
 
 Daly, a theatrical manager and author 
 of plays, caused to be performed in his 
 theatre a play called " Pique," which was 
 announced as having been composed and 
 written by him. The editor of the New 
 York Dramatic News published two articles 
 which, in substance, charged that Daly was 
 not the author of the play, but that it was 
 written by a lady some four years before, 
 the name given it by her being " Flirta- 
 tion;" that the authoress sent it to the 
 plaintiff for examination, who wrongfully.: 
 retained and had now produced it, with 
 some few immaterial imitations, as his own, 
 without any arrangement with or payment 
 to the owner. In an action for libel, plain- 
 tiff, to prove malice, introduced in evidence 
 other articles r-epeating the charge substan- 
 tially, and also alleging that it was taken 
 bodily from a certain published novel. The 
 defendant thereupon offered to show that 
 the play was like the novel referred to. 
 This evidence was rejected. Held, no 
 error ; as the resemblance of the play to the 
 novel was not an issue in the case. Ct. of 
 Appeals, 1879, Daly i\ Byrne, 77 JV. Y. 182. 
 
 To publish of a person — here a news-, 
 paper reporter — that he " insinuated him- 
 self into the good graces of a police-sergeant, 
 and learned from him, in the course of a 
 confidential free and easy conversation, his 
 private opinion of the managementof the de- 
 partment, and that he afterwards repeated 
 the confidential remarks at police headquar- 
 
 ishaWe in New York, p. 136. Smuggling in a letter, 
 p. 180. Letter of hotel proprietor to the newspnpers 
 received in evidence in tenant's suit against him, 
 pp. 201, 202. Gummed envelope will answer for 
 returning deposition, p. 202. Letters on estate of 
 living person, in Delaware, p. 205. 
 
 Levy. Execution. 
 
 Lewdness. Inheckncy. 
 
 Lustfully caressing a married woman against her 
 
 will an assault, p. 29. Bawdy-boats forbidden. P. 
 45. Eraploving children in indecent vocations for- 
 bidden, p. ""9. Meaning of obscene language, p. 
 1G5. Ailulterv as a crime, p. 16; how proved as a 
 cause of divorce, p. 177. Proving lewdness of com- 
 plainant in bastardv, p. 204. Obscene pidnres, 
 p. 2:«). 
 
 LlbeL Oral defamation, Slandeb. 
 
 Definition, p. 161. 
 
LIBEL. 
 
 278 
 
 ters, in consequence of which charges were 
 preferred against the sergeant, and he was 
 suspended from duty," is libellous. It 
 ■represents the person as chargeable with a 
 very mean thing, — tale-bearing. Every 
 man often says in the freedom of private 
 intercourse things which, although true in 
 aU respects, he would never think of making 
 public. The tale-bearer who reveals such 
 secrets — whether cautioned against doing 
 so or not — is generally thought to be a 
 very contemptible creature. At the com- 
 mon law a person who stealthily listened 
 to a private conversation and then made 
 mischief by it, was indicted as an eaves- 
 dropper, and held to be a public nuisance. 
 One who has so much respect paid to his 
 supposed decency as to be allowed to listen 
 without lurking in a concealed listening 
 place, and then abases his privileges, is not 
 usually thought to be any better. A charge 
 of such conduct against a reporter is espe- 
 cially injurious. The necessity of frequently 
 meeting members of the great body of re- 
 porters, and of having more or less to say 
 to thera, would require gentlemen to be 
 very close on their guard, and to treat them 
 with scanty civility, unless they were under- 
 stood to be generally worthy of being trust- 
 ed. When a man is found wanting in this, 
 he must expect to lose his reputation and 
 standing with the press as well as in society, 
 and imputations of such misconduct cannot 
 be regarded as containing no cause of com- 
 plaint. Supreme Ct. 1878, Tryon v. Even- 
 ing News, 39 Mich. 636. 
 
 The doctrine of privileged communica- 
 tions elaborately discussed with reference to 
 publications made in the discharge of some 
 imperfect social duties ; and held, that 
 publication of a preamble and resolutions 
 adopted by an association of Congregation- 
 al ministers, imputing charges against one 
 member of the association and published 
 by another in pursuance of the rules and 
 a vote of the association was not actionable 
 without proof of actual malice; and that 
 the burden of proving this was on the 
 plaintiff. Supreme Ct. 1879, Shurtleff v. 
 Stevens, 51 Vt. 501. 
 
 Where, in an action upon a newspaper 
 article, it appears that the article com- 
 plained of was one of the series published 
 in the same paper discussing a matter of 
 public concern, — here, the safety of meth- 
 ods of compulsory vaccination employed 
 18 
 
 under the diredtion of the sanitary author- 
 ities of Detroit, — the defendant has the 
 right to introduce all the articles of the 
 series for the pui-pose of showing his good 
 faith in the discussion. Supreme Ct. 1879, 
 Scripps V. Foster, 41 Mkh. 742. 
 
 Libellous matters, published only in the 
 due course of legal proceedings, cannot be 
 the basis of a libel suit, provided the court 
 in which they were published had juris- 
 diction of the cause, and they were perti- 
 nent to the suit, even if they be libellous 
 reflections on the character of persons not 
 parties to the suit; unless, perhaps, where 
 the suit was resorted to merely for the pur- 
 pose of conveying the scandal, and as a 
 cover for the malice of the party, and not 
 in good faith for the assertion of a right or 
 redress of a wrong. The general doctrine 
 of privileged communications, and of in- 
 nuendo, discussed at length. Ct. of Ap- 
 peals, 1878, Johnson v. Brown, 13 W. Va. 
 71. 
 
 In cases of libel the^publication is always 
 considered a voluntai-y act, and is presumed 
 to have proceeded from malicious motives. 
 The actual motive may, however, be shown, 
 either in aggravation or reduction of the 
 damages to the feelings of the person in- 
 jured. In other words, the spirit and in- 
 tention of the defendant in publishing the 
 libel may be considered by the jury in es- 
 timating the injuries done to plaintiff's 
 feelings. Supreme Ct. 1878, Scripps v. 
 Reilly, 38 Mich. 10. 
 
 Want of proper precaution in the em- 
 ployment of agents or assistants, or of 
 proper care in the conduct of the paper, or 
 the retention of improper employees after 
 ascertaining their incompetency, careless- 
 ness, or negligence, may be shown to in- 
 crease the damages to wounded feelings; 
 but express malice in the employees would 
 not be admissible for such purpose where 
 the act was done without the knowledge or 
 consent of the defendant, and proper care 
 had been exercised in their employment 
 and retention. 76. 
 
 minor Decisions on Libel. 
 A I. is any malicious publication, written, 
 printed, or painted, which by words or 
 signs tends to expose a person to contempt, 
 ridicule, hatred, or degradation of charac- 
 ter: 87 Pa. St. 385. What charges, in 
 newspaper, of bribing or treating voters, 
 
274 
 
 LIBEL. — LIMITATION OF ACTIONS. 
 
 are libellous: 60 Ind. 424. Charging a 
 physician with malpractice is libellous, not- 
 withstanding he acted as city physician, if 
 that office is not elective; the privilege of 
 newspaper discussion relates to elective 
 offices : 39 Mich. 376. Newspaper editor is 
 liable for knowingly publishing what is 
 written by a reporter: 86 III. 147. Justifi- 
 cation of words imputing crime need not 
 be proved beyond reasonable doubt; pre- 
 ponderance of evidence suffices: 18 Am. L. 
 Reg. N. s. 101. What newspaper criti- 
 cism of acts of chairman of political com- 
 mittee is privileged : 87 Pa. iS«. 385. When 
 retention of employees who have inserted 
 1., is negligence of proprietor: 38 Mich. 
 10. Admissibility, in \. suit against news- 
 paper, of other articles from same paper: 
 lb. Exemplary damages may be awarded 
 for 1., notwithstanding defendant might 
 also be indicted : 87 Pa. St. 385. 
 
 LICENSE. Selling patent medicines, 
 not within a L or right to caiTy on business 
 as an apothecary: 2 Pearson (Pa.), 410. 
 Distinction between covenant and condition 
 in a 1. ; 74 N. Y. 15. A L to do acts upon 
 the land of the licensor is revocable, and 
 cannot justify acts done after revocation ; 
 and revocation does not render grantor 
 liable for grantee's expenditures: 14 Ct. of 
 CI. 819. 
 
 LIEX. An architect has no L for ser- 
 vices in drawing plans and specifications, 
 and giving directions to builder: 6 Mo. 
 App. 445. Carrier's unloading goods on 
 wharf for consignee to take them waives 1. 
 for freight: 51 Iowa, 338. Trainer of 
 horse for racing may have a I. for his 
 charges: 124 Mass. 205. Policy of Ala- 
 bama act giving a 1. for advances to make 
 crop; and how a L may be created and 
 enforced: 61 Ala. 416; Id. 434. Georgia 
 Code, § 1985, does not give a 1. for money 
 advanced to buy provisions and timber for 
 a saw-mill; 60 Ga. 104. Wife's separate 
 property not subject to L for money ad- 
 vanced to husband for family expenses; 
 51 Iowa, 182. L. given by statute on land 
 
 License. To sell liquor. Liquor-selling. To 
 publish copyrighted works, Copyright. To man- 
 ufacture or use patented article, Patent. 
 
 License to print engravings, perform opera, pub- 
 lish engravings, songs, &c., p. 117. 
 
 Lien for wharfage may be enforced in admiralty, 
 
 E. 14. Agister's lien on beasts, p. 22. Lien on 
 anlcrupt's propertynot dissolved by discharge, p. 
 43. Of mnkeeper in Tennessee, on cliattels of guest, 
 for amount due for board or lodging, p. 243. 
 
 cannot attach while it is held by settlement 
 and before a patent; for the title is in the 
 government: 7 Oreg. 141. 
 
 LIMITATIOIf OF ACTIONS. " No ac- 
 tion shall be brought by any person whose 
 cause of action has been barred by the 
 laws of any State, TeiTitory, or country 
 while he resided in such State, Territoiy, 
 or country." Mass. Laws 1880 (March 
 13), ch. 98, amending Gen. Stat. ch. 155, 
 §9- 
 
 Where a paymaster without fault loses a 
 package of money, and the paymaster-gen- 
 eral orders him to carry the loss on his 
 accounts as money to be accounted for, and 
 subsequently orders him to make good the 
 loss, and the officer complies with both 
 orders; but more than six years after the 
 payment of the money, he brings his suit 
 for relief under the disbursing officers' act, 
 — Held, in view of 96 U. S. 37, that his 
 claim was not barred by the statute of lim- 
 itations. According to the general practice 
 of the treasury, accounts are never closed; 
 and in neither the legal nor mercantile 
 sense of the term is an officer's account 
 with the treasury ever "finally adjusted; " 
 nor is his official bond ever cancelled or 
 surrendered. And the disbursing officers' 
 act [Rev. Stat. §§ 1059, 1062] was intended 
 to be auxiliary to the general system of the 
 treasury, which enables the accounting 
 officers to secure the immediate payment of 
 balances due from disbursing officers and 
 yet open and readjust their accounts at any 
 time. 1878, Smith v. United States, 14 
 Ct. of CI. 114. 
 
 When the statute of limitations has once 
 begun to run, no subsequent disability will 
 arrest its progress. Supreme Ct. 1878, 
 Harris v. McGovern, 99 U. S. 161. 
 
 minor Decisions on Limitation of Actiona. 
 
 The Arkansas statute of non-claim, that 
 demand against estate not exhibited to 
 representative within two years shall be 
 barred, is in the nature of a statute of lim- 
 itations, and was suspended dming the 
 
 Life. Death; Person. 
 
 Life-insurance company of District of ColumDii 
 a foreign corporation in Indiana, p. 7. Presump- 
 tion of survivorship among shipwrecked pers""'i 
 p. 143. Living together of " family," pp. 155, 15'- 
 Life insurance, pp. 249-251, 254." . 
 
 Limitation. On carrier's liability, pp. 6', '*■ 
 On passenger's baggage, pp. 72, 73. On express 
 company's liability, pp. 207, 208. 
 
LIMITATION OF ACTIONS. — LIQUOR-SELLING. 
 
 275 
 
 war: 33 Ark. 470. A State is not bound 
 to allow the same length of time for bring- 
 ing actions on causes arising without the 
 State as it allows on causes arising within : 
 4 Col. 313. Five years is needed to bar 
 prosecution for enteringgoods by fraudulent 
 invoice; three years for a conspiracy to 
 defraud the government of duties : 100 U. 
 S. 33. The government is not forbidden 
 by Rev. Stat. § 786, to sue on a marshal's 
 bond after expiration of six years : 3 Woods, 
 550. Laches is not imputed to government. 
 Delay of officers to sue principal in bond 
 for government does not discharge sureties : 
 14 Blatchf. 51. 
 
 In computing the time, day on which 
 right of action accrued is included ; day on 
 which summons issued, excluded: 33 Ark. 
 421. Liability of railroad for injury to 
 passenger accrues from date of injury, and 
 statute then begins to run, notwithstanding 
 sufferer is a long time in recovering: 52 
 Cal. 42. The cause of action against an 
 officer for neglect in taking an insufficient 
 judicial bond does not arise until breach of 
 the condition, so that complainant might 
 sue the bond if sufficient: 49 lotca, 116. If 
 goods are furnished under a special contract 
 in successive parcels, and the special con- 
 tract is abandoned, statute runs against 
 price of each parcel from its delivery: 90 
 III. 77. Oregon statute runs against a debt 
 contracted in another State by one who re- 
 moves to Oregon from the date of the debt, 
 not of the removal: 7 Oreg. 232. Indors- 
 ing payment of interest, on note payable 
 on demand, does not imply demand of prin- 
 cipal, such as will set the statute running: 
 42 L. J. N. s. 659. Concealment by de- 
 fendant's clerk will not deprive defendant 
 of benefit of the statute: 39 Mich. 160. 
 Mere delay to prosecute an action season- 
 ably commenced cannot defeat it ; nor 
 defeat an application for a continuance in 
 the name of a representative: 72_iV. Y. 486. 
 Time limited for suing stockholder is not 
 extended by taking renewal note from cor- 
 poration: 76 N. Y. 522. 
 _ LIQUOR-SELLING. Upon trial of an 
 indictment for keeping intoxicating li- 
 quors with intent to sell them unlaw- 
 
 liqaoT-selling, Liquor bought by police officer 
 for official inspection, p. 15. New civil damage 
 laws, p. 88. Constitutionality, p. 89; what actions 
 may be sustained, p. 89. A single sale not the 
 "business," p. 149. Occasional drunkenness does 
 not make a habitual drunkard, p. 157. What li- 
 
 fully, there must be proof of the intent 
 to sell; the possession of liquors, even 
 of various kinds and in large quantities, 
 is not sufficient to justify a convic- 
 tion. But circumstantial evidence may 
 prove the intent. Officers who went to 
 make a seizure testified that in the defend- 
 ant's dwelling-house, where he took board- 
 ers, were a barrel of ale on tap, several 
 bottles containing liquor, an ale-pump, 
 tumblers, a strainer, bowls, and dishes; 
 and that in a shed adjoining the house 
 there was an empty ale-baiTel. Held, that 
 this evidence was sufficient to warrant a 
 verdict of guilty. Supreme Ct. 1879, Com- 
 monwealth V. Levy, 126 Mass. 240. 
 
 A local-option law which enables the 
 voters of any designated locality to decide 
 whether licenses shall be granted in their 
 locality or not, and forbids the selling 
 of liquor without a license throughout the 
 State generally, is not unconstitutional. 
 Such a law does not differ in principle from 
 the former legislation restraining the liquor 
 traffic. It merely extends the restriction 
 by adding another agency, with power to 
 refuse to permit licenses to be granted. 
 The voters may, by exercising the power 
 given them in the act, render the granting 
 of licenses unlawful. But in doing so they 
 do not make law. They do no more than 
 county courts and municipal authorities 
 have always done — they exercise a police 
 power conferred upon them by the legisla- 
 ture. If they vote against it, the traffic is 
 not thereby made unlawful. That was so be- 
 fore, unless the dealer had a license. The 
 voters now have power to say that he shall 
 not have a license. This is no new power. 
 It has always existed in some agency of the 
 law, and the local-option law has merely 
 transferred the power, or a part of it, to 
 another depositary. Cl of Appeals, 1879, 
 Commonwealth v. Hoke, 14 Bush (Ki/.), 
 688. 
 
 A "local-option law," or statute passed 
 by a State legislature forbidding and pun- 
 ishing sales of liquor in a designated county 
 or territory after the act shall take effect, 
 and providing that it shall take effect when- 
 ever it shall be ratified by a popular vote 
 
 quors are "intoxicating," p. 159. What is a "li- 
 quor shop," p. 161. What is closing them tempo- 
 rarily, p. 169. Liquor-selling on election day, p. 
 193; to Indians, p. 241. Changes in internal rev- 
 enue laws, p. 2.56. Tax on distilleries, p. 258 j 
 brewers, p. 258. Effect of intoxication, p. 260. 
 
276 
 
 LIQUOR-SELLING. — LIS PENDENS. 
 
 in the locality affected, is not unconstitu- 
 tional as involving an improper delegation 
 of legislative power. While the law-mak- 
 ing power cannot delegate to the people the 
 right to assemble and frame laws such as 
 may be deemed best for their own interests, 
 and to adopt them by a popular vote, it is 
 not inconsistent with our representative 
 system of government to consult the popu- 
 lar will as to the propriety of a law already 
 enacted. Ct. of Appeals, 1878, Common- 
 wealth V. Weller, 14 Bush {Ky.), 218. 
 
 Wherever the local-option law of Texas 
 has been adopted in accordance with the 
 constitution, and been put in force, it ope- 
 rates to repeal all laws and parts of laws in 
 conflict with it, within the limits of such 
 locality. The general law imposing an 
 occupation tax on retail liquor-dealers is 
 not in force in localities where the local- 
 option law has been adopted. Ct. of Ap- 
 peals, 1878, Robertson v. State, 5 Tex. App. 
 155. 
 
 Intoxicating liquor defined to be " any 
 beverage containing more than three per 
 cent of alcohol, by volume, at 60° Fahren- 
 heit." Mass. Laws 1880 (April 23), 191, 
 ch. 239, § 5, amending Laws 1875, ch. 99, 
 §18. 
 
 The constitution of the United States 
 does not forbid a State from enacting, as a 
 measure of police regulation, a law prohibit- 
 ing the manufacture and sale of intoxicating 
 liquor. All rights are held subject to the 
 police power of a State ; and, if the public 
 safety or the public morals require the dis- 
 continuance of any manufacture or traffic, 
 the legislature may provide for its discon- 
 tinuance, notwithstanding individuals or 
 corporations may thereby suffer inconveni- 
 ence. Supreme Ct. 1877, Beer Co. v. Mas- 
 sachusetts, 97 U. S. 25. 
 
 Minor Decisions on Liqnor-selUng. 
 
 Unless city's power to regulate liquor 
 sales is exclusive, seller in city may be 
 prosecuted under general State law: 86 I'll. 
 33. That liquor-shop might be sued for 
 penalty under city ordinance does not pre- 
 clude prosecuting it as a nuisance: 41 N. 
 J. L. 6; or prosecuting it under county or 
 State law: 1 Dak. T. 113; 6 Baxt. (Tenn.) 
 567. Rule that all laws shall have uniform 
 
 Literary property. Copyright. 
 Live-stock. Law of animals, generally, p. 21. 
 Lien of agisters on beasts, p. 22. Injuries by 
 
 operation does not forbid a law prohibiting 
 liquor-selling within two miles of any city: 
 51 Iowa, 197. Liability to seizure of liquors 
 irregularly bought by town authorities: 68 
 Me. 187. Appropriation of receipts for 
 liquor licenses to the school-fund: 8 Nel. 
 28; Id. 160. Licenses to sell ale and beer 
 in city of New York may be granted 
 to persons not innkeepers: 22 AW. L.J. 
 210. Sureties in a bond given on obtain- 
 ing a license are not liable for damages 
 recovered from the seller under a civil 
 damage law: 87 Pa. St. 168. Penalty for 
 selling liquor to persons " in habit of get- 
 ting intoxicated " is incurred if he has been 
 intoxicated often enough to gain an invol- 
 untary tendency thereto; he need not have 
 been usually intoxicated: 90 III. 59. Habit 
 of becoming intoxicated is not proved by 
 evidence of occasional drinking, or of hav- 
 ing been intoxicated years ago : 61 Ind. 219. 
 Selling to a minor in honest belief he is of 
 full age is not punishable: 63 Ind. 235. 
 Husband can be convicted on sales by wife, 
 if made with his knowledge: 124 Mass. 30. 
 Plaintiff suing for forfeiture for selling to 
 a minor need not prove that seller knew 
 the buyer's nonage ; or prove the case be- 
 yond reasonable doubt: Id. 277. Purchase 
 of bitters on information and belief that 
 they were not alcoholic is not punishable, 
 for want of criminal intent: 32 Ohio St. 
 456. No implied exemption of apothecaries 
 from general statute on liquor-seUin^ 9 
 Neb. 189. Agent of club who sells liquors 
 to, or allows gaming among, members only in 
 the club-rooms, held, punishable personalty 
 for selling liquor without license and per- 
 mitting gaming, &c. : 59 Ala. 34; Id. 71. 
 Pedler of liquors is indictable as a com- 
 mon seller, but is not liable to search and 
 seiziu-e: 68 Me. 418. Discharging one's 
 female employees and taking them into 
 partnership, held, a mere evasion, and in- 
 dictable under law punishing employment 
 of women in drinking-saloons: 88 Pa. St. 
 137. Maintaining a wine-room adjoining 
 one's theatre, held, a violation of a law 
 forbidding furnishing liquors in a place of 
 amusement: 7 Baxt. (Tenn.) 158. 
 
 LIS PENDENS. General doctrine of 
 lis pendens explained; and said to be fully 
 contained in 1 Johns. Ch. (N. Y.) 566, and 
 
 animals, pp. 22-23. Diseases, p. 24. Transport?- 
 tion of live-stock; and whose is the risk of («' 
 health on the way, pp. 69, 71. Punishment of cruelly 
 
LIS PENDENS. — LOTTERY. 
 
 277 
 
 2 U- 441. Supreme Ct. 1877, Warren 
 County V. Marcy, 97 U. S. 96. See also 
 1878, White w. Perry, 14 W. Va. 66. 
 
 LOTTERY. The legislature cannot bar- 
 gain away the police/ power of the State; 
 and to suppress lotteries, with other forms 
 of gambling, is within the police power. 
 Hence an act of a State legislature, charter- 
 ing a lottery for a specified term, in con- 
 sideration of payments to be made to the 
 State treasury, is not a contract protected 
 by the constitutional provision against im- 
 pairing obligation of contracts. Lotteries 
 are not mala in se ; but may properly be 
 made mala prohibita. They are a species of 
 gambling, and wrong in their influences. 
 The right to stop them is governmental, 
 and to be exercised at all times by those in 
 power, at their discretion. Any one who 
 accepts a lottery charter does so with the 
 implied understanding that the people, in 
 their sovereign capacity and through their 
 properly-constituted agencies, may take it 
 back at any time when the public good re- 
 quires; and this, whether it be paid for or 
 not. Such charter is simply a permit, good 
 as against existing laws, but subject to fu- 
 ture legislative and constitutional control 
 or withdrawal. U. S. Supreme Ct. Stone 
 ». Mississippi, 22 Alh. L. J. 8. 
 
 A grant to a corporation of power to 
 carry on a lottery must be very clearly 
 expressed in the charter or enabling act re- 
 lied upon. It will not be aided by con- 
 struction. The charter of the Tuscaloosa 
 Scientific & Art Association, incorpor- 
 ated to aid the University of Alabama, 
 authorized it "to receive subscriptions and 
 to sell and dispose of certificates of sub- 
 scription which shall entitle the holders 
 thereof to any articles which may be award- 
 ed to them ; " and directed that " the dis- 
 tribution of awards shall be fairly made in 
 public after advertisement, by the casting of 
 lots, or by lot, chance, or otherwise, ' ' in such 
 manner as shall be directed by the by-laws. 
 The association proceeded to sell certificate 
 of subscription certifying the holders of a 
 right to receive awards described in the cer- 
 
 to animals, p. 137. When live-stock are " at large," 
 p. 148. "Hog" includes pig, p. 162; maiming 
 animal, p. 162. Horses on highway, pp. 226-228. 
 Loan. Attorney of borrower not liable to lender 
 for error in certifying title to laud mortgaged, p. 
 32. Loans by national banks, pp. 37, 38. Loans 
 of building associations, p. 54. Loan' of State 
 credit, in California, restricted, p. 57. 
 
 tificate and it conducted from time to time 
 a public distribution of awards thus de- 
 scribed: 78 numbers printed on slips of 
 paper are severally encased in tubes, con- 
 cealing the number they bear ; these are put 
 in a wheel and, after some revolutions a 
 blindfolded person takes a number out, 
 passes it to some other person, who reads 
 it aloud and records it; then, other num- 
 bers are severally taken out — • eleven or 
 twelve in all — and opened and read in the 
 same manner. Any certificate which bears 
 any numbers or number corresponding with 
 any of those drawn by lot or chance as be- 
 fore described becomes entitled to the 
 award set forth on said certificate, as des- 
 ignated in advance by the holder, out of 
 those contained in the published list; and 
 if none of the numbers of a certificate cor- 
 respond with those cast by lot, then the 
 said certificate receives no award. Held, 
 that the scheme pra<;tised was a lottery, 
 and that it was not authorized by the char- 
 ter. Supreme Ct. 1878, Boyd v. State, 61 
 Ala. 177. 
 
 A contract by the holder of a ticket in a 
 lottery scheme, with one having no con- 
 nection with the original purchase of such 
 ticket, made after the rights of such holder 
 have been determined, whereby, for a 
 valuable consideration, he disposes of any 
 specified part of the money or property 
 which he may have gained by means of 
 such schepie, is not rendered invalid by the 
 fact that the subject-matter is a prize in 
 an illegal lottery. Supreme Ct. 1878, Koth- 
 rocko. Perkinson, 61 Ind. 39. 
 
 minor Decisions on Lottery. 
 Legislature of Territoi-y of Indiana had 
 power to grant L privilege to Vincennes 
 University, 66 Ind. 588; and that grant 
 could not be annulled by subsequent general 
 prohibition, and is still in force: J6. ; seems 
 overruled: 20 Alb. L. J. 8; supra; and so 
 does 3 Woods, 222. What is an "illegal 
 lotteiy," 73 N. Y. 473. Selling engage- 
 ments to pay money according to the draw- 
 ings of a I. in another State is a L ; 74 
 N. Y. 63. 
 
 Local option. License law may be submitted to 
 popular vote, p. 107; constitutionality of local- 
 option laws, pp. 275, 276. 
 
 Lord's Day. Sunday. 
 
 Lottery. Offence of sending lottery correspond- 
 ence and circulars through the mails, I'osT Office, 
 
 What are "illegal " lotteries, p. 159. Meaning . 
 of "lottery," p. 161. 
 
278 
 
 LOUISIANA. 
 
 LOUISIANA. The people of this 
 State adopted a uew constitution in 
 1879 (July 23). It supersedes the 
 constitution of 1868, and all amend- 
 ments thereto. The following are the 
 provisions comprised in it which are 
 new in substance, being stated in full if 
 apparentlj' of any general interest out- 
 side the State, otherwise only indexed. 
 There is a general reduction of salaries, 
 of which no notice is taken below ; and 
 there are also many instances of a pro- 
 vision of the old constitution restated 
 in the new, with some modification of 
 language, but without indicating a 
 change of sufficient importance to 
 warrant our repeating it. The heavy- 
 faced captions below are those of the 
 officially published copy of the instru- 
 ment. 
 
 Preamble. These words inserted: " ac- 
 knowledging and invoking the- guidance of 
 Almighty God, the author of all good gov- 
 ernment." 
 
 Bill of rights. " All government of 
 right originates with the people, is founded 
 on their will alone, and is instituted solely 
 for the good of the whole, deriving its just 
 powers from the consent of the governed. 
 Its only legitimate end is to protect the 
 citizen in the enjoyment of life, liberty, 
 and property. Wlien it assumes other 
 functions it is usurpation and oppression." 
 La. Const. 1879, art. 1. 
 
 "A well-regulated militia being neces- 
 sary to the security of a free State, the 
 right of the people to keep and bear arms 
 shall not be abridged. This shall not 
 prevent the passage of laws to punish 
 those who carry weapons concealed." Id. 
 art. 3. 
 
 "Ko law shall be passed respecting an 
 establishment of religion or prohibiting the 
 free exercise thereof, or abridging the free- 
 dom of speech, or of the press, or the right 
 of the people peaceably to assemble and 
 petition the government for a redress of 
 grievances." Id. art. 4. 
 
 " No person shall be held to answer for a 
 capital crime unless on a presentment or 
 indictment by a grand jury, except in cases 
 arising in the militia when in actual ser- 
 vice in time of war or public danger, nor 
 
 shall any person be twice put in jeopardy 
 of life or liberty for the same offence, ex- 
 cept on his own application for a new trial 
 or where there is a mis-trial, or a motion in 
 arrest of judgment is sustained." Id. art. 
 5, 1. cl. 
 
 " No person shall be compelled to give 
 evidence against himself in a criminal case 
 or in any proceeding that may subject him 
 to criminal prosecution, except where other- 
 wise provided in this constitution, nor be 
 deprived of life, liberty, or property without 
 due process of law." Id. art. 6. 
 
 "In all criminal prosecutions, the ac- 
 cused shall enjoy the right to a speedy pub- 
 lic trial by an impartial jury, except that, 
 in cases where the penalty is not necessarily 
 imprisonment at hard labor or death, the 
 general assembly may provide for the trial 
 thereof by a jury less than twelve in num- 
 ber; provided, that the accused in every 
 instance shall be tried in a parish wherein 
 the offence shall have been committed, ex- 
 cept in cases of change of venue." Id. 
 art. 7. 
 
 " In all criminal prosecutions the accused 
 shall enjoy the right to be informed of the 
 nature and cause of the accusation, to be 
 confronted with the witnesses against him, 
 to have compulsory process for obtaining 
 witnesses in his favor, and to defend him- 
 self, and to have the assistance of counsel, 
 and to have the right to challenge jnrors 
 peremptorily, the number of challenges to 
 be fixed by statute." Id. art. 8. 
 
 " The military shall be in subordination 
 to the civil power: " Id. art. 12 ; art. 162; 
 " and no soldier shall, in time of peace, be 
 quartered in any house without the consent 
 of the owner." Id. art. 162. 
 
 Distribntion of powers. The powers 
 of government of the State divided into 
 three distinct departments each confided to 
 a separate magistracy; viz., the legislative, 
 the executive, the judicial. Neither, nor 
 any person in either, shall exercise any 
 power belonging to another, except as ex- 
 pressly permitted. Id. art. 14. 
 
 Legislative department : apportion- 
 ment. ' ' Representation in the house of rep- 
 resentatives shall be equal and uniform, 
 and shall be regulated and ascertained by 
 the total population. Each parish shall 
 have at least one representative." Direc- 
 tions given for decennial enumerations of 
 the population. Mode of apportionment 
 
LOUISIANA. 
 
 279 
 
 of representatives prescribed. A division 
 of the State into senatorial districts di- 
 rected. Temporary apportionment ar- 
 ranged. Id. arts. 16, 17. 
 
 General assembly. Biennial sessions 
 adopted ; commencing on the second Mon- 
 day of May, 1882. Vacancies to be filled 
 by special elections. Id. art. 21. 
 
 Five years' citizenship, and two years' 
 residence in State required, immediately 
 previous to election to general assembly. 
 Change of residence shall vacate seat. Id. 
 art. 22. 
 
 Journal of each house, how to be kept and 
 published. Id. art. 28. 
 
 " Every law enacted by the general as- 
 sembly shall embrace but one object, and 
 that shall be expressed in the title." Id. 
 art. 29. 
 
 Call of one-fifth of the members elected 
 (instead of call of two members) required 
 for yeas and nays. Id. art. 34. 
 
 Bill once rejected in either house shall 
 not be proposed again in same house, dur- 
 ing same session, without consent. Id. 
 art. 36. 
 
 Manner of reading and passing bills pre- 
 scribed. Id. art. 37. 
 
 Manner of concurring in amendments; 
 and of acting on report of committee of 
 conference. Id. art. 38. 
 
 Manner of enrolling and signing bills ; of 
 transmitting them to the other house; and 
 to the governor, after final passage, — pre- 
 scribed. Id. art. 39. 
 
 " No law passed by the general assem- 
 bly, except the general appropriation act, 
 or act appropriating money for the ex- 
 penses of the general assembly, shall take 
 effect until promulgated. A law shall be 
 considered promulgated at the place where 
 the State journal is published the day after 
 the publication of such law in the State 
 journal, and in all other parts of the State 
 twenty days after such publication." Id. 
 art. 40. 
 
 Restriction on clerical sei-vice; and ex- 
 penses thereof, of the two houses. Id. 
 art. 41. 
 
 Stationery and printing for the general 
 assembly to be furnished by contract. Id. 
 art. 42. 
 
 Limitation of legislative powers. 
 "No money shall be drawn from the 
 treasury except in pursuance of specific 
 appropriation made by law; nor shall any 
 
 appropriation of money be made for a 
 longer term than two years." Quarterly 
 statement of receipts and expenditures of 
 public moneys, prescribed. Id. art. 43. 
 
 "The general assembly shall have no 
 power to contract, or to authorize the con- 
 tracting of, any debt or liability on behalf 
 of the State, or to issue bonds or other 
 evidence of indebtedness thereof, except 
 for the purpose of repelling invasion or 
 for the suppression of insurrection." Id. 
 art. 44. 
 
 " The general assembly shall have no 
 power to grant or to authorize any parish 
 or municipal authority to grant any extra 
 compensation, fee, or allowance to a public 
 officer, agent, servant, or contractor, nor 
 pay, nor authorize the payment, of any 
 claim against the State, or any parish or 
 municipality of the State, under any agree- 
 ment or contract made without express au- 
 thority of law; and all such unauthorized 
 agreements or contracts shall be null and 
 void." Id. art. 45. 
 
 " The general assembly shall not pass 
 any local or special law on the following 
 specified objects: For the opening and con- 
 ducting of elections, or fixing or changing 
 the place.of voting. Changing the names 
 of persons. Changing the venue in civil 
 or criminal cases. Authorizing the lay- 
 ing out, opening, closing, altering, or main- 
 taining roads, highways, streets, or alleys, 
 or relating to ferries and bridges, or 
 incorporating bridge or ferry companies, 
 except for the erection of bridges crossing 
 streams which form boundaries between 
 this and any other State. Authorizing the 
 adoption or legitimation of children, or the 
 emancipation of minors. Granting di- 
 vorces. Changing the law of descent or 
 succession. Affecting the estates of minors 
 or persons under disabilities. Remitting 
 fines, penalties, and forfeitures, or refund- 
 ing money legally paid into the treasury. 
 Authorizing the constructing of street pas- 
 senger railroads in any incoi-porated town 
 or city. Regulating labor, trade, manufac- 
 turing, or agriculture. Creating corpora- 
 tions, or amending, renewing, extending, 
 or explaining the charter thereof; provided 
 that this shall not apply to the coi-poration 
 of the city of New Orleans, or to the or- 
 ganization of levee districts and parishes. 
 Granting to any corporation, association, 
 or individual any special or exclusive right, 
 
280 
 
 LOUISIANA. 
 
 privilege, or immunity. Extending the 
 time for the assessment or collection of 
 taxes, or for the relief of any assessor or 
 collector of taxes from the due perform- 
 ance of his official duties, or of his securi- 
 ties from liability; nor shall any such be 
 passed by any political corporation of this 
 State. Regulating the practice or juris- 
 diction of any court, or changing the rules 
 of evidence in any judicial proceeding 
 or inquiry before courts, or providing or 
 changing methods for the collection of 
 debts or the enforcement of judgments, 
 or prescribing the effects of judicial sales. 
 Exemption of property from taxation. 
 Fixing the rate of interest. Concerning 
 any civil or criminal a^tioBS. Giving ef- 
 fect to informal or invalid wUls or deeds, 
 or to any illegal disposition of property. 
 Regulating the management of public 
 schools, the building or repairing of school- 
 houses, and the raising of money for such 
 purposes. Legalizing the unauthorized or 
 invalid acts of any officer, servant, agent 
 of the State, or of any parish or munici- 
 pality thereof." Id. art. 46. 
 
 " The general assembly shall not indi- 
 rectly enact special or local laws, by the 
 partial repeal of a general law; but laws 
 repealing local or special laws may be 
 passed." Id. art. 47. 
 
 " No local or special law shall be passed 
 on any subject not enumerated in article 
 46, unless notice of the intention to apply 
 therefor shall have been published without 
 cost to the State in the locality." Manner 
 of publishing and proving such notice pre- 
 scribed. Id. art. 48. 
 
 " No law shall be passed fixing the price 
 of manual labor." Id. art. 49. 
 
 " Any member of the general assembly 
 who has a personal or private interest in 
 any measure or biU proposed or pending 
 before the general assembly shall disclose 
 the fact to the house of which he is a mem- 
 ber, and shall not vote thereon." Id. 
 art. 50. 
 
 " No money shall ever be taken from the 
 public treasury, directly or indirectly, in 
 aid of any church, sect, or denomination of 
 religion, or in aid of any priest, preacher, 
 minister, or teacher thereof, as such, and 
 no preference shall ever be given to, nor 
 any discrimination made against, any 
 church, sect, or creed of religion, or any 
 form of religious faith or worship, nor 
 
 shall any appropriations be made for pri- 
 vate, charitable, or benevolent purposes to 
 any person or community; provided!, this 
 shall not apply to the State asylums for the 
 insane and deaf, dumb, and blind, and 
 the charity hospitals and public charitable 
 institutions conducted under State author- 
 ity." Id. art. 51. 
 
 " The general assembly shall have no 
 power to increase the expenses of any 
 office by appointing assistant officials. ' ' Id. 
 art. 52. 
 
 " The general appropriation bill shall 
 embrace nothing but appropriations for 
 the ordinary expenses of the government, 
 interest on the public debt, public schools, 
 and public charities, and such bill shall be 
 so itemized as to show for what account 
 each and every appropriation shall be 
 made. All other appropriations shall be 
 made by separate bills, each embracing 
 but one object." Id. art. 53. 
 
 " Each appropriation shall be for a spe- 
 cific purpose, and no appropriation shall 
 be made under the head or title of contin- 
 gent ; nor shall any officer or department of 
 government receive any amount from the 
 treasury for contingencies or for a contin- 
 gent fund." id. art. 54. 
 
 " No appropriation of money shall be 
 made by the general assembly in the last 
 five days of the session thereof; all appro- 
 priations, to be valid, shall be passed and 
 receive the signatures of the president of 
 the senate and speaker of the house of 
 representatives five full days before the ad- 
 journment sine die of the general assem- 
 bly." Id. art. 55. 
 
 " The funds, credit, property, or things 
 of value of the State, or of any political 
 corporation thereof, shall not be loaned, 
 pledged, or granted to or for any person or 
 persons, association or corporation, public 
 or private ; nor shall the State, or any po- 
 litical corporation, purchase or subscribe 
 to the capital or stock of any corporation 
 or association whatever, or for any private 
 enterprise. Nor shall the State, nor any 
 political corporation thereof, assume the 
 liabilities of any political, municipal, pa- 
 rochial, private, or other corporation or as- 
 sociation whatsoever; nor shall the State 
 undertake to carry on the business of any 
 such corporation or association, or become 
 a part-owner therein ; provided, the State, 
 through the general assembly, shall have 
 
LOUISIANA. 
 
 281 
 
 power to grant the right of way through its 
 public lands to any railroad or canal." M. 
 ai-t. 56. 
 
 "The general assembly shall have no 
 power to release or extinguish, or to au- 
 thorize the releasing or extinguishing, in 
 whole or in part, the indebtedness, liabil- 
 ity, or obligation of any corporation or in- 
 dividual to this State, or to any parish or 
 municipal corporation therein; provided, 
 the heirs to confiscated property may be 
 released of aU taxes due thereon at the 
 date of its reversion to them." Id. art. 
 57. 
 
 Executive department. " The execu- 
 tive department shall consist of a governor, 
 lieutenant-governor, auditor, treasurer, and 
 secretary of state." Id. art. 58. 
 
 Who shall be eligible for governor de- 
 fined anew; requii-ing ten years' (instead 
 of two) previous citizenship and residence, 
 and omitting the former prohibition on re- 
 election. Id. art. 60. 
 
 "In the event of the removal, impeach- 
 ment, death, resignation, disability, or 
 refusal to qualify of both the governor and 
 lieutenant-governor, the president pro tem- 
 pore of the senate shall act as governor 
 until the disability be removed or for the 
 residue of the term." Id. art. 62, 1. cl. 
 
 The pardoning power defined anew; and 
 limited by requiring previous official rec- 
 ommendations. Id. art. 66. 
 
 Legislation at extraordinary sessions 
 shall be limited to the objects and within 
 the time (never nvsre than twenty days) 
 specified in the governor's proclamation. 
 " Any legislative action had after the time 
 so hmited, or as to other objects than those 
 enumerated in said proclamation, shall be 
 null and void." Id. art. 72. 
 
 Grovemor may veto single items of an 
 appropriation bill. Id. art. 74. 
 
 " The treasurer, auditor, attorney-gen- 
 eral, and secretary of state shall be elected 
 by the qualified electors of the State for 
 the term of four years; " vacancies to be 
 filled by appointment until the next elec- 
 tion. Id. art. 76. 
 
 Restrictions on appropriations for cleri- 
 cal expenses of executive officers. Id. 
 art. 78. 
 
 Judiciary department. " The judicial 
 power shall be vested in a supreme court, 
 in courts of appeal, in district courts, and 
 in justices of the peace." (Creating courts 
 
 of appeal and omitting parish courts.) Id. 
 art. 80. 
 
 Jurisdiction of supreme court restated, 
 substantially as before, except that the 
 jurisdictional amount is raised from $500 
 to $1,000; and suits for divorce or separa- 
 tion are added. Id. art. 81. 
 
 Salaries and appointment of the supreme 
 court chief justice and associate justices 
 prescribed. Term of office raised (from 
 eight) to twelve yeai'S. Mode of filling va- 
 cancies. Id. art. 82. 
 
 " The State shall be divided into four 
 supreme court districts, and the supreme 
 court shall always be composed of judges 
 appointed from those districts." The par- 
 ishes to compose the several districts desig- 
 nated. Id. art. 83. 
 
 Reporter of the supreme court ; his 
 duties; manner of appointment, and re- 
 moval ; and salary. Id. art. 88. 
 
 " The supreme court shall have control 
 and general supervision over all inferior 
 courts. They shall have power to issue 
 writs of certiorari, prohibition, mandamua, 
 quo warranto, and other remedial writs." 
 Id. art. 90. 
 
 " The general assembly shall provide for 
 appeals from the district courts to the su- 
 preme court upon questions of law alone, 
 when the party or parties aggrieved desire 
 only a review of the law." Id. art. 91. 
 
 Attomey-generaL Five years' resi- 
 dence and practice in the State, required 
 of candidate for attorney-general. Id. 
 art. 94. 
 
 Courts of appeaL " The courts of ap- 
 peal, except in cases hereinafter provided, 
 shall have appellate jurisdiction only, 
 which jurisdiction shall extend to all 
 cases, civil or probate, when the matter in 
 dispute or the funds to be distributed shall 
 exceed f200, exclusive of interest, and 
 shall not exceed $1,000, exclusive of inter- 
 est." Id. art. 95. 
 
 " The courts of appeal shall be com- 
 posed of two circuit judges, who shall be 
 elected by the two houses of the general 
 assembly in joint session. They shall be 
 learned in the law, and shall have resided 
 and practised law in this State for six 
 years, and shall have been actual residents 
 of the circuit from which they shall be 
 elected for at least two years next preced- 
 ing their election." Id. art. 96. 
 
 " The State, with the exception of the 
 
282 
 
 LOUISIANA. 
 
 parish of Orleans, shall be divided into five 
 circuits, from each of -which two judges 
 shall be elected." The parishes to com- 
 pose the several circuits designated, tem- 
 porarily. Id. art. 07. 
 
 Two terms of a court of appeal to be 
 held annually in each parish. The times 
 of holding them, prescribed, temporarily. 
 Id. arts. 98, 99. 
 
 Various regulations for the courts of ap- 
 peal prescribed. Id. arts. 100-106. 
 
 " District courts shall have original 
 jurisdiction in all civil matters where the 
 amount in dispute shall exceed $50, exclu- 
 sive of interest. They shall have unlimited 
 original jurisdiction in all criminal, pro- 
 bate, and succession matters, and when a 
 succession is a party defendant. " Manner 
 of electing district judges; who is eligible; 
 and how vacancies may be filled. Id. art. 
 109. 
 
 General assembly may increase the num- 
 ber of district judges in any district. Id. 
 art. 110. 
 
 " The district courts shall have jurisdic- 
 tion of appeals from justices of the peace 
 in all matters where the amount in contro- 
 versy shall exceed $10, exclusive of inter- 
 est." Id. art. 111. 
 
 Time during which one has been judge 
 may be counted towards the term for which 
 he must have been in practice, to be eligi- 
 ble for another appointment. Id. art. 113. 
 
 Legislation affecting a judge in his 
 term, salary, or jurisdiction, forbidden. 
 Id. § 114. 
 
 District judges empowered to issue writs 
 of habeas corpus. Id. art. 115. 
 
 ' ' The general assembly, at its first session 
 under this constitution, shall provide by gen- 
 eral law for the selection of competent and 
 intelligent jurors, who shall have capacity 
 to serve as grand jurors and try and deter- 
 mine both civil and criminal cases, and 
 may provide in civil cases that a verdict be 
 rendered by the concurrence of a less num- 
 ber than the whole." Id. art. 116. 
 
 Terms of the district courts prescribed. 
 Id. art. 117. 
 
 Sheriffs and coroners. Their election, 
 bond, qualifications, powers, duties, and 
 compensation prescribed. Id. arts. 118-120. 
 
 Clerks. " There shall be a clerk of the 
 district court in each parish, the parish of 
 Orleans excepted, who shall be, ex officio, 
 clerk of the court of appeal." How he 
 
 shall be elected. Powers as recorder and 
 notary. Bond. Id. art. 121. 
 
 " The general assembly shall have power 
 to vest in clerks of courts authority to 
 grant such orders and to do such acts as 
 may be deemed necessary for the further- 
 ance of the administration of justice; and 
 in all cases powers thus vested shall be 
 specified and determined." Id. ai-t. 122. 
 
 Clerks of district courts may appoint 
 deputies. Id. art. 123. 
 
 District attorneys. Election, salary, 
 qualifications, and fees of district attorneys; 
 and mode of filling vacancies. Id. art. 
 124. 
 
 Justices of the peace. Their election. 
 " They shall have exclusive original juris- 
 diction in all civil matters when the amount 
 in dispute shall not exceed $50, exclusive 
 of interest, and original jurisdiction con- 
 current with the district court, when the 
 amount in dispute shall exceed $50, exclu- 
 sive of interest, and shall not exceed $100, 
 exclusive of interest. They shall have no 
 jurisdiction in succession or probate mat- 
 ters, or when a succession is a defendant. 
 They shall have criminal jurisdiction as 
 committing magistrates, and shall have 
 power to bail or discharge in cases not 
 capital or necessarily punishable at hai-d 
 labor." Id. arts. 125, 126. 
 
 Constables. To be elected. Their pay, 
 &c., to be fixed by the general assembly. 
 Id. art. 127. 
 
 Courts of the parish and city of New 
 Orleans. "There shall be in the parish 
 of Orleans a court of appeals for said parish, 
 with exclusive appellate jurisdiction in all 
 matters, civil or probate, arising in said 
 parish, when the amount in dispute or fund 
 to be distributed exceeds $200, interest ex- 
 cluded, and is less than $1,000, exclusive of 
 interest. Said appeals shall be upon ques- 
 tions of law alone in aU cases involving less 
 than $500, exclusive of interest, and upon 
 the law and the facts in other cases. It 
 shall have authority to issue writs of man- 
 damus, prohibition, certiorari, and habeas 
 corpus in aid of its appellate jurisdiction." 
 Election, qualifications, and compensation 
 of the judges of such court. Transfer of 
 pending causes. Id. art. 128. 
 
 " For the parish of Orleans there shall 
 be two district courts and no more. One 
 of said courts shall be known as the civil 
 district court for the parish of Orleans, and 
 
LOUISIANA. 
 
 283 
 
 the other as the criminal district court for 
 the parish of Orleans." Qualifications, 
 appointment, and salaries of the judges 
 prescribed. " Said civil district court shall 
 have exclusive and general probate and ex- 
 clusive civil jurisdiction in all causes where 
 the amount in dispute or to be distrib- 
 uted exceeds flOO, exclusive of interest." 
 Directions for assignment of causes among 
 the judges, and for reassignment in cases 
 of recusation or vacancy. " The criminal 
 district court shall have general criminal 
 jurisdiction only." Prosecutions to be ap- 
 portioned among the judges by lot. Pro- 
 vision for reassignment in cases of vacancy 
 or recusation. Each judge, in either coui-t, 
 to have exclusive control over causes as- 
 signed to him. Id. art. 130. 
 
 Power to increase the number of judges 
 in the last above-named courts. Id. art. 
 131. 
 
 These courts to regulate order of trying 
 causes; and to adopt rules of procedure. 
 Id. art. 132. 
 
 The civil district court directed to select 
 a bank of deposit for moneys in custody of 
 the court. Id. art. 133. 
 
 District attorney for the parish of Orleans. 
 His qualifications, election, salary, and as- 
 sistant. Id. art. 134. 
 
 Three city courts constituted for the city 
 of New Orleans; to have "exclusive and 
 final jurisdiction over all sums not exceed- 
 ing $100, exclusive of interest." Powers 
 of general assembly to legislate as to them. 
 Id. art. 135. 
 
 " The general assembly may provide for 
 police or magistrates' courts ; but such 
 courts shall not be vested with jurisdiction 
 beyond the enforcement of municipal ordi- 
 nances or as committing magistrates." Id. 
 art. 136. 
 
 Regulations as to clerks of courts in the 
 city of New Orleans: Id. arts. 137, 138. 
 And as to sheriffs in the parish of Orleans : 
 /(/.arts 139-140; constables there : /rf. art. 
 143; register of conveyances and recorder 
 of mortgages: Id. art. 145; officers' fees and 
 charges: Id. arts. 145, 146; and coroners 
 and maintenance of prisoners: Id. art. 147. 
 
 General provisions. Oath of office re- 
 duced to a pledge to support the constitu- 
 tion and laws of the United States and of 
 the State, and to faithfully and impartially 
 discharge all the duties of the office. Id. 
 art. 149. 
 
 " The seat of government shall be and 
 remain at the city of Baton Rouge. The 
 general assembly, at its first session after 
 the adoption of this constitution, shall make 
 the necessary appropriations for the repair 
 of the State-house and for the transfer of 
 the archives of the State to Baton Rouge; 
 and the city council of Baton Rouge is 
 hereby authorized to issue certificates of 
 indebtedness, in such manner and form as 
 to cover the subscription of .135,000, ten- 
 dered by the citizens and the city council ■ 
 of said city to aid in repairing the capitol 
 in said city; provided, the city of Baton 
 Rouge shall pay into the State treasury- 
 said amount of $35,000 before the contract 
 for the repairs of the State-house be finally 
 closed." Id. art. 150. 
 
 " No member of Congress or person hold- 
 ing or exercising any office of trust or profit 
 under the United States, or either of them, 
 or under any foreign power, shall be eligible 
 as a member of the general assembly, or 
 hold or exercise any office of trust or profit 
 under the State." Id. art. 153. 
 
 Laws and proceedings must be in Eng- 
 lish ; but general assembly may authorize 
 publication of laws and judicial advertise- 
 ments also in French. Id. art. 154. 
 
 " Private property shall not be taken nor 
 damaged for public purposes without just 
 and adequate compensation being first 
 paid." Id. art. 156. 
 
 ' ' No power of suspending the laws of 
 this State shall be exercised unless by the 
 general assembly or its authority." Id. 
 art. 157. 
 
 Municipal corporations, as well as par- 
 ishes, to support their respective paupers. 
 Id. art. 163. 
 
 " It shall be the duty of the general as- 
 sembly to pass such laws as may be proper 
 and necessary to decide difierences by arbi- 
 tration." Id. art. 165. 
 
 " The power of the courts to punish for 
 contempt shall be limited bylaw." Id. 
 art. 166. 
 
 " The general assembly shall have au- 
 thority to grant lottery charters or privi-- 
 leges; provided, each charter or privilege 
 shall pay not less than $40,000 per annum 
 in money into the treasury of the State; 
 and provided further, that all charters shall 
 cease and expire on the first of January, 
 1895, from which time all lotteries are 
 prohibited in the State." Disposition of 
 
284 
 
 LOUISIANA. 
 
 certain lottery funds directed. Id. art. 
 167. 
 
 "In all proceedings or indictments for 
 libel, the truth thereof may be given in 
 evidence. The jury in all criminal cases 
 shall be judges of the law and of the facts 
 on the question of guilt or innocence, hav- 
 ing been chai-ged as to the law applicable 
 to the case by the presiding judge." Id. 
 art. 168. 
 
 " No ofBcer whose salary is fixed by the 
 constitution shall be allowed any fees or 
 perquisites of office, except where otherwise 
 provided for by this constitution." Id. 
 art. 169. 
 
 " The regulation of the sale of alcoholic 
 or spirituous liquors is declared a police 
 regulation, and the general assembly may 
 enact laws regulating their sale and use." 
 Id. art. 170. 
 
 " Gambling is declared to be a vice, and 
 the general assembly shall enact laws for 
 its suppression. " /d. art. 172. 
 
 Stringent provisions defining bribery; 
 and declaring any person found guilty 
 thereof for ever disqualified from holding 
 office or sitting in the general assembly. 
 Id. art. 173. 
 
 No person excused from testifying as to 
 bribery because his testimony would crimi- 
 nate himself, but it shall not be used against 
 him. Id. art. 174. 
 
 Laws must be passed to protect laborers 
 against failure of contractors to pay their 
 wages, and to hold the ultimate employer 
 responsible. Id. art. 175. 
 
 " No mortgage or privilege on immov- 
 able property shall affect third persons un- 
 less recorded or registered in the parish 
 where the property is situated, in the 
 manner and within the time as is now or 
 may be prescribed by law, except privileges 
 for expenses of last illness and privileges 
 for taxes. State, parish, or municipal; pro- 
 vided, such privilege shall lapse in three 
 years." Id. art. 176. 
 
 "Privileges on movable property shall 
 exist without registration for the same, ex- 
 cept in such cases as the general assembly 
 may prescribe by law after the adoption of 
 this constitution." Id. art. 177. 
 
 The general assembly directed to care 
 for the practice of medicine. Id. art. 178. 
 
 And to create a bureau of agriculture, 
 &c. Id. art. 179. 
 
 The new canal and shell road. Beg- 
 
 ulations to protect the same, and the in^ 
 terests of the State therein. Id. art. 180. 
 
 Militia. The general assembly shall have 
 power to provide as to the militia. The 
 officers and men shall receive no pay when 
 not in active service. Who may be ex- 
 empted from the duty. Powers of the 
 governor. Id. arts. 181, 182. 
 
 Suifrage and elections. "In all elec- 
 tions by the people the electors shall vote 
 by ballot; and in all elections by persons 
 in a representative capacity the vote shall 
 be viva voce." Id. art. 184. 
 
 A system of registration shall be pro- 
 vided by law for the parish of Orleans; 
 and may be in other parishes. Id. ai-t. 
 186. 
 
 "The following persons shall not be 
 permitted to register, vote, or hold any 
 office or appointment of honor, profit, or 
 trust in this State, to wit : Those who shall 
 have been convicted of treason, embezzle- 
 ment of public funds, malfeasance in office, 
 larceny, bribery, illegal voting, or other 
 crime punishable by hard labor or imprison- 
 ment in the penitentiary, idiots, and insane 
 persons." Id. art. 187. 
 
 ' ' No qualification of any kind for suffrage 
 or office, nor any restraint upon the same, 
 on account of race, color, or previous con- 
 dition, shall be made by law." Id. art. 
 188. 
 
 " Electors shall, in all cases except for 
 treason, felony, or breach of the peace, 
 be privileged from arrest during their 
 attendance on elections, and in going to 
 and returning from the same." Id. art. 
 189. 
 
 " The general assembly shall by law for- 
 bid the giving or selling of intoxicating 
 drinks, on the day of election, within one 
 mile of precincts, at any election held within 
 this State." Id. art. 190. 
 
 " Until otherwise provided bylaw, the 
 genei-al State election shall be held, once 
 every four years, on the Tuesday next fol- 
 lowing the third Monday in April." Id. 
 art. 191. 
 
 ' ' Parochial and municipal elections in the 
 cities of New Orleans and Shrevepoi-t shall 
 be held on the same day as the general 
 State election, and not oftener than once 
 in four years." Id. art. 192. 
 
 "For the purpose of voting, no person 
 shall be deemed to have gained a residence 
 by reason of his presence, or lost it by re?r 
 
LOmSIANA. 
 
 285 
 
 son of his absence, -while employed in the 
 service, either civil or military, of this 
 State or of the United States, nor while 
 engaged in the navigation of the waters of 
 this State or the United States, or of the 
 high seas, nor while a student of any in- 
 stitution of learning." Id. art. 193. 
 
 " The general assembly shall provide by 
 law for the trial and determination of con- 
 tested elections of all public oflBcers, whether 
 State, judicial, parochial, or municipal." 
 Id. art. 194. 
 
 " No person shall be eligible to any office, 
 State, judicial, parochial, municipal, or 
 ward, who is not a citizen of this State and a 
 duly qualified elector of the State, judicial 
 district, parish, municipality, or ward 
 wherein the functions of said office are to be 
 exercised. And whenever any officer, State, 
 judicial, parochial, municipal, or ward, 
 may change his residence from this State, or 
 from the district, parish, municipality, or 
 ward wherein the functions of said office 
 are to be exercised; and whenever any 
 officer. State, judicial, parochial, municipal, 
 or ward, may change his residence from 
 this State, or from the district, parish, 
 municipality, or ward in which he holds 
 such office, — the same shall thereby be va- 
 cated, any declaration of retention of domi- 
 cile to the contrary notwithstanding." Id. 
 art. 19.5. 
 
 Impeachment and remorals from of- 
 flce. These subjects provided for anew, 
 and in much greater detail than formerly. 
 Id. arts. 196-201. 
 
 Kerenue and taxation. "The taxing 
 power may be exercised by the general as- 
 sembly for State purposes, and by parishes 
 and municipal corporations, under author- 
 ity granted to them by the general assem- 
 bly for parish and municipal purposes." 
 Id. art. 202. 
 
 " Taxation shall be equal and uniform 
 throughout the territorial limits of the 
 authority levying the tax, and all property 
 'shall be taxed in proportion to its value, 
 to be ascertained as directed by law ; pro- 
 vided, the assessment of all property shall 
 never exceed the actual cash value thereof, 
 and provided further, that the taxpayers 
 shall have the right of testing the correct- 
 ness of their assessments before the courts 
 of justice." A system of equality and 
 uniformity of assessment founded upon a 
 valuation to be the same for State and 
 
 local taxation must be established by law. 
 Id. art. 203. 
 
 " The taxing power shall be exercised 
 only to carry on and maintain the govern- 
 ment of the State and the public institu- 
 tions thereof, to educate the children of 
 the State, to pay the principal and interest 
 of the public debt, tosuppress insurrection, 
 repel invasion, or defend the State in time 
 of war, to supply the citizens of the State 
 who lost a limb or limbs in the military 
 service of the Confederate States with sub- 
 stantial artificial limbs during life, and for 
 levee purposes as hereinafter provided." 
 Id. art. 204. 
 
 " The power to tax corporations and cor- 
 porate property shall never be suiTendered 
 nor suspended by the act of the general as- 
 sembly." Id. art. 205. 
 
 " The general assembly may levy a li- 
 cense tax, and in such case shall graduate 
 the amount of such tax to be collected 
 from the persons pursuing the several 
 trades, professions, vocations, and callings. 
 All persons, associations of persons, and 
 corporations pursuing any trade, profes- 
 sion, business, or calling may be rendered 
 liable to such tax, except clerks, laborers, 
 clergymen, school-teachers, those engaged in 
 mechanical, agricultural, horticultural, and 
 mining pursuits, and manufacturers other 
 than those of distilled alcoholic or malt 
 liquors, tobacco and cigars, and cotton-seed 
 oil. No political corporation shall impose 
 a greater license tax than is imposed by the 
 general assembly for State purposes. " Id. ' 
 art. 206. 
 
 " The following property shall be ex- 
 empt from taxation, and no other, viz. : All 
 public property, places of religious worship 
 or burial, all charitable institutions, all 
 buildings and property used exclusively 
 for colleges or other school purposes, the 
 real and personal estate of any public 
 library and that of any other literary asso- 
 ciation used by or connected with such 
 library, all boobs and philosophical ap- 
 paratus, and all paintings and statuary of 
 any company or association kept in a pub- 
 lic hall ; provided, the property so exempted 
 be not used or leased for purposes of 
 private or corporate profit or income. 
 There shall also be exempted from taxa- 
 tion household property to the value of 
 $500. There shall also be exemption 
 from taxation and license for a period 
 
286 
 
 LOUISIANA. 
 
 of ten years from the adoption of this 
 constitution, the capital, machinery, and 
 other property employed in the manu- 
 facture of textile fabrics, leather, shoes, 
 harness, saddlery, hats, flour, machinery, 
 agricultural implements, and furniture and 
 other articles of wood, marble, or stone ; 
 soap, stationery, ink and paper, boat-build- 
 ing and chocolate; provided, that no less 
 than five hands are employed in any one 
 factory." Id. art. 207. 
 
 Annual poll-tax to be levied for main- 
 tenance of public schools. Id. art. 208. 
 
 Restriction on amount of State tax al- 
 lowable in any one year. Id. art. 209. 
 
 There shall be no forfeiture of property 
 for non-payment of taxes. Sale of property 
 therefor authorized; upon notice, &c., to be 
 of the " least quantity of the debtor's prop- 
 erty which any bidder will buy for the 
 amount of the taxes, interest, and costs." 
 " The sale shall be without appraisement, 
 and the property sold shall be redeemable 
 at any time for the space of one year, by 
 paying the price given, with twenty per 
 cent and costs added. No sale of property 
 for taxes shall be annulled for any in- 
 formality in the proceedings until the price 
 paid, with ten per cent interest, be tendered 
 to the purchaser. All deeds of sale made, 
 or that may be made, by collectors of 
 taxes, shall be received by courts in evi- 
 dence as prima facie valid sales." Id. art. 
 210. 
 
 " The tax shall be designated by the 
 year in which it is collectible, and the tax 
 on movable property shall be collected in 
 the year in which the assessment is made." 
 Id. art. 211. 
 
 " The legislature shall pass no law post- 
 poning the payment of taxes, except in 
 case of overthrow, general conflagration, 
 general destruction of the crops, or other 
 public calamity." /(i.. art. 212. 
 
 Provisions authorizing and regulating a 
 levee system ; unless the Federal govern- 
 ment shall take charge of the levees. Id. 
 arts. 213-216. 
 
 " Corporations, companies, or associ- 
 ations organized or domiciled out of this 
 State, but doing business herein, may be 
 licensed by a mode different from that 
 provided for home corporations or com- 
 panies; provided, said different mode of 
 license shall be uniform, upon a graduated 
 system, as to all such corporations, com- 
 
 panies, or associations that transact the 
 same kind of business." Id. art. 217. 
 
 Homesteads and exemptions. "There 
 shall be exempt from seizure and sale 
 by any process whatever, except as here- 
 in provided, the ' homestead ' bonS fide 
 owned by the debtor and occupied by 
 him, consisting of lands, buildings, and 
 appurtenances, whether rural or urban; of 
 every head of a family, or person having a 
 mother or father, a person or persons de- 
 pendent on him or her for support;" also 
 certain specified personal property. " In 
 case the homestead exceeds $2,000 in value, 
 the beneficiary shall be entitled to that 
 amount in case a sale of the homestead 
 under any legal process realizes more than 
 that sum. No husband shall have the 
 benefit of a homestead whose wife owns 
 and is in the actual enjoyment of property 
 or means to the amount of $2,000. Such 
 exemptions, to be valid, shall be set apart 
 and registered as shall be provided by law. 
 The benefit of this provision may be 
 claimed by the surviving spouse or minor 
 child or children of a deceased beneficiary 
 if in indigent circumstances." Id. art. 
 219. 
 
 Homestead exemption "shall not apply 
 to the following cases, to wit: (1) For the 
 purchase price of said property or any part 
 thereof. (2) For labor and material fur- 
 nished for building, repairing or improving 
 homesteads. (3) For liabilities incurred 
 by any public officer or fiduciary or any 
 attorney-at-law for money collected or re- 
 ceived on deposit. (4) For lawful claims 
 for taxes or assessments." Id. art. 220. 
 
 " The owner of a homestead shaltat any 
 time have the right to supplement his ex- 
 emption by adding to an amount already 
 set apart which is less than the whole 
 amount of exemption herein allowed, suf- 
 ficient to make his homestead and exemp- 
 tion equal to the whole amount allowed by 
 this constitution." Id. art. 221. 
 
 " The homestead shall not be susceptible 
 of mortgage, except for the purchase price, 
 labor and material furnished for the build- 
 ing, repairing, or improving homestead; nor 
 shall any renunciation or waiver of home- 
 stead rights or exemptions be vaUd. The 
 right to sell any property which .shall be 
 recorded as a homestead shall be preserved, 
 but no sale shall destroy or impair any 
 rights of creditors therein." Id. art. 222. 
 
LOUISIANA. 
 
 287 
 
 Laws to protect creditors from frauds by 
 debtors, &c., must be passed. Id. art. 
 223. 
 
 Public education. Establishment of 
 tree public schools throughout the State, 
 directed; and regulations for supporting 
 and managing them, election of a State 
 superintendent and parish superintendents, 
 &o., prescribed anew in somewhat greater 
 detail than formerly. The school fund de- 
 fined and protected. Id. arts. 224-229. 
 
 Concerning' a State university. The 
 university of Louisiana recognized, and its 
 continued maintenance provided for. Id. 
 art. 230. 
 
 A university shall be established in New 
 Orleans for persons of color. Id. art. 231. 
 
 " Women over twenty-one years of age 
 shall be eligible to any office of control or 
 management under the school laws of this 
 State." Id. art. 232. 
 
 The free-scliool fund, seminary fund, 
 and agricultural and mechanical college 
 fund. Indebtedness of the State to these 
 funds recognized; the amount of each 
 stated; and provisions relating thereto 
 made. Id. art. 233. 
 
 Corporations and corporate rights. 
 " The general assembly shall not remit the 
 forfeiture of the charter of any corporation 
 now existing, nor review, alter, or amend 
 the same, nor pass any general or special 
 law for the benefit of such corporation, 
 except upon the condition that such cor- 
 poration shall thereafter hold its charter 
 subject to the provisions of this constitu- 
 tion." 7d. art. 234. 
 
 " The exercise of the police power of 
 the State sliall never be abridged nor so 
 construed as to permit corporations to con- 
 duct their business in such manner as to 
 infringe the equal rights of individuals or 
 the general well-being of the State." Id. 
 art. 235. 
 
 " No foreign corporation shall do any 
 business in this State without having one 
 or more known places of business and an 
 authorized agent or agents in the State 
 upon whom process may be served. " Id. 
 art. 236. 
 
 " No corporation shall engage in any 
 business other than that expressly author- 
 ized in its charter or incidental thereto, 
 nor shall it take and hold any real estate 
 for a longer period than ten years, except 
 such as may be necessary and proper for its 
 
 legitimate business or purposes." Id. art. 
 237. 
 
 " No corporation shall issue stock nor 
 bonds, except for labor done or money or 
 property actually received, and all fictitious 
 issues of stock shall be void, and any cor- 
 poration issuing such fictitious stock shall 
 forfeit its charter." Id. art. 238. 
 
 " The stock shall not be increased, ex- 
 cept in pursuance of general laws, nor 
 without consent of persons holding the 
 larger amount in value of the stock, first 
 obtained at a meeting of stockholders to be 
 held after thirty days' notice given in pur- 
 suance of law." Id. art. 239. 
 
 " The term corporation, as used in this 
 constitution, shall be construed to include 
 all joint-stock companies or associations 
 having any power or privileges not pos- 
 .sessed by individuals or partnei-ships. ' ' Id. 
 art. 240. 
 
 " It shall be a crime, the nature and 
 punishment of which shall be prescribed 
 by law, for any president, director, man- 
 ager, cashier, or other officer or owner of 
 any private or public bank or banking in- 
 stitution, to assent to the reception of de- 
 posits, or the creation of debts by such 
 banking institution, after he shall have had 
 knowledge of the fact that it is insolvent 
 or in failing circumstances ; any such offi- 
 cer, agent, or manager shall be individually 
 responsible for such deposits so received 
 and all such debts so created with his 
 assent." Id. art. 241. 
 
 " The general assembly shall have power 
 to enact general laws authorizing the pa- 
 rochial or municipal authorities of the 
 State, under certain circumstances, by a 
 vote of the majority of the property-tax 
 payers in numbers and in value, to levy 
 special taxes in aid of public improvements 
 or railway enterprises; provided, that such 
 tax shall not exceed the rate of five mills 
 per annum, nor extend for a longer period 
 than ten years." Id. art. 242. 
 
 "Any railroad corporation or association 
 organized for the purpose shall have the 
 right to construct and operate a railroad be- 
 tween any points within this State, and con- 
 nect at the State line with railroads of other 
 States. Every railroad company shall have 
 the right with its road to intersect, connect 
 with or cross any other railroad, and shall 
 receive and transport each the other's 
 passengers, tonnage, and cars, loaded or 
 
288 
 
 LOUISIANA. 
 
 empty, without delay or discrimination." 
 Id. art. 243. 
 
 " Railways heretofore constructed, or 
 that may be hereafter constructed, in this 
 State, are hereby declared public highways, 
 and railroad companies carriers." Id. art. 
 2i4. 
 
 " Every railroad or other corporation, 
 organized or doing business in this State 
 under the laws or authority thereof, shall 
 have and maintain a public office or place 
 in this State for the transaction of its busi- 
 ness, where transfers of stock shall be made, 
 and where shall be kept for public inspec- 
 tion books in which shall be recorded the 
 amount of capital stock subscribed, the 
 names of owners of stock, the amounts 
 owned by them respectively, the amount of 
 stock paid, and by whom, the transfers of 
 said stock, with the date of transfer, the 
 amount of its assets and liabilities, and the 
 names and places of residence of its officers." 
 Id. art. 245. 
 
 " If any railroad company, organized 
 under the laws of this State, shall consoli- 
 date, by sale or otherwise, with any rail- 
 road company organized under the laws of 
 any other State or of the United States, the 
 same shall not thereby become a foreign 
 corporation, but the courts of this State 
 shall retain jurisdiction in all matters 
 which may arise, as if said consolidation 
 had not taken place. In no case shall any 
 consolidation take place except upon public 
 notice of at least sixty days to all stock- 
 holders, in such manner as may be provided 
 by law." Id. art. 246. 
 
 " General laws shall be enacted provid- 
 ing for the creation of private corporations, 
 and shall therein provide fully for the ade- 
 quate protection of the public and of the 
 individual stockholder." Id. art. 247. 
 
 "The police juries of the several parishes 
 and the constituted authorities of all incor- 
 porated municipalities of the State shall 
 alone have the power of regulating the 
 slaughtering of cattle aud other live-stock 
 
 within their respective limits ; provided 
 no monopoly or exclusive privilege shall 
 exist in this State, nor such business be 
 restricted to the land or houses of any 
 individual or coi-poration ; provided, the 
 ordinances designating the places for 
 slaughtering shall obtain the concurrent 
 approval of the board of health or other 
 sanitary organization." Id. art. 248. 
 
 Parochial affairs and boundaries. Se- 
 strictions on the power of the general as- 
 sembly to establish new parishes. Id. art. 
 249. 
 
 Laws changing parish lines or removing ' 
 parish seats must be submitted to the elec- 
 tors. Id. art. 250. 
 
 How parishes may be dissolved or merged. 
 Id. art. 251. 
 
 "Whenever a parish shall be enlarged 
 or created from territory contiguous there- 
 to, it shall be entitled to a just proportion 
 of the property and assets, and liable for a 
 just proportion of the existing debts or lia- 
 bilities, of the parish or parishes from which 
 such territory shall be taken." Id. art. 
 252. 
 
 The city of New Orleans. Election of 
 officers. City indebtedness. Foreign sail- 
 ors. Id. arts. 253-255. 
 
 Amendment and revision of the con- 
 stitution. In what manner amendments 
 of the constitution may be proposed and 
 shall be ratified. Id. art. 256. 
 
 Schedule. Declaring the effect of this 
 constitution as supersedingthe former one; 
 and how rights of action, corporate monop- 
 olies, powers of officers, determination of 
 pending causes, &c., shall be preserved, or 
 affected or modified by it. Id. arts. 257- 
 261. 
 
 Manner of holding an election upon the 
 question of adopting this constitution, and 
 of determining and publishing the result. 
 Id. art. 262. 
 
 When the general assembly and the var 
 rious officers authorized by this constitution 
 shall begin to serve. Id. arts. 263-266. 
 
 Lunacy. iNSAsrTT. 
 
McADAM. — MAINE. 
 
 289 
 
 M. 
 
 McADAM. The Act to abolish Impris- 
 onment for Debt and to punish Fraudulent 
 Debtors, commonly called the " Stillwell 
 Act." With Forms and References to De- 
 cisions. By David Mc Adam. New York : 
 E. G. Ward. 
 
 McCLAIN. Annotated Statutes of Iowa, 
 showing those in force July 4, 1880. By 
 EviLiN M. McClain. Chicago : Cal- 
 laghan & Co. 
 
 McCLELLAN. Practice in Surrogate's 
 Courts ; being a Treatise on the Jurisdiction 
 of the Courts and the Remedies offered 
 thereby ; comprising, also, the Law of 
 Wills, Executors, Administration, Lega- 
 cies, Guardians, and Dower, with Complete 
 Forms for Practice, ^econd edition. By 
 Robert H. McClellan. Albany: W. C. 
 Little & Co. 
 
 McCRART. A Treatise on the American 
 Law of Elections. By George W. Mc- 
 Craky. Second edition. Keokuk: R. B. 
 Ogden; Chicago: E. B Myers. 
 
 Tliis work is noteworthy for the amount 
 of information which it contains of the 
 course of decision in Congress in contested 
 election cases, and which is not to be 
 gathered from the law reports and digests. 
 
 MAINE. Four amendments to the 
 constitution are to be mentioned. 
 
 One adopted in 1877 (Sept.) relating 
 to municipal indebtedness, is given in 
 terms below. 
 
 An amendment ratified in 1879 
 (Sept. 8) adopted the principle of bien- 
 nial sessions of the legislature. See 
 infra. 
 
 Two amendments were submitted to 
 the people in 1880 (Sept. 13) ; one 
 providing to elect the governor by a 
 plurality instead of a majority of votes ; 
 and one further amending one of the 
 sections amended in 1879, by changing 
 the term of office of senators and repre- 
 sentatives. Journals saj' that each 
 
 Mail. Po«T OFFICE. 
 
 Mail crnitract'rs are not common carriers, p. 70. 
 Mailing letter in Massachnsetts guaranteeing goods 
 sold in another State, p. 109. Free transmission 
 of copyright works by mail, p. 114. " Post road " 
 
 19 
 
 received a sufficient vote to ratify it. 
 They are given below. 
 
 The amendment of 1879, establishing 
 biennial elections and sessions, required 
 somewhat extended changes in the stat- 
 utes. They have been made, but are 
 not of interest out of the State. See 
 Me. Laws 1879, 109, ch. 151; also, 
 Laws 1880, 276, ch. 239. 
 
 Widespread attention was bestowed, 
 about the end of 1879, upon the canvass, 
 by the governor and council of Maine, 
 of the votes at the election held in Sep- 
 tember for senators and representatives. 
 The positions taken hy the justices of 
 the supreme court upon various ques- 
 tions submitted to them to procure a 
 judicial review of the canvass are given 
 under Election. 
 
 Constitntional amendments. Relat- 
 ing to municipal indebtedness. "No 
 
 city or town shall hereafter create any debt 
 or liability which singly, or in the aggre- 
 gate with previous debts or liabilities, shall 
 exceed five per centum of the last regular 
 valuation of said city or town ; provided, 
 however, that the adoption of this article 
 shall not be construed as applying to any 
 fund received in trust by said city or town, 
 nor to any loan for the purpose of renewing 
 existing loans or for war, or to temporary 
 loans to be paid out of money raised by 
 taxation during the year in which they are 
 made." Me. Const, amend. September, 
 1877. 
 
 Biennial elections and biennial ses- 
 sions. " The governor, senators, and rep- 
 resentatives in the legislature shall be 
 elected biennially, and hold office two 
 years from the first Wednesday in Janu- 
 ary next succeeding their election; and the 
 legislature, at the first session next after 
 the adoption of this article, shall make all 
 
 and " post route," p. 166. Collector may seize 
 goods smuggled by mail, p. 180. 
 
 Maine. Citizenship of old residents of the dis- 
 puted territory, p. 88. Maine canvass of Novem- 
 ber, 1879, pp. 183, 187-190. 
 
290 
 
 MAINE. — MALICIOUS PEOSECUTION. 
 
 needful provisions by law concerning the 
 tenure of office of all county officers, and 
 concerning the annual or biennial reports 
 of the State treasurer and other State officers 
 and institutions; and shall make all such 
 provisions by law as may be required in 
 consequence of the change from annual 
 to biennial elections, and from annual to 
 biennial sessions of the legislature. The 
 first election under this article shall be 
 in the year 1880; and the first meeting of 
 the legislature under this article shall be 
 on the first Wednesday of January, 1881." 
 Further provisions of this amendment 
 effected corresponding changes in various 
 parts of the coustitiition ; chiefly striking out 
 the word " annual " wherever used in con- 
 nection with elections of governor, senators, 
 and representatives, or with sessions of the 
 legislature; also directing that the gov- 
 ernor shall hold office [instead of "one 
 year, from the first Wednesday of January 
 in each year "] "/or two years from the first 
 Wednesday of January next following the 
 election." Me. Const, amend. Sept. 8, 
 1879; Sept. 13, 1880. 
 
 Note. It seems that the words " first 
 Wednesday in January next succeeding 
 their election" above should, since Sept. 
 13, 1880, be read " day next preceding 
 the biennial meeting of the legislature. ' ' 
 
 To elect the governor by a plurality 
 instead of a majority of votes. Art. 5, 
 part 1, § 3, of the constitution (which di- 
 rected that the secretary of state shall lay 
 the lists of votes for governor before the 
 senate and house of representatives, to be 
 by them examined, and that, " in case of a 
 choice by a majority of all the votes returned, 
 they shall declare and publish the same; 
 but if no person shall have a majority of 
 votes " the house shall select two, &c., from 
 whom the senate shall elect one) amended 
 '• by striking out the word ' majority ' 
 wherever it occurs, and inserting in the 
 place thereof the word ' plurality ' ; and a 
 plurality of the votes cast and returned for 
 governor, at the annual September election 
 for the year 1880, shall determine the elec- 
 tion of governor for the years 1881 and 
 1882." Me. Const, amend. Sept. 13, 1880. 
 
 Majority. What has been held a majority vote, 
 pp. 104, 105. On adoption of Indiana constitutional 
 amendment, pp. 104, 186; on removal of Tennessee 
 county seat, J). ]28. 
 
 Kallce. In the various crimes, see their names. 
 
 Criminal intent not necessary for conviction of 
 
 Cliangring the term of office of sena- 
 tors and representatives. Art. 4, part 
 1, § 2, of the constitution, further amend- 
 ed by striking out the words " first Wed- 
 nesday in January next succeeding their 
 election," and inserting in place thereof the 
 words " day next preceding the biennial 
 meeting of the legi.slature ; and the amend- 
 ment herein proposed, if adopted, shall 
 determine the term of office of senators and 
 representatives to be elected at the annual 
 meeting in September, in the year eighteen 
 hundred and eighty, as well as the term 
 of senators and representatives thereafter 
 to be elected;" so that said section, as 
 amended, shall read as follows: — 
 
 "'The house of representatives shall 
 consist of one himdred and fifty-one mem- 
 bers, to be elected by the qualified electors, 
 and hold their office two years from the day 
 next preceding the biennial meeting of the 
 legislature, and the amendment herein 
 proposed, if adopted, shall determine the 
 term of office of senators and representa- 
 tives to be elected at the annual meeting 
 in September, in the year 1880, as well as 
 the term of senators and representatives 
 thereafter to be elected. The legislature 
 which shall first be convened under this 
 constitution shall, on or before the fifteenth 
 day of August, in the year of our Lord 
 1881, and the legislature within every 
 subsequent period of at most ten years, 
 and at least five, cause the number of the 
 inhabitants of .the State to be ascertained, 
 exclusive of foreigners not naturalized and 
 Indians not taxed. The number of repre- 
 sentatives shall, at the several periods of 
 making such enumeration, be fixed and 
 apportioned among the several coimtie.s, as 
 near as may be, according to the number 
 of inhabitants, having regard to the rela- 
 tive increase- of population. The number 
 of representatives shall, on said first appor- 
 tionment, be not less than one hundred 
 and not more than one hundred and fifty.' " 
 Me. Const, amend. Sept. 13, 1880. 
 
 MALICIOUS PROSECUTION. When 
 malicious prosecution is spoken of, " mal- 
 ice " is not used in the sense often ascribed 
 to it. It is quite comprehensive, and in- 
 
 " freeholder" for extravagant appropriations, ?■ 
 135. Definitions of, p. 162. No malice imputable 
 in officially eftectins extradition, p. 209. Distinc- 
 tion between the intent in murder and in asfault 
 with intent to kill, p. 229. How diminished by in- 
 toxication, p. 200. 
 
MALICIOUS PROSECUTION. — MANDAMUS. 
 
 291 
 
 eludes many phases of wrong motives and 
 conduct. There may be ill-will, malevo- 
 lence, spite, a spirit of revenge, or purpose 
 to injure without cause, but it is not neces- 
 sary that there should be. If the prosecu- 
 tion is wilful, wanton, or reckless, or against 
 the prosecutor's sense of duty and right, or 
 for ends he knows or is bound to know are 
 wrong and against the dictates of public 
 policy, it is malicious. Supreme Ct. 1878, 
 Hamilton v. Smith, 39 Mich. 222. 
 
 When information received as to com- 
 mission of a crime is believed, and is such, 
 and from such sources, that the generality 
 of business men of ordinary care, prudence, 
 and discretion would prosecute upon it 
 under the same conditions, there is prob- 
 able cause. But a man has no right to set 
 the criminal law in motion against another 
 upon mere conjecture that he has commit- 
 ted a crime, and a person cannot shield 
 himself from liability by claiming that ap- 
 pearances afforded probable cause, if the 
 fact be that the circumstances and infor- 
 mation were falsely or unreasonably con- 
 strued or applied. lb. 
 
 Uinor Becisions on Ualicions Frosecntion. 
 
 Failure of the prosecution must be shown ; 
 but does not, by itself, warrant inferring 
 malice or want of probable cause: 98 U. S. 
 187. Malice may be inferred from want 
 of probable cause ; but this must be proved 
 to the satisfaction of the jury: lb. Rejec- 
 tion of complaint by grand jury is sufficient 
 tei-mination of the prosecution in plaintiff's 
 favor, and warrants finding want of prob- 
 able cause : 41 N. J. L. 22. Discharge of an 
 accused on habeas corpus is not a determi- 
 nation of the prosecution in his favor, such 
 as enables him to sue for m. p. : 7 Oreg. 
 68. Tennessee Code, § 2846, has not 
 changed the rule that an action for m. p. 
 abates by the death of the defendant: 7 
 Baxt. (Tenn.) 298. Malice must be found 
 as a fact additional to want of probable 
 cause, to warrant recovery for maliciously 
 procuring search warrant; but it may be 
 inferred from want of cause : 67 Ind. 375. 
 Action for m. p. of a civil suit seldom lies 
 unless there was a malicious arrest or seiz- 
 ure of property: 49 Md. 122. Rules of 
 proof as to malice and want of probable 
 
 Handamns. Br what courts and judges issued 
 in California, p. 59. Lies to restore member of 
 club, p. 125; or compel publication of notes, p. 127. 
 
 cause: ZQ Mich. 222. Acting under advice 
 of counsel excuses making complaint ; not 
 so acting under advice of non-professional 
 magistrate: 41 N. J. L. 22; 46 Wis. 269. 
 Making complaint for larceny as an in- 
 direct means of getting back one's prop- 
 erty is malicious: 49 Tex. 131. 
 
 MANDAMUS. A statute of New 
 York, authorizing the supreme court 
 to employ mandamus to correct errors 
 committed by county canvassers of 
 election, should be noticed. The courts 
 of that state have alwaj-s maintained 
 the. familiar distinction between the 
 ministerial powers of canvassers in 
 counting votes, and the judicial powers 
 of a court in reviewing an election by 
 action in the nature of quo warranto. 
 The position has been that canvassers 
 are to count the ballots as they read ; 
 but a court, in a proper action, can take 
 extrinsic proof of the actual intention 
 of the voter, and count the vote ac- 
 cording to that. Hence the immediate 
 decision of the canvassers may be 
 made, and the certificate given, in favor 
 of a candidate, who, bj' the real will 
 of the majority, is not elected ; but the 
 truth has been ascertainable onlj- by 
 the lengthy process of a suit. Even in 
 the class of cases in which mandamus was 
 in its nature an available remedy, want 
 of time for employing it often frus- 
 trated its usefulness ; for the supreme 
 court has held that after the board has 
 completed its canvass, filed the result,' 
 and dissolved, the writ is unavailing to 
 call it together for a correction of its 
 work ; were the same individuals to 
 convene in obedience to the writ, they 
 would not constitute the board of 
 county canvassers nor have any author- 
 ity in the premises. This latter defect 
 in the law is explicitly corrected b}' an 
 act of 1880, given below. And if the 
 main provisions of that act, authoriz- 
 ing the court to direct the board to 
 correct errors, shall be construed to 
 
 Railway directors not "public officers," p. 167. 
 Mandamus to revise canvassers' errors, p. 191. 
 
292 
 
 MANDAMUS. — MANSLAUGHTER, 
 
 enable it, after taldng proofs upon the 
 application for the writ and the return, 
 to ascertain and adjudge the actual 
 will of voters in cases where ballots 
 are disputed, and to direct the board 
 to count the ballots upon the judicial 
 rule — or according to the proved inten- 
 tion ; and not upon the ministerial 
 rule, or according to the mere tenor, 
 as seems probably the purpose of the 
 law, — a very important means will be 
 supplied of making an early and just 
 decision upon the result of an election. 
 
 " Whenever it shall appear by affidavit 
 that errors have occurred iu the deter- 
 mination of the board of county canvass- 
 ers in any county in this State, the supreme 
 court may, by order, require said board to 
 correct .snch errors, or show cause why 
 such correction should not be made, and in 
 the event of the failure of said board to 
 make such correction, or show cause as 
 aforesaid, the said court may compel said 
 board by writ of mandamus to correct such 
 errors; and if such board of county canvass- 
 ers shall have made its determination and 
 dissolved, such court may compel it to re- 
 convene for the purpose of mailing such 
 corrections. " Various provisions as to pro- 
 ceedings in such cases. 1 iV. Y. Laws 
 1880, (May 27), 662, ch. 460. 
 
 Mandamus lies to compel a collector of 
 duties, in a proper case, to allpw an im- 
 porter sued for unpaid duties tb inspect 
 the papers and records in the custody of the 
 custom-house relating to the importation, 
 and necessary to enable him to prepare his 
 defence; for the importer has a legal right 
 and no other adequate remedy at law. 
 S. Dist. ofN. Y., United States v. Button, 
 25 Int. Rev. Rec. 57. 
 
 Mandamus does not lie to require an 
 express company to carry goods which they 
 refuse to carry, the goods being fragile, 
 unless the owner will assent to a limita- 
 tion of the common-law liability for break- 
 age, &c. The right is not unquestionable, 
 and there is a remedy at law by action for 
 damages. Supreme Ct. 1878, People v. 
 Babcock, 16 Hun (N. Y.), 313. 
 
 Minor Decisions on Kandamiis. 
 
 M. does not lie to compel magistrate 
 to discharge prisoner because unlawfully in 
 custody: GY Ala. 381. Nor on relation of 
 publisher of paper entitled to the official 
 advertising to compel officer to furnish it; 
 51 Ga. 15. Nor to forbid elected officer 
 from qualifying or acting. 76 N. Y. 326. 
 
 Several persons elected at one time 
 members of a board cannot join in one 
 suit to admit them ; for, though the law 
 question may be the same in all the cases, 
 the title of each is distinct. 8 Reporter, 
 778. M. directed to county in ite cor- 
 porate name, and served upon the clerk of 
 the board of commissioners, binds the 
 board: 99 U. S. 624. Directors of a rail- 
 road corporation are not public officers or 
 a public body or board within 2 Rev. Stat. 
 587, § 60, regulating m. ; 76 N. Y. 294, 
 Distinction between am. prayed to give re- 
 lator final and complete relief, and one 
 asking only some preliminary act needful 
 to his future proceedings: 73 IS. Y. 443. 
 
 MANSLAUGHTER. Three or four farm 
 hands became engaged in a " playful alter- 
 cation ' ' over their work, in the course of 
 which one picked up a pistol lying neai- by, 
 and began brandishing it at tbe others, as 
 if he would shoot them. They all sup- 
 posed it was not loaded. There was, how- 
 ever, one load in it, and when, at length, 
 the one holding it pulled the ti-igger, it was 
 discharged, and the one at whom it was then 
 turned was killed. There was a trial and 
 conviction for voluntary manslaughter on 
 the theory that the use, in the manner de- 
 sci'ibed, of a pistol which was in fact loaded, 
 was a wrongful act, although the person 
 using it believed it unloaded. Held, that 
 the conviction must be reversed. Negli- 
 gence iu sportive use of a pistol may render 
 the person's acts unlawful, if he sees the 
 danger involved, and persists notwithstand- 
 ing. But mere mistake as to the weapon 
 being loaded, where there is not only no 
 intent to do harm, but positive belief that 
 no harm is possible, is not criminal. If 
 one presents and snaps a pistol, supposing 
 it unloaded, in a threatening manner, with 
 intent to alarm another, and it is discharged 
 and the other is killed, this is manslaughter; 
 for the acts with such intent amount to an 
 
 Manslaughter. Involuntar}' manslaughter does not admit of an accomplice, p. 9. 
 spring-gun, p. 229. 
 
 Killing by 
 
MANSLAUGHTER. — MARRIED WOMAN. 
 
 293 
 
 assault, irrespective of the loading, and so 
 the death is caused by a wrongful act. Not 
 so when there is no intention to frighten, 
 but both persons are in fun, and believe the 
 pistol unloaded, and there is no fault in- 
 volved, but only a mistake as to the con- 
 dition of the weapon. Supreme Cl. 1879, 
 Robertson ». State, 2 Lea (Tenn.), 239. 
 
 Upon a trial for manslaughter the proof 
 showed that the prisoner was shooting a 
 small pistol about the house where the de- 
 ceased (a girl) resided on the 25th of De- 
 cember, — he was shooting "Christmas 
 guns." The prisoner finally went into 
 the house and said to one of the inmates 
 that if the deceased did not kiss him 
 he would kill her. He then loaded his 
 pistol and went into the deceased's room, 
 and told her if she did not kiss him he 
 would shoot her. He then put his arms 
 around her, and the pistol went off, killing 
 the deceased. The pistol was not loaded 
 with a leaden ball, the victim was killed 
 by the wad; and all the parties were friend- 
 ly. The prisoner expressed great astonish- 
 ment at killing the deceased. The court, 
 believing the killing was done unintention- 
 ally, held, that the facts did not consti- 
 tute voluntary manslaughter, but refrained 
 from expressing any opinion as to the offence 
 being involuntary manslaughter. Supreme 
 Ct. 1879, Nelson o. State, 6 Baxt. (Tenn.) 
 418. 
 
 MANUFACTURIIfG COMPAiyT. How 
 election for directors may be called and 
 held, where it has been omitted on the 
 proper day: 72 N. Y. 433. Creditor of 
 manufacturing corporation cannot sue at 
 
 ManQfactnring corporation. Matters appli- 
 cable to these and other incorporations in common, 
 
 COBPOEATION. 
 
 What are labor debts, for which stockholders are 
 liable, p. 160. 
 
 Marine insurance. Insurance. 
 
 How abandonment is made, p. 2. Notice of 
 abandonment indispensable, p. 3. Meaning of 
 "port-risk," p. 166. Marine policies, p. 253. 
 
 Maritime law. Admiralty, generally, p. 13; 
 will not arrest war vessel of friendly nation, p. 14. 
 The new " regulations for preventing collisions at 
 sea," p. 97. Limit of owner's liability for damage 
 by collision, p. 100. Action for causing death on 
 high seas, p. 142 
 
 Marriage. The relation, Husbasd and Wife. 
 How it is dissolved. Divorce. 
 _ States regulate marriage, notwithstanding civil 
 rights laws, p. 93. Action for falsely representing 
 one's self as single and inducing woman to marry 
 him, p. 143. Engagement of marriage raises sus- 
 picion against deed from the woman to the man, p. 
 145. Marriages of colored persons, how regarded m 
 District of Columbia, p. 175. Divorce, p. 177. 
 
 law a stockholder who is also a creditor 
 upon a demand for which stockholders are 
 individually liable; an accounting in equity 
 is necessary: Id. 100. President of m. c. 
 who advances money to pay workmen's 
 wages can defend an action at law by a 
 creditor against him individually upon 
 another demand. lb. To charge stock- 
 holder, individually, on the ground that 
 property for which his full-paid stock was 
 issued was taken at an over-valuation [47 
 N. Y. 225; 57 Id. 173; 63 Id. 93 J, intent 
 to evade the statute must be shown ; if the 
 purchase may have been made by error 
 of judgment, he is not liable. 73 N. Y. 
 100. 
 
 MARRIED WOMAN. An act " to pre- 
 scribe the manner in which married women 
 who reside in the State of Florida may be 
 authorized to become free dealers " enables 
 a married woman to petition a ciitiuit-court 
 judge for a license to take charge of and 
 manage her own estate and property and to 
 become a free dealer. The judge shall re- 
 fer such petition to a master to make in- 
 quiry, and upon the report grant or refuse 
 the license. Fla. Laws 1879 (March 11), 71, 
 ch. 3130, § 1. 
 
 " A married woman may bargain, sell, 
 assign, and transfer her separate personal 
 property the same as if she were sole. ' ' Ind. 
 Laws 1879 (March 25), 160, ch. 67, § 1. 
 
 " A married woman may carry on any 
 trade or business, and perform any labor 
 or service, on her sole and separate account. 
 The earnings and profits of any married 
 woman, accruing from her trade, business, 
 services, or labor, other than labor for her 
 
 Dower, 179. What marriages are valid, p. 232. 
 Two persons cannot marry themselves, p. 232. One 
 bigamy cured by a previous one, p. 232. Amal- 
 gamation, pp. 232, 233. Presuming marriage, p. 
 233. Marriage between former slaves, p. 233. 
 Promise to marry, p. 235. Husband's rights and 
 liabilities, p. 236; and wife's disabilities, p. 237. 
 
 Married Woman. HirsBAsn and Wife. 
 
 Death of husband during his suit for injury of 
 wife on railroad does not abate suit, p. 6. Lust- 
 fully embracing one, against consent, an assault, 
 p. 29. Wife spending night at hotel with husband's 
 attorney to facilitate divorce, p. 32. Wife's right 
 of recovery under civil damage laws, p. 8J. Mar- 
 ried woman mailing letters in Massachusetts guar- 
 anteeing payment for goods sold in another State, 
 p. 109. Her rights in case of "cruelty," p. 151. 
 Divorce, p. 177. Dower-rights, p. 179. Wife's 
 separate property, p. 234. Klaborate opinion of 
 Green, J., thereon, pp. 234, 235. Services by mar- 
 ried woman, p. 235. Her separate property, p. 236. 
 Conveyances by her, p. 237. Rights of creditors, 
 p. 237 ; suits, p 237. Married woman enabled to 
 msure husband's life, p. 249. 
 
294 
 
 MARRIED WOMAN. — MASON. 
 
 husband or family, shall be her sole and 
 separate property." Id. § 2. 
 
 " A married woman may enter into any 
 contract in reference to her separate per- 
 sonal estate, trade, business, labor, or ser- 
 vice, and the management and improve- 
 ment of her separate real property, the' 
 same as if she were sole; and her separate 
 estate, real and personal, shall be liable 
 therefor on execution or other judicial pro- 
 cess." Id. § 3. 
 
 Husband must join in conveyance of her 
 lands, except lease for not more than three 
 years or purchase-money mortgage ; but 
 purchaser from her who has paid price 
 (and cannot obtain husband's deed) may 
 sue her to recover it back. Id. § 4. 
 
 " A married woman shall be bound by 
 the covenants of title in a deed of convey- 
 ance of her real propei-ty." Id. § 5. 
 
 " A married woman may bring and 
 maintain an action in her own name 
 against any person or body corpoi-ate for 
 damages for any injury to her person or 
 character, the same as if she were sole; 
 and the money recovered shall be her sepa- 
 rate property, and her husband, in such 
 case, shall not be liable for costs." Id. 
 § 6. 
 
 Wife's liability for labor and materials 
 expended on husband's order, with her 
 knowledge, in improving her separate es- 
 tate. Id. § 7. 
 
 Husband not liable for debts contracted 
 by the wife in carrying on trade or busi- 
 ness on her separate account; nor for her 
 improvements of her separate real property. 
 Id. § 8. 
 
 "Whenever a judgment is recovered 
 against a married woman, her separate 
 property may be sold on execution to sat- 
 isfy the same, as in other cases." 
 
 Exemption of $200 worth of wearing- 
 apparel and personal adornments ; also of 
 articles received as gifts or keepsakes ; also 
 of $300 worth of property, allowed her. 
 Id. § 9. 
 
 " A married woman shall not mortgage 
 or in any manner encumber her separate 
 property acquired by descent, devise, or 
 gift as a security for the debt or liability 
 of her husband or any other person." Id. 
 §16. 
 
 Married women living separated from 
 their husbands enabled to sell, convey, mort- 
 gage, lease, or devise their own real prop- 
 
 erty, and to give receipts, make contracts 
 &c., relative to real or personal property. 
 iV. J. Laws 1880 (March 3), 82, eh. 62. 
 
 " In all cases, married women shall be 
 deemed and held qualified or free from any 
 disability on account of coverture, for ap- 
 pointment and acting as corporators or 
 officers of all associations incorporated 
 heretofore, or that may be hereafter incor- 
 porated, for purposes of learning, benevo- 
 lence, charity, or religion." Pa. Laws 
 1879 (April 9), 16, No. 13. 
 
 " The rents and profits of any property 
 or estate of a married woman, which she 
 now owns or may hereafter become seised 
 or possessed of, either by purchase, devise, 
 gift, or inheritance, as a separate estate, or 
 for years or for life, or as a fee-simple es- 
 tate, shall in no manner be subject to the 
 debts or contracts of her husband." Tern. 
 £a«7s 1879 (March 26), 182, ch. 141. 
 
 MASON. The Practice in Civil Actions 
 and Proceedings at Law in the Conimoii- 
 Law Courts of the New England States. 
 By Joseph Mason. Boston : Little, 
 Brown, &Co. 
 
 The table of contents indicates a very 
 wide range of subjects; they may be thns 
 summarized. Practice in general; Writs 
 (4 chapters) ; Attorneys ; The various coui'ts 
 (8 chapters); Commencement of action; 
 Justices; Indorsement of writs; Service; 
 Attachment ; Arrest and bail (3 chapters) ; 
 Return of writs ; Entry of actions; Appear- 
 ance; Routine in courts; Jm^; Pleading 
 and cognate topics, such as venue, tender, 
 paying into court, and limitations (18 
 chapters); Amendments; Trustee process; 
 Forcible entry and detainer; Trial and 
 verdict; Evidence; Depositions: Auditors 
 and assessors; Reference and arbitration; 
 Appeal; New trial; Damages; Judgments; 
 Executions (4 chapters); The various writs 
 of review, — scire facias, error, prohibition, 
 &c. (10 chapters); Replevin; Account; ne 
 exeat ; Connecticut practice act; MiU-dams, 
 &c. ; Exceptions; Partition; Continuance; 
 Costs; Forms. 
 
 Procedure in the New England States 
 has long been characterized by strong fam- 
 ily resemblance of the different systems. 
 In general features the methods in these 
 States have been much alike, and have 
 differed strongly from those pursued else- 
 where. This work is a comprehensive, 
 practical treatise on the whole subject of 
 
MASON. — MASTER AND SERVANT. 
 
 295 
 
 practice, as understood and followed In 
 these five States. The new departure of 
 Connecticut has not been overlooked; 
 chapter 75 gives a lucid sketch of her 
 recent practice act and rules. 
 
 MASSACHUSETTS. Constitutional 
 amendment. The provision of ch. 6, art. 
 2, — that no person holding the office 
 of president, professor, or instructor of 
 Harvard College should at the same time 
 have a seat in the senate or house of rep- 
 resentatives, — annulled. Mass. Const, art. 
 27; ratified 1877 (Nov. 6). 
 
 MASTER AND SERVANT. Liability 
 of master to third person. One who 
 contracts with a competent person to exe- 
 cute a work, — giving the contractor entire 
 charge, and taking no part himself, by giv- 
 ing directions or otherwise, in the execution 
 of the task, — is not responsible to a third 
 person who sustains injury through the fault 
 or neglect of the contractor and his subordi- 
 nates. Supreme Ct. 1878, Stewart's Ap- 
 peal, 86 Pa. St. 153. 
 
 The owner of a sugar refinery employed 
 a master rigger to remove certain heavy 
 machinery for use therein from a railroad 
 train to their place in the refinery. In the 
 prosecution of the work he opened a coal- 
 hole in the pavement in front of the re- 
 finery, into which to place a beam to secure 
 a purchase for his tackling. After this pur- 
 pose was accomplished, the beam was re- 
 moved, and the hole remained open a few 
 moments, in which interval a lad walked 
 into it and was severely injured. The 
 owner of the refinery did not interfere in 
 any manner with the work, and the entire 
 direction of the same was under the con- 
 trol of the rigger, who was paid by the 
 day. Suit was brought on behalf of the 
 lad against the owner of the refinery. 
 Held, that he was not liable. The owner 
 would not be liable for this unauthorized 
 uncovering of the hole until such time had 
 elapsed, under all the circumstances, that 
 a reasonable and prudent man ought to 
 have discovered its dangerous condition. 
 Supreme Ct. 1878, Harrison v. Collins, 86 
 Pa. Stat. 153. 
 
 The proprietors of a paper-mill sent their 
 teamster, with a team belonging to them, 
 to deliver a load of paper to one T., living 
 four miles distant from the mill, with di- 
 rections that he should return by a particu- 
 lar route and get a load of wood on his way 
 
 back. On his ai-rival out with the paper, 
 however, T. requested him to caiTy it to a 
 warehouse some miles further, and to get 
 some goods awaiting T. at the railroad 
 station near by, pay the freight on them, 
 and bring them back to T. The teamster 
 complied, and on reaching the railroad sta- 
 tion left his horses unfastened and unat- 
 tended, and they ran away, and collided 
 with a wagon and injured it. The owner 
 of the v\?agon sued the proprietors of the 
 mill, as employers of the teamster, for 
 damages. Held, that they were not liable, 
 because the servant was not acting in their 
 business or under their instructions wheq 
 he did the injui-y. The rule is that for all 
 acts done by a servant in obedience to the 
 express orders or directions of the master, 
 or in execution of the master's business, 
 within the scope of his employment, and 
 for acts in any sense warranted by the ex- 
 press or implied authority conferred upon 
 him, considering the nature of the services 
 required, the instructions given, and the 
 circumstances under which the act is done, 
 the master is responsible; for acts which 
 are not done within these conditions the 
 servant alone is responsible. [13 C. B. 
 237; L. R. 4 Q. B. 476; 9 Carr. §• P. 607; 
 Id. 629; /. R. 9 Com. L. 557; \OJur. n. s. 
 852; 9 R. I. 262; 12 Allen, 49; 2 N. H. 
 548.] Here the servant left the employer's 
 premises under precise instructions as to 
 the place to which tlfcir team was to be 
 driven and as to the merchandise to be trans- 
 ported; and under instructions equally pre- 
 cise as to the route to be taken in returning 
 and as to what he should bring home. 
 These therefore covered the entire period 
 of his contemplated absence ; nothing was 
 left to his option or discretion. When the 
 servant accepted instructions from T. and 
 became a carrier of merchandise for him to 
 and from a railroad station in an adjoining 
 town, he temporarily threw off his em- 
 ployers' authority, abandoned their busi- 
 ness, and left their service ; and they ceased 
 to be responsible for his negligence. Ct. of 
 Errors, 1877, Stone v. Mills, 45 Conn. 44. 
 Ford was in the business of letting horses 
 and wagons, with driver, by the day; and 
 let a team and driver to the city of Boston 
 to do hauling in connection with repaving 
 Bromfield St. It was a part of the driver's 
 duty, by his engagement, to see that the 
 horses in his care were kept well shod. 
 
296 
 
 MASTER AND SERVANT. 
 
 This he neglected; a shoe worked loose; 
 and at length, when he struck the horse 
 violently, the animal kicked and threw the 
 shoe through a valuable plate-glass window 
 ■ fronting the street. The owner sued the 
 proprietor of the team for damages. Held, 
 that he was entitled to recover, if the jui-y 
 attributed the injury to the driver's negli- 
 gence ; otherwise if it were pure accident. 
 Supreme Ct. 1878, Huff v. Ford, 126 Mass. 
 24. 
 
 Liability of master to servant. The 
 servant does not assume the risks of the 
 inaster's negligence. He assumes the risk 
 of negligence of any co-servant, but the 
 master is responsible for his own negligence 
 to a servant the same as to any other per- 
 son, and the rule that the master is not 
 liable to one servant for the negligence of 
 another is not carried to the extreme of 
 exempting him from liability in every case 
 when he did not himself do or direct the 
 act or omission. The master is under ob- 
 ligation to select competent servants and 
 provide safe machinery; and he cannot rid 
 himself of responsibility to one servant for 
 not performing this duty by showing that 
 he delegated the performance of it to 
 another servant by whom it was neglected. 
 Ct. of Appeals, 1878, Booth v. Boston, &c. 
 R. R. Co.,73iV. F. 38. 
 
 It is a general rule, applicable to all 
 kinds of sei^vice, that a master who negli- 
 gently fails to f urnRh his servant with safe 
 machinery, means, and appliances for do- 
 ing the work required to be done, is liable 
 for injuries to the servant, caused by such 
 negligence. Supreme Ct. 1879, Thompson 
 V. Hermann, 47 Wis. 602. 
 
 The increased dangers to which persons 
 are exposed in the use of machinery at the 
 present day have kept even pace with the 
 progi-ess made in the manufacture of new, 
 improved, and complicated varieties there- 
 of, and the employer, therefore, who, in 
 carrying on his business, uses such machin- 
 eiy, must take those precautionary meas- 
 ures which are usual and customai-y with 
 careful, prudent men, to protect his em- 
 ployees from all unnecessary dangers aris- 
 ing from the use thereof. He must also 
 provide a suitable place in which the ser- 
 vant, exercising due care, can perform his 
 duty without exposure to dangers that do 
 not ordinarily come within the obvious 
 scope of such employment as usually car- 
 
 ried on. Supreme Ct. 1879, Swoboda v 
 Ward, 40 Mich. 420. 
 
 One entering upon a particular employ- 
 ment assumes the risks and perils usual 
 thereto, provided the machinery used is not 
 defective, and the usual means are adopted 
 to guard against accident. But if there 
 are defects in either respect there is an in- 
 creased risk, and if the seiTant is injured 
 in consequence, the master is responsible. 
 If, however, the servant, with fuU know- 
 ledge of the facts, remains in the employ- 
 ment, he voluntarily incurs such increased 
 risk, and if he suffers injury thereby he 
 will be without remedy. lb. 
 
 A person when employed and instructed 
 to commence work at a particular place, 
 — e. g. a mill, — is under no obligation, in 
 order to protect himself from the charge of 
 contributory negligence, to first go all 
 through the building and make himself 
 familiar with each piece of machinery, and 
 the danger he may incur in case he comes 
 in contact with it in its then condition. 
 It is sufficient for him he ascertains what 
 he is expected to do, and the danger directly 
 connected therewith, and he has a right to 
 assume that in the performance of that 
 particular duty reasonable facilities there- 
 for will be afforded him, without coming 
 in contact with other unforeseen or unsus- 
 pected dangers. lb. 
 
 A workman employed in a saw-mill to 
 carry slabs fi-om the gang-plank, while 
 pulling backwards at one that was too 
 heavy for one man to caiTy, slipped on 
 some wet bark and fell against certain 
 cogwheels that caught his pantaloons and 
 injured him. He had not been warned 
 and did not know that the wheels were im- 
 covered ; and they ought to have been cov- 
 ered. Held, that the question whether he 
 was guilty of coutributive negligence ought 
 to have been left to the jury. The plain- 
 tiff at the time of the injury was properly 
 engaged in the active discharge of his duty. 
 He testified that he had not been warned 
 about these cogs, and had not noticed them 
 until after he was hurt. Contributive neg- 
 ligence pre-supposes the doing of some act 
 which ought not to have been done, or the 
 omission to do something which should be 
 done, — in other words, a want of due care. 
 [5 Am. L. Reg. n. s. 405, n.] If he did not 
 know of the exposed and dangerous condi- 
 tion of these cogs, then, by remaining at 
 
MASTER AND SERVANT. 
 
 297 
 
 work, he was not doing something which he 
 ought not to have done, and the efEort he 
 was making at the time of the accident to 
 remove the slab showed no want of due 
 care on his part. Even if lie had known 
 of the cogs and their unguarded condition, 
 it would not thereby conclusively follow 
 that he could not recover. Other facts and 
 circumstances would have to be considered 
 in connection therewith, — his age, his in- 
 telligence, his experience, and such like, — 
 so that the jury might ascertain and deter- 
 mine whether he fully understood and ap- 
 preciated the danger. lb. 
 
 If employees in a factory are injured by 
 the burning of the building, they not having 
 time to escape, the proprietors are liable to 
 them in damages if the injury is attribut- 
 able to the construction of the building, to 
 defects in the machinery giving rise to the 
 fire, lack of proper supply of water and hose, 
 want of reasonable fire-escape, &c. ; but not 
 if the building is properly constructed and 
 equipped and the injury sustained by the 
 servant suing is fairly attributable to the 
 failure of his fellow-servants to perform 
 their duty in keeping the cistern, water- 
 pipes, hose, &c. in order, or to use them 
 promptly and judiciously. Supreme Ct. 
 1878, Jones v. Granite Mills, 126 Mass. 
 84; Keith v. Granite Mills, Id. 90. 
 
 It is not a part of the duty of owners of 
 a factory building towards the employees 
 to provide special means of notifying them 
 of a fire or other casualty occurring on the 
 premises. Supreme Ct. 1878, Keith v. 
 Granite Mills, 126 Mass. 90. 
 
 — in respect to dangerous machinery, 
 materials, &c. A master is not liable to 
 his servant for injuries in the use of 
 dangerous machinery, notwithstanding 
 the master may have failed to provide 
 against the danger by the use of known 
 appliances, where the machinery is of the 
 kind in general use, and the danger is 
 obvious to the senses. This principle ap- 
 plied to a case where the injury occurred in 
 the use of a shaping-machine, which the 
 evidence showed was complete without a 
 guard, and was generally so used, but 
 could be and was sometimes provided with 
 a guard or fender as a security against the 
 negligence of workmen or possible acci- 
 dents. Supreme Ct. 1879, Cagney v. 
 Hannibal & St. Joseph R. R. Co., 69 Mo. 
 416. 
 
 In the case of a servant employed in 
 blasting rocks, if the circumstances attend- 
 ing his engagement are such as justly to 
 warrant saying that the employer has un- 
 dertaken to furnish suitable powder, and 
 that he has broken that undertaking by 
 furnishing a mixed powder unusually ex- 
 plosive, and unsafe and unfit to be used in 
 blasting, without informing the servant of 
 the increased risk, the employer is liable 
 for injury sustained by the servant from an 
 explosion without his own fault. Supreme 
 Ct. 1878, Eagle, &c. Manuf. Co. v. Welch, 
 61 Ga. 444. 
 
 Employers must give inexperienced serv- 
 ants due cautions about concealed dangers 
 in machinery. Dowling, a youth of seven- 
 teen, took employment in a foundry, with- 
 out any previous conversance with the 
 machinery. He was employed near a turn- 
 table and revolving shaft. The men were 
 accustomed to step over the shaft and Dow- 
 ling received no caution as to any danger 
 in so doing. One day the foreman sent 
 him on an errand telling him ' ' to hurry, '' 
 and he took the shortest course, which 
 involved crossing the shaft. It caught his 
 clothing, and his leg was so badly broken 
 that it had to be amputated. Held, that 
 he could recover damages fi'om the pro- 
 prietors. When machinery is not ordin- 
 arily dangerous to those approaching it in 
 a certain way, but is rendered dangerous 
 by some special circumstance of which a 
 person of ordinary experience and intelli- 
 gence would not take notice, and such a 
 person is permitted or directed by the pro- 
 prietor to approach this mAchinei-y without 
 warning of this danger, and is injured in 
 consequence, the proximate cause of the 
 injury is the carelessness of the proprietor. 
 But if the person injured by the machin- 
 ery is shown to have actual notice of 
 the danger, if he has been warned of the 
 danger, if the danger is apparent when the 
 machinery is at rest, and it may be fairly 
 inferred from testimony that he has seen 
 it at rest, and must have observed the 
 danger, the danger is then no longer to be 
 considered as a hidden one as to him ; and 
 if he then approaches the machinery, when 
 in motion, in such a way as to expose him- 
 self to this danger, he does it at his own 
 risk. And when a person known to be 
 without any previous experience of the 
 business is employed about machinery 
 
298 
 
 MASTER AND SERVANT. 
 
 which can be safely approached with certain 
 precautions, but which is dangerous if 
 those precautions are not taken, if that 
 machinery lies in a passage-way commonly 
 traversed by those employed about the 
 place, and if, without any warning, in the 
 course of his employment, he crosses this 
 machinery without taking those precau- 
 tions of the necessity of which he can 
 know nothing, it does not appear that he is 
 guilty of negligence. If he is hurt by the 
 machinery under these circumstances, this 
 cannot be said to be mere mischance. 
 The injury might have been avoided had 
 the employer, either by forbidding the use 
 of the passage-way or by any general or 
 special notice, called attention to the hid- 
 den danger. Employers are bound to 
 furnish their employees with a reasonably 
 safe place in which to work, considering 
 the character of their business, and are 
 bound to see that their employees have 
 reasonable notice of any hidden danger 
 known to the employer, but of which the 
 employee might be ignorant without blame, 
 and of which at the time he is hired he 
 may reasonably be supposed to be in fact 
 ignorant. St. Louis Ct. of Appeals, 1878, 
 Dowling V. Allen, 6 Mo. App. 195. 
 
 A youth was employed in a brick factory 
 where several brick-moulding machines 
 were in use ; his chief duty being to grease 
 the machinery between successive strokes 
 of the "plunger." The operation re- 
 quired a very quick insertion and with- 
 drawal of the hand and oiling materials; 
 only about a second being allowed. One 
 day he was called away from his accustomed 
 machine to tend another one; and this 
 one had become, by wear, modified in opera- 
 tion, so that the time available for greasing 
 was even less than in the other. But the 
 machines were apparently alike and no 
 caution was given him of any difference. By 
 reason of accidental fall of a brick he was 
 delayed an instant in one attempt at greas- 
 ing and his hand was carried under the 
 "plunger" and cut off. Held, that he 
 could recover damages from the proprietors. 
 The servant engaged in any employment, 
 dangerous or not, takes the ordinary risks 
 of his employment; and if he has to do 
 with dangerous machinery, he must use 
 proportionate care. But ordinary risks that 
 might be foreseen by the master in the ex- 
 ercise of ordinary care and foresight, the 
 
 servant does not take. The master must 
 make use of ordinary care to procure suit- 
 able machinery, and to keep it in such a 
 condition that the risk to his employees will 
 not be greatly increased; and any such 
 greatly-increased risk is the negligence of 
 the master, for which he is responsible. 
 St. Louis Ct. of Appeals, 1878, McMillan 
 V. Union Press-brick Works, 6 Mo. App 
 434. 
 
 — as affected by contribntire negrli- 
 g'ence. A servant who sues his employer 
 for damages for a personal injury caused 
 by the use of defective machinery or ma- 
 terials employed in the business must show 
 the observance of due care and caution on 
 the part of the servant. While there is 
 an implied contract between employer and 
 employee, that the former shall procure 
 and keep suitable tools, implements, means, 
 &c., with which to perform the labor re- 
 quired of the latter, and also that the latter 
 shall be advised by the former of all the 
 dangers incident to the service of which 
 the latter is not cognizant, yet the failure 
 of the employer in this regard furnishes 
 no excuse for the conduct of the employee 
 who voluntarily incurs a known danger. 
 He must himself use due care and caution 
 to avoid injury, and if he enters a service 
 with a full knowledge of its perils, without 
 requiring that it first be made safe, he as- 
 sumes the risk and must bear the conse- 
 quences. Supreme Ct. 1878, Pennsylvania 
 V. Lynch, 90 III. 33-3. 
 
 A servant employed in removing freight 
 from one car into another used a common 
 car-door made of pine-boards, which was 
 laid from one car-door to another. While 
 taking down a bale of wool he and his fel- 
 low-servant let the same fall upon a truck 
 on the door, which caused the door to break, 
 giving him a fall, and inflicting a severe per- 
 sonal injury, for which he sued. The proof 
 showed that he had been engaged nearly 
 two years in the business, and had fre- 
 quently before used such a door for a plat- 
 form, and knew the danger of its use, and 
 its defects ; also that the employer gave no 
 direction to use such a platform, and did 
 not know that such a one was used at the 
 time of the accident, and that the servant 
 never objected to the use of the platform. 
 Held, the negligence of the servant in con- 
 tinuing to use the platform, knowing the 
 same to be unsafe, was of such a character 
 
MASTER AND SERVANT. 
 
 299 
 
 as to defeat a recovery by him against the 
 employer. lb. 
 
 One employed to run a steam-engine as 
 engineer, with equal knowledge of its de- 
 fects with his employer, if he continues to 
 use it without objecting to defects, cannot 
 sustain an action against the employer for 
 injuries caused by an explosion. Supreme 
 Ct. 1877, Lumley v. Caswell, 47 Iowa, 159. 
 
 — for negligence of fellow-servant. 
 The employer is liable to an employee for 
 injury sustained in the work, only where 
 he fails to employ reasonably skilled work- 
 men or suitable machinery and implements, 
 properly constructed for the use intended, 
 and of proper material, and he is not an 
 insurer that the servants he employs are 
 skilful and prudent, or that the workman- 
 ship or the materials employed in the 
 construction of machinery and other imple- 
 ments are absolutely suitable and proper ; 
 though he is bound to a high degree of care 
 and skill in their selection and construc- 
 tion. A servant, when he engages in an 
 employment, is held to have done so with a 
 knowledge and the risk of its ordinary haz- 
 ards, whether from the carelessness of 
 feUow-servants in the same line of em- 
 ployment, or from latent defects in, or the 
 ordinary dangers in the use of, machinery 
 and appliances used in the business. But 
 the master must use all reasonable precau- 
 tions to select prudent and capable fellow- 
 servants, and machinery and implements 
 properly constructed and of good material. 
 Supreme Ct. 1878, Richardson ». Cooper, 
 88 III. 270. 
 
 The Quincy Reform Club contracted with 
 Faxon to repair their building ; and Faxon 
 employed a carpenter to superintend the 
 job. When the time came for putting up 
 the gutters, Faxon directed the cai-penter to 
 erect a staging for the purpose, which he 
 did, but in a weak and insecure manner. 
 Faxon also ordered the gutters, and when 
 they came he directed the workman who 
 brought them to go upon the staging and 
 fasten them in their places. The workman 
 did so, the staging fell, and he was injui-ed. 
 Held, that Faxon was not liable. The case 
 was within the rule that one who enters 
 the service of another takes upon himself 
 the risks incident to the employment, in- 
 cluding the risk of the negligence of fellow- 
 Servants employed in the same service; 
 and not within the rule that, if a master 
 
 undertakes to furnish structures or instru- 
 ments with which the servant is to work, 
 the master is bound to use due care in pro- 
 viding them, and he is responsible, if, 
 through his negligence or through the neg- 
 ligence of other servants employed to fur- 
 nish them, they are unsuitable. It was 
 the ordinary case where a man, in building 
 or repairing a house, employs various ser- 
 vants in different departments of labor. 
 Supreme Ct. 1878, Killea v. Faxon, 125 
 Mass. 485. 
 
 A religious society, by its committee, 
 contracted with a master-painter to paint 
 the whole inside of the church building 
 for a gross sum ; but the society undertook 
 to erect and remove the staging to be used, 
 and employed a carpenter and builder, of 
 their own selection, by contract for a gross 
 sum, to erect and remove the staging, and 
 to supply all the material and labor re- 
 quired for that purpose; and the parties 
 did not and could not know, from the ap- 
 pearance or from the examination of the 
 staging, whether it was or was not strong 
 enough for his workmen to go upon. The 
 staging was erected, but in a weak and 
 insecure manner; not owing, however, to 
 any directions or neglect of the society. 
 In the course of the work it fell, and one 
 of the journeymen painters standing upon 
 it, and painting, was hurt. He sued the 
 society. Held, that he was entitled to re- 
 cover. The society, through its authorized 
 agents, had accepted and used the staging, 
 and had in effect invited and induced C. 
 and his workmen to come upon it to paint 
 the church, and was liable to the plaintiff 
 for an injury from the dangerous condition 
 of the staging, which was not apparent to 
 him, and which was caused by negligence 
 in its construction. Supreme Ct. 1878, 
 Mulchey u. Methodist Religious Society, 
 125 Mass. 485. 
 
 In order that workmen should be fellow- 
 servants within the meaning of the rule 
 that a master is not responsible to a ser- 
 vant for an injury caused by his fellow-ser- 
 vant, it is not necessary that the workman 
 causing and the workman sustaining the 
 injury should both be engaged in the same 
 particular work. It is sufficient if they 
 are in the employment of the same master, 
 engaged in the same common work, and 
 performing duties and services for the same 
 general purposes. And the rule is the same, 
 
300 
 
 MASTER AND SERVANT. — MECHANIC'S LIEN. 
 
 although the one injured may be an infe- 
 rior in grade, and subject to the control and 
 direction of the superior, whose act caused 
 the injury, providing they were both co- 
 operating to effect the same common ob- 
 ject. Supreme Ct. 1878, Lehigh Valley 
 Coal Co. V, Jones, 86 Pa. St. 432. 
 
 Recent statutes. A New Jersey act 
 recites that disputes between working-men 
 and their employers frequently result in 
 protracted strikes, which cause great loss 
 to both parties and to the community at 
 large, and disturb the amicable relations 
 which ought to exist between labor and 
 capital, and that it is desirable to provide 
 some legal method for submitting such 
 differences to arbitration, with a view to 
 an honorable, satisfactory, and speedy set- 
 tlement thereof; and it authorizes formal 
 arbitration of questions of difference be- 
 tween employees in an establishment, and 
 the proprietors or employers ; and regulates 
 appointment of arbitrators, hearings before 
 them^ making and effect of their award, 
 &c. N. J. Laws 1880 (March 10), 178, 
 ch. 133. 
 
 In Ohio it is declared unlawful for any 
 person, whether as principal, agent, super- 
 intendent, clerk, or otherwise, to compel 
 or seek to compel, in any manner what- 
 ever, or in any maimer attempt to coerce 
 an employee of any person, firm, or cor- 
 poration, to purchase goods or supplies 
 from any particular person, firm, or cor- 
 poration, under fine or imprisonment. 
 Ohio Laws 1879 (May 3), 81, ch. 621. 
 
 For New Jersey enactments protecting 
 laborers and workmen from being paid 
 their wages in orders not redeemable at 
 sight in cash, or in store orders or due-bills 
 of any kind, see N. J. Laws 1880 (March 
 12), 45, ch. 36; Id. 295, ch. 198. 
 
 Minor Decisions on Master and Servant. 
 
 Man sent out by contractor to keep street 
 lamps in order and lighted is not a servant 
 of the city, and may sue city for injury from 
 defect in highway : 1 27 Mass. 270. Servant's 
 continuing work with defective appliances, 
 which employer has promised to repair, dur- 
 ing a reasonable time to make repairs, is 
 not contributive negligence: 6 Mo. App. 
 
 Measure of damages. Damages. For employ- 
 er's preventing performance of sen'ices, p. 141. 
 For carrier's delay in transporting cattle, p. 141. 
 For breach of warranty that seed sold was " Bris- 
 
 102. Master is not exempt from liability 
 for act of servant done within his employ- 
 ment and in furtherance of the master's 
 business because it was wilfully done; to 
 exempt the master the act must be outside 
 the service: 73 N. Y. 543. What labor 
 outside the trade named in the indentures 
 may be required from an apprentice: 51 
 Vt. 269. 
 
 MECHANIC'S LIEN. A mechanic's lien 
 authorized in favor of labor performed, 
 materials furnished, &c., in sinking or drill- 
 ing any wells for oil, gas, &c., or water, 
 or constructing the tanks or other appliances 
 thereof. How the lien may be created, and 
 the proceedings for its enforcement, pre- 
 scribed in detail. N. Y. Laws 1880 (May 
 27), 641, ch. 440. 
 
 Minor Decisions on Mechanic's Lien. 
 
 A m. I. can be enforced for such mate- 
 rials only as were uaed in the building; not 
 for those sold and delivered for it, but not 
 used: 6 Mo. App. 34. What consent by 
 landlord to tenant's making repairs will 
 subject landlord's interest to a m. 1. for the 
 cost: ^IN.J.L. 39. Architect's services 
 are " labor " for which he may have a m. 
 1. : 76 N. Y. 50. 
 
 A lien given on " improvements made " 
 cannot be enforced upon a wall, chimney, 
 &c., not completed by claimant; for they 
 are not "made:" 61 Ga. 644. County 
 buildings are not subject to m. 1. : 50 lovia, 
 234 ; Id. 271. A county bridge is not subject 
 to m. 1. : Id. 271. A public school-house 
 is not subject to m. 1. : 51 loioa, 70. A m. 
 1. law should not be extended by construc- 
 tion to railroads: 14 Bush (Ky.), 425. A 
 lien upon a part only of a continuous rail- 
 road and branches is not authorized: SMo. 
 App. 205. Road-bed of railroad company 
 cannot be subjected to m. 1.; it cannot 
 well be sold in parcels: 67 Mo. 442. Con- 
 tract for materials for a house does not be- 
 come a lien upon land afterward purchased 
 for its erection : 38 Mich. 587. Since Rev. 
 Stat. 1874, ch. 1029, § 444, as before Feb. 
 18, 1861, a petition which does not show 
 that the labor was to be performed within 
 three years from date of contract, or that 
 payment was to be made within one year 
 
 tol cabbace " seed, p. Ill ; in various other Mses, 
 p. 142. Limiting recovery against express, p. ^<# 
 Meohanic's lien. Coiistitutional right to a lien, 
 in California, p. 66. 
 
MERGER. —MINNESOTA. 
 
 801 
 
 from time of performance, is bad: 90 III. 
 70. 
 
 MERGES depends on intention of the 
 one taking the two estates; tenant's buying 
 the fee does not necessarily merge his lease : 
 74 N. Y. 207. Mortgagee's buying the fee 
 does not necessarily merge his mortgage: 
 Id. 348. 
 
 MICfllGAX. Alteration of division of 
 Michigan into eastern and western districts. 
 Powers and duties of cleik, district attor- 
 ney, and marshal in the two districts. 
 Criminal jurisdiction. Terms of district 
 court. Act of June 19, 1878, ch. 326, 20 
 Stat, at L. 175. 
 
 MILLS. A Supplement to Thompson's 
 Treatise on the Law of Highways. By 
 Charles H. Mills. Albany : W. C. 
 Little & Co. 
 
 MINE. Application and affidavit for a 
 patent in behalf of a non-resident of the 
 land district where the vein, &c., is located, 
 may be made by agent. Time within 
 which work to secure unpatented claim 
 must be done. Act of Congress of Jan. 22, 
 1880. 
 
 An Illinois act providing for the health 
 and safety of persons employed in coal- 
 mines prescribes extended and stringent 
 regulations for keeping a map of each coal- 
 mine in the State according to the condi- 
 tion of the workings from time to time ; for 
 maintaining an escapement shaft, ventila- 
 tion, bore-holes, hoist-ways, &c. , and for 
 periodic official inspections. ///. Latos 1879 
 (May 28), 204. See Pa. Laws 1879, 75, 
 No. 85. 
 
 Indiana has passed a comprehensive law 
 prescribing systematic regulations to govern 
 the working of coal-mines. It limits the 
 number of men who may be employed in 
 specified cases; it requires a map of each 
 mine to be maintained, showing the state of 
 the workings from year to year; it pre- 
 scribes specific means to be maintained to 
 insure ventilation, to prevent accumulation 
 of water or gases, and to prevent accidents 
 in hoisting or lowering, or by falling into 
 the mine from above. It gives persons 
 employed, and land-owners entitled to roy- 
 alty, a lien upon the mine for their demands. 
 It also provides for the appointment of a 
 mine-inspector to see the law enforced. 
 Ind. Laws 1879 (March 8), 19, ch. 10. 
 
 Uilitia. In California, p. 60. In Georgia, p. 
 223. 
 
 A " mining boss " and a " driver boss " 
 are to' be deemed engaged in the same 
 general employment within the rule that 
 one of two employees thus engaged cannot 
 recover from the common employer for 
 hurts received through the fault or neglect 
 of the other. Supreme Ct. 1878, Lehigh 
 Valley Coal Co. v. Jones, 86 Pa. St. 432 ; 
 Delaware, &c. Canal Co. v. CaiToU, 89 Id. 
 374. 
 
 Minor Decisions on Mine. 
 
 General doctrine of the customary law of 
 California as to respective rights of owners 
 of a mining-claim and of a water-right: 98 
 U. S. 453. How to locate a claim, under 
 act of July 26, 1866, 14 Stat, at L. 251; and 
 act of May 10, 1872, 17 Id. 91: 98 U. S. 
 463. Operation of acts of Congress and 
 local statutes and usages, on the right to 
 follow a lode underground: 3 Col. 533; 4 
 Id. 112; Id. 557; 4 Sawyer, 84; 5 Id. 533; 
 99 U. S. 261. The question of abandon- 
 ment of a m. is determined by intent of 
 party leaving it; that one entering while 
 he was gone believed he did not mean to 
 return makes no diiference: 52 Cal. 315. 
 No lien is given by Col. Laws 1872, for 
 hauling ores from m. to quartz-mill: 4 Col. 
 251. A mining superintendent has not 
 authority, as such, to borrow money on the 
 credit of his principal; Id. 481. Buyer of 
 m. should not rely on seller's predictions 
 as to quantity of ore to be developed : 48 
 Iowa, 378. License to m. coal is on implied 
 condition of leaving sufficient supports for 
 surface; omitting to do so is actionable 
 negligence : 49 Iowa, 369. Liability of 
 mining company for injuries to employees 
 where the m is worked by contract: 39 
 Mich. 92. Superintendent's refusal to al- 
 low stockholders to inspect m. not an 
 offence: 14 Nev. 311. A water-right se- 
 cured under Rev. Stat, is not lost by mere 
 non-user less than twenty years, but may 
 be by actual abandonment: 7 Oreg. 456. 
 How to increase capital stock of a mining 
 company, under Ohio Laws: 34 Ohio St. 
 46. 
 
 MINNESOTA. Since Poore's com- 
 pilation, several amendments have been 
 made to the constitution of Minnesota, 
 as follows : — 
 
 " If any bill presented to the governor 
 
 Minister. Amos on the Constitntion treats of 
 ministers in British gorernmeot, p. 21. 
 
302 
 
 MINNESOTA. - MISSISSIPPI. 
 
 contain several items of appropriation of 
 money, he may object to one or more of 
 sucli items while approving of the other 
 portion of the bill. In such case he shall 
 append to the bill, at the time of signing 
 it, a statement of the items to which he 
 objects, and the appropriation so objected 
 to shall not take effect. If the legislature 
 be in session, he shall transmit to the house 
 in which the bill originated a copy of such 
 statement, and the items objected to shall 
 be separately reconsidered. If, on recon- 
 sideration, one or more of such items be 
 approved by two thirds of the members 
 elected to each house, the same shall be a 
 part of the law, notwithstanding the objec- 
 tions of the governor. All the provisions 
 of this section in relation to bills not ap- 
 proved by the governor shall apply in oases 
 in which he shall withhold his approval 
 from any item or items contained in a bill 
 appropriating money." Minn. Const. 1857, 
 addition to art. 4, § 11, adopted 1876 (Nov. 
 
 The legislature of the State shall consist 
 of a senate and house of representatives 
 who shall meet biennially, at the seat of gov- 
 ernment of the State, at such time as shall 
 be prescribed by law; but- no session shall 
 exceed the term of sixty days. Id. art. 4, § 
 1 ; as amended 1877 (Nov. 6) by insertion 
 of words in Italic. 
 
 Term of office of representatives to be 
 two years, and that of senators to be four 
 years; and modifications in manner of 
 electing, mostly temporary, enacted; cor- 
 responding to the introduction of biennial 
 sessions. Id. art. 4, § 24, amend. 1877 
 (Nov. 6). 
 
 "The returns of every election for the 
 officers named in the foregoing section 
 (governor, lieutenant-governor, secretary 
 of state, auditor, treasurer, and attorney- 
 general), shall be made to the secretary of 
 state, who shall call in his assistance two or 
 more of the judges of the supreme court, and 
 two disinterested judges of the district courts 
 of the State, who shall constitute a board of 
 canvassers, who shall open and canrass said 
 returns, and declare the result' within three 
 days after such canvass." Id. art. 5, § 2, 
 as amended 1877 (Nov. 6), by substituting 
 the words in Italic for a clause directing a 
 
 canvass before the two houses of the legig. 
 lature. 
 
 " The legislature shall make such provi- 
 sions, by taxation or otherwise, as, with the 
 income arising from the school fund, will 
 secure a thorough and efficient system of 
 public schools in each township in the State. 
 But in no case shall the moneys derived ai 
 aforesaid, or any portion thereof, or any 
 public moneys or property, be appropriated 
 or used for the support of schools wherein the 
 distinctive doctrines, creed, or tenets of any 
 particular Christian or other religious sect are 
 promulgated or taught." Id. art. 8, § 3, as 
 amended 1877 (Nov. 6), by addition of 
 words in Italic. 
 
 " The legislature shall not authorize any 
 county, township, city, or other municipal 
 corporation to issue bonds, or to become 
 indebted in any manner to aid in the con- 
 struction or equipment of any or all rail- 
 roads to any amount that shall exceed five 
 per centum of the value of the taxable 
 property within such county, township, 
 city, or other municipal corporation. The 
 amount of such taxable property to be 
 ascertained and determined by the last 
 assessment of said property made, for the 
 purpose of State and county taxation, pre- 
 vious to the incurring of such indebted- 
 ness." Id. added to art. 9, 1879 (Nov). 
 
 MISSISSIPPI. Constitutional amend- 
 ment directs biennial sessions of legislar 
 ture, in even-numbered years, commeucing 
 Tuesday after first Monday in January, 
 unless sooner convened by the governor. 
 The time and place of meeting may be 
 altered by law. Miss. Const, art. 4, § 6, 
 amend. 1878. 
 
 Code. An act "to approve, adopt, and 
 make of force, in the State of Missis- 
 sippi, a Revised Code of Statutes, prepared 
 by authority of the legislature thereof, 
 and to provide for its publication," ap- 
 proved March 6, 1880, gives formal adop- 
 tion by the legislature of a "revised code 
 of the public statute laws of the State of 
 Mississippi, prepared vinder its authority 
 by J. A. P. Campbell, and reported to the 
 legislature by him," as revised, &c.; makes 
 provision for printing it, to be completed 
 by Oct. 1, 1880, and for distribution of 
 copies ; directs that the governor shall take 
 
 Minor. Infancy, genornlly, Infant. 
 tion protecting children. Child. 
 
 Relation of parent and child, Parent, &c. Recent legisla- 
 
MISSOURI. — MORTGAGE. 
 
 303 
 
 out a copyright for it in the name of the 
 State; and prohibits all persons, except by 
 authority of the State, from printing it. 
 
 MISSOURI. For the division into east- 
 ern and western districts, the counties 
 which compose each, the appointed terms 
 of the circuit and district courts, their 
 jurisdiction, and the appointment of clerks 
 and deputies, see act of April 8, 1878, 20 
 Stat, at L. 35; Act of Jan. 21, 1879, Id. 
 268. 
 
 MONET RECEIVED. To maintain an 
 action for money had and received, it is 
 necessary to establish that defendant re- 
 ceived moneys belonging to plaintiff, or to 
 •which he is entitled; to show that defend- 
 ant has, by fraud or wrong, caused the 
 plaintiff to pay money to others, or to 
 sustain loss or damage, is not sufficient. 
 Where, however, several persons are par- 
 ties to a forgery, by means of which another 
 is induced to pay moneys to one of them, 
 who, in obtaining the money, acts in behalf 
 of those engaged with him in the forgeiy, 
 the action is maintainable against all; it is 
 not necessary to establish that each of the 
 defendants received a share of the proceeds. 
 And this result will not be varied by the 
 fact that the common agent failed to ac- 
 count with his associates, and absconded 
 with the proceeds. Ct. of Appeals, 1879, 
 National Trast Co. «. Gleason, 77 N. Y. 
 400. 
 
 In such a case it is a question of fact, 
 not of law, whether the several defendants 
 who were guilty of complicity in the forgery 
 were interested in the money received. 
 Mere complicity in a crime does not, as 
 matter of law, render every guilty party 
 liable in a civil action for money had and 
 received, or, as borrower, to every person 
 
 Mistake. Mii^take in summoninf^ grand jury 
 does not impair indictment, p. 7. Mistake of at- 
 torney in certifying defective title does not render 
 him^able to person who lent money on it, p. 32. 
 Money drawn on a raised check is paid by mis- 
 take,, p. 36. Mistake of treasury olBcers in exact- 
 ing too much from sureties of defaulter, p. 51. 
 Mistake in indexing a deed, in the records, p. 145. 
 
 Money. The coinaffe-of-silver law, p. 96. Money 
 robbed from county treasurer, a county loss, p. 129. 
 Money in custody of court, p. 131 ; in hands of 
 fiscal officers of government, p. 134. Extravagant 
 appropriation criminal, p. 135. Retiring the cur- 
 rency, p. 139. " Money " defined, p. 163. 
 
 Mx)iiey-bill. Exclusive privilege of the popular 
 house to originate one, pp. 107, 167; meaning of 
 "currencv," p. 151. What is a "money-bill," p. 
 163. 
 
 ' paid. Money paid by disbursing officer 
 
 who has been defrauded by means of such 
 crime. In order to charge a party, the 
 receipt of the money, either personally or 
 by agent, must be shown, and if by an 
 agent, the agency must be proved; his 
 complicity in the crime is not the cause of 
 action, but simply an item of evidence 
 tending to establish his interest in the pro- 
 ceeds. Ih. 
 
 A wife who merely aids her husband in 
 the commission of a forgery, or a mechanic 
 who is simply employed to execute some 
 portion of the work, and is paid for his ser- 
 vices, having no concern with or interest 
 in the fruits of the crime, is not liable in 
 an action ex contractu for money advanced 
 upon the forged instrument, lb. 
 
 Minor Deoisions on Money Beceived. 
 
 Payment made without coercion cannot 
 be recovered back because accompanied by 
 a protest: 53 Cal. 379. Money paid to 
 patentee, as royalty, in ignorance that the 
 patent has expired, may be recovered back: 
 45 Conn. 464. Excessive freight exacted 
 by carrier as condition of delivering goods 
 may be recovered back as paid under duress : 
 74 N. Y. 125. One to whom an executor, 
 mistaking the interpretation of the will, 
 has paid money as bequeathed to hiiu, is 
 not liable to an action for money received 
 by the true legatee: 127 Mass. 22. 
 
 MONTANA. A land district constituted, 
 named the District of the Yellowstone. 
 Appointment of a register and a receiver 
 authorized. Act of Congress of April 30, 
 1880. 
 
 MORTGAGE. Lots in the grounds of 
 an incorporated cemetery association, sold 
 by them to individuals to be used for burial, 
 but held under the charter powers and the 
 
 cannot be proved against payee, by treasurv ac- 
 count with officer, p. 12. Accounts of money'paid, 
 p. 12. Money paid on Alabama claim goes to 
 claimant's assignee in bankruptcy, p. 42. Who 
 loses money paid by bank on forged check, p. 35 ; 
 on raised check, p. 30. When money paid on 
 claim is a full discharge, pp. 94, 96. 
 
 Money received. Judgment formerly collected 
 by sheriff is a fiduciary debt, p. 44. By govern- 
 ment, through pistake of treasury officers, — how 
 settled, p. 51. When person may be sued for 
 money received on immoral contract, p. 109. 
 Bank's receiving mo-nej borrowed by cashier with- 
 out authority, — a ratincation, p. 122 
 
 Mortgage. Lender on faith of erroneous certifi- 
 cate of title cannot sue mortgagor's attorney, p. 32. 
 May national banks lend on real property, pp. 37, 
 40. Chattel mortgage, pp. 77, 78. Corporation 
 cannot execute power of sale in mortgage, p. 120. 
 
304 
 
 MORTGAGE. 
 
 by-laws of ,the association, should not be 
 deemed subject to mortgage by their indi- 
 vidual owners for ordinary debts ; especially 
 after an interment has been made within 
 the lot in question. N. Y. Supreme Ct. 
 1880, Thompson v. Hickey, 22 Alb. L. J. 
 88. 
 
 A mortgage is a mere security for debt, 
 and substantially, both at law and in equity, 
 the mortgagor is the real owner of the prop- 
 erty mortgaged. Rents of mortgaged prop- 
 erty can be claimed by the mortgagee only 
 by virtue of his contract with the mort- 
 gagor. They are not an incident, as be- 
 tween mortgagor and mortgagee, to a 
 mortgage pledging the property by metes 
 and bounds, and making no reference to 
 the rents. When there are no intervening 
 equities of other pai-ties, the court may, on 
 it appearing that the mortgaged property 
 is in danger of being lost, removed, or 
 materially injured, or that the condition 
 of the mortgage has not been performed, 
 and that the property is probably insuflRcient 
 to discharge the mortgage debt, appoint a 
 receiver, and subject the subsequently-ac- 
 cruing debts or profits to the satisfaction 
 of the mortgagee's claims. But where 
 another than the mortgagee has acquired a 
 legal or equitable interest in or title to the 
 rents or profits prior to the appointment of 
 a receiver, the mortgagee's claim to such 
 rents or profits will be postponed to that of 
 the intervening claimant. Ct. of Appeals, 
 1879, Woolley v. Holt, 14 Bush (Ky.), 788. 
 
 In Arkansas, except upon a mortgage for 
 purchase-money, property, whether real or 
 personal, must not be sold under foreclosure 
 at the first oifering for less than two thirds 
 the appraised value; but may be put up, 
 after prescribed delay, for absolute sale. 
 Mortgagor of real property has a year to 
 redeem. Manner of making appraisement 
 prescribed. Ark. Laws 1879 (March 17), 
 94, § 1- 
 
 Minor Decisions on Mortgage. 
 A m. for future advances, if sufficiently 
 definite and given in good faith, is valid: 
 33 Ark. 72. There cannot be an oral m. 
 on real property: 53 Cal. 677. A debt is 
 essential to a m.: 88 ///. 482; 39 Mich. 39; 
 therefore, when debt is outlawed, m. fails: 
 88 111. 482. Nature of m. and rights of 
 parties, by Minnesota law, explained with 
 reference to a railway in : 34 ilinn. 464. 
 
 National bank cannot take m. to secure a 
 future debt: 71 N. Y. 161. How equitable 
 m. may be constituted, or waived: 24 
 Minn. 221; 99 U. S. 143; 74 iV^, Y. 348. 
 Omission to record a m. on a vessel does 
 not impair it between the parties : 100 U. 
 S. 145. M. of land with factory buildings, 
 machineiy, tools, and fixtures, need not be 
 recorded as a m. of personalty: V2o Mass. 
 400. Maryland law as to recording mort- 
 gages, and the doctrine of constructive 
 notice from the record, explained. 50 Mil. 
 263. Concurrent jurisdiction of State and 
 Federal court to foreclose railroad in. : 14 
 Blatchf. 463. 
 
 Condition of m. given to secure a num- 
 ber of notes falling due at different times,— 
 held, broken in default of payment of any 
 one of the notes: 56 Ala. 211. Taking a 
 m. for the price waives a vendor's lien: 33 
 Ark. 63. Landlord's lien on crop for rent 
 is superior to lien of mortgagee: /d. 707. 
 A railroad m. of all the property belonging 
 to the grantors, and used as part of said 
 railroad or necessary for its operation, &c., 
 was held to cover office furniture in the 
 business offices of the company: 46 Conn. 
 129. Abandonment of premises by tenant 
 reinstates landlord in occupancy, notwith- 
 standing tenant delivers keys to mortgagee 
 and the latter sells: 6 Mo. App. 72. A 
 national bank organized to succeed a State 
 bank can foreclose a m. which it acquired 
 by assignment from the State bank: 9 Neb. 
 316. Liability of grantee who has taken 
 deed assuming to payoff ni.; and how to 
 enforce it: 71 N. Y. Q\ Id. 26. Mortgagee 
 suing to recover deficiency on foreclosure 
 from executor of a grantee who had cove- 
 nanted to pay the ni. must prove leave of 
 court to bring suit: 72 iV". Y. 491. Intent 
 to oppress mortgagor by foreclosure suit, 
 and to buy in the property at an under- 
 valuation, is not a defence to action by as- 
 signee; Id. 57 o. One who buys leased 
 premises under m made after the lease has 
 no better right than lessor to tenant's fix- 
 tures: 76 iV. r. 23. A m. on after-acquued 
 property, though invalid when given, may 
 acquire" validity by mortgagee's taking pos- 
 session of the property when acquired: 10 
 5. C. 452. Creditor accepting a m. as a 
 collateral security only, though payable at 
 a more distant day, does not extend time 
 for paying principal debt : 8 Cent. L.J- IM- 
 
 Where a in. tract has been sold in lots, 
 
MORTGAGE. — MUNICIPAL CORPORATION. 
 
 305 
 
 they are liable in inverse order of aliena- 
 tion : 100 U. S. 630. One claiming to re- 
 deem land from a deed absolute must make 
 clear proof that it was made as a security; 
 testimony of a husband and wife interested 
 will not outweigh testimony of grantee: 86 
 /;/. 1. Mistake in description of lands 
 mortgaged by husband and wife may be 
 reformed, against them: 63 Ind. 27. 
 Whether an arrangement was payment of 
 a m. or a transfer as collateral security, see 
 71 N. Y. 63. Release, by mortgagor, of 
 equity of redemption to mortgagee, is not 
 vofd, but will be scrutinized: 33 Ohio 
 St. 1. 
 
 MUMCIPAL CORPORATION. Pow- 
 ers of legislature. In the absence of a 
 constitutional restriction, the corporate ex- 
 istence and powers of counties, cities, and 
 towns are subject to the legislative control 
 of the State creating them. If a town is 
 legislated out of existence, and its territory 
 annexed to its neighbors, the latter, unless 
 the legislature otherwise provides, become 
 entitled to share its property and immuni- 
 ties, and liable for proportions of its debts, 
 and vested with its power to raise revenue 
 for paying them by levying taxes upon the 
 property transferred and the persons re- 
 siding within the territory transferred. 
 The remedy of the creditors of the ex- 
 tinguished coi-poration is in equity against 
 the corporations succeeding to its property 
 and powers. Supreme Ct. 1879, Mount 
 Pleasant p. Beckwith, 100 U. S. 513. 
 
 In this countiy municipal corporations 
 are understood to be created by the au- 
 thority of the legislature, and to derive all 
 their powers fi'om it. Except where the 
 constitution of the State otherwise provides, 
 they have no inherent jurisdiction to make 
 laws or to adopt governmental regulations, 
 nor can they exercise any other powers in 
 that regard than such as are expressly or 
 impliedly derived from their charters or 
 other statutes of the State; and these 
 
 Municipal corporation. Matters applicable to 
 these and other incorporations in common, Coepor- 
 
 ATKIN. 
 
 Municipal bonds an estoppel, if there was power 
 to issue them, pp. 51, 52. jMiinicipalities in Cali- 
 fornia cannot pledge credit or make donations, p. 
 67; or^give extras to officers, pp. 57, 58. Munici- 
 palities in California, p. 60. What power to make 
 local improvements may be granted them, p. 107. 
 Restriction on Mississippi municipalities' lending 
 their credit, p. 108. Effect of such restrictions in 
 State constitution, p. 108. Counties, generally, p. 
 127. Dedication of streets, parks, &c., in cities, 
 
 20 
 
 powers may be modified or taken away at 
 the mere will of the legislature, according 
 to its own views of public convenience, 
 and without any nece^ity for the consent 
 of those composing the body politic. Cor- 
 porate rights and privileges are usually 
 possessed by such municipalities; and it is 
 equally true that they are subject to certain 
 legal obligations and duties, which may be 
 increased or diminished at the pleasure of 
 the legislature, from which all their powers 
 are derived. They are, however, merely 
 the auxiliaries of the State in the impor- 
 tant business of municipal rule, and can- 
 not have the least pretension to sustain 
 their privileges or their existence upon 
 anything like a contract between them- 
 selves and the legislature of the State, 
 because there is not and cannot be any 
 reciprocity of stipulation between the par- 
 ties, and for the further reason that their 
 objects and duties are utterly incompatible 
 with everything partaking of the nature of 
 compact. Instead of according to them any 
 rested rights the constant practice is to 
 divide large municipalities and to consoli- 
 date small ones, or set off portions of ter- 
 ritory from one and annex it to another, to 
 meet the wishes of the residents or to pro- 
 mote the public interests as understood by 
 the legislature, — it being everywhere un- 
 derstood that the legislature possesses the 
 power to make such alterations and to 
 apportion the common property and bur- 
 dens as to them may seem just and equit- 
 able. Old towns may be divided and new 
 ones incorporated out of parts of the ter- 
 ritory of those previously organized; and 
 in enacting such regulations the legislature 
 may apportion the common property and 
 the common burdens, and may, as between 
 the parties in interest, settle all the terms 
 and conditions of the division of their ter- 
 ritory, or the alteration of the boundaries. 
 Or if the legislature omits to make adjust- 
 ment of these questions, the presumption, 
 
 pp. 113, 144. 169. "Cause" of remov.-!! of city 
 officer.*, p. 149. Who are "city officers," p. 150. 
 What are " city purposes," pp. 150, 155. What is 
 a " donation" by a city, p. 153. City charter not 
 an "especial privilege," p. 154. Ferry in waters 
 around citv of New York, p. 155. City market, p. 
 162. Charter power to '• regulate," p. 168. City 
 taking lauds to (ill them in, p. 197. Municipal 
 corporations in Georgia may not be stockholders 
 in, or lend credit to, corporations, p. 221. Limit of 
 their indebtedness, pp. 221, 222. State shall not 
 assume their debts, p. 222. Their power to main- 
 tain schools, p. 222. 
 
306 
 
 MUNICIPAL CORPORATION. 
 
 as between the parties, is that specific 
 regulations were not considered necessary. 
 lb. 
 Powers: over l)roperty and fnnds. 
 
 The property of a municipal corporation 
 necessary to the exercise of its functions, 
 such as markets, prisons, &c., or property 
 which has been destined and set apart by 
 an, act of the legislature as a permanent 
 revenue, or source of permanent revenue 
 for the corporation, cannot be seized or 
 sold on execution against it. But a place 
 of traffic called a bazaar, owned by a 
 municipal corporation for the sale of mer- 
 chandise, from which the sale of fresh 
 meats, fish, and vegetables was excluded, 
 and which had been rented out by the cor- 
 poration for a term of yeai-s, is not such a 
 market as is protected fi-om execution, and 
 no authority having been given by the leg- 
 islature to establish such a bazaar, it is sub- 
 ject to levj' and sale. Markets are places 
 where comestibles, perishable in their na-> 
 ture, are sold for the daily consumption of 
 the people, which, from the very nature of 
 the things therein sold, require sanitary 
 regulations, and thus fall within the police 
 power of cities. 5/A Circ. (La.) 1877, New 
 Orleans u. Morris, 3 Woorli, 103. 
 
 A city council has not implied power to 
 offer a reward for arrest and conviction of 
 a city treasurer who has embezzled its funds 
 and absconded. The governing bodies of 
 corporations can only expend the funds of 
 the corporation in the discharge of corporate 
 duties and obligations, or in furtherance of 
 the objects for which the corporation was 
 created. The crime in question was not a 
 crime against the city corporation any 
 more than the larceny of one's goods or the 
 forging of his name is an oifence against 
 him. The offence in either case is against 
 the sovereign authority and not against the 
 individual or local community. It is not a 
 part of the duty of a municipal corporation, 
 as such, to bring to justice offenders against 
 the laws of the State. The individual 
 officers are, in a certain sense, officers of 
 the State as well as of the municipality; 
 the State may require them to perform 
 duties for it, and may authorize its legisla- 
 ture or executive to offer rewards for the 
 apprehension of persons who offend against 
 the laws of the State within the local limits 
 of the municipality; but they have not the 
 implied power to offer such rewards. This 
 
 is not a matter in which the local public have 
 an exclusive or peculiar interest as distin- 
 guished from the general public. The of- 
 fender, when arrested, must be tried under 
 the laws of the State by the judiciary of the 
 State. Ct. of Appeals, 1878, Patton ». 
 Stephens, 14 Bush (Ky.), 324. 
 
 What is a "corporation purpose" for 
 which moneys may be appropriated is a ques- 
 tion to be determined from the facts and 
 circumstances of each particular case. To 
 make an appropriation of money by a cor- 
 poration lawful, it must be to an object not 
 only beneficial to the interests of its inhab- 
 itants, but must also be directly connected 
 with the local government thereof; and 
 where, by its charter, a city is vested with 
 the power to establish and regulate schools, 
 the money may be so appropriated in aid 
 of a college which, though situated on land 
 adjoining the corporation and in full view 
 of it, is not embraced within its limits. 
 Supreme Ct. 1873, East Tenn. University 
 f. Knoxville, 6 Baxt. {Tenn.) 166. 
 
 The establishment and regulation of 
 schools are corporation purposes of the 
 local government of a town or city. If 
 schools can be established and regulated 
 within the corporate limits of the city or 
 town, then they should be there located. 
 But if it is impracticable to find locations 
 within the city or town, or if locations 
 can be had more cheaply and equally ac- 
 cessible and convenient for the accommoda- 
 tion of the inhabitants of the town or city, 
 the fact that the school-houses are outside 
 the corporation cannot affect the question 
 of power. The education of the children 
 of the town or city is the purpose for 
 which the local government may lawfully 
 appropriate money. If the money appro- 
 priated effects the purpose, it can make 
 no difference whether the houses where 
 the schools are taught are located on one 
 side or the other of an imaginary hne. lb. 
 
 Nor is the principle affected by the 
 fact that the money is appropriated to a 
 school already located in operation outside 
 of, but adjoining, the corporation boundiv 
 ries. If, in the judgment of the local gov- 
 ernment, the appropriation is necessary and 
 proper to prevent the discontinuance of the 
 school, or to give wider extent to its use- 
 fulness, and to secure to it permanency, 
 the purpose is as much a corporation pur- 
 pose as if the money was appropriated in 
 
MUNICIPAL CORPORATION. 
 
 307 
 
 founding a new school either in the city or 
 outside of it. The controlling question is, 
 was the appropriation made to secure to 
 the inhabitants of the city the benefits and 
 advantages of education. lb. 
 
 Nor is the principle affected by the fact 
 that pupils from eVery other county or State 
 or country have the same privilege of going 
 to the school with the pupils whose parents 
 are members of the corporation. The ap- 
 propriation is made not to secure to the 
 inhabitants of the city either supei'ior rights 
 or privileges over the inhabitants of other 
 portions of the counti-y, but to secure the ad- 
 vantages resulting from their proximity to 
 the school. The incidental benefits to the 
 inhabitants in the way of extending and in- 
 creasing their trade by the expenditure of 
 large amounts of money among them, in 
 consequence of the location of the school in 
 their vicinity, are not sufBcientof themselves 
 to establish the power of the corporation 
 to make the appropriation ; but when it is 
 seen that the appropriation is for a legiti- 
 mate coi-poration purpose, then the inci- 
 dental advantages may be looked to on the 
 question whether the local government have 
 exercised their power of appropriation 
 wisely or not. Ih. 
 
 — to levy taxes. Where bonds of a 
 county or municipality have been issued 
 under authority of law, and where, at the 
 same time, the law has .directed a tax to be 
 levied for their protection, or where there 
 is a general law authorizing and directing 
 a tax in all like cases, applicable to said 
 bonds, the law becomes a part of the con- 
 tract. The holder is entitled to look to 
 tlie taxing provision as a part of his secur- 
 ity, and has a vested right to demand, at 
 the pioper time, that it shall be exercised 
 in his favor. The measure of the right 
 will be the constitutional limit of the power 
 whicii the legislature could grant to the 
 municipality when the contract was made. 
 Such contracts are protected by the con- 
 stitution of the United States, and no 
 subsequent act of a State legislature or 
 constitutional convention can impair them. 
 Supreme Ct. 1878, Brodie v. McCabe, 33 
 Ark. 690. 
 
 The adoption by the people of a consti- 
 tution prohibiting municipalities from levy- 
 ing taxes beyond an assigned limit cannot 
 impair the right of holders of bonds pre- 
 viously issued and valid to have a tax levied 
 
 adequate for the payment of those bonds. 
 lb. 
 
 A municipal corporation has no authority 
 to levy a tax to provide a fund with which 
 to entertain official visitors to the munici- 
 pality. Such a tax would not be for any 
 necessary or proper "corporate purpose." 
 Supreme Ct. 1877, Law v. People, 87 III. 
 385. 
 
 When a city has issued evidences of in- 
 debtedness after having reached the consti- 
 tutional limit as to amount, and the limit 
 in its charter, in violation of the constitu- 
 tion and the law, such evidences being void, 
 a tax levied to pay such certificates, or in- 
 terest thereon, is illegal, and cannot be 
 collected. Ih. 
 
 — in contractingr debts. A constitu- 
 tional provision prohibiting a city from in- 
 curring debt beyond a prescribed limit, 
 here, — Illinois Const, art. 9, § 12, cl. 1, — 
 " no county, city, &c., shall be allowed 
 to become indebted in any manner or for 
 any purpose to an amount, including exist- 
 ing indebtedness, in the aggregate exceed- 
 ing five per centum of the taxable property 
 therein," must be enforced as it is written. 
 The courts are not authorized, either 
 upon the idea that municipal corporations 
 have an inherent power to borrow money 
 (for they have not), or because repudiation 
 of municipal evidences of debt will work 
 hardship, or for the purpose of according 
 protection to supposed bortafide holders, or 
 because great inconvenience in adminis- 
 tration of the city's business may be anti- 
 cipated, to create exceptions or allow 
 violations of such a prohibition. lb. 
 
 The language of the prohibition above 
 cited is plain and clear; the unmistakable 
 purpose was to effectually protect persons 
 residing in municipalities from any and 
 all abuses of municipal credit. Any cor- 
 porate indebtedness created beyond such 
 limit, and the evidences thereof, are void, 
 and no tax can be levied and collected to 
 pay the same or interest thereon. The 
 prohibition extends to and embraces debts 
 incurred to be paid on a future day, as well 
 as those due and payable at once. It will 
 be presumed that they are prohibited and 
 illegal. If it is possible for a city to create 
 a valid and binding debt in excess of the 
 constitutional limit, the burden of proof 
 rests on a party asserting its validity. He 
 must show that a debt created in excess of 
 
308 
 
 MUNICIPAL CORPORATION. 
 
 such limit is of such a character as the law 
 sanctions, or it will be adjudged illegal and 
 void. Certificates issued by a city on which 
 to procure " temporai-y loans," stating that 
 the city owes the holder a specified sum of 
 money, and promising, or directing the 
 treasurer, to pay it at a specified time^, or 
 otherwise, are evidences of indebtedness 
 owing by the city, and are prohibited ; for it 
 is essential to the existence of a debt that 
 it shall be due at the time it is created. 
 When a city is expressly limited to a spe- 
 cial amount of indebtedness, beyond which 
 no debts can be created further, a party 
 loaning it money is bound to ascertain at 
 his peril whether the city has not already 
 reached its limit, and if he does not, and 
 the city has reached its limit, he cannot 
 enforce payment of the evidences of in- 
 debtedness given him to secure the loan. 
 It will be presumed that they are prohib- 
 ited and illegal. If it is possible for a city 
 to create a valid and binding debt in ex- 
 cess of its constitutional limit, the burden 
 of proof rests on a party asserting its valid- 
 ity. He must show that a debt created in 
 excess of such limit is of such a character 
 as the law sanctions, or it will be adjudged 
 illegal and void. li. 
 
 A constitutional provision prohibiting 
 cities from becoming " indebted in any 
 manner " will not be limited by construc- 
 tion to bonded debt; it forbids issuing 
 warrants. Supreme Ct. 1879, Councii Bluffs 
 V. Stewart, 51 Iowa, 385. 
 
 A constitutional amendment, declaring 
 " nor shall such county, city, town, or 
 village be allowed to incur any indebted- 
 ness, except for county, city, town, or vil- 
 lage purposes," does not forbid a statute 
 authorizing two cities to construct a public 
 bridge connecting them. 
 
 1. It is not essential, to constitute a 
 "city purpose," that the work should be 
 wholly within the city limits. It is enough 
 if the improvement be for the common and 
 general benefit of all the citizens, as dis- 
 tinguished from an external work, from 
 which only incidental benefits to the muni- 
 cipality may flow. A bridge connecting 
 two cities is a city purpose for each, within 
 the constitutional provision. 
 
 2. It is for the legislature to determine, 
 in the first instance, what is a " county, 
 city, town, or village purpose," within the 
 meaning of the constitution ; and although 
 
 their determination is subject to the power 
 of the judiciary to decide the constitutional 
 question, yet the legislative act should not 
 be declared unconstitutional, unless the 
 purpose appears clearly to be one not au- 
 thorized. Ct. of Appeals, 1879, People v. 
 Kelly, 5 Ahb. N. Cas (iV. Y.) 383. 
 
 A certificate of city stock, transferable 
 according to its terms only at the office of 
 the city treasurer, by appearance in per- 
 son or by attorney, was indorsed in blank 
 by the legal owner, and delivered to one 
 who pledged the same to a bank as collat- 
 eral security for a loan. The owner died, 
 and the certificate was, by virtue of a trans- 
 fer written over his name by the cashier, 
 transferred to the bank on the books of the 
 city treasurer, after the death of said 
 owner. Held, that the indorsement and 
 delivery was an equitable assignment, and 
 that the subsequent transfer to the bank 
 was proper. The provisions of such certi- 
 ficate as to its transfer are designed solely 
 for the safety and security of the corpora- 
 tion itself, and of purchasers without no- 
 tice. Supreme Ct. 1878, Eraser v. Charles- 
 ton, 11 S. C. 486. 
 
 — in making contracts. Notwithstand- 
 ing the arrangement may be put in the 
 form of an ordinance, an agreement between 
 a city and a gas-lighting company, for the 
 lighting of streets and public places by the 
 latter, must be regarded as having been 
 made by such city in the exercise of its 
 power to conti'act, and not in the exercise 
 of its power ' to legislate, although the 
 power to make the contract be authorized 
 by an ordinance. And when by the 
 terms of such a contract the city is not 
 restricted in any respect from the legiti- 
 mate exercise of its public power touching 
 the subject-matter thereof, but expressly 
 reserves its administrative authority to 
 keep the posts, lamps, and burners in 
 good repair, if the company .should fail to 
 do so ; and also reserves the right to test 
 the gas furnished by such company, and 
 the capacity of the burnei-s, at all times; 
 and is not restricted from extending its 
 streets, establishing an additional number 
 of lamps, obtaining gas from other sources, 
 or establishing its own gas-works, as the 
 public interests may require, — such con- 
 tract, not being a restriction upon its legis- 
 lative power, nor fraudulent, nor against 
 public policy, is valid and binding upon such 
 
MUNICIPAL CORPORATION. 
 
 309' 
 
 city, may be enforced in the same manner 
 as the contract of a person or business cor- 
 poration, and cannot be repealed, impaired, 
 or changed by the city, by ordinance or 
 otherwise. Supreme Ct. 1879, Indianapo- 
 lis u. Indianapolis Gas-Light, &o. Co., 66 
 Ind. 396. 
 
 If the power conferred by law upon the 
 contracting officers of a city is limited to 
 giving a contract for a public work to the 
 lowest bidder upon an advertisement for 
 proposals, a contract founded upon an 
 alteration in the bid of one competitor 
 which he is allowed to make after the com- 
 petition is closed, in such a manner as to 
 give him an opportunity or a benefit not 
 offered to the others, is unauthorized and 
 void. Such contract cannot even confer 
 upon the contractor the right to recover 
 upon a quantum meruit for labor done or 
 materials furnished. Ct. of Appeals., 1878, 
 Dickinson v. Poughkeepsie, fo N. Y. 65. 
 
 — over persons and vocations. Au- 
 thority may be conferred by the legislature 
 upon a city to require persons pursuing 
 various vocations within the city limits to 
 take a license and pay a fee therefor. The 
 power of the legislature to grant such au- 
 thority pertains not to the power of taxa- 
 tion, but to the police power; hence a 
 constitutional provision that taxes shall be 
 uniform and according to the value of the 
 property taxed does not prevent these city 
 licenses. Nor are they objectionable as tak- 
 ing or interfering with the use of private 
 property ; every citizen holds his property 
 subject to the proper exercise of the police 
 power, either by the legislature directly or 
 by public corporations to which it may 
 have been delegated. Thus a city may be 
 authorized to require every person doirig 
 business as a real-estate broker within the 
 city to pay for a license. Supreme Ct. 
 1878, Little Rock v. Barton, 33 Ark. 436. 
 
 A charter power to regulate pork-pack- 
 ing establishments includes power to re- 
 quire them to take out licenses. This is 
 one means of regulating. Supreme Ct. 
 1878, Chicago Packing, &c. Co. v. Chicago, 
 88 III. 221. 
 
 Where a special charter of a town gives 
 the president and trustees "complete and 
 exclusive control . . . over the selling, bar- 
 tering," &c., of spirituous and other liquors 
 within the town, and then provides they 
 may, by ordinance, declare the traffic, &c., 
 
 in such liquors a nuisance, this will give 
 them full powers to regulate the sale of 
 such liquors by license, and the authorities 
 of such town will not be limited in tlie ex- 
 ei'cise of such control by the declaring of 
 the sale, &c., a nuisance. Supreme Ct. 
 1878, Martin v. State, 88 111. 39U. 
 
 A charter power to " prohibit " sales of 
 intoxicating liquors includes a power to 
 require sellers to take out a license and 
 pay a fee. Supreme Ct 1878, Keokuk v. 
 Dressell, 47 Iowa, 59(3. 
 
 A charter power to regulate markets in- 
 cludes power to prohibit opening markets 
 altogether except a^ designated places. Su- 
 preme Ct. 1879, State o. Gisch, 31 La. Ann. 
 544. 
 
 " The board of trustees or other legis- 
 lative authority of any incorporated city or 
 town, and the board of supervisors of any 
 incorporated city and county, are hereby 
 granted the power, and it is hereby made 
 their duty, to pass and enforce any and all 
 acts or ordinances or resolutions necessary 
 to cause the removal without the limits of 
 such cities and towns, or city and c#unty, 
 of any Chinese now within, or hereafter to 
 come within, such limits; provided, that 
 they may set aside certain prescribed por- 
 tions of the limits of such cities or towns, 
 or city and county, for the location therein 
 of such Chinese." Cal. Laws 1880 (April 
 13), 114, ch. 68. 
 
 Liabilities : on contract. In an author- 
 ized express contract by a municipal cor- 
 poration, a reservation to the proper officers 
 of power to make changes in detail, and 
 fix the prices of extra work, if any should 
 be so required, is valid. Where, under 
 such a contract, changes were made by the 
 city officers, but performance of the work 
 as thus increased was stopped by the city 
 before its completion, — Held, that the con- 
 tractors could recover against the city up 
 to the amount of the appropriation for work 
 actually done. Brooklyn City Ct., 1878, 
 Kingsley v. Brooklyn, 5 Abb. N. Cas. (JV. 
 Y.)l. 
 
 Obligation, and enforcement towards 
 the city of Brooklyn, of the contract for the 
 erection of the suspension bridge between 
 New York and Brooklyn, — determined. 
 lb. ; People v. Kelly, Id. 383. 
 
 Where a municipality is empowered to 
 subscribe to the capital stock of a railroad 
 company, and issue its bonds in payment 
 
310 
 
 MUNICIPAL CORPORATION. 
 
 of the subscription, but it is also required 
 that there shall be an affirmative vote of a 
 majority of the electors of the municipality 
 to that effect, no power exists to make the 
 subscription and issue the bonds until after 
 such vote shall have been obtained, at an 
 election held for that purpose, called by 
 the authority prescribed by law, and upon 
 such notice of time and place of holding 
 the election as the law directs; and 
 whoever deals in municipal bonds is 
 chargeable with knowledge, whether these 
 precedent conditions to the existence of 
 the power of making the subscription and 
 issuing the bonds have been complied with. 
 Supreme Cl. 1878, Williams fc. Roberts, 88 
 III. 1. 
 
 Where the law under which a town sub- 
 scription was made, and its bonds issued, to 
 a railroad company, required there should 
 first be an affirmative vote of a majority of 
 the electors of the town, authorizing the 
 subscription, and that the election should 
 be called upon the application of twenty 
 legal voters and taxpayers of the town, 
 and tilat notice of the election should be 
 posted for at least twenty days, and the 
 application for the election was signed by 
 only twelve legal voters and taxpayers of 
 the town, and the notice of the election was 
 posted only ten days, it was held that the 
 election was a nullity, and gave no power 
 to make the subscription and issue the 
 bonds. lb. 
 
 County boards, such as boards of super- 
 visors, county commissioners, and the mu- 
 nicipal authorities of incorporated cities, 
 towns, and villages, may, when empow- 
 ered to do so by proper legislation, sub- 
 scribe for the capital stock of railroad 
 corporations without first submitting the 
 question to the electors of the municipal- 
 ity, they being considered as the represen- 
 tatives of the electors. But under the 
 Illinois township system there is no offi- 
 cer or board representing the corporate 
 authority of the town; the electors only 
 represent the town, and they nmst ne- 
 cessarily act through town-meetings or 
 elections. The legislature is powerless, by 
 subsequent enactment; to validate a void 
 election of a town, under the township 
 system, for such subscription. lb. 
 
 Recitals by officers, invested with the 
 ministerial duty of issuing municipal bonds 
 as to the legality of the election authorizing 
 
 their issue, and the existence of the facts 
 authorizing their validity, will not render 
 such bonds, when issued without authority 
 of law, valid, in the hands of bond fide 
 holders. The agent cannot, by his act 
 alone, invest himself with power to bind 
 his principal ; and his act, unknown to and 
 unsanctioned by his principal, cannot be 
 held to estop the latter to deny his power 
 to act. lb. 
 
 Under the present constitution of Illi- 
 nois the legislature cannot compel a muni- 
 cipal corporation to incur a debt or issue 
 its bonds for a local corporate purpose, 
 without its consent. Hence, where an 
 election of a town, to decide upon a cor- 
 porate subscription, was not called accord- 
 ing to law, and the notice thereof was not 
 given for the requisite time, — held, that 
 a subsequent act of the legislature legaliz- 
 ing such election, and declaring it and the 
 subscription binding, was invalid, because 
 beyond legislative power. lb. 
 
 — for condition of streets. A muni- 
 cipal corporation, authorized by law to im- 
 prove a street by building on the line 
 thereof a bridge over, or a tunnel under, a 
 navigable river, where it crosses the street, 
 incurs no liability for the damages una- 
 voidably caused to adjoining property by 
 obstructing the street or the river, unless 
 such liability be imposed by statute. Su- 
 preme Ct. 1878, Transportation Co. v. Chi- 
 cago, 99 U. S. 635. 
 
 Although the immediate cause of a 
 traveller's injury was his horse taking 
 fright and running away, yet if he himself 
 is without fault, and if, through neglect of 
 the city, the street is not safe for travel, 
 here, because it was not properly fenced, 
 though on a high embankment, and the 
 defect is the ultimate and real cause, the 
 traveller may recover damages. Supreme 
 Ct. 1877, Atlanta v. AVilson, 59 Ga. 544; 
 1878, Wilson v. Atlanta, 60 Ga. 473. 
 
 Hume was injured by the falling upon 
 him of a wooden awning erected over a 
 sidewalk in the city of New York. The 
 awning was erected, not by the city aa- 
 thorities, but by the tenant of the building 
 adjacent. It was weakly and insufficiently 
 built, and fell under the weight of an 
 accumulation of snow upon it. Hume 
 was simply standing underneath it at the 
 time, waiting for a street-car, and was not 
 charged with any negligence. He sued 
 
MUNICIPAL CORPORATION. 
 
 311 
 
 the city for damages, and the jury found in 
 his favor on the ground that the awning 
 was constructed in an obviously defective 
 manner, and had stood long enough to give 
 the authorities implied notice of its dan- 
 gerous position. Held, that the city was 
 liable, upon the facts found. The liability 
 of a municipality for defective streets is 
 not limited to excavations and surface ob- 
 structions. A structure over a street or 
 sidewalk is, if unauthorized, an encroach- 
 ment upon it; and a nuisance, especially if 
 negligently constructed so as to be danger- 
 ous. The city authorities become bound 
 to remove it or to cause it to be sufficiently 
 supported, either when the authorities re- 
 ceive notice of the erection of the danger, 
 or when the structure has existed so long 
 and so visibly that.notice may be incurred. 
 The fact that the structure was not built 
 by authority of the city does not exempt 
 the corporation ; for the city is bound to 
 see that any coverings which private per- 
 sons are permitted to build over its streets 
 are not such as to imperil persons passing 
 under them. Nor is it a defence that the 
 erection of such awnings is regulated by 
 ordinances, and that the awning in question 
 was constructed in conformity to such or- 
 dinances; except, perhaps, in a case where 
 the requirements of the ordinance and the 
 original construction of the awning were 
 sufficient to insure safety, but the structure 
 has become weakened by subsequent causes 
 and in a manner which could not be dis- 
 covered by judicious inspection. Ct. of 
 Appeals, 1878, Hume v. New York, 74 
 N. Y. 264. 
 
 — for acts of officers. At common law 
 a city is not liable to compensate the owner 
 of a building demolished to prevent the 
 spread of a conflagration. If such a liabil- 
 ity is imposed by statute it can be enforced 
 only in cases coming fully within the terms 
 and conditions imposed by the law. Su- 
 preme Ct. 1879, Bowditoh v. Boston, Opin- 
 ion in Clerk's Office. 
 
 A city has a common-law right to destroy 
 buildings -when necessary to stay the rav- 
 ages of a fire, without making compensa- 
 tion to their owners. If the charter commits 
 to specified officers authority to determine 
 ■whether an exigency exists justifying this, 
 and to give orders accordingly, the city is 
 not liable in damages for the destruction of 
 property so ordered, without provision for 
 
 compensation. Or if the charter makes a 
 limited provision for indemnity, one who 
 has suffered loss from the destruction of his 
 building must bring himself within the 
 language of the provision in order to gain 
 any benefit from it. Where a charter 
 directed that, in case of fire, buildings 
 might be blown up, and any person inter- 
 ested in them might have damages, and a 
 building was blown up, in consequence of 
 which another and independent building 
 was injui-ed, — Held, that the owner of the 
 second building had no claim to damages. 
 Ct. of Appeals, 1879, People v. Buffalo, 76 
 N. Y. 558. 
 
 The destruction of property by a hook- 
 aud-ladder company for the purpose of pre- 
 venting the spread of a fixe is not an act 
 for which a suit for damages would lie at 
 common law against the city. And Tex. 
 Const. 1876, Bill of R., § 17, —providing 
 that " no person's property shall be taken, 
 damaged, or destroyed for or applied to pub- 
 lic use without compensation" does not 
 apply to police regulations necessary to 
 meet an impending danger. A public use 
 is one which concerns the whole community 
 in which it exists, as contradistinguished 
 from a particular individual or a number of 
 individuals. And if the charter authorizes 
 the destruction of property to prevent the 
 spread of fire, &c., and provides a remedy 
 by commissioners to be appointed to adjust 
 the claims against the city, such claims can 
 only be asserted in the mode defined by the 
 statute. Supreme Ct. 1879, Keller v. Cor- 
 pus Christi, 50 Tex. 614. 
 
 A city is not liable in damages to a per- 
 son injured by alleged negligence or want 
 of skill of its agent or servant, unless the 
 act was within the scope of the corporate 
 powers. In general a city is not liable for 
 negligence of firemen while in the discharge 
 of their duties as such, for the members 
 of a fire department act, not as servants or 
 agents of the municipality, but as officers 
 charged with a public service. . Ct. of Ap- 
 peals, 1879, Smith v. Rochester, 76 N. Y. 
 506. 
 
 The common council of Rochester ap- 
 pointed a committee to make arrangements 
 for the celebration of an anniversary ; and 
 the committee directed the fire department 
 to be in attendance and take part. One of 
 the hose-carts, while driven rapidly and 
 negligently on its way to the designated 
 
312 
 
 MUNICIPAL CORPORATION. 
 
 place, ran over and injured the plaintiff. 
 Held, that the calling of the hose-cai-t to 
 attend for the purpose specified was not 
 authorized, and therefore defendant was 
 not liable. The fact that the city owned 
 the horses and cart did not make it respon- 
 sible for the negligence of its servant hav- 
 ing charge of them, when using them in a 
 service not of a public nature, and not 
 authorized by law. Ih. 
 
 A municipal corporation cannot be held 
 liable for damages occasioned by the care- 
 lessness or mismanagement of employees 
 in its fire department, while in the ordinary 
 discharge of their duties, or by defective- 
 ness or insufficiency of machinery used in 
 extinguishing fires. A city is both a cor- 
 poration and an instrumentality of govern- 
 ment, — a delegate of sovereignty. For 
 negligence or unskilfulness of agents or 
 servants employed by a city in the dis- 
 charge of engagements undertaken by it, 
 acting as a corporation merely, the city may 
 be held liable in damages. But as to those 
 duties and powers which are in their nature 
 governmental and public, and grow out of 
 the delegated sovereignty of the State for 
 the preservation of the general welfare, and 
 particularly where the powers delegated are 
 coupled with a judicial or legislative dis- 
 cretion touching the manner of their exer- 
 cise, there can be no responsibility on the 
 corporation for the result of negligence or 
 misfeasance of servants, officers, or agents, 
 or for defectiveness of machinery used by 
 them in the course of services performed 
 under such power. The establishment of 
 a fire department belongs to this class of 
 powers. St. Louis Ct. of Appeals, 1878, 
 McKenna v. St. Louis, 6 Mo. App. 320. 
 
 Officers. While Huff was mayor of 
 Macon, Ga., and ex o^cio president of the 
 city council, he made a contract with the 
 council to keep the city park in order, fence 
 and drain it, &c., for an annual sum, for 
 five years. Held, that the contract could 
 not be supported; forHufl, as mayor, would 
 have the duty of enforcing performance of 
 it by Huff as contractor; which is contrary 
 to public policy. But he was entitled, in 
 equity, on repudiation of the contract by 
 the city, to a reimbursement of his expendi- 
 tures; the proof showing his faithful per- 
 formance. Supreme Ct. 1878, Macon v. 
 Huff, 60 Ga. 2-n. 
 
 A chief of police is not a city officer ; and 
 
 the charter power to the mayor of a city 
 (Lynchburg, Va.) to remove city officers 
 does not extend to him. It is entirely com- 
 petent for the legislature to establish an 
 office which shall be exercised exclusively 
 within city limits, yet shaD not be a city 
 office. The term denotes officers whose 
 functions relate exclusively to the local 
 affairs of the city, so that only the city is 
 interested in their duties and conduct; such 
 as city engineers and surveyors, superin- 
 tendents of streets, water-works, sewers, 
 &c., city inspectors, and the like. Such 
 officers as city judge, clerk, or treasurer, 
 commonwealth's attorney, sheriff, and the 
 like, though often called city officers, are 
 not within such a gi-ant of power of re- 
 moval. The reason is, that while they are 
 elected or appointed for the city, and while 
 their jurisdiction is confined to the local 
 limits, their duties and functions, in a 
 measure, concern the whole State. They 
 are State agencies or instrumentalities 
 operating to some extent through the me- 
 dium of city charters in the preservation 
 of the public peace and good government. 
 However elected or appointed, however 
 paid, they are as much State officers as 
 constables, justices of the peace, and com- 
 monwealth's attorneys, whose jurisdiction 
 is confined to particular counties. [1 Dill. 
 Mun. Corp. §§ 33, 773; 1 Allen, 172; 24 
 Mich. 44; 55 Me. 381; 104 Mass. 87; 25 
 Barh. 341; 15 N. Y. 532; 15 Md. 376; 
 13 Mich. 481; ZBush, 597; 21 La. Ann. 
 309; Id. 538; and disapproving 23 Gratt. 
 51.] The chief of police is within the lat- 
 ter class. Ct. of Appeals, 1878, Burch ■/. 
 Hardwicke, 30 Gratt. (Va.) 24. 
 
 A disbursing officer cannot claim to with- 
 hold moneys from those persons who ai'e 
 authorized by law to receive and expend 
 them, upon tiie ground that he apprehends 
 an extravagant, wasteful expenditure. His 
 duty is to provide the money ; wastefulness 
 in the expenditure of it may be forbidden 
 or punished by appropriate proceedings in 
 the courts for the purpose. Ct. of Appeals,, 
 1879, People v. Kelly, 76 N. Y. 475. 
 
 Minor Decisions on Municipal Corporation. 
 
 Legislative authority. Authority of a 
 State legislature to compel a county to pay 
 entire cost of improvements chiefly, but not 
 wholly beneficial to such county: 3 Woods, 
 555. Supervis-prs of San Francisco cannot 
 
MUNICIPAL CORPORATION. 
 
 313 
 
 order convicts to have their hair clipped ; 
 nor make any other ordinance not express- 
 ly authorized: 5 Sawyer, 552. In absence 
 of constitutional restrictions, a State legis- 
 lature has plenary power to authorize pities 
 to improve streets at the cost of adjoining 
 lot-owners: 57 Ala. 6. Legislature may 
 give cities entire control of allowing rail- 
 roads to use streets, — it has done so in Ill- 
 inois, — and courts will not interfere : 92 III. 
 70. Legislature may give city full power 
 oversale of liquor: 92 III. 569. Legisla- 
 ture may authorize board of health to 
 enact sanitary ordinances ; and the power 
 includes punishment of adulterations "of 
 food: 73 N. Y. 65. Power of legislature 
 to alter city charters granted by the crown 
 before the Revolution: 74 N. Y. 161. Act 
 forbidding courts to disturb assessments 
 for street improvements in a particular city, 
 not unconstitutional: 74 A^ Y. 216. Mu- 
 nicipal corporations are within absolute 
 control of legislature, which may at any 
 time abolish one: 2 Le.a (Tenn.), 425. 
 
 Municipal powers: To incur debts. 
 EfEect of exceeding the limit prescribed by 
 111. Const, for city indebtedness: 89 III. 
 282; Id. 296. Charter power to donate 
 money iii aid of railroad does not authorize 
 borrowing money or issuing bonds for such 
 donation: 92 III. 24. Prohibition on cities 
 incurring debt does not forbid its organiz- 
 ing an aqueduct company and taking an 
 option to purchase their works : 49 Iowa, 58. 
 Constitutional restriction on city becoming 
 "indebted in any manner" will not be 
 limited by construction to bonded debt ; it 
 forbids issuing warrants: 51 Iowa, 385. 
 
 Property. A city may collect wharfage 
 charges: 100 U. S. 423; Id. 430. A city 
 cannot discriminate in wharfage charges 
 against citizens of other States: 100 U. S. 
 434. Property of city is not subject to 
 mechanic's lien: 71 N. Y. 498. General 
 powers of city to take property, and to sue, 
 enable it to accept notes from its defaulting 
 treasurer for his debt, and enforce them: 
 76 N. Y. 393. 
 
 Contracts. Contract between city and 
 gas company does not necessarily preclude 
 city from exercising powers of government 
 in reference to supply of gas: 66 Ind. 396. 
 City has hot implied power to offer reward 
 for apprehension of offender; it can only act 
 as authorized by statute: 41 Mich. 367. 
 Mandamus does not lie to compel city 
 
 authorities to issue a contract for a street 
 improvement to the lowest bidder under an 
 advertisement for proposal: 72 N. Y. 497. 
 Observance of charter requirements as to 
 advertising, and deliberation upon plan of 
 street improvements, Tield, conditions pre- 
 cedent to a contract: 47 Wis. 267. 
 
 Ordinances. To avoid an entire ordin- 
 ance because part is bad, the good and 
 bad parts must be inseparable: 1 Dak. T. 
 113. Sufficiency of proof of publication of 
 village ordinance: 88 III. 109. An author- 
 ized ordinance has the force of a statute: 
 lb. General charter powers to provide for 
 suppression of flies and lay a tax for a fire 
 department include power to purchase fire- 
 engines and apparatus: 41 iV". /. L. 45. 
 A charter provision that every ordinance or 
 resolution must be approved by the mayor 
 includes an assent to an appointment by 
 the mayor: 76 iV. Y. 160. General power 
 to make ordinances will authorize au or- 
 dinance to prevent bawdy-houses: 11 S. C. 
 288. Record on prosecution for breach of 
 ordinance — here for keeping a bawdy- 
 house — need not show arraignment and 
 plea: 69 Mo. 626. 
 
 Local improvements. Probability that 
 a street opening will improve the general 
 market value of school lands near it does 
 not warrant assessment for benefit: 45 
 Conn. 462. Requisites of contract for 
 street improvement and complaint to en- 
 force it, where contractor seeks to enforce 
 assessment for recovery of his compensa- 
 tion: 66 /»d. 452. Power of city to charge 
 lot-owners with cost of street improvement 
 is founded on suypposed benefit to their 
 lots ; they cannot be charged where the im- 
 provement is for public convenience merely : 
 48 Md. 198; and see Id. 265. Directions 
 of a statute delegating power to charge 
 property of individuals with cost of local 
 improvements must be strictly followed; 
 they are not directory: UN. Y. 309; Id. 
 315. City authorities cannot delegate exe- 
 cution of their public powers or trust; 
 power to council to contract for building 
 sidewalks cannot be devolved upon super- 
 intendent of streets : 73 iV. r. 73. Courts 
 cannot control action of legislature in 
 directing location of streets in cities: 74 
 N. Y. 95. Cities are, though counties and 
 townships probably are not, liable for de- 
 fects in streets, &c. ; but only where notice 
 of the defect can be imputed to the cor- 
 
814 
 
 MUNICIPAL CORPORATION. 
 
 poration and actual injury has resulted: 
 31 Gratt. (Fa.) 271. 
 
 Regulation of streets, &c. City may 
 not license using steam-motors in streets: 
 19 Am. L. Reg. N. s. 11. Right of city 
 to restrict to a single track a street railroad 
 company which had made large expendi- 
 tures on faith of a license to run a double 
 track, — denied : 49 Iowa, 144. A city may 
 impose conditions upon a lot-owner's exca- 
 vating under the sidewalk, and may forbid 
 beginning until they are complied with: 
 50 loioa, 585. A horse railway may, a 
 steam railway may not, be laid in a city 
 street without compensation to lot-owners : 
 38 Mich. 62. A stationary steam-engine 
 ■worked in a crowded city is not necessarily 
 a nuisance because of danger of explosion 
 or fire, but only when misused: 49 Md. 
 217. Nature of the privilege of laying gas- 
 pipes in city streets: 38 Mich. 154. City 
 has the right to grade its streets ; notwith- 
 standing it throws back surface-water upon 
 lot: 76 N. Y. 60. City cannot give per- 
 mission to enclose for private use a portion 
 of a street, under its general power to 
 establish, alter, &c., streets: 76 N. Y. 108. 
 City may be authorized to require each lot 
 owner to pave the sidewalk fronting his 
 lot, and, if he neglects, may pave it and 
 collect cost from him: 31 Gratt. (^Va.) 
 571. A statute forbidding projections in 
 front of buildings "over or upon a street " 
 only forbids projections so far up as that 
 they would obstruct; and does not prohibit 
 projections high up upon a building: 42 
 L. T. N. s. 440. 
 
 Licensing rocations.w Validity of mu- 
 nicipal license fees and licenses on vocations : 
 53 Cal. 475. City or town has implied 
 power, if not restricted, to require a license 
 for liquor-selling and make ordinances 
 punishing for selling without license: 1 
 Dak. T. 113. What uniformity is neces- 
 sary in an ordinance requiring a license for 
 a business: Z Bradw. (111.) iGo. City may 
 enact ordinance requiring auctioneer to get 
 license ; and complaint for penalty need 
 not set the ordinance out: 63 Ind. 468. 
 City license fee imposed on lawyers, sus- 
 tained: 4 Mo. App. 453. Power of city to 
 give exclusive market privilege in con- 
 sideration of building a market: 50 Tex. 
 538. Butcher required to pay city license 
 fee on his carts used in his business, not- 
 withstanding he had paid a city tax on his 
 
 stall and a county tax on the carts: 31 
 Gratt. (Va.) 646. Charter power to pro- 
 hibit liquor-selling may be exercised par- 
 tially; i. e. by restricting sales; and this 
 may . be by prohibiting it except under 
 license : 47 Iowa, 597 ; 92 III. 569. A chart- 
 er power to order bar-rooms closed " tem- 
 porarily" and "during such period" as 
 the board shall prescribe does not author- 
 ize an or(!er closing them " until further 
 notice ; " but only for some definite, short 
 term : 49 Md. 288. Authority of city to 
 regulate sale of liquor by druggist: 40 
 N. J. L. 487. A citizen has a right to in- 
 spect written recommendations on file, upon 
 which a license to sell liquor has been 
 granted: 41 N. J. L. 332. 
 
 Taxes. Authority for town taxes for a 
 public park: 87 III. 582. Priority of lien 
 of city taxes: 30 N. J. Eg. 667; 31 N. J. 
 Eg. 500; 2 Pearson (Pa.), 340. 
 
 Municipal liabilities: on contract. 
 Recital in municipal bond, by the officers 
 authorized, upon certain conditions, to issue 
 it, that the conditions existed, estops the 
 municipality : 15 Blatchf. 131 ; and entitles 
 holder to recover: Id. 343. A newspaper 
 cannot recover for publishing ordinances on 
 the ground of the usefulness of the service; 
 there must be an authorized order: 38 
 Mich. 639. Publisher of newspaper cannot 
 publish city advertisement and hold the 
 city liable because, by statute, he was en- 
 titled to the advertising, if the officers in 
 charge did not order it: 74 N. Y. 3-38. 
 Presentation of claim against city, for pay- 
 ment, need not be accompanied by demand 
 that the authorities levy a tax: 82 N. C. 
 22. City water-works cannot refuse to 
 supply raUroad operated by a receiver, be- 
 cause water-rents accruing before the re- 
 ceivership are unpaid: 30 N. J. Eg. 440. 
 Neither city nor aqueduct company is liable 
 to house-owner for destruction of house by 
 fire on the ground that city undertook by 
 its fire department to extinguish fire, and 
 water company undertook to furnish water 
 therefor; but they did not do so: 3 Lea 
 (Tenn.), 42. ' 
 
 — for defective streets, sidewalks, &c. 
 A city may be held liable for neglect to en- 
 force ordinance requiring that cellar doors 
 opening on sidewalks should be kept closed, 
 to one who falls in cellar in consequence: 
 59 Ga. 151. Presumption as to negligence 
 of person found killed by falling into 
 
MUNICIPAL CORPORATION. — MURDER. 
 
 315 
 
 dangerous cellav-way in city street : 6 Mo. 
 App- 85. City liable to wayfarer injured 
 without fault by falling on dilapidated side- 
 walk: 87 III. 541. City is liable for defects 
 in sidewalk which have existed long enough 
 for officers to know of them: 90 III. 61. 
 Knowledge of the janitor of a public school- 
 house as to the coal-hole being open is not 
 notice to the city of defect in sidewalk: 
 127 Mass. 290. City is not bound to keep 
 sidewalk absolutely safe; but reasonably 
 safe for ordinary passing: 2 Bradw. {III.) 
 542. City is liable for neglect to re- 
 pair sidewalk, notwithstanding some third 
 person is primarily in fault for causing 
 the defect; but may recover over against 
 him: 66 Ind. 136. Whether glass and 
 iron work in sidewalk which has become 
 dangerously slippery by wear is a de- 
 fect; is a question for jury: 127 Mass. 
 329. Knowingly to take a defective or 
 icy sidewalk when one might easily go 
 another way is contributive negligence: 
 2 Bradw. {III.) 542; 33 Ohio St. 246. 
 City is liable for injury done by blast- 
 ing in the course of a city improvement, 
 if not attributable to contiactor's neg- 
 ligence: 86 III. 100; but not if he is in 
 fault of negligence or anted, without au- 
 thority: 86 III. 402. City is not liable for 
 injury of a person by the fall of a market- 
 house blown down by an unprecedented 
 storm: 69 Mo. 341; nor for ill-constructed 
 court-house, or badly-lighted stairway: 19 
 Am. L. Reg. N. s. 480. Duty of lot-owner 
 excavating his lot to support any wall 
 upon adjoining land, — explained : 72 N. ¥. 
 307. City is liable for defective streets, 
 notwithstanding charter does not say so, 
 if it gives general power to open and main- 
 tain streets: 60 Ala. 486. City charged in 
 judgment for an unlawful obstruction of 
 street may recover reimbursement from the 
 person who wrongfully placed the obstruc- 
 tion: 72 N. Y. 65. A statute relative to 
 repaving any street includes setting curb 
 and gutter stones and flagging sidewalks : 
 76 N. Y. 174. City is not liable for injury 
 to buildings caused by reasonable change 
 in grade of street; lot-owner builds at his 
 own risk: 34 OUo St. 328. City is not 
 
 Murder. Punishment of man hired to kill a 
 person, where he turned State's evidence against 
 the one who hired him, pp. 9, 10. Member of 
 army of occupation cannot be tried bv the local 
 courts for a murder, p. 26. Assault with intent to 
 kill, p. 30. Charge of murder against revenue offi- 
 
 liable for accumulation of surface-water on 
 lots, merely because the sewers are not 
 large enough: there must be neglect or 
 fault in the construction : 88 Pa. St. 309. 
 City's omission to provide a bridge or dan- 
 gerous spot in a public street with side-rail 
 is not necessarily negligence; the question 
 is for the jury: 69 Mo. 592; 89 Pa. St. 389. 
 An opening in a sidewalk to light and 
 ventilate a dwelling is not per se a nui- 
 sance; recovery by one who falls in depends 
 on negligence: 87 Pa. St. 365. 
 
 Municipal officers. Quo warranto lies 
 to test the right of a mayor to the office ; 
 the certificate of election by the municipal 
 authorities gives only a ^n'ma /acje right: 
 56 Ala. 131. A mandamus to compel a city 
 to levy a tax should be directed to the offi- 
 cers who must act rather than to the city 
 by its corporate name: 57 Ala. 338. City- 
 is not liable for doings of an officer, al- 
 though he is elected or appointed by the 
 city, which are imposed on him as agent of 
 the State, and do not concern the city: 71 
 N. Y. 580. A court can neither restrain 
 nor compel city officers in the exercise of 
 discretionary powers: 2 Pearson (Pa.), 
 101. Man sent out by contractor to keep 
 street lamps in order and lighted is not a 
 servant of the city and may sue city for 
 injury from defect in highway: 127 Mass. 
 270. Omnibus proprietor is not liable to 
 passenger for injury through driver's obey- 
 ing policeman's directions, if. by ordin- 
 ance, policeman had entire power to direct 
 vehicles: 86 III. 210. 
 
 MURDER. If a woman, with a sedate 
 and deliberate mind, before or after the 
 birth of her child, forms the design to take 
 its life, and, after the parturition is complete 
 and the child is born alive and in exist- 
 ence, she executes her design and takes it? 
 life, this is murder with express malice and 
 in the first degree. But if the design to 
 take the life of her child was formed and 
 executed when her mind, by physical or 
 mental anguish, was incapable of cool re- 
 flection, and when she had not the ability 
 to consider and contemplate the conse- 
 quences of the fatal deed, and she con- 
 ceived and perpetrated it under a sudden, 
 
 cer removable to Federal court, p. 87. Mixed 
 juries on trial of negroes for murder, pp. 90, 91. 
 Accused compelled to make footprints, p. 202. 
 Killing by spring-gun, p. 229; or to prevent a se- 
 duction, p. 230. Degree affected by mtoxication, 
 p. 260. 
 
316 
 
 MURDER. — MYRICK. 
 
 rash impulse after the child had been 
 wholly produced from her body and while 
 it had existence, the ci'ime is murder in the 
 second degree. Ct. of Appeals, 1880, Wal- 
 lace V. State, 7 Tex. App. 570. 
 
 Taking goods, to constitute robbery, is 
 not necessarily concluded so as to complete 
 the crime, by the removal of the goods be- 
 yond the presence of the owner, nor is it 
 necessary, to constitute a killing during a 
 robbery murder, that the killing should be 
 committed at the precise place and time of 
 the act of violence. Thi-ee persons entered 
 a store, struck the proprietor blows which 
 rendered him insensible, took the contents 
 of his safe, and proceeded up the street, 
 carrying the property with them upwards 
 of three blocks of two hundred feet each, 
 where they turned and fired upon a person 
 who was endeavoi'ing to prevent their 
 escape, and killed a boy. Held, that the 
 removal of the property having been con- 
 tinuous and uninterrupted, the killing was 
 done during the robbery. Supreme Ct. 
 1879, State v. Brown, 7 Oreg. 186. 
 
 Minor Decisions on Morder. 
 
 Shooting into a room where persons are 
 known to be may be m. without intent to 
 kill: 60 Ala. 10. Rule, that homicide by 
 an act very dangerous and regardless of 
 human life is m. does not apply to violence 
 aimed at specific person: 60 Ala. 26. 
 Case of m. by shooting into a crowd, in- 
 tending to kill one, but killing another: 
 69 Me. 163. Shooting at A. with intent to 
 kill, but hitting and killing B. by missing 
 one's aim, is m. : 7 Oreg. 210. Killing in 
 mutual combat will be m. if undue ad- 
 vantage is taken, as by using a deadly 
 weapon ; but only manslaughter if fight is 
 fair and equal : i Tex. App. 637. Case of 
 shooting one who, as commissioner of high- 
 way, attempted to remove a fence ; claimed 
 to have been done in defence of defend- 
 ant's, premises: 90 111. 221. Indictment 
 for m. must show that deceased died with- 
 in a year and a day; but that phrase 
 need not be used; saying that he died 
 instantly is enough: 4 Tex. App. 35.5. 
 What evidence of general matrimonial re- 
 lations is admissible on prosecution of hus- 
 band for killing wife from jealousy: 89 
 III. 90. Competency of threats by the de- 
 ceased against the accused : 22 Kan. 222. 
 
 Presumption of malice from fact of killing 
 and attendant circumstances, such as na- 
 ture of weapon: 14 Bush (Kg.), 362. 
 Bearing arms openly is a constitutional 
 right, and should be presumed done with 
 lawful intent: 14 Bush (Kg.), 362. 
 
 Alabama statute, defining degrees of 
 murder, explained; and habitual carrying 
 of deadly weapons deemed an indication of 
 general intent to kill: 60 Ala. 26. When 
 homicide is m., or m. in the first degree, 
 because committed with a weapon used in 
 a "cruel manner ": 58 Ala. 402; Id. 406. 
 To put obstructions upon the track, where- 
 by railway train is wrecked and a person 
 killed, is m. in first degree: 59 Ala. 98. 
 Dakota statute defining degrees and the 
 definition of manslaughter, explained : 1 
 Dak. T. 451. Same as to Indiana statute: 
 66 Ind. 185. Kansas statute defining de- 
 grees, and the requisites of indictment for 
 first degree, explained: 21 Kan. 38. Kill- 
 ing by kicking, beating, slapping, and 
 jumping upon the person of the victim, 
 repeatedly, after intervals, is first degree; 
 because committed with extreme ferocity 
 and cruelty: 126 Mass. 253. ilissouri 
 statute defining degrees, explained, with 
 reference to cases where the killing is done 
 in perpetrating arson, &c., or other felony: 
 68 Mo. 552; same as to New York stat- 
 ute: 19 Hun (N. Y.), 430 ; as to Wisconsin: 
 46 Wis.51.fi. Missouri statute defining de- 
 grees, explained, with reference to the ques- 
 tion of deliberation under a sudden provo- 
 cation : 69 Mo. 451 ; 4 Mo. App. 44 ; and 
 use of deadly weapon deemed some ground 
 for presuming intent to kill, but not the 
 premeditation characterizing the first de- 
 gree: 4: Mo. App. 44. Killing done with 
 violence out of all proportion to the provo- 
 cation should be deemed first degree: 82 
 N. C. 637. Texas penal code, defining de- 
 grees, explained, with reference to cases of 
 murder committed by poisoning: 5 Tex. 
 App. 163. The express malice needful to 
 constitute first degree cannot be presumed 
 from the act or means used in killing, but 
 must be proved by satisfactory evidence: 
 5 Tex. App. So9; Id.SQo. 
 
 MYEICK. Reports of Cases in the Pro- 
 bate Court of San Francisco, from Jan. 1, 
 1872, to Dec. 31, 1879. Milton H. Myeick, 
 Probate Judge. Edited by T. H. Reae- 
 DEN. San Francisco: Whitney & Co. 
 
NAAR. — NATURALIZATION. 
 
 317 
 
 N. 
 
 NAAR. The Law of Suffrage and 
 Elections. A Compendium of Cases and 
 Decisions showing the Origin of the Elec- 
 tive Franchise, and defining Citizenship 
 and Legal Residence, with the Clauses of 
 State Constitutions prescribing the Quali- 
 fications for Suffrage, and the Law govern- 
 ing the Conduct of Elections, with an 
 Appendix, &c. By M. D. Naar. Tren- 
 ton, N. J. : Naar, Day, & Naar. 
 
 This volume of 317 pp. presents the as- 
 pect of a law-book, but from its preface 
 and dedication " to the voters of the United 
 States," and from a certain care to be sim- 
 ple in style, seems intended largely for the 
 citizen. The chief subjects are : Citizen- 
 ship and snifrage ; The State constitutions ; 
 Computation of time; Suffrage residence; 
 Conduct of elections ; Ineligible candidates ; 
 Registration laws; Taxes and suifrage; 
 Aliens and naturalization ; Liability of 
 election officers ; Bribery and corruption ; 
 Election contests, &c. 
 
 NATURALIZATION. In the admission 
 of aliens to citizenship, the only record re- 
 quired to be kept by the court where the 
 application is made, and the certificate of 
 citizenship issued, is a record showing the 
 declaration of intention, the oath to sup- 
 port the constitution of the United States, 
 and the renunciation of the foreign juris- 
 diction and any title or order of nobility. 
 No provision is made as to how the judge 
 presiding over the court should proceed to 
 satisfy himself of the fulfilment of the con- 
 ditions prescribed, and no provision is made 
 for the pf eservation of the oral proofs to be 
 given, or for attestation of the adjudication 
 to be made, or for the entry of the fact of 
 such adjudication in any book. In the 
 absence of statutory regulations upon the 
 subject, the extent and manner of keeping 
 court proceedings is left very much to the 
 sound discretion of the court. Superior 
 
 National Bank. Banking. 
 
 State taxation on national banks, pp. 34, 40. May 
 take special deposit, p. .36; or hold stakes, p. 37; 
 or lend money on land, pp. 37, 40 ; or guarantee 
 n tes which it" sells, p. 38. Cannot shave notes, p. 
 37; or lend its credit, p. 38. What interest it may 
 take, pp. 38, 39. Usury, pp. 39, 40. Suits by and 
 against national banks, p. 39. Conversioa of gold 
 
 a. 1878, Matter of Christern, 56 How. Pr. 
 (N. Y.) 5. 
 
 Where it is shown that, pursuant to the 
 preliminary requirements of the statutes of 
 the United States, a person duly applied 
 in open court to be admitted a citizen ; that 
 he took the requisite oaths, and supported 
 his application by the necessary, and to the 
 court satisfactory, proof ; that the court gave 
 judgment to admit to citizenship, and the 
 officiating judge signified his fiat to that 
 effect by superscribing his initials upon 
 the written oath and attested proofs in the 
 case, and delivered the same to the clerk 
 to do thereupon all that the law required ; 
 that the clerk, then and there, in pursuance 
 of the judgment and fiat, duly adminis- 
 tered, and the applicant duly took and 
 subscribed, the oath of allegiance, and 
 thereupon the clerk issued to the appli- 
 cant, under the seal of the court, a certifi- 
 cate as evidence of the fact of the adjudica- 
 tion made; that the clerk then indorsed 
 and filed the papers and fiat among the 
 court records, as a part thereof, and entered 
 the name of the applicant and other facts 
 connected with the application in a book 
 of index of naturalization records, which 
 is one of several books of like character, 
 regularly kept and permanently preserved 
 among the records of said clerk's office, — • 
 nothing is wanting to a complete and valid 
 record of naturalization, lb. 
 
 When the presiding judge, on giving 
 judgment admitting the applicant to citi- 
 zenship, has attested the fact by affixing 
 his initials to the preliminary proofs, and 
 has delivered the papars so attested to the 
 clerk, with the direction, express or implied, 
 to do all that remained to be done, the ju- 
 dicial function is completed, and only 
 ministerial acts remain; and the papers so 
 handed over, together with the oath of 
 allegiance, become, when filed, the judg- 
 
 banks into currency authorized, p. 39. National 
 bank interest, p. 255. 
 
 National Board of Health, p 225. 
 
 Naturalization. CrrizEN. 
 
 Superior court of California may naturalize, p. 
 59; so may city court of Yonker.s, N. Y., p. 88. 
 What good character is needful, p. 88. Mode and 
 effect, p. 88. 
 
318 
 
 NATURALIZATION. — NEGLIGENCE. 
 
 ment record of the court. The record thus 
 made up constitutes a sufficient memorial 
 or remembrance within the requirements of 
 the common law. lb. Consult Citizen. 
 
 NAVIGATION. Proceedings authorized 
 to be taken by secretary of war to secure 
 removal of any sunken vessel, &c., ob- 
 structing navigation. Act of Congress of 
 June 14, 1880, § 4. 
 
 Transportation of lumber, logs, and other 
 timber over rivers of New York which are 
 public highways, regulated in detail. No 
 dam without apron to be built across navig- 
 able rivers. Booms, &o. , must be opened on 
 notice, and failure so to do shall incur a 
 penalty. Chutes and aprons may be con- 
 structed in connection with such dams, &c. 
 Damages shall be paid to the owners or 
 occupants of lands injured by the construc- 
 tion of such dams, &c. Claims for damages 
 under this act shall be brought within one 
 year after the occurrence of the same. 
 Marks put on logs and timber to be pre- 
 viously I'ecoi-ded. Effect of neglect to re- 
 cord such mark. Persons prohibited from 
 landing logs, &c. , without consent of owner. 
 Persons intending to float logs, &c., to ex- 
 ecute bond. Condition of bond. Action 
 by persons suffering loss. 1 N. Y. Laws 
 1880 (May 31), 752, ch. 533. 
 
 Hinor Decisions on Navigation. 
 Steamboats on the Mississippi are en- 
 titled to follow the channel ; whoever moors 
 raft, barge, &c., must provide against swell 
 of passing steamer: 3 Woods, 16. Proper 
 n. on the Ohio River where a pilot attempt- 
 ed to pass a bridge at high speed and with- 
 out a look-out, and collided with a barge 
 moored without a light, but out of the usual 
 channel: 32 Ohio St. 116. A provision 
 that corporations shall not be created by 
 
 Navigation. Admiralty juvisdiotion, p. 13. 
 Keeping boat as a bawdy-house, punishable, p_. 45. 
 Harbor frontages in California, p. 65. International 
 regulations for preventing collisions, p. 97. Wharf- 
 age, p. 101. 
 
 Necessaries. What are, p. 16.3. English doc- 
 trine, p. 2.j6. Minor's bargain for necessaries, valid, 
 p. 242. 
 
 Negligence. It is not, to sign note; or to leave 
 it in one's drawer having blank spaces, p. 21. Neg- 
 ligence in keeping, or approaching ferocious bea-sts, 
 p. 2:i. Carrier cannot limit his liability for negli- 
 gence, pp. 67, 74. 75. Negligence in transportation 
 of perishable goods, p. 71 ; of government bonds, 
 p. 73. For a blind man to navigate a row-boat is 
 not neg'igence in law, p. 101. Meaning, p. 163. 
 (iuardian's negligence as to ward's stocks, p. 119. 
 Of director, p. 122. Of register in indexing, p. 144. 
 
 special act should not be construed to for- 
 bid chartering a single corporation to im- 
 prove the n. of a partipular river: 38 Mick 
 204. 
 
 NAVY. Rev. Stat. § 1513, — relativeto 
 appointment of cadet midshipmen, — and 
 Rev. Stat. § 1506, — relative to advance- 
 ment of officers of the navy, — amended. 
 Act of June 17, 1878, 20 Stat, at L. 143, 
 ch. 260. 
 
 Examinations for promotion to be con- 
 clusive as to facts occuriing prior to, and 
 inquired of and decided upon, such exami- 
 nation. Act of June 18, 1878, ch. 267, 20 
 Stat, at L. 165. 
 
 Volunteer navy to be abolished, and 
 transfer of its officers to the regular navy, 
 or retirement, authorized. Act of Feb. 15, 
 1879, ch. 83, 20 Stat, at L. 294. 
 
 The clerk of a paymaster in the navy is 
 in the naval service, and amenable to trial 
 by a naval court-martial. Supreme Cl. 
 1879, Exp. Reed, 100 U. S. 13. 
 
 NEGLIGENCE. As a cause of action. 
 Upon trial of an action on the case, for 
 negligence, it appeared that defendant, a 
 lad of thirteen or fourteen years old, was 
 discharging fireworks in the evening, in a 
 village street, in presence of a large eon- 
 course of people, young and old, when, some 
 of the crowd having gathered so close as to 
 obstruct the view of others, some one called 
 out for them to stand back, and for the 
 defendant to direct the charges down street. 
 Thereupon defendant, who was in the 
 act of discharging a Roman candle, and 
 had discharged two balls up street at high 
 elevation, turned the candle down street 
 and lowered it so that a third ball went 
 just over the heads of the people, and a 
 fourth went still lower, and struck and in- 
 jured the plaintiff's son, a lad of about the 
 
 Negli.gence in falling down elevator hatchway, 
 p. 195 ; in searching with a light for a leak in a ga?- 
 pipe, pp. 214, 215; in use of highway, p. 226. In 
 repair or care of highway, p. 227. Of driver, p. 228. 
 Of guest, prevents recovering from innkeeper, p. 
 243. Of tenant, in managing water-pipes, p. 26li ; in 
 leaving coal-holes open, p. 267. Carrier cannot throw 
 oft liability for, p. 270. Lawson's explanation of 
 American 'doctrine, p. 270. In managementof news- 
 papers in publication of libels, pp. 273, 274. Team- 
 owner liable for driver's negligence, "hen horse 
 kicked shoe through window, pp.295, 296. Owner 
 of building liable tor contractor's negligence in leav- 
 ing coal-hole open, p. 295. What negligence renders 
 master liable to servant, p. 296. Killing with pistol, 
 when manslaughter, p. 21)2. Between master and 
 servant, pp. 295, 2:)9. Neglect of city streets, pp. 
 310, 314. Laches in applying for patent, p. 334. 
 
NEGLIGENCE. 
 
 319 
 
 same age, who stood at a little distance by 
 the road-side, and not in that part of the 
 crowd which was nearest to the defendant, 
 nor exposing himself to injury except by 
 being where he was. Held, that defendant, 
 having voluntarily discharged an explosive 
 missile into a crowd, was liable for the 
 natural consequences to the extent of actual 
 or compensatory damages, if he were of age 
 and capacity to be responsible for wrong- 
 doing. His youth and inexperience might 
 be urged against an award of exemplary 
 damages, but did not exempt him from 
 making compensation. Supreme Ct. 1879, 
 Bradley v. Andrews, 51 P7.-530. 
 
 Contributlve negligence. The fact that 
 the boy injured was standing in the street 
 and in the crowd which the exhibition in- 
 vited, and was thus within reach of the mis- 
 sile, was not contributlve negligence. lb. 
 
 While the building of the St. Louis 
 Chamber of Commerce was in course of 
 erection, the workmen employed by the 
 contractor for glazing left a stock of plate- 
 glass of the value of $800 on the ground- 
 floor, without boxing or otherwise protect- 
 ing it especially, as it was to be used from 
 day to day. The contractor for the plumb- 
 ing work sent a workman up into the upper 
 part of the building to cut off part of an 
 iron girder, by means of a cold chisel and 
 hammer. The floors were not yet laid; 
 but the workman took all usual precau- 
 tions, according to directions given him, to 
 prevent accident by anything which might 
 be dropped. However, the hammer, though 
 apparently sound, broke, and the heavy 
 head fell upon the glass below, and broke 
 1235 worth. Held, that the owner of the 
 glass could not recover from the plumbing 
 contractor. There was no negligence on 
 the part of the plumber's workman; and 
 the men iii charge of the glass were in fault 
 for leaving the glass unprotected. It is 
 negligence to leave glass exposed in a 
 building of which the floors are not laid, 
 and in which men are passing to and fro 
 and using tools in the upper stories. And 
 one called upon in the course of his ordinary 
 duties to use a sledge-hammer has a right 
 to suppose it will sustain an ordinary blow, 
 and, if using it lawfully, is not bound to 
 take precautions against some possible, 
 but unsuspected, hidden defect in the in- 
 strument itself. St. Louis Ct. of Appeals, 
 1878, Boyd v. Graham, 5 Mo. App. 403. 
 
 A person about to cross a street of a city 
 in which there is an ordinance against fast 
 driving may presume that others will re- 
 spect and conform to such ordinance ; and 
 it is not negligence on his part to act on 
 the presumption that he is not exposed to 
 danger which can only arise through disre- 
 gard of the ordinance by other persons. 
 But where he knows that others are driv- 
 ing along the street, at the place of crossing, 
 at a forbidden rate of speed, and he has 
 full means of seeing the rate at which they 
 are driving, the existence of such ordi- 
 nance will not authorize a presumption 
 which is negatived by the evidence of the 
 senses. If the attempt to cross the street, 
 under the circumstances, would be negli- 
 gence on his part, the fact of the existence 
 of such city ordinance is not evidence 
 tending to free him from culpability. Su- 
 preme Ct. 1877, Baker v. Pendergast, 32 
 Ohio St. 494. 
 
 On the question of contributlve negli- 
 gence, the doctrine that any negligence 
 whatever which may have remotely con- 
 tributed to the accident or injury will pre- 
 clude a recovery, is not sustainable on 
 principle. The sounder inquiry is. Whose 
 conduct or neglect more immediately pro- . 
 duced the injury done ? It' the act or 
 neglect of the defendant was the cause, 
 then he should be held responsible. If the 
 inJM-y was caused by the conduct, or was 
 the immediate result of the conduct, of the 
 plaintiff, and the wrong of the defendant 
 did not contribute as an immediate cause, 
 then plaintiff should not recover. If de- 
 fendant was guilty of a wrong by which 
 plaintiff was injured, and plaintiff was 
 also in some degree negligent, or contrib- 
 uted to the injury, it should go in mitiga- 
 tion of damages, but cannot excuse or jus- 
 tify the wrong of the defendant. Supreme 
 Ct. 1879, Dush V. Fitzhugh, 2 Lea {Term.), 
 307. 
 
 The porter in a hardware store left the 
 hatchway open and unguarded while he 
 went to dinner. During his absence two 
 ladies, mother and daughter, came to pur- 
 chase a stove. A clerk in attendance cau- 
 tioned them about the hatchway, but they 
 did not hear him ; and as they were pass- 
 ing up the store the daughter feU in and 
 was injured. Held, that' the proprietor 
 was liable in damages. The injured per- 
 son must be treated as having come to 
 
320 
 
 NEGLIGENCE. 
 
 the store on an implied invitation, and, not 
 having heard the caution, was not charge- 
 able with knowledge of the danger. Her 
 want of care, if any, was not shown to 
 be enough to defeat a recovery. lb. 
 
 In an action on behalf of a child, the 
 plaintiff's case must show that the child was, 
 when injured, in the exercise of due care ; 
 but the care required by the rule is due care 
 for a child of that age and capacity ; not 
 the judgment and thoughtfulness which 
 would be expected from an adult. A boy 
 of thirteen struck at a dog with a stick, 
 upon which the dog bit the boy. In an 
 action against the owner of the dog, — Held, 
 that notwithstanding the provocation given, 
 yet, if the jury were of opinion that the lad 
 acted with as much prudence as a boy of 
 his age would naturally show under the 
 circumstances, he might recover. Supreme 
 Ct. 1878, Plumley v. Birge, 124 Mass. 57. 
 Compare Hestonville Ry. Co. v. Connell, 
 88 Pa. St. 520. 
 
 One who accepts invitation from another 
 person to ride with him, the latter being 
 owner and driver of the vehicle, and hav- 
 ing the entire control over it, while the 
 other rides as guest, does not occupy any 
 relation of principal towards the driver as 
 his agent, such that negligence on the part 
 of the driver can be imputed to the passen- 
 ger. If the vehicle is run over at a rail- 
 road-crossing, and the passenger is injured, 
 the fact that the person driving may be 
 chargeable with contributive negligence is 
 not available to the railroad company as a 
 defence to the passenger's action for the 
 injury sustained by him. Ct. of Appeals, 
 1877, Dyer v. Erie Ry. Co., 71 N. Y. 
 228. 
 
 Contributive negligence of the driver of 
 a private conveyance, in which a person is 
 voluntarily riding at the time of receiving 
 an injury from a defective highway, is 
 imputable to the person so injured, and 
 prevents his recovery of damages. Su- 
 preme Ct. 1879, Otis V. Janesville, 47 Wis. 
 422. 
 
 Hinor Decisions on Negligence, 
 
 One who intrusts a letter to another to 
 be posted takes the risk of his promptness, 
 and is chargeable with his n. : 90 111. 525. 
 Presumption is that service of physician or 
 surgeon was skilful; patient suing for 
 malpractice must prove fault besides unfor- 
 tunate result: 47 Iowa, 625. Landlord held 
 
 not liable for n. of tenant's servant in 
 leaving open the sidewalk coal-hole: 127 
 Mass. 403. N. of wife in driving alone in 
 husband's carriage is not imputed to hus- 
 band to render him liable for injury done 
 by collision : 41 Mich. 214. Rules gov- 
 erning introduction of proof and relative 
 powers of court and jury explained, in a 
 case in which the judges were not agreed: 
 22 Kan. 41. N. imputed to a pilot on the 
 Ohio River, who attempted to pass a bridge 
 at high speed and without a look-out, and 
 collided with a barge moored without a 
 light, but out of the usual channel : 16 
 Hun{N. F.),«57. 
 
 Grounds of the doctrine of contributive 
 n. . 61 Ala. 376. Failure of an overseer 
 to give proper orders to subordinates in 
 consequence of which they omit precau- 
 tions, and a casualty results, in which 
 he is injured, is contributive n. defeating 
 his action: 61 Ga. 590. N. of son con- 
 tributing to his injury will defeat father's 
 action for loss of his son's services : 87 111. 
 174. . Having drank liquor is not contribu- 
 tive n. ; the question is whether the party 
 had disabled himself from proper care: 90 
 III. 61. ]V. by drunken man, contributing 
 to injury to himself and a temperate man 
 walking with him, does not impair the 
 other's right to sue : lb. Jf. before the 
 time of the injury may defeat the action 
 equally with n. at the time: 2 Bradw. {Ill ) 
 116. Under complaint for negligently kill- 
 ing, evidence of contributive n. cannot be 
 avoided by proof of wiUul killing: 62 Ind. 
 301. Adult presumed capable of exercis- 
 ing ordinary care : 22 Kan. 296. Bf. of 
 parents in allowing little child to stray in 
 the street is no defence to child's action 
 for injury, if child was not negligent iu in- 
 curring the hurt : 68 Me. 552. Going to_ 
 the assistance of a person in great danger, 
 from motives of humanity, — here, en- 
 deavoring to .aid one attacked by a bull, — 
 is not contributive n. : 126 Mass. 500. 
 Presumption ,is to n. of person found killed 
 by falling into dangerous cellar-way in 
 city street: 6 J/o. App. 85 Servant's con- 
 tinuing work with defective appliances, 
 which employer has promised to repair, 
 for a reasonable time to make such repairs, 
 is not contributive n. ; 6 Id. 102. Error 
 in judgment after one without his fault 
 has become involved in peril, is not con- 
 tributive n. -. 89 Pa. St. 59. Contributive 
 
NEGLIGENCE. — NOETH CAROLINA. 
 
 821 
 
 n. which is slight, i. e. a want of extraor- 
 dinary care, does not necessarily prevent 
 recovery; 45 Wis. 198; 47 Wis. 138. 
 
 NEW TKIAL. That the judge, on a 
 trial for breach of promise and seduction, 
 told the jury that, if the seduction were 
 proved, heavy damages should be given; 
 they could scarcely be too heavy, — held, 
 no ground for n. t. : 46 Conn. 607. Ex- 
 pression of opinion by a jm-or before he 
 was sworn, made insincerely and for the 
 purpose of avoiding jury duty, is not ground 
 for a n. t.: 59 Ga. 308; see Id. 470. Al- 
 though relationship between juror and 
 party was not known to either, it warrants 
 granting n. t. : 64 Ind. 133. For officer to 
 furnish liquor to jurors exposes ■ him to 
 punishment, but does not, in absence of 
 proof of prejudice, warrant setting aside 
 verdict: 69 Mo. 401. Separation of ju- 
 rors during deliberation, caused by an 
 alarm of fire, does not vitiate verdict 
 found after assembling : 33 Ohio St. 77. 
 Person not summoned personating one who 
 was, and sitting as juror, without fault of 
 accused, entitles him to n. t. : 34 Ohio St. 
 228. Limited operation of a statute allow- 
 ing a verdict to be impeached upon affida- 
 vits of jurors: 6 Tex. App. 615. Jury 
 consulting map of locus without leave en- 
 titles defeated party to n. t., unless suc- 
 cessful one shows affirmatively that no 
 hann was done: 46 Wis. 248. 
 
 NEW YEAR'S DAY. Has been made 
 a public holiday in Kentucky. Act of Jan. 
 24, 1880, 1 Acts, 1879, 10, ch. 65. 
 
 NEW YORK. Since Poore's compilation, 
 § 3 of art. 5 of the constitution, author- 
 izing election of canal commissioners, has 
 been amended by a substitute which con- 
 stitutes the office of superintendent of pub- 
 lic works, charged with care, repairs, and 
 improvement of the canals; and author- 
 ized to appoint three assistant superin- 
 tendents, as well as other persons employed. 
 
 Negotiable. Negotiation of note, &c., with 
 blanks fraudulently llled, p. 20. What alterations 
 affect negotiable paper, p. 21. What instruments 
 are negotiable, p. 46. Effect of declaring bills of 
 lading negotiable, p. 46. Paying amount of nego- 
 tiable to thief or finder, p. 47. Taking as collateral 
 to antecedent debt is buying for "value," p. 47. 
 To contrary, p. 48. Minor decisions on negotiables, 
 pp. 48-50. Negotiable bonds, p. 51 ; when binding 
 on municipality, p. 62 ; where they were engraved 
 on bank-note paper, p. 52; where they were litho- 
 graphed in name of former town-clerk, p. 53. Sale 
 of counterfeit bonds, p. 53. Meaning, p. 164. 
 
 ~ TO. Adultery between white and negro, p. 
 
 21 
 
 The amendment was ratified November, 
 1876. 
 
 Section 6 of article 6 of the constitution 
 was amended by the vote of the people, 
 Nov. 4, 1879, to read as follows: "There 
 shall be the existing supreme court with 
 general jurisdiction in law and equity, sub- 
 ject to such appellate jurisdiction of the 
 court of appeals as now is or may be pre- 
 scribed by law, and it shall be composed of 
 the justices now in office, with one addi- 
 tional justice to be elected as hereinafter 
 provided, who shall be continued during 
 their respective terms and of their succes- 
 sors. The existing judicial districts of the 
 State are continued until changed pursuant 
 to this section. Five of the justices shall 
 reside in the district in which is the city of 
 New York, and five in the second judicial 
 district, and four in each of the other dis- 
 tricts. The legislature may alter the dis- 
 tricts, without increasing the number, once 
 after every enumeration, under this consti- 
 tution, of the inhabitants of the State." 
 
 Consent of Congress given to cession of 
 a portion of Fair Haven, Vt., by Vermont 
 to New York. Act of Congress of April 
 7, 1880. 
 
 NOETH CAEOLINA. In addition to 
 the amended constitution of 1876, given 
 in Poore's compilation, there should be 
 noted, as a constitutional change, chap- 
 ter 141 of the laws of 1876-77. It 
 appears like an ordinarj' act of the leg- 
 islature, but is in effect an amendment 
 of the constitution. The change does 
 not appear in the ordinances of the 
 convention of 1875, proposing amend- 
 ments, but came about by authority 
 therein granted to the legislature. The 
 chapter mentioned declares eveiy county 
 a body politic ; authorizes biennial pop- 
 ular elections, in each countj-, of mem- 
 
 16. African residents in California, p. 55. Negroes 
 upon juries, pp. 90-92, 263. In public schools and 
 conveyances, pp. 93, 94. Intermarriages, p. 93. 
 Playing cards with negro, p. 94. Term " white per- 
 son," p. 171. " White" stricken out of Connecticut 
 constitution, and that of, C«lifornia, pp. 56, 183. 
 Amalgamation, pp. 232, 233; marriages between 
 former slaves, p. 233. Negro not a white man, 
 p. 240. 
 
 New York. Bradford's Laws, p. 53. De- 
 cisions on liability of carriers, p. 68. New Code 
 in, p. 95. Deviseto corporations in, p. 174. Man- 
 damus to canvassers, p. 291. 
 
322 
 
 NORTH CAROLINA. — NUISANCE. 
 
 bers of the general assembly, treasurer, 
 register of deeds and surveyor ; pre- 
 . scribes as to boundaries of townships ; 
 as to election, by the general assembly, 
 and certificate, of justices of the peace ; 
 and as to temporary appointment by 
 the governor of such justices for new 
 townships ; directs the election, bien- 
 nially, by the justices of the peace, of 
 county commissioners. It abrogates 
 provisions of the con,stitution inconsis- 
 tent with the act. JV. C. Laws 1876- 
 77, 226, ch. 141. 
 
 Additional terms of Federal courts in the 
 western district authorized. Act of June 
 19, 1878, ch. 322, 20 Slat, at L. 173. 
 
 NOTAKT. In Maine, acknowledgment 
 of deeds may be made before any notary 
 public, and acknowledgments of deeds 
 heretofore made before 'a notary shall be 
 deemed valid. Me. Laws 1880 (March 9), 
 203, ch. 201. 
 
 The fact that the notary before whom a 
 petition and schedules in involuntary bank- 
 ruptcy are verified is the attorney for the 
 debtor is not, standing alone, a reason for 
 rejecting the petition. Dist. of Nev. 1878, 
 Re Maner, 5 Sawyer, 66. 
 
 MiaoT Decisions on Notary. 
 
 History and constitutional recognition of 
 the office: 58 ^fa. 396. Charge of perjury 
 in making affidavit before alleged n. is dis- 
 proved (under 1 Rev. Stat. 116, § 1) byproof 
 that he was anon-resident: 76 N. Y. 220. 
 
 NOTICE. Actual visible occupation of 
 land is enough to put all persons dealing 
 with the title upon inquiry as to the occu- 
 pant's right: 33 Ark. 465. Whatever 
 would put a prudent man upon inquiry 
 affects a purchaser of land with n. of facts 
 he might learn by such inquiry: 6 Mo. 
 App. 6. Oral n. from landlord that he 
 will expect higher rent next year, not agreed 
 
 Notice. Poster in bar-room: "All spirits sold 
 are mixed," p. 15. Disfiguring Colorado land- 
 scape by notices, forbidden, p. 19. Publishing 
 notice, p. 19. Purchaser of note with erasure not 
 chHrgeaole with notice, p. 21. Notice in public 
 park: ''Beware of, the bucli," does not cast risk of 
 injury on visitors, p. 22. Notice necessary to 
 charge owner of domestic animal, for injury Ijy it, 
 pp. 23, 24. Some matters as to notice of assignment, 
 p. 31. Notice not to sell liquor to habitual drunk- 
 ard, required under Colorado civil damage law, p. 
 88. "Actual notice" under recording law not 
 
 to by tenant, does not bind him ; n. in writ- 
 ing should be given, and early enough to 
 entitle the landlord to re-enter if tenant 
 does not assent: Id. 488. N. to individual 
 members of legislature does not bind the 
 State; there must be n. to one branch of 
 the legislature in session: 41 N. J. L. .394. 
 
 NUISANCE. In determining what con- 
 stitutes the public to be offended by a 
 nuisance, and what degree of annoyance 
 will subject the party causing it to public 
 prosecution, reference must always be had 
 to the local situation of the nuisance com- 
 plained of; and where the trade or business 
 producing the alleged nuisance is in itseU 
 lawful, before it can be declared a nuisance 
 it must be shown to be in such proximity 
 to public ways, or other places of public 
 resort, as to be offensive to those passing, 
 or resorting to such places, or that it seri- 
 ously incommodes the people generally in 
 the neighborhood where the trade is carried 
 on. Ct. of Appeals, 1878, Homer v. State, 
 49 Md. 277. 
 
 An indictment for maintaining a nui- 
 sance, in carrying on an offensive trade, 
 charged that the accused "near unto 
 divers roads and streets, and also near unto 
 the dwelling-houses of divers liege inhab- 
 itants of the State, there situate and being, 
 unlawfully and injuriously did use, and yet 
 doth continue to tise, a certain furnace and 
 boiler " for certain specified purposes, in 
 carrying on the offensive trade. Eeld, that 
 it sufficiently alleged that the establishment 
 was near to public places. The ordinary 
 and accepted meaning of the words " roads 
 and streets " is " ways of public travel," 
 unless qualified by the adjective " private," 
 or some other qualifying expression. The 
 allegation that the nuisance existed " near 
 unto divers roads and streets, and also near 
 unto the dwelling-houses of divers inhabi- 
 tants of the State, there situate and being," 
 was enough. lb. 
 
 The criterion for determining whether a 
 
 same as knowledge, p. 146. What is notice that 
 public are no longer invited to vi.-iit business estiil)- 
 lishment, p. 195. Judicial notice, p. ^""--"^ 
 express company, to limit liability, p- 207. What 
 notice is to be given of sale of real property for 
 internal revenue tax. p. 257. How to count Feb- 
 ruary 29, pp. 270, 271. 
 
 Nuisance. Chartering chemical works does not 
 give them permanent immunity from prosecution 
 as nuisance, p. 125. Power of city to fill sunken 
 lots, p. 197. Prosecution of liquor-selling, pp.OT, 
 276. Suppression of lotteries, pp. 277, 283. 
 
NUISANCE. 
 
 323 
 
 court of equity will interfere and restrain 
 by injunction an existing or threatened 
 nuisance to a party's dwelling is, whether 
 the nuisance complained of will or does 
 produce such a condition of things as, in 
 the judgment of reasonable men, is nat- 
 urally productive of actual physical dis- 
 comfort to persons of ordinary sensibilities, 
 and of ordinary tastes and habits, and such 
 as, in view of the ordinary circumstances 
 of the case, is unreasonable and in derogation 
 of the rights of the complainant. In deter- 
 mining the question of nuisance from smoke 
 or noxious vapor, or from noise or vibration, 
 reference must always be had to the local- 
 ity, the nature of the trade, the character 
 of the machinery, and the manner of using 
 the property producing the annoyance and 
 injury complained of. Noise alone, if it 
 be of such a character as to be productive 
 of actual physical discomfort and annoyance 
 to a person of ordinary sensibility, may 
 create a nuisance, and be the subject of an 
 action at law, or an injunction from a court 
 of equity, though a noise resulting from the 
 carrying on of a trade or business in a town 
 or city. If, superadded to the mere noise 
 made by the operation of the machinery in 
 the building of a brewer adjoining the 
 dwelling of the complainant, the working 
 of the engine or pump produces strong vi- 
 bratory and jarring motions which shake 
 the complainant's house, and render it un- 
 fit and unsafe for habitation, such state of 
 things clearly amounts to a nuisance, such 
 as will give a right of action at law, or a 
 court of equity will restrain. Ct. of Ap- 
 peals, 1878, Dittman v. Repp, 50 Md. 516. 
 
 To can-y on one's business, generally 
 lawful, — here a barber-shop, — on Sunday 
 is not indictable as a nuisance ; if punish- 
 able, it must be under Sunday-laws or like 
 statutes. Supreme Ct. 1874, State v. Sorry, 
 7 Baxt. {Tenn.) 95. 
 
 If the authorities of a city which is au- 
 thorized by its charter to declare and abate 
 nuisances, and which has by general ordin- 
 ances declared all buildings and structures 
 dangerous to the public to be nuisances, 
 after becoming aware of the dangerous con- 
 dition of a decayed wall situated so near 
 to a street as to imperO the lives of persons 
 passing by on the street, neglect to cause 
 its removal, upon a child being crushed to 
 death by the falling of the wall, the city 
 will be held liable in damages; and this. 
 
 though the wall stood on private property, 
 and the child, at the time of the fall, was 
 not on the street, but was on private prop- 
 erty within one foot of the street. Supreme 
 Ct. 1878, Kiley v. Kansas City, 69 Mo. 102. 
 Consult Municipal Corporations. 
 
 Various acts of Parliament, and particu- 
 larly one passed in 1867, — to make better 
 provision for the treatment of contagious 
 diseases in the vast metropolis of London 
 and its suburbs, — formed the territory in to 
 " asylum districts," and created for each 
 district a body named the " Managers of 
 the Asylum." These managers were 
 charged with the duty of erecting and con- 
 ducting, in their respective districts, such 
 hospitals for contagious diseases as the 
 " local government boards " should from 
 time to time authorize. In other words, 
 each local government board (which is a 
 body having general municipal authority 
 over its appointed division of territory), 
 was to appoint the site and decide the plan 
 of a hospital for the asylum district, and then 
 the managers were to carry the order of the 
 board into effect, by acquiring the land, 
 erecting a building and fitting it up, re- 
 ceiving patients, and employing physicians 
 and nurses. At Hampstead, the managers, 
 authorized by the board, established a small- 
 pox hospital. Neighboring householders 
 soon complained of the influence of this 
 establishment upon the sanitary condition 
 of the immediate vicinity ; and at length 
 Sir Rowland Hill and two other gentlemen, 
 whose residences immediately adjoined the 
 hospital grounds, united in bringing an 
 action to have the hospital adjudged a 
 nuisance and the managers condemned to 
 pay damages for establishing it, and for- 
 bidden to continue it any longer. Wit- 
 nesses contradicted each other whether the 
 hospital was carefully and prudently planned 
 or not ; but upon this point the opinion of the 
 jury was in the plaintiffs' favor: that, al- 
 though it was well managed inside, yet the 
 bringingof small-pox patientsin ambulances 
 to its doors, and other evils incident to the 
 establishment, rendered it a nuisance to the 
 neighbors. The principal ground of defence 
 on the part of the managers was that they 
 were acting in obedience to an act of Par- 
 liament, and under authority and orders of 
 the local government board, and hence were 
 not personally liable. Held, that the man- 
 agers were liable in damages. If the act 
 
324 
 
 NUISANCE. — OFFICER. 
 
 of Parliament had designated the site for 
 the hospital, and directed it to be built and 
 conducted in the manner adopted, the re- 
 sponsibility would have been upon Parlia- 
 ment, and the managers could not have 
 been sued ; for when the legislature author- 
 izes a distinct thing to be done, the officers 
 who do it cannot be personally charged with 
 wrong in their acts. If, for example, the 
 legislature enacts that a railroad may be 
 built along a certain route, persons living 
 near it and annoyed by smoke, dust, or 
 noise from the trains, cannot sue the direc- 
 tors for damages. But in this case the 
 location of the hospital and mode of erect- 
 ing and conducting it were left to the dis- 
 cretion of the officers. These were bound 
 to select a site and adopt a plan such that 
 the hospital would not be a nuisance to the 
 neighborhood; and for failing in this they 
 were liable to the action. 1878, Hill v. 
 Managers of Metropolitan Asylum District, 
 L. R. 4 Q. B. D. 433. 
 
 Hinor Secisioiu on Noisance. 
 
 What degree of mischief will render a 
 livery stable a n. : 50 Iowa, 571. That 
 liquor-shop might be sued for penalty under 
 city ordinance does not preclude prosecut- 
 ing it as a n. : 41 N. J. L. 6. Separate 
 tort-feasors — here owners of distinct mills, 
 sewerage of which polluted a stream— are 
 liable each for consequences of his own 
 wrong, only: 77 N. Y. 51. Storing gun- 
 powder on one's own premises is not a n. ; 
 one suing for injury by explosion must 
 prove negligence: 16 Hun (N. Y.), 257. 
 An opening in a sidewalk to light and ven- 
 tilate a dwelling is not per «e a n. ; recovery 
 by one who falls in depends on negligence: 
 87 Pa. St. 365. What degi-ee of mischief 
 renders a slaughter-house an.: 7 Baxt. 
 (Tenn.) 151. An unauthorized dam across 
 a navigable river is a n. per se ; averment 
 of injury is not necessary: 46 Wis. 530. 
 
 o. 
 
 OFFICER. Title to office. In an ac- 
 tion on the official bond of O'Malley as 
 town treasurer, for his neglect to deliver 
 moneys, &c. , in his hands to his successor, 
 the evidence for plaintiff was that, at the 
 close of the polls on the day of election, the 
 chairman of the town board of supervisors 
 announced publicly as the result of the 
 election that one Stahl was elected to the 
 office of treasurer; that a statement of 
 the result of the election was drawn up on 
 the records of the town, by authority of the 
 inspectors, and signed by the town clerk, 
 but not signed by the inspectors as required 
 by the statute; that this statement showed 
 the whole number of votes cast, and the 
 number cast for each candidate, from which 
 it appeared that Stahl had a majority of the 
 whole ; that the statement made by the town 
 clerk to the county clerk, as required by 
 statute, showing the names of the persons 
 
 Officer, Authority of army officer, pp. 25, 29 ; 
 his resignation when insane, p. 25. He is not 
 amenable to courts of invaded country criminally, 
 p. 26 ; or civilly, p. 27. Authority of officers of 
 society for prevention of cruelty to animals, p. 29. 
 Officer of Illinois bank punishable for receiving 
 deposits after insolvency or converting assets, p. 36. 
 
 elected to the several town offices at sueli 
 election, contained the name of Stahl as 
 town treasurer; that the town clerk also, 
 six days after the election, notified Stahl 
 in writing of his election ; and that Stahl 
 duly qualified. O'Malley, in his answer 
 and testimony, did not deny that Stahl re- 
 ceived a majority of the votes cast, or that 
 the tally-sheets showed such a majority, 
 but claimed that be himself received a 
 majority of the legal votes cast. Held, that 
 the evidence as to Stahl's right was prop- 
 erly admitted, and warranted a judgment 
 that there was a breach of the bond in 
 suit, in O'Malley's failure to pay over to 
 Stahl the moneys in his hands. Supreme 
 a. 1879, Town of La Pointe v. O'Malley, 
 46 Wis. 35. 
 
 The mere fact that O'Malley, for a few 
 days after his term expired, refused to de- 
 liver up the books and papers, and pe> 
 
 Officers of State banks, when liable for losses, pp. 
 39, 122, 123. Bankrupt discharge of sheriff, p. «■ 
 Official bonds, p. 50. Federal officer's right to re- 
 moval of prosecution, p. 86. Meaning of " olBce ^_ 
 and "officer," p. 165. Who are "city officers, 
 p. 150; or "public officers," p. 167. Officers of 
 cities, pp. 311, 312. 
 
OFFICER. 
 
 325 
 
 formed some duties pertaining to his office, 
 did not render him treasurer de facto in 
 such a sense as to prevent a recovery, in 
 this action, of moneys in his hands which 
 he ought to pay over to Stahl, he having 
 had no color of title, and there having 
 been no unreasonable delay in asserting the 
 rights of Stahl in bringing the action. lb. 
 
 The act of Stahl in taking and filing the 
 oath of office and his official bond, and de- 
 manding of O'Malley the moneys, books, 
 &o., in his hands, would have been suffi- 
 cient to warrant quo warranto against him 
 by a hostile claimant. lb. 
 
 In an action to try title to office, in order 
 to exclude evidence of the illegality of votes 
 cast for a party on the ground that such 
 party has not been served with notice of 
 the claim, such votes were illegal, the 
 evidence must have been objected to spe- 
 cifically upon that ground. Supreme Ct. 
 1879, State v. Norton, 46 Wii. 332. 
 
 In an action to try title to the office of 
 chairman of town supervisors (the statute 
 not providing for any formal written cer- 
 tificate of election to that offipe), the result 
 of the canvass made by the inspectors, and 
 declared by them, is prima facie proof of 
 the election of the person so appearing to 
 have been elected. Where, in such an ac- 
 tion, it appeared not only that two more 
 votes were cast than were included in the 
 canvass, but that a plurality of the votes 
 actually cast were in favor of Swenson, 
 the relator, and not of Norton, the de- 
 fendant, who appeared by the canvass 
 to have been elected, the prima facie effect 
 of such canvass was overcome ; and in the 
 absence of further evidence on his part, 
 judgment of ouster should have gone against 
 Norton. But where there was also evidence 
 tending to show that a part of the votes so 
 cast for Swenson were illegal, a further 
 judgment that he was entitled to the office 
 could be rendered only upon a vei'dict that 
 he received a majority of the legal votes 
 cast, lb. 
 
 Bond. Although the statute caUs for a 
 " bond," which is an obligation under seal, 
 and says that the office shall be deemed 
 vacant until the incumbent has given one, 
 yet if he, with sureties, give an instrument 
 phrased like a bond, but having only the 
 written letters " L. S." in place of a seal, 
 and he on the strength of it assumes the 
 duties of the office and receives moneys in 
 
 that character, he and the sureties will not 
 be heard to defend on the ground that the 
 writing is not a bond, and that the officer 
 was never qualified. Ct. of Appeals, 1879, 
 Board of Education v. Fonda, 77 N. Y. 
 350. 
 
 The law presumes that official duty has 
 been duly performed, and therefore, where 
 the Indian department took a bond from an 
 Indian agent in Oregon, in a larger amount 
 than $2,000, the presumption of law is that 
 the increase in the penalty was required by 
 the executive, and the bond is valid until 
 the contrary appears. Qth Circ. (Oreg.) 
 1879, United States v. Humason, 25 Int. 
 Rev. Rec. 208 ; 8 Reporter, 70. 
 
 Rights and powers. The commissioner 
 of pensions is not the head of a department, 
 within the meaning of art. 2, § 2, of the 
 constitution, prescribing by whom officers 
 of the United States shall be appointed. 
 Supreme Ct. 1878, United States v. Ger- 
 maine, 99 U. S. 508. 
 
 The doctrine that a lawful custodian of 
 property which becomes lost, &c., has im- 
 plied authority to charge the owner by an 
 offer of a reasonable reward for recovering 
 it, even though the custodian may be in 
 fault for the loss, applies where the owner 
 is the government and the custodian is a 
 public officer. A third person employed 
 to save or recover government property is 
 not bound first to inquire whether the pub- 
 lic agent is responsible for the loss. 1878, 
 Gibbs V. United States, 14 Ct. of Ct. 514. 
 
 A legislature has power to abolish courts 
 of legislative (not constitutional) creation ; 
 and when it has done so a judge of the 
 abolished court is no longer a judge, and 
 cannot claim salary, Power of the legis- 
 lature over judicial tenure considered at 
 length. Supreme Ct. 1879, Halsey v. Gaines, 
 2 Lea (Tenn.), 316. 
 
 Personating officer. Upon a trial for 
 falsely assuming to be a sheriff, it appeared 
 that the accused had been appointed a secret 
 detective by the mayor of the city. He 
 served a warrant of arrest which as detec- 
 tive he was not authorized to serve ; it could 
 be lawfully served only by the sheriff. But 
 he did not make any representation or claim 
 that he was a sheriff or a sheriff's deputy ; 
 he acted only in the apparent capacity of 
 detective, and in the belief that he was au- 
 thorized in that character. Held, that these 
 facts did not constitute the offence created 
 
326 
 
 OFFICER. 
 
 by the statute. The accused did not per- 
 sonate a sheriff, or constable, or any min- 
 isterial oiBcer of the State, but claimed to 
 be, what he was in fact, a detective of the 
 city, and only misconstrued his powers as 
 such detective. He might have been liable 
 to trespass, but it could not be said he 
 falsely assumed to be an officer. He was 
 what he assumed to be, but went beyond 
 his authority. Supreme Ct. 1872, State v. 
 Withers, 7 Baxt. (Term.) 16. 
 
 Eligibility of women. No person shall 
 be disqualified from holding the office of 
 county recorder on account of sex. Iowa 
 LawK 1880 (March 12), 35, ch. 40. 
 
 Offences. ' ' Any officer connected with , 
 or employed in, the internal revenue ser- 
 vice of the United States, and any assistant 
 of such officer, who shall embezzle or wrong- 
 fully convert to his own use any money or 
 other property of the United States, and 
 any officer of the United States, or any as- 
 sistant of such officer, who shall embezzle 
 or wrongfully convert to his own use any 
 money or property which may have Come 
 into his possession or under his control in 
 the execution of such office or employment, 
 or under color or claim of authority as such 
 officer or assistant, whether the same shall 
 be the money or property of the United 
 States or of some other person or party, 
 shall, where the offence is not otherwise 
 punishable by some statute of the United 
 States, be punished by a fine equal to the 
 value of the money and property thus em- 
 bezzled or converted, or by imprisonment 
 not less than three months nor more than 
 ten years, or by both such fine and impris- 
 onment." Added to Rev. Stat. § 5497 by 
 act of Feb. 3, 1879, 20 Slat, at L. 279. 
 
 " Any officer of a town, village, city, 
 county, or State, who shall be intoxicated 
 while in discharge of the duties of his office, 
 or by reason of intoxication is disqualified 
 for the discharge of, or neglects, his duties, 
 shall be guilty of a misdemeanor, and on 
 conviction of such misdemeanor shall for- 
 feit his office." Cal. Laws 1880 (April 15), 
 265, ch. 152. 
 
 Minor Decisions on Officer. 
 
 The civil surgeons appointed by the com- 
 missioner of pensions are not U. S. officers : 
 99 U. S. 508. Construction of Const, art. 2, 
 § 2, directing appointment of officers: Ih. 
 Member of District of Columbia board of 
 
 health a U. S. officer: 14 Ct. of CI. 512. One 
 qualified to vote for township trustee is el- 
 igible to hold the office, though not a citizen: 
 63 Ind. 507. When member of legislature 
 may be harbor commissioner: 53 Cal. 660. 
 The offices of State solicitor and repre- 
 sentative in Congress are incompatible: 9 
 S. C. 156. Legislature can repeal a stat^ 
 ute creating an office; incumbent has no 
 vested right to hold through his term: 45 
 Conn. 134. Extra pay cannot be claimed 
 for extra work but by express law: 9 Neb. 
 85. Right to office can be tried only by 
 action by attorney-general in nature of juo 
 warranto; not by a lawsuit between the 
 claimants: 81 N. C. 298; or by submission 
 of controversy without action: Id. 303. 
 What newspaper criticism of acts of chair- 
 man of political committee is privileged: 
 87 Pa. St. 385. 
 
 Proof of seduction by promise of marriage 
 was held cause for removing a policeman ; 
 where he deserted the woman and she died 
 in childbirth, from destitution: 59 Go. 318. 
 Power of the mayor of New York to remove 
 a police commissioner: 18 Hun (N. Y.), 
 530; 19 Id. 441. A drainage commissioner 
 has a right to resign : no formal acceptance 
 of resignation is needful; and after resig- 
 nation he cannot act; not even until a suc- 
 cessor is qualified: 77 N. Y. 378. Habitual 
 drunkenness as gi-ound of removal; and 
 a course of proceedings: 49 Tex. 645. Ef- 
 fect of resignation, and of vote of appointing 
 body to fill vacancy: 40 N. J. L. 463. 
 Suspension from office creates a " vacancy:" 
 13 Ct. of CI. 347. Construction of a pro- 
 vision enabling governor to fill vacancy, 
 with reference to the meaning of the word 
 "vacancy:" 89 Pa. St. 419. 
 
 Action on official bond of county treas- 
 urer to recover school moneys may be 
 brought by county superintendent of edu- 
 cation: 56 Ala. 1. Sureties of county 
 trea.surer are liable for his default in duties 
 imposed by statutes passed after the bond 
 was given ; unless exempted by such stat- 
 utes: lb. Giving an -official bond does 
 not enlarge liability of o. ; but merely ren- 
 ders his sureties liable with him: Id. 190. 
 One may justify his acts in assisting an 0. 
 to serve process by proof that he was 0. de 
 facto ; evidence that he had formerly quali- 
 fied is not necessai-y: 46 Conn. 218. Lack 
 of a seal does not hinder enforcing instru- 
 ment in form of official bond against sure- 
 
OFFICER. — PARENT AND CHILD. 
 
 327 
 
 ties where principal has been allowed to 
 discharge duties of office upon giving such 
 instrument as his bond: 77 N. Y. 350. 
 The 0. himself cannot sustain a right of 
 action or defence by proving himself o. de 
 facto : 89 III. 347. 0. de facto may be prose- 
 cuted for embezzlement same as o. de jure : 
 69 Me. 22. One who is only de facto o. 
 cannot be compelled to act, and is not 
 liable for the omission : 77 N. Y. 378. 
 
 Grounds and extent of the doctrine of 
 presuming that public officers have per- 
 formed their duty, — explained: 14 Ct. of 
 CI. 276. Independent of statute a person 
 injured by neglect of a deputy cannot sue 
 him, but must sue the sheriff or marshal: 
 59 Ga. 432. A board of police commis- 
 sioners created by the legislature to keep 
 the streets clean and administer other police 
 duties within a city, but not incorporates, 
 cannot be sued for injury sustained through 
 defective streets : 49 Md. 495. Agreement 
 between manufacturer of firearms and con- 
 sul-general of foreign government, that 
 consul shall procure orders from his govern- 
 ment and the manufacturer shall pay him 
 a commission, is void ; consul cannot recover 
 his commission: 15 Blatchf. 79. Trial of o. 
 and confederates for conspiring to cheat 
 the State by means of false vouchers: 11 
 S. C. 195. Resisting an o. in his attempt 
 to make an arrest on a warrant issued with- 
 
 out preliminary oath or affirmation to facts 
 authorizing it is not a crime: 9 S. C. 309. 
 
 OHIO. Courts. Northern district of 
 Ohio divided into two divisions, the eastern 
 and western ; and counties to compose the 
 western eniunerated. How suits should be 
 brought; and offences prosecuted. Sum- 
 moning grand jurors. Process. Times of 
 holding circuit and district courts. Act of 
 June 8, 1878, ch. 169, 20 Stat, at L. 101. 
 
 Certain counties transferred from the 
 northern to the southern (judicial) district 
 and the southern district divided into two 
 divisions. Act of Congress of Feb. 4, 1880, 
 §§1,3, 20 Stat. atL. 63, 64. 
 
 A term of the circuit court and of 
 the district court for the southern dis- 
 trict of Ohio shall be held at Columbus in 
 said State on the first Tuesday of the 
 months of June and December in each year. 
 lb. § 2. 
 
 Regulations prescribed for determining 
 in which district or division various suits 
 must be brought, or crimes prosecuted ; and 
 governing transfer of causes from one dis- 
 trict or division to another, or removal of 
 causes from a State to a Federal court; and 
 directing how jurors shall be summoned 
 and process served for the two divisions. 
 lb. §§ 4-8. 
 
 OEDINANCE. See Municipal Cok- 
 
 PORATION. 
 
 P. 
 
 PARDON. A pardon may be granted 
 on conditions, as that the recipient shall 
 abstain from liquor; and on violation of the 
 condition the governor may revoke the 
 pardon and remind the convict. Supreme 
 Ct. 1878, Arthur v. Craig, 48 Iowa, 264. 
 
 PARENT AND CHILD. Adoption does 
 not devest the rights of a child derived 
 from natural birth. Nothwithstanding 
 that by adoptioh the child becomes in a 
 legal sense the child of the adopting par- 
 ent, and may inherit from him, it con- 
 tinues capable, unless some statute forbids, 
 of inheriting from the natural parent. On 
 
 Oil. Abandoned oil-welb, in New York, must 
 be plugged, p. 4. 
 
 Parent and child. The relation. Cruel treatment 
 of children, Child; incidents of infancy, Isfakt. 
 
 the death of his daughter Bumer adopted 
 her two children. He afterwards died with- 
 out a will, leaving the two adopted chil- 
 dren, and several natural ones, their uncles 
 and aunts, surviving. Held, that the adopt- 
 ed children were entitled to share in the 
 estate as children by adoption, and also 
 to take their mother's share as her heirs. 
 Supreme Ct. 1879, Wagner v. Varner, 50 
 Iowa, 532. 
 
 Under the Missouri statute of adoptions, 
 Wagn. Stat. 256, the real property of an 
 adopted child will descend at his death to 
 his relatives by blood, and not to those 
 
 Abduction of child, in North Carolina, punish- 
 able, p. 8. Advancements, p. 16. Prevention of 
 cruelty to children, pp. 78, 79. 
 
328 
 
 PARENT AND CHILD — PARTNERSHIP. 
 
 by adoption ; and this is so notwithstand- 
 ing the property in question was derived 
 from the adopted parent. The civil law as 
 to adoption, explained. Supreme Ct. 1878, 
 Reinders v. Koppelmann, 68 Mo. 482. 
 
 Legal effect of an adoption of a child 
 pursuant to Rev. Stat. oh. 67, § 31, pre- 
 scribed anew. Me. Laws, 1880 (February 
 24), 186, ch. 183. 
 
 SCinor Decisions on Parent and Cliild. 
 
 A father's taking his adult illegitimate 
 child into his family, &c. , is not an adoption 
 under Civ. Code, § 230 ; that applies only to 
 minor children: 52 Cal. 84. Efiect of In- 
 diana adoption law explained, with refer- 
 ence to escheats and to the appropriation 
 of proceeds to the school fund: 63 Ind. 33. 
 Effect of the New York statute of adop- 
 tions. Laws 1873, ch. 830, explained, with 
 reference to adoptions which took place be- 
 fore it took efeeot : 17 fl«n (iV. F. ) , 457 . Ef- 
 fect of the Pennsylvania adoption laws of 
 1855 and 1872, explained, with reference to 
 retrospective operation and title to estate 
 already vested: 89 Po. St. 358. Adoption 
 of one's illegitimate child under act 1805: 
 1 Lea (Term.), 260. Awarding child to 
 mother on decree of divorce, releases father 
 from liability to her for child's mainten- 
 ance ; for it deprives him of child's servi- 
 ces: 67 ind.. 583. Father's power to ap- 
 point testamentary guardian is subject to 
 the general power of the court, on divorcing 
 parents, to award child to mother if its 
 welfare requires: 49 Md. 450. Peculiar 
 circumstances may justify court in with- 
 holding custody of child, temporarily, from 
 either of its legal guardians: 74 N. Y. 
 295. Doctrine of father's and mother's 
 right to custody; and right of grand- 
 father in special case: 32 Ohio St. 299. 
 Parents of minor wife are not liable to 
 husband for inducing her, for reasonable 
 cause, to return to their home: 4 Baxt. 
 {Term.) 583. 
 
 Indebtedness incurred by parent in 
 building a house to present to his child 
 cannot be recovered from the child: 86 
 III. 53. Father is not liable for board 
 furaished to his runaway infant child 
 without his consent: 89 111. 454. Father 
 cannot charge lands of child with debt for 
 her board and tuition: 14 Bush (Ky.), 
 
 502. Child has a right to aid father 
 when assaulted; and doing so is no excuse 
 for violence to the child by the assaulter; 
 68 Me. 183. Widow who occupies land as 
 dowress and guardian of children cannot 
 buy the land adversely to them: 71 N. Y. 
 474. Between parent and adult child the 
 right to compensation for services is gov- 
 erned by the intent of the parties when they 
 were rendered to be determined from the 
 particular circumstances; there is no fixed 
 rule for all cases: 31 Gratt. (Va.) 52. 
 
 PARTNERSHIP. Where there is no 
 joint expea.se, or property, or fund, or 
 losses, or profits, and no arrangement to 
 share losses and profit, there is no partner- 
 ship. A communion of profit is of the 
 very essence of the contract of partnership: 
 for without this, a partnership cannot, in 
 contemplation of law, exist. An arrange- 
 ment was made between different railroads 
 connecting with each other, whereby each 
 road agreed to carry the cars of the others, 
 having the name "Green Line" painted 
 thereon, over its own road, without break- 
 age of bulk, at such rates as might be 
 agreed on, each company fixing its own 
 rates of freight passing over its road, and 
 collecting the same as the freight passed 
 over its road, and having no interest in 
 freights not reaching its road. Each road 
 desirous of making a through rate over 
 other roads via these Green Line cars, 
 ascertained the rates the intermediate road 
 or roads charged, and, adding the same to 
 its own rates, fixed its own schedule of 
 through rates, which it termed " Green 
 Line rates." Thus there was no joint 
 expense or loss or profit, except that where 
 a loss could not be located on any par- 
 ticular road, a pro rata share of the loss 
 was borne by all that carried the freight. 
 Held, that there was no partnership as 
 between the different roads, and that the 
 fact that the words "Green Line" were 
 printed at the top of the bills of lading, 
 the name of the company being also printed 
 on the bills, would not estop such company 
 from denying that there was such a partner- 
 ship. Supreme Ct. 1879, Irvin v. Nash- 
 ville, &c. R. R. Co., 92 ///. 103. 
 
 From the authorities the following propo- 
 sitions maybe deduced: 
 
 1. When a party takes negotiable paper, 
 
 Parliament, 
 Partnership. 
 
 Amos explains its powers, p. 21. I ing, p. 
 Points on partnership account- I p. 261. 
 
 12. Partner's power to retain attorney, 
 
PARTNERSHIP. — PASSENGER. 
 
 329 
 
 limited partnerships. N. J. Laws 1880 
 (March 12), 304, ch. 204. 
 
 Minor Decisions on Partnership. 
 
 Loan of capital upon interest equal to 
 a specified share of profits does not consti- 
 tute lender a partner: 25 Int. Rev. Rec. 
 289. Agreement of two firms to share 
 profit and loss of one adventure constitutea 
 them partners as to it ; even though one firm 
 has entire control of the subject-matter: 
 14 Bush (^Ky.), 62. How far members of 
 Nebraska State Grange of the Patrons of 
 Husbandry may be treated as partners: 9 
 Neb. 130. Paying salesman by percentage 
 of profits does not entitle him to p. account- 
 ing : 74 N. Y. 30. Contract to pay share 
 of profits as a measure of compensation, 
 merely, does not create p.: 76 N. Y. 55; 
 Id. 97. What proof that he continued to 
 be held out as partner is suflicient to charge 
 a retired member for a p. debt contracted 
 since dissolution: 47 Wis. 375. 
 
 Assignment by one partner of his inter- 
 est to the other carries exclusive right in 
 trademark: 3 Hugh. 151. Trademark of 
 firm may be used by either partner after 
 dissolution: 3 Hugh. 274; 5 Sawyer, 584; 
 8 Reporter, 576. Partner cannot appro- 
 priate firm property to payment of his own 
 physician's bill: 56 Ala. 19. Sale by 
 partner of his "interest in the concern" 
 means his legal interest and, presumably, 
 does not embrace his indebtedness to the 
 concern : 66 Ind. 365. Firm ledger is com- 
 petent against partner selling out to show 
 true value of interest he sold: 47 Iowa, 
 217. If firm is insolvent, a purchaser of a 
 partner's interest in the assets takes noth- 
 ing: 73 N. Y. 264. New partner cannot 
 be brought into firm unless all members 
 agree: 76 N. Y. 344. One who buys a 
 share in an unincorporated association must 
 ascertain its by-laws beforehand: 88 Pa. 
 St. 103. Special partner is liable if his 
 capital was paid in by check, uncertified, 
 and given without an existing deposit, al- 
 though the check was paid when presented; 
 for such a check is not " cash: " 45 iV. Y. 
 Superior Cl. 235. 
 
 PASSENGER. " It shall be unlawful 
 for the owners, officers, agents, or em- 
 ployees of any steamship company, sailing- 
 vessel, or railroad company or firm or cor- 
 
 Fassenger. Carriage of passengers and bag- I Weeks case of bonds stolen, p. 73. Limitation of 
 gage, pp. 72, 73. FralofE case of laces lost, p. 72; I liability for dog, p. 74. 
 
 made, accepted, or indorsed by one of 
 several partners, in or with the partner- 
 ship name, and the fact that such name 
 was not signed or indorsed in the regular 
 course of the business of the firm is ap- 
 parent on the face of the instrument, or 
 necessarily implied in the nature of the 
 transaction, such party cannot, though he 
 may have parted with value on faith of the 
 paper, charge the other members of the 
 firm, except upon proof that they assented 
 to the transaction. In every such case he 
 is chargeable, as matter of law, with notice 
 of the want of authority in the individual 
 partner to -bind the firm without their ex- 
 press assent. 
 
 2. When the fact, though existing, that 
 such name was not signed or indorsed in 
 the regular course of the business of the 
 firm, is not apparent from the face of the 
 instrument, and the nature of the trans- 
 action appears to be capable of different 
 conclusions, the question of notice is one 
 of fact, to be determined by the jury upon 
 all the circumstances. In every such case 
 the burden is again upon the plaintiff, 
 though he may have parted with value, to 
 satisfy the jury, either that the circum- 
 stances of the case did not constitute notice 
 to him, or that, if they did, the other 
 members of the firm assented to the trans- 
 action. 
 
 3. When the fact, though existing, that 
 such name was not signed or indorsed in 
 the regular course of the business of the 
 firm, is not apparent from the face of the 
 instrument, and the nature of the trans- 
 action appears to have been of such char- 
 acter as to give the plaintiff a right to 
 suppose that it was a partnership transac- 
 tion, the members contesting their liability 
 must not only show that in fact it did not 
 constitute such transaction, but also that 
 the plaintiff had in some way actual notice 
 thereof. In every such case the burden is 
 shifted upon the defendants to establish 
 such notice. 1880, St. Nicholas Nat. Bank 
 V. Savery, 45 N. Y. Superior Ct. 97. 
 
 An act to authorize the formation of 
 partnership associations in which the cap- 
 ital subscribed shall only be responsible for 
 the debts of the association, except under 
 certain circumstances, is a general act au- 
 thorizing three or more persons to form 
 
330 
 
 PASSENGER. — PATENT. 
 
 poration, that may be engaged in this State 
 in transportation of passengers to and from 
 any foreign port, to withhold or refuse any 
 person or persons the right to purchase a 
 passage ticket or tickets to any foreign 
 country, for the reason that he, or they, 
 have not presented a certificate, card, or 
 other document whatsoever, showing that 
 such person has paid, in full or in part,' 
 any or all dues, debts, or demands, or 
 otherwise or any sum whatsoever, to any 
 society, company, corporation, association, 
 or individual, or firm." Cal. Laws 1880 
 (March 26), 50, eh. 50; Cal. Laws 1880 
 (April 2), 106, ch. 62. See Carrier. 
 
 " A common carrier must not give 
 preference in time, price, or otherwise, 
 to one person over another. Every 
 common carrier of passengers by railroad, 
 or by vessel plying upon waters lying 
 wholly within this State, shall establish a 
 schedule time for the starting of trains or 
 vessel from their respective stations or 
 wharves, of which public notice shall be 
 given, and shall, weather permitting, ex- 
 cept in case of accident or detention caused 
 by connecting lines, start their said trains 
 or vessel, at or within ten minutes after 
 the schedule time so established, and notice 
 given " under penalty of $250. Cal. Laws 
 1880 (March 26), 50, ch. 50; Cal. Laws 
 1880 (April 2), 106, ch. 62. 
 
 Indictment and arrest of any person who 
 may commit an indictable ofience upon a 
 railroad ti-ain or steamboat, authorized in 
 any county or city through which the train 
 may pass. Md. Laws 1880, 756, ch. 485. 
 
 PATENT. A revised edition of the 
 Rules of Practice in the Patent OfHce 
 was prepared and adopted in Decem- 
 ber, 1879, to take effect Jan. 1, 1880. 
 The rules, as thus revised, are pub- 
 lished in 17 Pat. Off. Gaz. No. 2. 
 There has been a revision, of the date 
 of Sept. 1, 1880. These may be 
 obtained in separate pamphlet by re- 
 quest addressed to the Commissioner 
 of Patents, Washington, D. C. 
 
 Especially noteworthy among the de- 
 cisions of courts is a group of recent 
 
 Patent. Copyright, Copyright. Trademark, 
 Tbademakk. 
 Abandonment of Nicholson street pavement, p. 
 
 decisions (see infra, 14 Ot. of CI. 396 ; 
 10 Off. Pat. Gaz. 702 ; 8 Reporter, 455 \ 
 2 Fed. Reporter, 338), which open the 
 way to efficient judicial remedy for use 
 of patents, without license, by govern- 
 ment officers. The idea has prevailed 
 that obtaining a patent does not pro- 
 tect the inventor against gratuitous use 
 of his invention by authority of govern- 
 ment. This view was founded upon 
 English practice ; an English patent is 
 understood to be inoperative against 
 the Crown. The reasons for this posi- 
 tion do not prevail in America ; here a 
 patent is a compact with the inventor 
 to induce him to disclose his invention 
 for the public benefit, while in England 
 patents are a preserved class of " mo- 
 nopolies," — a privilege which the sov- 
 ereign is allowed to give to favored 
 persons. But although the right of an 
 inventor as against government has 
 been for some years recognized, to see 
 how he could have a remedy has not 
 been so easy. As long ago as 1858 a 
 claim was preferred to the secretary of 
 war for payment for government use <)f 
 the Sickles' cut-ofi'. The government 
 contracted with Merrick & Son to build 
 a steamboat. The contractors attached 
 the cut-oflf to the engine without pacing 
 r03'alty, considering that government 
 was entitled to the free use of the in- 
 vention. Sickles applied to the secre- 
 tary of war, and that officer asked the 
 opinion of the attorney-general. The 
 attorne3-general of the day. Judge 
 Black, advised that the government 
 was equally bound with an individual 
 to pay a royalty ; and that the secre- 
 tary might paj' a reasonable one i/ there 
 were an appropriation available. 9 Op- 
 Att.-Gen. 135. Inventors, however, 
 needed an efllcient remedy in the courts. 
 But it is familiar that the courts cannot 
 render judgment against the govern- 
 ment for wrongs done by its officers. 
 
 3. Of invention of corset steels, p. 4; of inven- 
 tions general ly, p. 4. State cannot tax sales of pa- 
 tent-rights, p. 103. 
 
PATENT. 
 
 331 
 
 Nor can they enjoin the government 
 directly from using an invention ; and 
 if thej' could, or could stop the use by 
 enjoining the oflScers personally, this is 
 not what the interests of the inventor 
 require ; he wishes his invention used 
 and a royaltj' paid. 
 
 In 1863, and again in 1868, suits 
 were argued in the court of claims, 
 seeking to recover royalties for govern- 
 ment use of inventions. In the first of 
 these cases the warden of the United 
 States Penitentiary in the District of 
 Columbia set up six patented broom- 
 making machines in the prison, and em- 
 ployed the convicts in making brooms. 
 There was nothing like a bargain be- 
 tween him and the inventor ; and the 
 court held that for want of some con- 
 tract binding the government to pay, 
 no judgment could be rendered. 1 Ct. 
 of CI. 7. In the other case, a patented 
 army tent was adopted by the war de- 
 partment and a contract was made 'by 
 direction of the secretary, with the in- 
 ventor, to pay him a royalty. For 
 reasons connected with his participation 
 in the Rebellion the pa3'ments were 
 stopped ; but on proof of the special 
 contract, he recovered judgment. 4 Ct. 
 of CI. 1 13. Obviously these views gave 
 no protection in all that class of cases 
 where executive officers were disposed 
 to use inventions as if they were free to 
 the government. 
 
 Recent decisions will, should they be 
 sustained by the supreme court, estab- 
 lish the law to be that if, upon request 
 of the inventor, an officer competent 
 to contract for use of an invention 
 makes use of it without payment, the 
 court of claims maj' award compensa- 
 tion to the inventor upon a theory of 
 an implied promise to pay him, while, 
 if the invention is used against the in- 
 ventor's consent, or by an inferior officer 
 or contractor, the individual thus in- 
 fringing is personally liable in substan-' 
 tial damages, recoverable in the circuit 
 courts. In one of the cases. Lieuten- 
 
 ant McKeever, being the patentee of an 
 improved cartridge-box, submitted it to 
 the war department in the hope that it 
 might be adopted. It was adopted. No 
 royalty was paid to the inventor. He 
 brought suit in the court of claims, which 
 decided that the government has not the 
 right to use an invention, and that the 
 presumption must be that the govern- 
 ment used this one under an implied 
 license and upon an obligation to pay a 
 reasonable royalty. It could not be 
 supposed that the inventor intended to 
 give a gratuitous leave, or that the sec- 
 retary intended a lawless infringement. 
 In another case, suit was brought 
 against an officer — the postmaster of 
 New York — who refused to enter into 
 any contract with the inventor, believ- 
 ing and claiming, upon English prece- 
 dents, that he ought not to do so ; so 
 that there was no ground for a suit in 
 the court of claims. The circuit court 
 held the officer personally liable, as an 
 infringer, for whatever sum he had 
 saved, and presumablj' had remitted to 
 the government at Washington, out of 
 postal moneys which, but for the use of 
 the invention, he must have expended 
 in paying salaries of clerks. The third 
 decision, earlier than the others, applies 
 the same principles to the simpler and 
 easier ease where certain contractors, 
 because they were manufacturing for 
 government, assumed to use, as they 
 supposed government had the right to 
 do, the complainant's invention, without 
 paying him. The circuit court, with- 
 out hesitation, held that they had no 
 such privilege. 
 
 Use of patented inventions by govern- 
 ment. The English and the American law 
 of patents differ in this: that iu England a 
 patent is a grant from government, and 
 does not exclude government from using 
 the invention ; in the United States it is 
 rather a recognition and protection of the 
 inventor's right and does exclude the gov- 
 ernment. The government cannot make 
 use of a patented invention without the 
 
332 
 
 PATENT. 
 
 license of the inventor or making him com- 
 pensation therefor. 1878, McKeever o. 
 United States, 14 Cl. of CI. 396; 2d Circ. 
 (N. Y.) 1879, Campbell «. James, 8 Re- 
 porter, 455; again, 2 Fed. Reporter, 338; 
 see last case again, 3 Fed. Reporter, 513. 
 1st Circ. (Mass.) 1876, Brady v. Atlantic 
 Works, 10 Pat. Off. Gaz. 702. 
 
 The common law did not recognize 
 property in mind-work, and no English 
 statute attached the legal quality of a 
 right to an invention, or created a remedy 
 for the protection of the inventor. If the 
 court of chancery had existed with anything 
 like its modern jurisdiction, it is probable 
 that inventors would have gone there for 
 relief, and that their devices would have 
 been protected upon the same principle that 
 courts of equity have since maintained a 
 person's right to his trademark; but there 
 being neither a remedy at law nor relief in 
 equity, inventors naturally sought the only 
 approximation to redress that was within 
 their reach, viz. , the protection afforded by 
 a royal patent. The first known instance 
 of this {Coryt. Pat. p. 4, note) was the case 
 in the reign of Edward III., where a patent 
 was issued for the invention of the philoso- 
 pher's stone, which is cited by Sir F. Moore 
 in his report of the Case of Monopolies 
 (Moore, 675). The invention is now re- 
 garded as a superstition, but the applica- 
 tion was referred by the king to a commis- 
 sion, which reported favorably upon it, and 
 the patent issued apparently upon the doc- 
 trine that the invention was new and use- 
 ful. The right to create general monopolies 
 by means of royal patents was universally 
 regarded during the Middle Ages as an 
 attribute of sovereignty, and thjis inven- 
 tions came to be first mingled and ultimately 
 classed with monopolies. 
 
 During the reign of Elizabeth it was the 
 policy of the Crown to raise as little revenue 
 as possible by direct taxation, and as much 
 as possible by the sale of monopolies. In 
 her forty-fourth year, the burdens borne by 
 the nation through this method of indirect 
 taxation had become so intolerable that 
 they produced an outbreak in Parliament; 
 and the Queen signified to Parliament that 
 some of the obnoxious patents " should be 
 presently repealed, some suspended, and 
 none put in execution but such as should 
 first have trial according to the law for the 
 good of the people." In the following 
 
 year, 1602, there came the great Case of 
 Monopolies (D'Arcy v. Allen, Moore, 671- 
 Nay, 179; 11 Co. 86), in which the dis- 
 tinction is clearly taken between patents 
 " where any man by his own charge and 
 industry, or by his own wit and invention, 
 doth bring any new trade into the realm| 
 or any engine tending to the fm-therance 
 of a trade that never was used before," and 
 patents to create a monopoly of things pub- 
 lic and restrain them to a private use. In 
 1623 (the abuse of patents having been re- 
 vived) , there was enacted th e Act concerning 
 Monopolies (21 Jac. I. cap. 3). It prohib- 
 its almost every conceivable form of monop- 
 oly, but declares two notable exceptions: 
 (1) That its restrictions " shall not extend 
 ■to any letters-patent or grants of privilege 
 heretofore made or hereafter to be made 
 of, for, or concerning printing; " the germ 
 of our modem law of copyright ; (2) By 
 providing that its restrictions (§§ 5, 6) 
 " shall not extend to any letters-patent and 
 grants of privilege of the sole working or 
 making of any manner of new manufactures 
 within this realm to the true and first in- 
 ventor and inventors." But it neither 
 recognizes an invention as property nor 
 declares the right of a true and first in- 
 ventor to acquire a patent. In a word, it 
 left the law concerning inventions substan- 
 tially as it was declared to be by the deci- 
 sion in the Case of Monopolies, neither 
 adding anything to the rights of the in- 
 ventor nor taking away his existing privi- 
 lege of receiving a grant or patent from 
 the Crown. Therefore it is as historically 
 clear as it is authoritively settled by the 
 decisions of the English courts that a patent 
 in England was nothing more than a grant 
 dependent in contemplation of law upon 
 royal favor, and subject to the general 
 implication of all grants wherein the con- 
 trary is not expressed, that they shall not 
 exclude a user by the Crown. 1878, Mc- 
 Keever V. United States, 14 Ct. of Cl. 396. 
 Our constitution recognizes the mind- 
 work called invention as the basis of a 
 right, to secure which is among the enu- 
 merated powers of Congi-ess. Neither the 
 word " grant " nor "patent " is used in the 
 constitution. The language confers upon 
 Congress the power of '^securing ... to 
 inventors the exclusive right to their . . . 
 discoveries." Congress is not empowered 
 to grant to inventors a favor, but to secure 
 
PATENT. 
 
 833 
 
 to them a right. And the term " to secure 
 a right " cannot by any possible implication 
 carry with it the opposite power of destroy- 
 ing the right in whole or in part by appro- 
 priating it to the purposes of government 
 without complying with that other condi- 
 tion of the constitution, the making of 
 "just compensation." Neither does the 
 term " the exclusive right " admit of an im- 
 plication that, with regard to such patent- 
 able articles as the government may need, 
 the right shall not be exclusive. The trans- 
 fer of the power from the executive to the 
 legislature; the abandonment of the terms 
 "grant" and "patent;" the substitution 
 of the words " secure," " right," and " ex- 
 clusive," and the absence of an express 
 reservation which at common law attaches 
 to favors of the Crown or is inferable from 
 the terms "grant" and " patent," com- 
 bine to demonstrate that the framers of the 
 constitution designed to place the work of 
 the inventor among legal rights, which, 
 when properly " secured " in a manner to 
 be provided by law, should become property 
 in the eye of the law and be respected as 
 such by the government as by the citizen. 
 lb. 
 
 The court of claims has jurisdiction of an 
 action brought upon an implied license to 
 manufacture a patented article, the manu- 
 facture by the government being with the 
 patentee's assent, and the damages sought 
 a reasonable license fee. Such a suit is an 
 action upon an implied contract for the use 
 of the invention. And if the proofs show 
 that a patented article was submitted by 
 the inventor to the war department and 
 adopted by the secretary of war, the court 
 will not presume that a gratuitous license 
 was intended by the one party or a tortious 
 infringement by the other ; but will hold 
 that the government manufactures under 
 an implied license and for a reasonable 
 royalty. lb. 
 
 Norton, in 1863, obtained letters-patent 
 for an improvement in marking and can- 
 celling stamps for post-office use. The 
 essential idea of the invention consisted in 
 combining two dies or seals in one imple- 
 ment, in such a manner that the operator 
 can, with a single stroke, cancel the postage- 
 stamp on the corner of an envelope and 
 also imprint the post-mark. This device 
 diminishes the time required for stamping 
 letters by about one half, an important im- 
 
 provement in post-office business. But, 
 except in post-offices, there is no extensive 
 demand for it. It was used in the post- 
 offices without payment of royalty to the 
 inventor ; and a suit brought in the court 
 of claims, to obtain compensation from the 
 government, upon allegations of a contract 
 by the department to pay for using it, was 
 lost because the court decided that the 
 agreement was not proved; that what the 
 postmaster-general had said to the patentee 
 about compensation amounted only to an 
 opinion that Congress would vote him an 
 appropriation. The present suit was then 
 brought, by an assignee of the right, in the 
 circuit court, against James, postmaster of 
 New York city, treating him as an individ- 
 ual infringer, and claiming to hold him to 
 an accounting for the profits or savings 
 realized in the New York post-office by the 
 use of complainant's invention. The de- 
 fehdant demurred to the bill; chiefly on 
 the grounds that the postmaster, in using 
 the stamp, acted as an officer of the govern- 
 ment, and only for its benefit; and that the 
 monopoly granted by the patent does not 
 extend to or prohibit use by government. 
 Held, that the suit was maintainable. The 
 exclusive use of the invention granted to 
 the patentee was his property. The grant 
 saved nothing for the use of the govern- 
 ment; it was exclusive absolutely through- 
 out the United States. It was granted by 
 express law of Congress, pursuant to the 
 constitution, without which it could not 
 exist. But all property is upheld by law, 
 either expressly or impliedly enacted or 
 adopted, all of which is the law of the land, 
 the same as the statutes upholding patents 
 are. This pi-operty, like all other private 
 property recognized by law, is exempt from 
 being taken for public use without just 
 compensation by the supreme law of the 
 land. Nor can it be taken by any officer 
 at will, in time of peace, leaving the owner 
 to seek compensation. The property in a 
 patented invention stands the same as other 
 property in this respect. 2d Circ. (iV. F.) 
 1879, Campbell v. James, 8 Reporter, 455. 
 
 The same cause, having been referred to 
 a master to take proof of the amount of 
 profits realized by defendant, came again 
 before the court upon his report and excep- 
 tions, by which it appeared that the saving 
 in salaries of post-office clerks, &o., which 
 had been realized in the New York post- 
 
334 
 
 PATENT. 
 
 office by the use of the invention, amounted 
 to $63,000. Held, that the postmaster was 
 liable for this sum. 
 
 1. Whatever question there might be if 
 the subject were new, it is settled that sav- 
 ings in cost by infringement of a patent may 
 be recovered as profits. [94 U. S. 695; 97 
 Id. 126.] The defendant saved the sum 
 named by using the patented invention. It 
 is not an answer to say that the master 
 erred, because the defendant might have 
 used another form of stamp, which would 
 not have been an infringement; the proofs 
 indicate that the saving was in fact due to 
 the use of complainant's invention. 
 
 2. It is not an answer to say that the 
 patent is for a device only useful in the 
 postal service; and that the government 
 might in various ways have avoided post- 
 marking altogether, in which case the 
 invention would have been useless; and 
 that the use by government has not dam- 
 aged the owner of the patent because it has 
 not deprived him of any other use, none 
 other being practicable. It is no defence 
 to a claim for an infringement to show 
 that the infringer might have accomplished 
 the same result by other means. 
 
 3. The postmaster must be considered, 
 for the purposes of the cause, as having 
 made the saving out of moneys actually 
 received into his hands from the profits of 
 his office. He saved it by using the inven- 
 tion in the performance of duties which he 
 was required to do, and had just so much 
 more money left in his hands by reason of 
 the infringement when the duties were 
 done. He did this as postmaster, but he 
 was not obliged to do it. He could have 
 refused the office, or resigned it, or have let 
 this invention alone. • He was not subject 
 to any restraint, physical or moral, that he 
 could not make subservient to his own 
 choice. His choice was to use this inven- 
 tion and make this gain. When made, it 
 belonged to the oi-ator. If the postmaster 
 paid it over to the government, and it has 
 passed beyond his reach, this is not an 
 answer to complainant's claim. The post- 
 master has not these profits now, and would 
 not have them if he had cast the money 
 into the sea; but he has had them as he 
 would have had them then. [Distinguishing 
 97 U. S. 126.] Justice can only be done by 
 requiring the defendant to restore the gains 
 to those to whom they belong, and leaving 
 
 him to be protected as the law provides- 
 in doing this no injustice will be done to 
 any one. 2d Circ. Ct. {N. Y.) 1880 
 Campbell v. James, 2 Fed. Reporter, 838. 
 
 In a suit in the circuit court to enjoin an 
 infringement, proof that respondents are 
 manufacturing the article in question under 
 a contract with the government and for its 
 use, does not constitute a defence. Such 
 contract cannot confer any right to use the 
 complainant's patent. \st. Circ. (Mass.) 
 1876, Brady I). Atlantic Works, 10 Pat. Off. 
 Gaz. 702. 
 
 Right to take ont a patent. One sued 
 for an infringement has the right to show 
 long delay by the inventor, to prosecute his 
 application for a patent, when at first re- 
 jected; it is an abandonment. Woodbury, 
 in 1849, applied for letters-patent for an 
 improvement in planing-machines. It was 
 rejected, and he was notified he might 
 " withdraw or appeal." He did not ap- 
 peal; and in 1852 the attorney by whom 
 the application was made withdrew it. 
 Woodbury made no attempt to have it re- 
 instated until 1870. During the interven- 
 ing period he was not prevented by sickness 
 or poverty from prosecuting the claim, had 
 he desired ; for he took out other patents. 
 And machines embodying the principle of 
 his invention came into use. Held, that 
 his delay and indifference were an aban- 
 donment of his invention to the public; 
 and avoided a patent which was finally 
 gi'anted to him on the application made in 
 1870. Supreme Ct. 1879, Woodbury Plan- 
 ing-machine Co. v. Keith, 17 Pat. Off. 
 Gaz. 1031. 
 
 To establish defence of abandonment by 
 implication from the fact of public use 
 more than two years before applying for 
 patent, actual knowledge of the invention 
 need not have been derived by any one in- 
 terested to practise it, but it is enough that 
 any one or more persons not under pledge 
 of secrecy saw the invention, or even might 
 have seen it if they had used their oppor- 
 tunities, provided it was in fact practical 
 in the ordinary way after being completed. 
 Where there has been no pledge to secrecy, 
 the visitors and workmen at a factory must 
 be held to be either part of the public or 
 persons from whom the public may acquire 
 the art without breach of trust. 1st Circ. 
 (N. H.) 1880, Perkins v. Nashua Card, 
 &c. Co., 17 Pat. Off: Gaz. 1285. 
 
PATENT. 
 
 335 
 
 Remedy for infringement. An injimc- 
 tion maybe granted restraining all persons, 
 whether officers of a corporation or not, 
 who are aiding in the promotion of the in- 
 fringing sale and use, whether such persons 
 are or are not liable for profits or damages. 
 A steamship company and its officers en- 
 gaged in transporting infringing and un- 
 licensed articles, with due notice from the 
 owners of the patents, act in the capacity 
 of agents and servants of the infringers in 
 promoting and effecting the sale and use. 
 If defendants refuse to disclose the names 
 of the infringing shippers, the plaintiff is 
 without remedy by injunction in respect to 
 the infringing articles which the defend- 
 ant's company transports in its vessels, un- 
 less he can obtain an injunction against the 
 defendants, which he clearly ought to have. 
 2rf Circ. (N. Y.) 1879, American Cotton 
 Tie Co. V. McCready, 17 Pat. Off. Gaz. 
 565. 
 
 There is no right of action recognized, 
 to recover profits for infringing a patent, 
 founded on the theory that such profits 
 should be treated as trust funds, and the 
 infringer considered as a trustee de son tort. 
 The act of infringement is but a simple 
 taking and using another's property, with- 
 out authority, for one's own advantage; and 
 this, of itself, does not confer equity juris- 
 diction. 4(A Circ. (Fa.) 1879, Sayles v. 
 Richmond, &c. R. R. Co., 3 Hugh. 172; 
 25 IrU. Rev. Rec. 209; 16 Pat. Off. Gaz. 43; 
 7 Reporter, 743. 
 
 The rate of damages in patent cases may 
 now be said to be generally (1) that the 
 plaintiff may recover in equity the profits 
 which the infringer has made from the use 
 of the invention ; or (2) that he may recover 
 at law the profits which he, the plaintiff, 
 has lost by reason of the defendant's in- 
 fringement; and that these profits lost, 
 where it can properly be done, will be re- 
 garded as simply the fee which would have 
 been charged if the infringer had procured 
 a license. But in cases where the plaintiff 
 has evinced an intention to exercise an ex- 
 clusive user of his invention, and in cases 
 where the sales of licenses have been too 
 few to establish a criterion of their actual 
 or market value, courts have sought for 
 other elements or evidences to determine 
 the profits lost. 1878, McKeever v. United 
 States, 14 Ct. of CI. 396. . 
 
 Stamping. The provision of Kev. Stat. 
 
 § 4901, — which forbids stamping the word 
 "patenf'upon an unpatented article, applies 
 although the article is not of a patentable 
 nature; unless, perhaps, in a case where the 
 court can say, as matter of law, that there 
 cannot possibly have been any deception 
 thereby practised, as if a person should 
 brand the word upon a dog or a horse. 
 Ordinarily the stamp would indicate to the 
 public that the article possessed the merits 
 of novelty and utility for which patents 
 are granted ; and if the case admits of any 
 doubt whether such deception was intended 
 the question is for the jury. The fact that, 
 upon careful consideration, it seems that a 
 patent would not be granted is not a de- 
 fence. Dist. of Oreg. 1878, Oliphant v. 
 Salem Flouring Mills, 5 Sawyer, 128. 
 
 Fairbanks cannot be protected, after ex- 
 piration of his patent, in the exclusive use 
 of the stamp or motto "Fairbanks's pa- 
 tent," impressed on scales of his manufac- 
 ture. If such stamp implies that the article 
 is manufactured under a subsisting patent, 
 it is false, and a fraud on the patent law. If 
 it means that the scales to which it is af- 
 fixed are manufactured in conformity to 
 Fairbanks's expired patent, it may be used 
 by any person who makes such scales. 2d 
 Circ. {N. Y.) 1877, Fairbanks v. Jacobus, 
 14 Blatclf. 337. 
 
 Filley invented and patented a new stove, 
 known as the "Charter Oak;" but for a 
 long time allowed Jacobus to make and sell 
 it, and to use that name. Held, that he 
 could not, after the patent expired, have 
 an injunction to forbid Jacobus from con- 
 tinuing the sale under the name " Charter 
 Oak," so long as the latter did not repre- 
 sent the stoves he sold as having been made 
 by Filley. 2d Circ. (N. F.) 1879, Filley 
 V. Child, 16 Pat. Off. Gaz. 261. 
 
 The purpose of prohibiting, under pen- 
 alties, the marking of an unpatented article 
 with words importing that it is patented, 
 is to prevent deceiving the public. Where 
 a manufacturer has, during the lifetime of 
 his patent, pursuant to Rev. Stat. § 4900, 
 stamped each article with the word "pa- 
 tented " and the date when his patent was 
 issued, the prohibition is not violated by 
 his continuing to use the stamp after the 
 patent expires. Purchasers are chargeable 
 with knowledge of the time when, by law, 
 a patent granted on a given day will ex- 
 pire ; therefore the true effect of the stamp 
 
336 
 
 PATENT. — PENSION. 
 
 is to inform them that the article has been 
 patented and the patent has expired, fith 
 Circ. (III.) 1879, Wilson v. Singer Sewing- 
 machine Co., 16 Pat. Off. Gaz. 1091. 
 
 Sales of patent-rights. No State can 
 legislate in such a manner as to impair the 
 right of a patentee to sell and assign his 
 patents. But the Pennsylvania act of 1872, 
 Pamphlet Laws 60, — which makes it a mis- 
 demeanor for any person to take or transfer 
 any promissory note, knowing its considera- 
 tion to be a patent-right, unless it has the 
 ■words " given for a patent-right " written 
 or printed on its face, — has not such effect. 
 By the express provision of the statute, the 
 only effect of the insertion of such words is 
 that " such note or instrument in the hands 
 of the purchaser or holder shall be subject 
 to the same defences as if in the hands of 
 the original owner or holder." By neces- 
 sary implication, notes without such words 
 inserted in them remain on the same foot- 
 ing as before the act. The sole object of 
 the legislature was to secure, as far as could 
 be done consistently with the rights of in- 
 nocent third persons, that notice of the con- 
 sideration should be given to all who should 
 take the paper. Nothing is better settled 
 than that, between the original parties to a 
 note given for a patent-right, it is a good 
 defence to show that the alleged patent is 
 void; that it is no patent-right at all; and 
 that the consideration has therefore entirely 
 failed. All who take with notice of the 
 consideration take necessarily subject to 
 the same defence. There is nothing in re- 
 quiring notice of the consideration to appear 
 in the note which affects the right or title 
 of a holder of a note, who takes it not 
 knowing that the consideration was the 
 sale of a patent ; he commits no illegal or 
 indictable offence. The negotiability of a 
 note in which the required words are not in- 
 serted is in no way affected by the act. The 
 innocent holder, who takes it before ma- 
 turity for value, without knowledge or 
 notice of the consideration, takes it as 
 heretofore, clear of all equities between the 
 original parties. Supreme Ct. 1878, Has- 
 kell u. Jones, 86 Pa. St. 173. 
 
 Minor Decisions on Patent. 
 Assignment of p. for improvement in a 
 machine does not imply any right to use 
 
 the original machine: 69 iWe. 129. Buyer 
 of patent-right should not rely on seller's 
 representations as to validity of p. or nov- 
 elty or utility of invention ; these are mat- 
 ters of opinion: 48 Iowa, 269. Invalidity 
 of the p. is a complete defence to an action 
 against a licensee for royalty: 124 Mass^. 
 553. State court may determine validity of 
 p. when questioned collaterally, as where 
 maker of note given for price of a patent- 
 right defends on the ground that the p. 
 was void: 69 Mo. 84. 
 
 PEAKSON. Decisions of Hon. John 
 Pearson, Judge of the 12th Judicial Dis- 
 trict (Dauphin and Lebanon counties). 
 Reported by his son, William Pearso». 
 Vol. I., 1850-68; Vol. II., 1868-80. Phil- 
 adelphia: Rees, Welsh, & Co. 
 
 The cases reported were decided in the 
 court of common pleas; according to the 
 reporter's note, however, reversed decisions 
 were, in making the selection, excluded. 
 Although the cases are primarily of local 
 interest, many are of general value ; these 
 are presented under the appropriate titles 
 throughout the Year Book. 
 
 PENSION. Recent acts affecting pen- 
 sions. Mode of filling vacancy in office of 
 pension agent occurring during recess of 
 Senate. Act of March 8, 1878, ch. 25, 20 
 Stat, at L. 26. 
 
 Soldiers and sailors of the war of 1812 
 to be placed on the pension-rolls. Certain 
 classes of persons excepted. The prelim- 
 inary proof required. Punishment of false 
 swearing or fraud. Restoration of pen- 
 sioners who were implicated in the Rebel- 
 lion. Act of March 9, 1878, ch. 28, 20 
 Stat, at L. 27. 
 
 Soldiers or sailors who have lost either 
 both hands or both feet or sight of both 
 eyes to receive $72 a month pension. Act 
 of June 17, 1878, ch. 261, 20 Stat, at L. 
 144. 
 
 Pensions to lieutenant-commanders in 
 the navy to be the same as those to lieuten- 
 ants commanding. Act of June 18, 1878, 
 ch. 268, 20 Stat, at L. 166. 
 
 " It shall be unlawful for any attorney, 
 agent, or other person to demand or receive 
 for his services in a pension case a greater 
 sum than $10. No fee contract shall 
 hereafter be filed_ with the commissioner of 
 pensions in any' case." Provision as to 
 
 Penalty. Action for, under copyright law, p. 118. "Penal law," p. 165. 
 
PENSION. — PERSON. 
 
 337 
 
 pending cases in which a fee contract has 
 been filed. Application of Rev. Stat. 
 §§ 4768, 4769, and 4786, limited, and Rev. 
 Stat. § 4785, repealed. Act of June 20, 
 1S78, 20 S/at. at L. 243, ch. 367. 
 
 Rev. Stat. § 4717, — relating to claims 
 unprosecuted for five years, — repealed. 
 Act of June 25, 1879, 20 Slat, at L. 265, ch. 
 23, § 3. 
 
 Pensions on account of death, or wounds 
 received, or disease contracted in the ser- 
 vice of the United States during the Rebel- 
 lion, to commence from the date of death 
 or discharge from the service of the United 
 States, lb. § 1. 
 
 No claim agent or other person shall be 
 entitled to receive any compensation for 
 services in making application for arrears 
 of pension. Ih. § 4. 
 
 Magistrates, aldermen, justices of the 
 peace, and other persons in cities of the 
 first, second, and third class, authorized to 
 take acknowledgments and administer 
 oaths, are required to perform such service 
 free of charge for soldiers and the widows, 
 orphans, and parents of soldiers who are 
 applicants for a pension. Pa. Laws 1879 
 (June 11), 148, No. 1.55. 
 
 Power of Congress. Congress has, 
 under the constitution, power to declare 
 that the embezzlement or frauduJent con- 
 version to his own use by a guardian of 
 themoney which he, on behalf of his wards, 
 has received from the government as a pen- 
 sion due to them, is an offence against the 
 United States, and to vest the proper cir- 
 cuit court with jnrisdiction to try and pun- 
 ish him therefor. Supreme Ct. 1878, 
 United States v. Hall, 98 U. S. 313. 
 
 It is not true that when the payment is 
 made to the guardian the money paid ceases 
 to be within the constitutional control of 
 the United States, and that the act of Con- 
 gress, which enacts that the guardian who 
 embezzles the money or fraudulently con- 
 verts the same to his own use is guilty of a 
 misdemeanor, is therefore unconstitutional 
 and void. (1) Because the United States, 
 as the donors of the pensions, may, through 
 the legislative department of the govern- 
 ment, annex such conditions to the dona- 
 tion as they see fit, to insure its transmission 
 unimpaired to the beneficiary. (2) Be- 
 
 Ferson. Death of party to divorce .suit as an 
 abatement, p. 5. Of husband suing for injury to 
 wife, p. 6. V! stoclvbrolter sued to contribute to- 
 
 22 
 
 cause the guardian, no more than the agent 
 or attorney of the pensioner, is obliged by 
 the laws of Congress to receive the fund ; but 
 if he does, he must accept it subject to the 
 annexed conditions. (3) Because the word 
 " guardian," as used in the acts of Con- 
 gress, is merely the designation of the per- 
 son to whom the money granted may be 
 paid for the use and benefit of the pen- 
 sioners. (4) Because the fund proceeds 
 from the United States, and inasmuch as 
 the donation is a voluntary gift, the Con- 
 gress may pass laws for its protection, cer- 
 tainly until it passes into the hands of the 
 beneficiary, which is all that is necessary 
 to decide in this case. (5) Because the ele- 
 ments of the offence defined by the act of 
 Congress in question consist of the wrong- 
 ful acts of the individual named in the 
 indictment, wholly irrespective of the 
 duties devolved upon him by the State law. 
 (6) Because the theory of the defendant 
 that the act of Congress augments, lessens, 
 or makes any change in respect to the duties 
 of a guardian under the State law is en- 
 tirely erroneous, as the act of Congress 
 merely provides that the pension may be 
 paid to the person designated as guardian, 
 for the use and benefit of the pensioner, and 
 that the person who receives the pension, 
 if he embezzles it or fratidulently converts 
 it to his own use, shall be guilty of a mis- 
 demeanor, and be punished as therein pro- 
 vided, lb. 
 
 PERJURY. False testimony on inquis- 
 ition in lunacy may be p. ; it is a judicial 
 proceeding: 62 7nf7. 214. False answer by 
 venireman on examination as to compe- 
 tency to serve as juror is p. : 63 Ind. 502. 
 Indictment for p. in affidavit made upon 
 information and belief must. negative that 
 the accused had such information or belief: 
 76 N. Y. 220. Charge of p. in swearing 
 to an affidavit is disproved by evidence 
 that the notary signed the jurat without 
 administering any oath to the accused. Id. 
 212. 
 
 PERSON. Seven years' absence unheard 
 from raises presimiption of death, but not 
 of death at any particular time ; that is to 
 be judged by the circumstances: 97 U. S. 
 628. Taxpayer's residence is presumed to 
 contiime unchanged, notwithstanding, leav- 
 
 ward capital, p. 6. Meaning of "person," p. 1G6. 
 Personal property. Title to animals, p. 22. 
 lujuries to theui, p. 22; by them, pp. 22-24. 
 
338 
 
 PETROLEUM. — PHYSICIAN. 
 
 ing his family, he goes elsewhere to engage 
 in business: 51 Iowa, 77. Priest requested 
 to administer sacrament to sick person in 
 almshouse is not authorized to expel the ma- 
 tron from the room: 124 Mass. 284. Bonds 
 deposited in another State in good faith for 
 safe-keeping are not taxable in Missouri, 
 though owner is domiciled there: 69 Mo. 
 454. 
 
 PETROLEUM. An act prescribing 
 "regulations for the transportation of pe- 
 troleum or other oils or liquids by railroad 
 companies or transportation companies, or 
 through pipes of iron or other material con- 
 structed for that purpose," requires all 
 companies organized for the purpose of 
 transporting petroleum or other oils or 
 liquids through pipes of iron or other ma- 
 terial to accept all petroleum offered in a 
 merchantable order to them in quantities 
 of not less than two thousand gallons at 
 the wells where the same is produced, and 
 transport the same to any tank or other 
 receptacle on the route of their line of 
 pipes, which may be designated by the 
 owners of the petroleum so offered ; also to 
 give proper receipts therefor to the owners ; 
 and limits their charges for transportation 
 or storage. W. Va. Laws 1879 (March 4), 
 35, ch. 26. 
 
 PHYSICIAN. New York has passed 
 a statute containing stringent regula- 
 tions as to " the licensing of physicians 
 and surgeons." With exceptions as 
 to physicians coming from other States 
 where they have already been licensed, 
 medical ofl9cers in the United States 
 service, and practitioners of ten years' 
 standing now attending medical schools, 
 the law makes it a misdemeanor, punish- 
 able by fine and imprisonment, for any 
 person to practise physic or surger3- un- 
 less he has received authority to do so in 
 one of three ways : (1) An authority pur- 
 suant to the laws in force when it was 
 given ; this covers the case of the physici- 
 ans who have been from time to time 
 during years past lawfully' licensed to 
 practise. (2) A diploma granted under 
 the regents of the university according 
 to the laws of 1874. (3) The degree of 
 Doctor of Medicine granted hy an in- 
 corporated college or medical university 
 
 in the State. Persons hereafter ad- 
 mitted belonging to either of the last 
 two classes are to register as they suc- 
 cessively begin their practice. But 
 the law emphatically requires that 
 "every person now lawfully engaged 
 in the practice " shall register his name 
 on or before Oct. 1, 1880, with the 
 county clerk of the county wherein 
 he practises. No provision is made 
 for considering excuses for delay or for 
 receiving a name, in any case, after 
 October' 1, or for relieving a practi- 
 tioner, upon any grounds, from the con- 
 sequences of neglecting to register. 
 The person registering must make affi- 
 davit as to his name, residence, and 
 birth-place, his authoritj' for practising, 
 stating whether it is a diploma or 
 license, its date, and by whom it was 
 granted. 1 i\^. Y. Laws 1880 (May 
 29), 723, ch. 513. 
 
 Several recent decisions of the 
 Texas court of appeals upon the con- 
 stitutionality and construction of a 
 similar statute of that State will be 
 found below. See also 4 Tex. App. 
 312, in Tax. 
 
 Texas statnte. Every person who may 
 hereafter engage in the practice of medi- 
 cine, in any of its branches or departments, 
 in the State of Texas, shall, upon entering 
 upon such practice, furnish to the clerk of 
 the district court of the county in which 
 such practitioner may reside or sojourn, 
 his certificate of qualification; and said 
 clerk shall enter the name of such person 
 in a well-bound book, kept in his office for 
 that purpose, together with the time when, 
 the place where, and the person or persons 
 by whom, such certificate of qualification 
 was given ; after which he shall return the 
 certificate to the owner thereof. Tex. Act 
 of Aug. 21, 1876, § 2. Pen. Code, ait. 
 396. 
 
 Any person violating the above declared 
 guilty of a misdemeanor, punishable by 
 fine and imprisonment. Provisos "that 
 nothing in this act shall be so construed as 
 to exclude or disqualify" persons already 
 qualified under act of 1873, or persons who 
 
PHYSICIAN. 
 
 339 
 
 have been engaged in practice for five years, 
 /rf. § 3; Pen. Code, art. 399. 
 
 — its coustitntiouality. Even without 
 any specific grant of power in the constitu- 
 tion, a State legislature may enact that no 
 person shall be permitted to practise medi- 
 cine without having a certificate of quali- 
 fication. The statute of Texas above 
 mentioned has support fi-om Const, art. 16, 
 § 31; but without this the act would be 
 maintainable under the police power. 
 Under this general power the legislature is 
 the proper judge as to what regulations 
 are demanded in dealing with the property, 
 and restraining the actions, of individ- 
 uals, for the prevention of crimes or calami- 
 ties. The power extends to the protection 
 of the lives, limbs, health, and comfort of 
 all persons within the State. A legislature 
 may well anticipate that danger will result 
 to the people from medical practice by in- 
 competent persons, and may prescribe reg- 
 ulations to prevent it. Ct. of Appeals, 
 1878, Logan v. State, 5 Tex. App. 306. 
 
 — and construction. The construction 
 and effect of the above-mentioned law 
 stated in the following propositions: 
 
 1. But one class of medical practitioners 
 may pursue their profession without first 
 obtaining a certificate of qualification, viz. : 
 those who have been regularly engaged in 
 the general practice of medicine in the 
 State of Texas for five consecutive years 
 prior to the first day of Januaiy, 1875. 
 
 2. But two classes are allowed to prac- 
 tise medicine without having first procured 
 a certificate of qualification under the act 
 of 1876: (1) Those who have been engaged 
 in the general practice in the State five 
 consecutive years; (2) Those who have 
 theretofore obtained their certificates of 
 qualification under the act of 1873. 
 
 3. In all other cases a certificate of 
 qualification must, as a condition prece- 
 dent, not only be obtained, but, further, 
 be furnished to the district clerk, and the 
 appropriate entries be made concerning it 
 by him, before the party holding it can 
 legally enter upon and engage in the prac- 
 tice. 
 
 4. In all those cases where a certificate 
 of qualification may have been obtained by 
 virtue of, and been duly recorded under, 
 the provisions of the act of 1873, in the 
 county where the party then resided or 
 sojourned to practise, it would protect him 
 
 so long as his. place of residence remained 
 unchanged. But whenever he changed 
 his domicile, or went to sojourn in another 
 county, its protecting power would not 
 avail, nor could he legally engage in the 
 practice in this latter county until after he 
 had furnished the clerk of the last county 
 with his certificate, in order to have it 
 properly entered of record again. Ct. of 
 Appeals, 1879, Hilliard v. State, 7 Tex. 
 App. 69. 
 
 Under the general rule that indictments 
 or informations for statutory offences are 
 good if they follow the exact language 
 of the act an information under the act 
 of 1876, which requires that, before any 
 person engages in the practice of medicine 
 in any of its branches or departments, he 
 shall comply with certain provisions of the 
 act, need not allege the particular branch 
 or department of medicine in which the 
 defendant was engaged. Proof that the 
 defendant engaged in any branch or de- 
 partment of medicine sustains the allega- 
 tion that he engaged in the practice of 
 medicine. Ct. of Appeals, 1879, Antle v. 
 State, 6 Tex. App. 202. 
 
 The rule in drawing an indictment for a 
 violation of a statute containing exceptions 
 is that if the exception is contained in the 
 same clause of an act which creates the 
 offence, the indictment must show, nega- 
 tively, that the defendant, or the subject 
 of the indictment, does not come within 
 the exceptions. But an exception or pro- 
 viso in a subsequent clause or statute, or 
 one which, though in the same section, is 
 not incorporated with the enacting clause 
 by any words of reference, is matter of de- 
 fence, and need not be negatived. Ct. of 
 Appeals, 1878, Blasdell v. State, 5 Tex. 
 App. 263. 
 
 The provisos of Tex. act of Aug. 21, 
 1876, above mentioned, need not be nega- 
 tived in an indictment under the law ; if 
 the accused is exempt by force of either of 
 the exceptions contained in the provisos, 
 he should show this as matter of defence. 
 lb. ; Logan v. State, Id. 306. 
 
 The accused has the right, under the plea 
 of not guilty, to prove that he is excepted 
 by the proviso ; and a refusal to allow him 
 to do so is error which entitles him to a new 
 trial. Ct. of Appeals, 1878, Smith v. State, 
 5 Tex. App. 318; 1879, Antle v. State, 6 
 Id. 202. 
 
340 
 
 PHYSICIAN. — POST OFFICE. 
 
 Upon trial of a prosecution for liaving 
 engaged in the practice of medicine witii- 
 out first having obtained the certificate of 
 qualifications required by the law, the de- 
 fence asked the court to charge " that a 
 person who was attending a single case 
 could not be adjudged guilty of practising 
 medicine, though he held and filed no cer- 
 tificate." Held, that this charge was prop- 
 erly refused. Proof of a single act, in 
 connection with other circumstances, might 
 suffice to warrant a conviction, — as, for 
 instance, that he held himself out to the 
 community as a physician. Cl. of Appeals, 
 1879, Antle v. State, 6 Tex. App. 202. 
 
 Lien. " Physicians legally authorized to 
 practise their profession shall have a lien 
 and privilege, for medical services rendered 
 to any person, on the crop of said person. 
 And said lien and privilege shall be con- 
 current in rank with the lien and privilege 
 now given by law to the furnisher of sup- 
 plies necessary to enable said person to cul- 
 tivate and make his crop; if the debtor is a 
 laborer, his physician, or his transferee and 
 subrogee, shall have a privilege to be en- 
 forced upon his wages or his interest in the 
 crop which he may be entitled to receive in 
 lieu thereof." La. Laws 1880 (April 10), 
 177, No. 129, § 1. 
 
 The amount of such lien of physicians 
 not to exceed $15 for any one year. Id. 
 §2. 
 
 Liability. A woman employed and paid 
 only as a midwife volunteered to treat the 
 child for a disease of the eye which mani- 
 fested itself soon after the child was born. 
 She expressed confidence in being able to 
 treat the disease ; and was allowed to apply 
 her remedies ; but did so gratuitously. It 
 \yas not disputed that she acted in good 
 faith ; but the disease was more serious than 
 she supposed, requiring prompt and more 
 powerful remedies ; and in consequence of 
 the delay while she was treating the case 
 the child became blind. Held, that under 
 the circumstances she was not liable in 
 damages. Not having professed to be an 
 oculist, but only a midwife, she was re- 
 sponsible in the matter of the eyes only 
 for the knowledge and skill of an ordinary 
 person. Supreme Ct. 1878, Higgins v. Mc- 
 Cabe, 13QMass.l3. 
 
 Post-office. Mail contractors not liable as car- 
 riers, p. 70. Mailing letter in Massachusetts guar- 
 anteeing goods sold in another State, p. 103. Free 
 
 Minor Decisions on Physician. 
 
 He is not bound for the highest degree 
 of skill, but for the skill ordinarily in the 
 profession; so of a surgeon: 2 Bradw. (III.) 
 484. Complaint that surgeon undertook 
 &c., for pay, to treat plaintiff's broken limb 
 skilfully, but neglected it, &c., is good 
 without denying contributive negligence 
 of plaintiff; for the action is brought up on 
 contract, not for negligence: 64 Ind. 89. 
 What evidence is admissible on question 
 whether failure in treatment of dislocation 
 was attributable to negligence of surgeon 
 or of patient: 38 Mich. 501. If surgeon 
 who undertook to treat a case did not ex- 
 ercise the skill and care requisite, he is 
 liable for damages ; gross fault need not be 
 proved: 75 N. Y. 12. Measure of com- 
 pensation where entire time is devoted to 
 one patient: 1 Lea (Tenn.), 664. 
 
 POST OFFICE. Transportation of 
 the mails. A right reserved to govern- 
 ment of free passage over a toll-bridge, 
 turnpike, &c., for its mails exempts all per- 
 sons from the payment of tolls who are en- 
 gaged in carrying the United States mails, 
 whether such persons are the contractors 
 from the government or the employees of 
 such contractors. Supreme Ct. 1879, Schutz 
 V. MilitaiT Road Co., 7 Oreg. 259. 
 
 "Mailed," applied to a letter, implies 
 that the letter was properly prepared for 
 transmission, and was put in the custody 
 of the officer charged with the duty of for- 
 warding the mail. Supreme Ct. 1877, Pier 
 f. Heinrichshoffen, 67 Mo. 163. 
 
 Postal offences. The offence of em- 
 bezzlement by mail-carriers under Rev. 
 Stat. § 5467, is not confined to taking 
 things out of a letter, packet, or bag; an in- 
 dictment which charges a carrier with hav- 
 ing embezzled a letter which was intended 
 to be conveyed by mail and contained an 
 article of value, and had been entrusted to 
 him as such letter-carrier, is good. 2d Cm. 
 (N. Y.) 1877, United States ». PeUe- 
 treau, 14 Blatchf. 126. 
 
 A conviction cannot be sustained under 
 the U. S. postal laws for opening a letter 
 addressed to another person, where the 
 letter was addressed to such person in " care 
 of" defendant, and was delivered to defend- 
 ant, accordingly, by the postal authorities, 
 
 transmission of copvright works by mail, P- ll*- 
 " Post road " and " post route," p. 166. toUectur 
 may seize £ood3 smuggled by mail, p. 180. 
 
POST OFFICE. 
 
 341 
 
 before he opened it. By such delivery it 
 passed beyond the cognizance of Federal 
 law. [2 Blatchf. 105; 6 McLean, 598, 1 
 Low. 303.] Dist. of N. J. 1879, United 
 States V. Thoma, 25 Int. Rev. Rec. 171. 
 
 Section 3894 of the Revised Statutes, — 
 declaring any person who shall deposit or 
 send lottery circulars by mail ' ' punishable ' ' 
 by a fine, — creates, by force of the vpord 
 "punishable ' ' and by imposing a discretion- 
 ary fine, a crime or offence. And though 
 imprisonment is not specifically prescribed, 
 yet by § 1014 an arrest by bail may be 
 made to be followed by imprisonment if 
 no bail is taken, or by bail, even though the 
 punishment, on conviction, be a fine alone. 
 2(1 Circ. (N. Y.) 1877, Matter of Jackson, 
 14 Blatchf. 245. 
 
 A court of equity wiU not grant relief 
 where letters addressed to the secretary of 
 a lottery company are detained by a post- 
 master under the direction of the postmaster- 
 general, as having been mailed in violation 
 of Rev. Stat. § 3894, providing that "no 
 letter . . . concerning lotteries . . . shall 
 be carried in the mail," unless the plead- 
 ings show, on behalf of complainant, that 
 the letters had no connection with the lot- 
 tery business. 6th Circ. (^Ky.) 1880, Comer- 
 ford V. Thompson, 1 Fed. Reporter, 417. 
 
 Requisites of indictment and proof, in a 
 prosecution for mailing a letter or circular 
 concerning a lottery, contrary to Rev. Stat. 
 § 3894. United States v. Noelke, 1 Fed. 
 Reporter, 426. 
 
 The statute making it a misdemeanor to 
 deposit obscene books in the mails is con- 
 stitutional, and an indictment which gfives 
 the title of the book, the date of the 
 mailing, and the address, is suflicient. 
 Upon the trial of such an indictment it is 
 not permissible to read, by way of com- 
 parison, extracts from other books which are 
 accepted and in general use. 2d Circ. 
 (N. Y.) 1879, United States o. Bennett, 8 
 Reporter, 38. 
 
 For the purpose of obtaining evidence to 
 aid in convicting of a violation of the postal 
 law (Rev. Stat. § 3893) forbidding trans- 
 mission of any obscene book, &c., or any 
 article for prevention of conception or pro- 
 ducing abortion, or any notice giving infor- 
 mation where or how any such article may 
 be obtained, a detective in St. Louis sent 
 through the post-oflBce in St. Louis to de- 
 fendant, a physician practising in St. Louis, 
 
 a letter asking: " Can you furnish me an 
 absolutely sure way to prevent conception ? ' ' 
 The letter was signed with a woman's name 
 and address in Georgia ; but there was no 
 such woman in existence. The defendant 
 answered: " I have what you desire, price 
 f 10, sent by express on receipt of price." 
 He deposited this letter in the St. Louis post- 
 office, addressed to the supposed woman 
 in Georgia; but the post-office authorities 
 there, instead of forwarding it to address, 
 delivered it in St. Louis to the detective. 
 Held, that an indictment could not be sus- 
 tained. No doubt the defendant intended 
 what would have been a violation of the 
 law. But no violation was in fact com- 
 pleted. A decoy-letter is not unlawful; 
 nor does obtaining evidence by means of 
 one render the evidence incompetent. Bat 
 the defendant's lettter, in this case, did not 
 give the prohibited information. If it had 
 been forwarded through the mail, per ad- 
 dress, it must have been sent to the dead- 
 letter office, and there would have been un- 
 intelligible, m Circ. (Mo.) 1878, United 
 States V. Whittier, 18 Alb. L. J. 110; 6 Re- 
 porter, 260. 
 
 Recent statutes* Compensation of post- 
 masters regulated, according to amount of 
 business returned as done at their respec- 
 tive offices ; manner of authenticating re- 
 turns, and punishment for making a false 
 return, prescribed. Restrictions on sale or 
 disposal of stamps, &c., by postmasters. 
 Act of June 17, 1878, ch. 259, § 1, 1[ 8, 
 20 Stat, at L. 140. 
 
 Directory provision that, when a de- 
 ficiency is discovered in accounts of any 
 postmaster, who fails to make it good, the 
 postmaster-general shall mail a notice to 
 the sureties of the postmaster, — added to 
 Rev. Stat. § 8835, by act of Feb. 4, 1879, 
 20 Stat, at L. 281. 
 
 Mailable matter shall be divided into four 
 classes: (1) Written matter; (2) Periodi- 
 cal publications ; (3) Miscellaneous printed 
 matter; (4) Merchandise. Act of March 3, 
 1879, ch. 180, § 7, 20 Stat, at L. 358. 
 
 Mailable matter of the first class shall 
 embrace letters, postal cards, and all mat- 
 ters wholly or partly in writing, except as 
 hereinafter provided. Id. § 8. 
 
 " On mailable matter of the first class, 
 except postal cards and drop-letters, post- 
 age shall be prepaid at the rate of three 
 cents for each half ounce or fraction there- 
 
342 
 
 POST OFFICE. 
 
 of ; postal cards shall be transmitted through 
 the mails at a postage charge of one cent 
 each, including the cost of manufacture; 
 and drop-letters shall be mailed at the rate 
 of two cents per half ounce or fraction 
 thereof, including delivery at letter-carrier 
 oflBces, and one cent for each half ounce or 
 fraction thereof where free delivery by car- 
 riers is not established." Transmission of 
 unpaid letters to soldiers, sailors, and ma- 
 rines, authorized. Id. § 9. 
 
 "Mailable matter of the second class 
 shall embrace all newspapers and other 
 periodical publications which are issued at 
 stated intervals, and as frequently as four 
 times a year, and are within the conditions 
 named in §§ 12, 14." Id. § 10. 
 
 " Publications of the second class, except 
 as provided in § 25, when sent by the pub- 
 lisher thereof, and from the ofiBce of publi- 
 cation, including sample copies, or when 
 sent from a news-agency to actual sub- 
 scribers thereto, or to other news-agents, 
 shall be entitled to transmission through 
 the mails at two cents a pound or fraction 
 thereof, such postage to be prepaid, as now 
 provided by law." Id. § 11. 
 
 ' ' Matter of the second class may be ex- 
 amined at the office of mailing, and if found 
 to contain matter which is subject to a 
 higher rate of postage, such matter shall 
 be charged with postage at the rate to 
 which the enclosed matter is subject: Pro- 
 vided, That nothing herein contained shall 
 be so construed as to prohibit the insertion 
 in periodicals of advertisements attached 
 permanently to the same." Id. § 12. 
 
 Submitting false evidence as to char- 
 acter of publication, punishable by fine of 
 «100-$500. Id. § 13. 
 
 " The conditions upon which a publica- 
 tion shall be admitted to the second class, 
 stated. Id. § 14. 
 
 Rates and regulations as to foreign news- 
 papers. Id. § 15. 
 
 And supplements. Id. § 16. 
 
 "Mail matter of the third class shall 
 embrace books, transient newspapers, and 
 periodicals, circulars, and other matter 
 wholly in print (not included in section 12) , 
 proof-sheets, corrected proof-sheets, and 
 manuscript copy accompanying the same, 
 and postage shall be paid at the rate of one 
 cent for each two ounces or fractional part 
 thereof, and shall fully be prepaid by post- 
 age stamps affixed to said matter. Printed 
 
 matter other than books received in the 
 mails from foreign countries under the pro- 
 visions of postal treaties or conventions 
 shall be free of customs duty." Regula- 
 tions as to books which are admitted to the 
 international mails. Id. § 17. 
 
 " Mailable matter of the fourth class 
 shall embrace all matter not embraced in 
 the first, second, or third class, which is 
 not in its form or nature liable to destroy, 
 deface, or otherwise damage the contente 
 of the mail-bag, or harm the person of any 
 one engaged in the postal semce, and is 
 not above the weight provided by law, 
 which is hereby declared to be not exceed- 
 ing four pounds for each package thereof." 
 Exceptions stated. Id. § 20. 
 
 Matter of the fourth class rated at one 
 cent an ounce. Regulations as to matter 
 inadvertently transported without authority 
 of law. Id. § 21. 
 
 "Mailable matter of the second class 
 shall contain no writing, print, mark, or 
 sign thereon or therein in addition to the 
 original print, except as herein provided, 
 to wit, the name and address of the person 
 to whom the matter shall be sent, and 
 index figures of subscription book, either 
 written or printed, the printed title of the 
 publication , the printed name and address 
 of the publisher or sender of the same, and 
 written or printed words or figures or both, 
 indicating the date on which the subscrip- 
 tion to such matter will end. Upon matter 
 of the third class, or upon the wrapper in- 
 closing the same, the sender may write his 
 own name or address thereon, with the 
 word ' from ' above and preceding the 
 same, and in either case may make simple 
 marks intended to designate a word or pas- 
 sage of the text to which it is desired to 
 call attention. There may be placed upon 
 the cover or blank leaves of any book or of 
 any printed matter of the third class a 
 simple manuscript dedication or inscription 
 that does not partake of the nature of a 
 personal correspondence. Upon any pack- 
 age of matter of the fourth glass the sender 
 may write or printhis own name andaddress, 
 preceded by the word 'from,' and there 
 may also be written or printed the number 
 and names of the articles enclosed; and 
 the sender thereof may write or print upon 
 or attach to any such articles by tag or 
 label a mark, number, name, or letter for 
 purpose of identification." Id. §22. 
 
POST OFFICE. — PRESIDENT. 
 
 343 
 
 Regulations as to matter of second, third, 
 or fourth class, bearing unallowed writing. 
 Id. § 23. 
 
 " The postmaster-general may prescribe, 
 by regulation, the manner of wrapping and 
 securing for the mails aU packages of mat- 
 ter not charged with first class postage, so 
 that the contents of such packages may be 
 easily examined; and no package, the con- 
 tents of which cannot be easily examined, 
 shall pass in the mails or be delivered at a 
 less rate than for matter of the first class." 
 Id. § 24. 
 
 As to forwarding and delivery of publica- 
 tions of the second class. Id. § 25. 
 
 " All mail matter of the first class, upon 
 which one full rate of postage has been pre- 
 paid, shall be forwarded to its destination, 
 charged with the unpaid rate, to be collect- 
 ed on delivery. ' ' Special stamps for unpaid 
 postage authorized ; and regulations for 
 collection prescribed. Id. § 26. 
 
 Postmaster's failure to account for special 
 stamps punishable. Act of March 3, 1879, 
 ch. 180, § 7, 20 Stat, at L. 362. 
 
 Punishment for using again, attempting 
 to remove with intent to use again, having 
 in possession, or offering to sell, with like 
 intent, cancelled postage stamps. lb. § 28. 
 
 Regulations as to official mail matter. 
 Id. § 29. 
 
 Mail-lettings and contracts. Specific 
 regulations for advertising mail-lettings 
 and giving contracts, prescribed. Act of 
 May 17, 1878, ch. 107, 20 Stat, at L. 61. 
 
 Rev. Stat. § 3955, amended, to read : " The 
 po.stmaster-general, whenever he may deem 
 it consistent with the public interest, may 
 
 accept or require new surety upon any con- 
 tract existing or hereafter made for carrying 
 the mails, in substitution for and release 
 of any existing surety." Act of March 3, 
 1879, ch. 180, § 30, 20 Stat, at L. 362. 
 
 Compensation of person temporarily fill- 
 ing office of postmaster during vacancy. 
 Act of March 3, 1879, ch. 180, § 31, 20 
 Stat, at L. 362. 
 
 Minor Decisions on Post-office. 
 
 Transmission of dutiable article from 
 foreign country in sealed letter exposes it 
 to forfeitui'e, though done without intent 
 to smuggle: 25 Int. Rev. Rec. 342; 8 Re- 
 porter, 645. Whether detaining stage horses 
 under a lien for their keep is punishable as 
 obstructing the mail, see 3 Hugh. 544, 545. 
 Postmaster cannot justify opening a letter 
 addressed to another person and using 
 money in it, by showing an agency to do 
 so ; such agency is contrai-y to his duty: Id. 
 557. 
 
 PREBLE. Patent Case Index, by W. 
 P. Pkeble, Jr. Boston: Little, Brown, 
 &Co. 
 
 PRESIDENT. " Upon the meeting of 
 the persons returned elected as electors 
 of president and vice-president, or of as 
 many of such persons as may attend on 
 the day appointed by the constitution and 
 laws of the United States, the said elect- 
 ors who are present, before proceeding to 
 perform the duties reposed in them, shall 
 fill any vacancy which may exist in the 
 said college of electors, at such meeting, 
 whether such vacancy be occasioned by 
 absence or otherwise; and the said per- 
 
 Practice. Minor decisions on accounting, p. 12. 
 Following State laws in National courts, p. 39. 
 Enforcement of charitable use, p. 77. When circuit 
 court can entertain a bill to revise a State judg- 
 ment, p. 84. Equitable jurisdiction of Federal 
 courts, p. 131. Equity practice preserved in Fed- 
 eral courts, p. 1.31. 
 
 BusBEE on Criminal Procedure, p. 54. Codes in 
 Colorado and Connecticut, p. 95. The New York 
 code of civil procedure, p. 95. 
 
 Jurisdictional amount on appeal, p. 24. Trans- 
 mission of original exhibits disapproved, p. 24. 
 Jurisdiction of circuit court on writ of error defined 
 anew, p. 85. 
 
 British admiralty will not arrest United States 
 ship of war, p. 14." Courts of seceded States had 
 no jurisdiction of crimes or torts by soldiers or offi- 
 cers of United States forces in occupation, p. 26. 
 Jurisdiction of Federal courts to relieve against ex- 
 cessive taxation of national banks, p. 34. Organi 
 zation of California judiciary, p. 59; original 
 jurisdiction of circuit court, pp. 83, 87; its appellate 
 jurisdiction, pp. 84, 87; over causes removed, pp. 
 
 84, 85, 87. Power of State over judicial remedies, 
 p. 93. Organization of Connecticut judiciary, p. 
 103. Courts can appoint arbitrators, p. 130. Judges 
 cannot be sued, p. 130. Equitable jurisdiction of 
 Federal courts, p. 131. Various decisions on courts, 
 p. 133. Jurisdiction of court of claims, p. 134. 
 Crime committed on board United States vessel in 
 foreign port, p. 135. Power of courts to allow ex- 
 emplary damages, p. 141. Action for death caused 
 bv negligence on the high seas, p. 142. Meaning 
 o! "judicial action," p. 160. District court in ad- 
 miralty, p. 175. Jurisdiction of court over govern- 
 ment claim to "Arlington," involved in ejectment, 
 p. 182. Determination of election questions in the 
 "Maine count," and other instances, p. 187- 
 
 Heard on Pleading, p. 226. Lis pendens, p. 
 276. 
 
 Premium. Offer of premium for fastest horse, 
 &c., not a bet, pp. 45, 46. Premium in insurances, 
 p. 250. 
 
 President. May appoint commissioners of deeds, 
 p. 176. His dutie"s as to the International Exhibi- 
 tion, p. 258. 
 
344 
 
 PRESIDENT. — PRINCIPAL AND AGENT. 
 
 son or persons so appointed to fill such 
 vacancy or vacancies shall be entitled 
 to all the rights and privileges of those pro- 
 claimed by the governor as duly-elected 
 electors of president and vice-president of 
 the United States." Md. Pub. Gen. Laws 
 1880, art. 35, § 72, as amended Laws 1880 
 (March 15), 69, ch. 41. 
 
 " The electors for this State shall meet 
 in the State house, in the city of Annapolis, 
 and give their votes for president and vice- 
 president of the United States at the hour 
 of noon, upon the first Wednesday in De- 
 cember in the year in which they are ap- 
 pointed." Id. § 72 a, added by Act 1880 
 (March 15), 70, ch. 41. 
 
 PRINCIPAL AND AGENT. An agent 
 employed to make purchases from time to 
 time, for the principal, was furnished, by 
 the latter, with printed blanks to be filled 
 up and signed whenever contracts were 
 negotiated, and was instructed to make all 
 his contracts according to the tenor of these 
 ■printed blanks. In one of the contracts 
 thus made the written portion, as filled in 
 by the agent and the seller, differed mate- 
 rially from the terms suggested by the 
 printed blank. Held, that if the agent 
 had general authority to buy, the principal 
 was bound by the purchase, within the rule 
 that third persons dealing with an agent 
 are not chargeable with notice of his pri- 
 vate instructions. The printed blank was 
 a private instruction. Ct. of Appeals, 1879, 
 Hill 0. MiUer, 76 N. Y. 32. 
 
 Defendants having a " mercantile 
 agency " with a " collection department," 
 in the State of Wisconsin, plaintifis left 
 with them a claim for collection and took 
 from them a receipt stating the amount of 
 such claim, and that it was to be transmitted 
 by mail for collection or adjustment to an 
 attorney, at the risk and on account of the 
 plaintiffs, and the proceeds to be paid over 
 or accounted for to them when received by 
 defendants from said attorney. Plaintiffs 
 also signed a receipt in defendant's books, 
 which stated the nature and amount of 
 said claim, and that the receipt first above 
 mentioned had been given them, reciting 
 its terms. Held : 
 
 1. In the absence of any proof of fraud 
 
 Presumption. As to altered deed, p. 21; adul- 
 tery, p. 177; exemption of gas company, p. 215; 
 marriafi'e, p. 233. 
 
 Principal and accessory. Accessory, generally, 
 p. 9. Accomplice, p. 9; his rights when state's 
 
 in respect to them, these receipts fix the 
 rights and liabilities of the parties in re- 
 gard to said claim, even if accepted or 
 subscribed by plaintiffs, without reading 
 them. 
 
 2. Under such receipts, defendants were 
 not liable for the acts or default of the at- 
 torney employed by them to collect the 
 claim, unless they were guilty of gross 
 negligence in the selection of such attor-) 
 ney. Supreme Ct. 1879, Sanger v. Dunn, 
 47 Wis. 615. 
 
 Under the custom of trade in Chicago, a 
 commission merchant, to whom grain is 
 consigned, may dispose of the warehouse 
 receipt given him for the same, although 
 directed by tfie consignor not to sell, but to 
 hold the grain for further orders, if he 
 keeps on hand, ready for delivery when 
 called on, other receipts of a like quantity 
 and grade of grain. The receipts are not 
 the consignor's property, and do not repre- 
 sent his property, but are merely evidences 
 of a debt to the consignee. Supreme Ct. 
 1877, Bailey v. Bensley, 87 111. 576. 
 
 The shipper of grain may, by the consent 
 of the warehouseman, have his grain kept 
 in a separate bin by itself, which consent, 
 as well as the number of the bin, must ap- 
 pear upon the face of the receipt, or he 
 may instruct the commission man to keep 
 the identical receipts received upon his 
 shipment, and not to part with them ex- 
 cept when he sells on his account. lb. 
 
 Where a consignee of grain stores the 
 same in a warehouse, and the same is in- 
 termixed with other grain of like grade, 
 and a receipt is taken for the amount, the 
 grain being no longer capable of identifi- 
 cation, the owner parts with his property 
 in the same, and the consignee to whom 
 the receipt is given, instead of being a 
 bailee, becomes a debtor to the owner. lb. 
 
 If a commission man places the grain of 
 his consignor in a wai-ehouse, taking a re- 
 ceipt therefor, whereby the property in the 
 grain is parted with by reason of the loss 
 of identity, and disposes of the receipt, and 
 afterwaids fails to keep the warehouse 
 receipts for the same amount and grade of 
 grain, it will not amount to a conversion 
 of the grain. The only effect will be a bar 
 
 evidence, pp. 9, 10 ; his testimony, p. 11 ; and cor- 
 roboration, p. 11. 
 
 Principal and agent. Attornejr who has erred 
 in certifying title, liable only to his principal, p. 
 32. 
 
PKINCIPAL AND AGENT. 
 
 345 
 
 to his charges for storage and insurance. 
 Ih. 
 
 A" commission merchant may rightfully 
 sell grain consigned to him to reimburse 
 himself for advances made, after a reason- 
 able time, when such is the usage of trade. 
 lb. 
 
 Maitland, a broker, in Philadelphia, in 
 1872, purchased for Martin five South 
 Carolina bonds, which Martin allowed to 
 remain in the broker's possession until 
 1875, when he gave him a direction to sell 
 them. The broker sent them to his cor- 
 respondent in New York, who made the sale 
 and returned a draft for the proceeds. Be- 
 fore the broker had paid over these pro- 
 ceeds he received intelligence from his 
 correspondent that three of the bonds were 
 among certain bonds which the legislature of 
 South Carolina, in 1874, had repudiated, and 
 which the New York Stock Exchange, by an 
 order, had declared not a " good delivery " 
 on a regular sale of South Carolina bonds. 
 The correspondent purchased other bonds 
 to replace the non-fundable ones, andthe 
 broker paid the sum so advanced, and then 
 offered to return the three bonds and ac- 
 count for the proceeds of the other two 
 sold. Martin refused and brought suit, and 
 sought to recover the whole amount of the 
 proceeds of the original sale of the five 
 bonds. Held, that he could not recover. 
 If the broker, in effecting the sale of the 
 bonds, acted strictly within the line of his 
 duty and in good faith, and a loss was in- 
 curred, Martin, who was his principal, was 
 alone liable. And although, by the failure 
 of the broker to disclose his principal to his 
 correspondent, he may have become person- 
 ally liable to the latter, yet that did not bar 
 the right of the broker to require his prin- 
 cipal to make good the loss. Supreme Ct. 
 1878, Maitland v. Martin, 86 Pa. St. 120. 
 
 Neither by the common law, nor under 
 any statute of the State of Wisconsin, can 
 a person entrusted with merchandise simply 
 as agent for the sale thereof, dispose of it 
 by barter to one who knows the goods bar- 
 tered for to be for the agent's own use, or 
 pledge it for his own indebtedness for 
 goods sold to him as for his own use. The 
 factor's act does not, by its terms, purport 
 to sustain an exchange of property by a 
 factor, and, being a statute in derogation 
 of the common law, cannot be extended to 
 such cases by construction. Supreme Ct. 
 
 1878, Victor Sewing-machine Co. v. Heller, 
 4i Wis. 265. 
 
 Kentucky has passed a "factor's act" 
 analogous to those which exist in many 
 States. It affirms the title of any one who 
 purchases merchandise from a factor to 
 whom it has been entrusted for sale, and 
 who has possession and is clothed with the 
 usual documentary evidence of title. Ky. 
 Laws 1879, 200, ch. 1541, §§ 1-3. 
 
 This act shall not authorize a person not 
 a factor or dealer in merchandise, to whom 
 merchandise may be entrusted for transpor- 
 tation or storage, to sell or hypothecate it. 
 Id. § 4. 
 
 Nor shall it prevent true owner of mer- 
 chandise transferred otherwise than by 
 absolute sale, from redeeming it. Id. § 5. 
 
 Punishment of frauds by factors pre- 
 scribed. Id. § 7. 
 
 Minor Decisions on Principal and Agent. 
 
 Canvassing agent entrusted by principal 
 with horse for use in journeys cannot give 
 good title, even to buyer in good faith: 56 
 Ala. 156. Township trustee cannot con- 
 tract for medical attendance, &o., for 
 paupers out of poor-house, even in time of " 
 epidemic ; outside relief rests with the com- 
 missioners: 21 Kan.QQQ. Agent's posses- 
 sion of goods or his holding bill of lading 
 for them, does not enable him to pledge 
 them for his own debt: 22 Kan. 610. 
 General agent of mining company has not 
 implied authority to make notes in the 
 name of the corporation; especially notes 
 drawn payable to himself: 89 Mich. 644. 
 Liability of a corporation upon notes made 
 by a general agent in the corporate name, 
 drawn payable to himself and negotiated: 
 lb. When principal is chargeable for false 
 representations by agent: 6 Mo. App. 522. 
 Purchaser of land at a foreclosure sale con- 
 trived in fraud of owner's creditors held 
 chargeable with the fraud of those whom 
 he employed to bring about the sale, al- 
 though he did not participate : ZIN.J. Eq. 
 355. Trustees of a society (Shakers) if 
 authorized to sell, are authorized to sell by a 
 description which may imply a warranty of 
 quality: 71 N. Y. 118. Warranty does 
 not embrace defects of which buyer's 
 agent to make purchase had notice suf- 
 ficient to put him on inquiry: 76 N. Y. 
 386. Broker employed to bring parties to- 
 gether merely, can recover commissions, 
 
346 
 
 PRINCIPAL AND AGENT. — PUBLIC LANDS, 
 
 notwithstanding the contract they "made 
 was illegal, if he took no part in settling 
 the terms: N. Y. Superior Gt. 85. Prin- 
 cipal's failure to disapprove an unauthorized 
 act of agent after knowledge of the fact is 
 a ratification: 7 Baxt. {Term.) 260. Sus- 
 pension of payment terminates bank's 
 power to collect paper previously entrusted 
 to it: 51 Tex. 129. Broker entitled to 
 commissions who finds purchaser able and 
 ■willing to buy, though employer refuses to 
 sell; 44 Wis. 31. 
 
 PUBLIC LANDS. Title of patentee. 
 The rule is well settled, that when public 
 lands have been surveyed and placed in 
 the market, or otherwise opened to pri- 
 vate acquisition, a person who complies 
 with all the requisites necessary to entitle 
 him to a patent in a particular lot or 
 tract is to be regarded as the equitable 
 owner thereof. The land is no longer 
 open to location. The public faith has 
 become pledged to him; and any subse- 
 quent grant of the same land to another 
 person is void, unless the first location 
 or entry has first been vacated. [9 
 How. 314; 6 Wall. 402.] Cases which 
 seem to conflict with this have turned on 
 the fact that something remained to be 
 done by the claimant to entitle him to a 
 patent ; such as the payment of the price, 
 the payment of the fees of surveying, or 
 the like. [9 Wall. 187; 15 Id. 77; 22 Id. 
 444: 91 U. S. 830.] Supreme Ct. 1878, 
 Wirth V. Branson, 98 U. S. 118. 
 
 Trespasses. The enactment of the pre- 
 emption, homestead, and mining laws by 
 Congress has modified the operation of the 
 act of March 2, 1831, Rev. Stat. § 2461, 
 prohibiting absolutely the cutting or re- 
 moval of timber on the public lands, so that 
 persons occupying portions of such lands 
 under such laws may, before becoming the 
 owners thereof, cut and use the timber 
 thereon so far as the same may be neces- 
 sary to accomplish the purpose for which 
 the land is occupied. Exteht and limits of 
 
 Probate. Howell on Probate in Canada, p. 
 231. 
 
 Promissory note. Indorsement to national bank 
 of note which it may not buy enables it to sue, p. 
 37. National bank can mal^e indorsement "with- 
 out recourse," p. 38. Indorsement of bill of lading, 
 p. 46. Indorsee for a precedent debt takes "for 
 value," pp. 47, 48. Transfers of bills or notes, p. 
 49. Liability of indorsers, p. 49. Alteration in, 
 by raising the amount, p. 20; by writing a drawer's 
 name in a blank, p. 20. Cancelling an alteration, 
 pp. 20, 21. Other alterations, p. 21. Ti-ansfer by 
 
 this right in the case of one occupying 
 lands as licensee only, under the United 
 States mining laws, — explained. Disl. of 
 Oreg. 1878, United States v. Nelson, 5 Saw- 
 yer, 68. 
 
 A person occupying a portion of the 
 public land as mining ground under the 
 law of the United States is not bound to 
 purchase the same ; but until he does so his 
 right is a mere license to work the ground 
 for the precious metals therein, and he has 
 no right to cut or use any timber growing 
 or found thereon, except as so doing may 
 be necessary to eiiable him to mine the 
 same conveniently, lb. 
 
 3. The defendant, while occupying sev- 
 enty acres of public land as mining ground, 
 cut timber from four acres in advance of 
 his mining operations, and disposed of it 
 for his own benefit, assigning as a reason 
 therefor, that by cutting the timber in ad- 
 vance of the mining operations the stamps 
 would rot and therefore be more easily 
 removed. Held, that this cutting was not 
 necessary to the mining operation, and 
 therefore was unlawful. lb. 
 
 Recent acts aifecting public lands. 
 Settlers who left their lands on ac- 
 count of destruction of crops by grasshop- 
 pers, authorized to return and complete 
 their settlements. Act of June 1, 1878, 
 20 Stat, at L. 88; and see act of June 19, 
 1878, ch. 311, Id. 169 
 
 " All citizens of the United States and 
 other persons, bona fide residents of the 
 State of Colorado or Nevada, or either of 
 the Territories of New Mexico, Arizona, 
 Utah, Wyoming, Dakota, Idaho, or Mon- 
 tana, and all other mineral districts of the 
 United States, shall be, and are hereby au- 
 thorized and permitted to fell and remove, 
 for building, agricultural, mining, or other 
 domestic purposes, any timber or other 
 trees growing or being on the public lands, 
 said lands being mineral, and not subject 
 to entry under existing laws of the United 
 States, except for mineral entry, in either 
 
 assignment, p. 30. Detecting forgeries by lens, p. 
 35. Can national bank, deal in notes ? pp. 37, 38. 
 Negotiabilitv, p 46. Purchaser for value, p. 47. 
 Nature and' requisites, p. 48. Original parties, p. 
 48; interpretation and effect, p. 49. Validity, p. 
 49. Transfers, p. 49. Rights of purchasers, p. 49. 
 Linbilities of indorsers, p. 49. 
 
 Provisions. Adulteration of food, pp. 14, 15. 
 
 Public board; place; resort. Definition of, 
 P- 167. . , , 
 
 Public lands. Abandonment of land rights, 
 p. 4. 
 
PUBLIC LANDS. 
 
 847 
 
 of said States, Territories, or districts of 
 which such citizens or persons may be at 
 the time bond fide residents," subject to 
 such rules and regulations as the secretary 
 of the interior shall prescribe. Act of 
 June 3, 1878, ch. 150, § 1, 20 Stat, at 
 L. 88. 
 
 Regulations to prevent felling timber for 
 other purposes, and punishment thereof. 
 lb. §§ 2, 3. 
 
 Sale of timber lands or stone lands 
 within California, Oregon, Nevada, and 
 Washington Territory, authorized; and 
 mode of making application, publishing 
 it, and making entry, prescribed. Cutting 
 timber for export, on public lands within 
 those States or Territory declared punish- 
 able. Act of June 3, 1878, ch. 151, 20 Stat, 
 at L. 89. 
 
 " The notices of contest now provided 
 by law under the homestead, pre-emption , 
 and tree-culture laws of the United States 
 shall, after the passage of this act, be print- 
 ed in some newspaper printed in the county 
 where the land in contest lies ; and if no 
 newspaper be printed in such county, then 
 in the newspaper printed in the county 
 nearest to such land." Act of June 3, 
 1878, ch. 152, 20 Stat, at L. 91. 
 
 " Any person who has made a settle- 
 ment on the public lands under the pre- 
 emption laws, and has, subsequent to such 
 settlement, changed his filing in pursuance 
 of law to that for a homestead entry upon 
 the same tract of land, shall be entitled 
 subject to all the provisions of law relat- 
 ing to homesteads to have the time required 
 to perfect his title under the homestead 
 laws computed from the date of his 
 original settlement heretofore made, or 
 hereafter to be made, under the pre-emp- 
 tion laws." Act of June 14, 1878, ch. 
 189, 20 Stat, at L. 113. See Id. 63. 
 
 Act of March 13, 1874, — to encour- 
 age the growth of timber on Western 
 prairies, — 18 Stat, at L. 21, amended; 
 and new regulations prescribed. Act of 
 June 14, 1878, ch. 190, 20 Slat, at L. 113. 
 
 " The even sections within the limits 
 of any grant of public lands to any rail- 
 road company, or to any military road 
 company, or to any State in aid of any 
 railroad or military road, shall be open to 
 settlers under the homestead laws to the ex- 
 tent of one hundred and sixty acres to each 
 settler, and any person who has, under ex- 
 
 isting laws, taken a homestead on any 
 even section within the limits of any rail- 
 road or military road land-grant, and who, 
 by existing laws, shall have been restricted 
 to eighty acres, may enter under the home- 
 stead laws an additional eighty acres ad- 
 joining the land embraced in his original 
 entry, if such additional land be subject to 
 entry; or if such person so elect, he may 
 surrender his entry to the United States 
 for cancellation, and thereupon be entitled 
 to enter lands under the homestead laws 
 the same as if the surrendered entry had 
 not been made." Further regulations as 
 to taking additional land or surrendering 
 and making new entry, prescribed. Act 
 of March 3, 1879, ch. 191, 20 Stat, at L. 
 472. 
 
 "Before final proof shall be submit- 
 ted by any person claiming to enter agri- 
 cultural lands under the laws providing 
 for pre-emption or homestead entries, such 
 person shall file with the register of the 
 proper land-office a notice of his or her in- 
 tention to make such proof, stating therein 
 the description of lands to be entered, and 
 the names of the witnesses by whom the ne- 
 cessary facts will be established. Upon the 
 filing of such notice, the register shall pub- 
 lish a notice, that such application has been 
 made once a week for the period of thirty 
 days, in a newspaper to be by him desig- 
 nated as published nearest to such land, 
 and he shall also post such notice in some 
 conspicuous place in his office for the same 
 period. Such notice shall contain the 
 names of the witnesses as stated in the ap- 
 plication. At the expiration of said period 
 of thirty days, the claimant shall be en- 
 titled to make proof in the manner hereto- 
 fore provided by law. The secretary of 
 the interior shall make all necessary rules 
 for giving efiect to the foregoing provi- 
 sions." Act of March 3, 1879, ch. 192, 20 
 Stat, at L. 472. 
 
 " Where any person has contested, paid 
 the land-office fees, and procured the can- 
 cellation of any pre-emption, homestead, 
 or timber-culture entry, he shall be noti- 
 fied by the register of the land-office of the 
 district in which sucii land is situated of 
 such cancellation, and shall be allowed 
 thirty days from date of such notice to en- 
 ter said lands." Fee of $1. Act of Con- 
 gress of May 14, 1880. 
 
 " When a pre-emption, homestead, or 
 
848 
 
 PUBLIC LANDS. —QUARANTINE. 
 
 timber-culture claimant shall file a written 
 relinquishment of his claim in the local 
 land-office, the land covered by such claim 
 shall be held as open to settlement and en- 
 try without further action " on the part of 
 the general land-office. lb. 
 
 "Any settler who has settled, or who 
 shall hereafter settle, on any of the public 
 lands of the United States, whether sur- 
 veyed or unsurveyed, with the intention of 
 claiming the same under the homestead 
 laws, shall be allowed the same time to file 
 his homestead application, and perfect his 
 original entry in the United States land- 
 office, a,s is now allowed to settlers under 
 the pre-emption laws to put their claims on 
 recoi-d, and his right shall relate back to 
 the date of settlement, the same as if he 
 settled under the pre-emption laws." lb. 
 
 " An act to provide for issuing patents 
 for public lands claimed under the pre- 
 emption and homestead laws in cases where 
 the claimants have become insane," enables 
 the proof and payment required to perfect 
 their claims to be made for their benefit 
 by any person legally authorized to act for 
 them. Act of Congress of June 8, 1880. 
 
 Settler's affidavit in pre-emption and com- 
 muted homestead entries may be made 
 before designated clerks of court. Act of 
 Congress of June 9, 1880. 
 
 The price of lands now subject to entiy, 
 which were raised to 12.50 per acre prior to 
 January, 1861, by reason of the grant of 
 alternate sections for railroad purposes, re- 
 duced to $1.25. Act of Congress of June 
 15, 1880. 
 
 After public lands (except mineral lands) 
 have been entered and the price paid, suits 
 or prosecutions for previous trespasses (done 
 prior to March 1, 1879) shall not be main- 
 tained. Ih. 
 
 Payments made in good faith, upon var- 
 ious entries of public lands, which are 
 afterwards found to be void, or must be 
 cancelled, authorized to be refunded. Act 
 of Congi-ess of June 16, 1880. 
 
 ffiinor Decisions on Public Lands, 
 
 Pre-emption cannot extend to lands in ' 
 the possession of another person: 97 U. S. 
 575. Pre-emptioner must personally occupy; 
 if he does not, he cannot sue a laborer era- 
 ployed by him on the land, who files a home- 
 stead claim upon it: 48 Iowa, 92. Where 
 lands npon a river are surveyed by a mean- 
 dered line, a grant by such sui-vey bounds 
 upon the river, and after-accretions to the 
 lands belong to the riparian owner and 
 cannot be selected as swamp and overflowed 
 land: 7 Oreg. 337. 
 
 Q. 
 
 QUARANTINE. Vessel or vehicle com- 
 ing from foreign port or country where 
 contagious or infectious disease exists ; or 
 conveying persons, merchandise, or animals 
 affected with such disease, forbidden to 
 enter any port of United States, or pass 
 boundary line ; except subject to regulations 
 prescribed. Act of April 29, 1878, ch. 66, 
 § 1, 20 Slat. at. L. 37. 
 
 Notice of appearance of such disease, or 
 of clearance of vessel, &c., bound for any 
 
 Public school. Schools to be maintained in 
 California, p. 60. Rights of colored children in, p. 
 93. To be maintained in Georgia, p. 222 ; in Louis- 
 iana, p. 287. 
 
 Public works. Of county, outside the terri- 
 torial limits, p. 128. 
 
 United States port, must be given to super- 
 vising Surgeon-general of Marine Hospital 
 service. His powers and duties ; and those 
 of medical officers and customs officers, in 
 the execution of the act, — prescribed, lb. 
 §§ 2-4. 
 
 State and municipal quarantine officers 
 authorized to co-operate with and act as 
 national quarantine officers. State quar- 
 antine laws and regulations saved. lb. 
 §5. 
 
 Purchaser. Of bill or note, pp. 46, 47, 49 ; of 
 negotiable bond, p. 61. Cole on Sale, p. 97. 
 
 Quarantine. Baker on Quarantine, p. 34. 
 Boards of health, p. 226. Sir Rowland Hill's suit 
 against the small-pox hospital, p. 323. 
 
RAILROAD. 
 
 349 
 
 R. 
 
 EAILEOAD. The new legislation of 
 the year is of interest. The various 
 State session laws which are cited in 
 the body of this article, infra, contain 
 many provisions deserving a connected 
 review ; some because they are novel, 
 and present precedents for legislation 
 in other States ; others, because they 
 affect travel and transportation from 
 various parts of the country to the 
 State where the new law exists. 
 
 California, Georgia, and Kentuckj' 
 have — the former b^' constitutional pro- 
 visions (see Califoenia) — created rail- 
 road commissions clothed with exten- 
 sive powers of superintending the 
 management of railroads. The new 
 constitution of California contains, also, 
 manj' distinct regulations. 
 
 California has passed enabling acts 
 in favor of companies chartered outside 
 the State ; saying that they may trans- 
 act business, lease roads, &c., within 
 the State in the same manner as if in- 
 corporated there. She has also imposed 
 a forfeiture for prolonged failure to 
 operate a railroad. 
 
 The subject of discrimination in 
 freight charges has elicited legislation 
 in several States, besides calling forth 
 a verj' earnest investigation and dis- 
 cussion in the New York legislature. 
 California, Michigan, and Nevada have 
 forbidden the companies to make such 
 discrimination ; that is, to give a pref- 
 erence to one shipper over another. 
 Georgia has, by constitutional provi- 
 
 Bailroad. For matters applicable to railroad 
 companies in common with other corporations, 
 Corporation. Witli other carriers, Carrier; 
 also Express; Shipping. 
 
 Abandonment of part of road-way, p. 4. Restric- 
 tions on railroad management in California, p. 63. 
 New regulation of railroads in California by a State 
 commission, p. 8-3. Discrimination in railroad 
 freights forbidden, p. 6-3. Railroad property, how 
 assessed for taxation, p. 65. Progress of the law 
 of carriers, p. 67; as to carrying animals, pp. 69, 
 71 J perishable property, p. 71; passengers and 
 
 sions, directed the legislature to frame 
 such laws. See Georgia. And New 
 Hampshire has enacted that none of 
 her railroads shall charge a higher rate 
 on like classes of freight by the car-load 
 than is charged when transportation is 
 for a greater distance. See Passenger. 
 
 Color-blindness, which has attracted 
 so much attention among physiologists 
 in recent years, has received legislative 
 consideration in Connecticut, as was 
 noted at the time. An act passed last 
 March requires the systematic examin- 
 ation of railroad employees for this 
 defect. It imposes upon the State 
 board of health the dutj' of preparing 
 rules and regulations for periodic ex- 
 aminations, and directs that every com- 
 pany or trustee operating a railroad 
 within the State shall cause its em- 
 ployees to be tested as to color-blindness 
 and visual power. All descriptions of 
 employees seem to be included ; en- 
 gineers, firemen, conductors, brakemen, 
 station agents, switchmen, flagmen, 
 gate tenders, and signal-men are speci- 
 fically mentioned. The examinations 
 are to be made at the expense of the 
 respective companies, and are to be 
 statedly repeated. Journals say that 
 the early administration of the law has 
 given rise to great objection ; chiefly 
 for that the tests employed are said to 
 have been too strict, operating to ex- 
 clude manj' competent and skilful men 
 from the service. 
 
 Illinois and New York have provided 
 
 baggage, p. 72; or bonds, p. 73 ; railroad receipt, 
 p. 74; for dog, p. 74; or other live-stock, p. 74; as 
 to property destroyed in Pittsburg riots, p. 75; con- 
 necting lines, pp.'75, 76. Measure of liability for 
 delaying live-stock, p. 141, Points on damages for 
 injury, pp. 142, 143. Assistant secretary of com- 
 pany not a managing agent in respect to service of 
 summou.s on corporation, p. 162. Distinction be- 
 tween terms "railroad" and "railway," p. 167. 
 Taking lands for railroads, p. 197 ; using city streets, 
 pp. 313, 314. To wreck train, whereby pei'son 13 
 killed, is murder in the first degree, p. 310. 
 
850 
 
 RAILROAD. 
 
 for enlarged powers of conductors in 
 respect to preserving order. The Illin- 
 ois law says that the conductor of any 
 railroad train, or master of anj' steam- 
 boat, carrying passengers within the 
 State, shall be invested with police 
 powers while on duty. The New York 
 law, passed May 8 last, does not go 
 quite so far, but authorizes the governor 
 to appoint any conductors or brakemen 
 as policemen, and authorizes whoever 
 may be so appointed to arrest, for 
 criminal prosecution, persons engaged 
 in playing cards or games of chance for 
 money. A similar law, authorizing 
 such appointments with a view of keep- 
 ing the peace and arresting violent 
 offenders on railroad trains, has for 
 some years been in force in the State. 
 Verj' probably the Illinois law would 
 be welcomed by many as an advan- 
 tageous increase of the conductor's 
 authorit}'. There are, however, rea- 
 sons for considering the frame of the 
 New York law, which requires an ex- 
 ecutive appointment, more judicious 
 and really more advantageous to a 
 companj'. The courts have in recent 
 years been inclined to hold the com- 
 panies liable and the conductors pun- 
 ishable for neglect of a conductor to 
 exert his powers and the means at his 
 command for protecting every passen- 
 ger from violence at the hands of others ; 
 and it may be that, under a law con- 
 ferring increased authoritj-, immediately 
 and in general terms, the companies 
 will find their liabilities increased unex- 
 pectedly ; while, under a law which only 
 authorizes an executive appointment, 
 the companies can engage for police 
 protection within such limits as they 
 maj' desire. 
 
 Frauds in ticket sales have, in Indiana, 
 been made criminally punishable. Any 
 employee of a company who, in the 
 course of his employment, comes into 
 possession of a ticket, and who, intend- 
 ing to defraud the company, sells, 
 barters, or gives it, or appropriates it 
 
 to his own use, is pronounced guilty of 
 embezzlement, and punishable by fine 
 and imprisonment. 
 
 A law passed in Indiana, requiring 
 whistling at crossings, has provoked a 
 great deal of objection within the State, 
 and excited a good deal of attention 
 without, for the sounding of whistles to 
 the extent required by the law has been 
 found by no means agreeable in many 
 neighborhoods. The act peremptorily 
 requires all railroad companies in the 
 State to have a whistle attached to 
 every locomotive, and directs that the 
 engineer shall, when an engine ap- 
 proaches within eighty rods of any 
 highway crossing, sound the whistle 
 until the crossing is passed. In cities, 
 this strict rale is not imposed ; the city 
 may regulate whistling at street-cross- 
 ings by its ordinances . But in suburban 
 and rural neighborhoods the noise gen- 
 erated in obedience to the statute has 
 been an intolerable annoyance. The con- 
 stitutionality of the law has even been 
 contested on this ground ; but the de- 
 cision was that what the legislature has 
 expresslj' authorized cannot be in the 
 courts treated as a nuisance ; such laws 
 are within the police power. 
 
 Iowa has enabled roads of other 
 States to extend their lines, or branches, 
 into her territory ; and has declared 
 very emphatically the obligation of 
 keeping ticket-ofHces open for the ac- 
 commodation of passengers ; and has 
 authorized roads unfinished or disused 
 by their proprietors, to be operated by 
 other persons. 
 
 The abuse of railway strikes has been 
 rebuked in Kansas by a law punishing 
 any engineer who shall abandon his 
 engine at any other than its regular 
 destination ; or any other person who 
 shall unlawfully and maliciously inter- 
 fere with the operation of a road. 
 Maine has a statute quite similar. 
 
 Laws of Kentucky, Massachusetts, 
 and Ohio impose punishment on any one 
 who wilfully throws or shoots any mis- 
 
RAILROAD. 
 
 351 
 
 sile at a locomotive engine, railway 
 car, or (in Massachusetts) who assaults 
 any conductor, engineer, or brakeman 
 whUe in the discharge of his duty. 
 
 Kentucky has exempted street rail- 
 roads from the Sunday laws ; North 
 Carolina and Kentuckj' have restricted 
 the steam roads in Sundg,y business ; 
 only trains carrying mails may run. 
 
 Maine and Wisconsin have author- 
 ized arrest and punishment for disorderly 
 conduct, profanity, &c., upon railroad 
 trains. 
 
 Michigan has enacted that railway 
 employees, except engineers and fire- 
 men, shall be distinguished by dress, 
 &c. 
 
 New York has amended her general 
 railroad law by very greatly extending 
 the scope of the statistics to be fur- 
 nished by the roads to the State gov- 
 ernment, in their annual reports. 
 Several other laws are adopted. One 
 approved Feb. 5, 1880, purports to au- 
 thorize the president, treasurer, and 
 secretary of any railroad company to 
 issue certificates of stock, in certain 
 cases, after a foreclosure and sale of 
 the property and franchises of the cor- 
 poration ; but, as printed in the statute 
 book, it is wholl}' unintelligible. There 
 is an enabling act in favor of companies 
 who have determined upon a reorgan- 
 ization, but whose capital stock is in- 
 sufficient for the new plan ; they may 
 file a certificate with the Secretary of 
 State, showing the insuflSciency and 
 the additional amount required, and 
 may receive authority to issue additional 
 stock. Voting by proxy at stockholders' 
 meetings has been somewhat stringently 
 regulated ; the new law forbids issuing 
 proxies when the certificates of stock 
 or the bonds on which they are founded 
 are not in the possession of and still 
 owned by the person for whom the vote 
 is to be cast ; the fact that they stand in 
 his name on the books is not enough ; and 
 selling a vote or issuing a proxy to any 
 person for any money or thing of value 
 
 is forbidden ; moreover, inspectors may 
 interrogate voters, under oath, as to 
 any violation of the law ; and false 
 swearing is declared perjury, and any 
 other violation is punishable by fine and 
 imprisonment. By another law specific 
 powers have been given to the com- 
 panies to construct tunnels and bridges, 
 including power to condemn rights of 
 way underneath streets and roads. 
 There is also an act forbidding any 
 minor child, not a passenger, to be upon 
 the platform or steps of any steam or 
 horse-railroad car ; the child disobey- 
 ing is liable to arrest and fine not 
 exceeding $5, and the parent or guar- 
 dian who allowed him is liable to a 
 like fine. There was an earlier act, 
 very likely embraced by this, which 
 forbids, under fine which may be as 
 high as $20, anj' trespasser, old or 
 young, from jumping on the trains or 
 engines of the steam roads. 
 
 South Carolina now requires railroad 
 companies receiving articles shipped to 
 any point within the State to give, on 
 demand by the consignee and before 
 exacting payment of charges, a full and 
 correct statement of the charges, show- 
 ing the total amount to be paid by the 
 consignee, and showing what proportion 
 of the same is to be paid to each road 
 over which, or any part of which, the 
 freight ma}' have passed, whether such 
 road be beyond the limits of the State 
 or not. And in all cases the railroad 
 company delivering freight to a con- 
 signee must settle the freight charges 
 according to the contract as set forth 
 by the bill of lading from the shipping 
 point, and is forbidden to retain the 
 article of freight after the consignee 
 offers to comply with the terms of the 
 bill of lading. 
 
 The establishment and peculiar ef- 
 fects of elevated railroads in city streets 
 have drawn attention anew to the lia- 
 bility of companies for depreciation of 
 house-lots along their routes, by their 
 
852 
 
 RAILROAD. 
 
 noise, jar, smoke, and other incidental 
 inconveniences. The current of thought 
 in the courts in former years has been 
 that for such annoyances the owner of 
 lands near the road, but not taken for 
 it, had no remedy. He could not de- 
 mand compensation, because his land 
 had not been taken ; nor could he pro- 
 ceed for nuisance, because the legislature 
 had authorized the road. Railroads, 
 it has been considered, must be from 
 time to time built. New routes must 
 be opened, additional State stations 
 built, increased traffic permitted. If 
 each land-owner in the neighborhood, 
 whose lot or farm was incommoded or 
 reduced in value, might recover his loss 
 the companies could not bear the bur- 
 den, unless a converse rule were estab- 
 lished, and they were allowed to recover 
 from owners whose lands should be im- 
 proved in value the amount of the 
 latter's gain. And the general rule has 
 been that a duly chartered road, run- 
 ning upon a route authorized by law, is 
 not a nuisance unless by reason of the 
 faulty way in which it is built or 
 managed. Abuses of management may 
 be corrected under the law of nuisance ; 
 but if the management is as skilful, 
 prudent, and considerate as the de- 
 mands of the traffic admit, that law 
 gives no relief. 
 
 Two recent decisions are noted, in- 
 dicating a disposition to extend the 
 land-owner's remedy somewhat, in these 
 cases, and to treat the intrusion upon 
 his premises, by noise, smoke, and jar, 
 as in truth a taking. (See infra.) 
 
 The journals have mentioned two 
 trials of railroad officials for false im- 
 prisonment of passengers, which involve 
 a view seemingly somewhat novel, but 
 have not yet reached the standard re- 
 ports. In one, a Harvard student, 
 meaning to go to Newport only, bought 
 at the Old Colony Railroad Depot a 
 through ticket to New York. His 
 reason was that the fare from Boston 
 
 to Newport was 11.60, while the through 
 fare was reduced by competition to %\. 
 But, when the boat reached Newport, 
 the officers would not allow him to 
 leave on his New York ticket ; they 
 kept him on board by force until he 
 paid the extra 60 cents. The Mas- 
 sachusetts court pronounced this to be 
 false imprisonment, saying that the 
 company was entitled to the full way 
 fare, and might bring an action for the 
 part unpaid, but could not detain the 
 passenger to compel payment. In 
 the other case a New Yorker bought a 
 ticket and took a seat in the cars at an 
 up-town station of the Metropohtan 
 Company, and rode to Rector Street. 
 Arriving there he could not find his 
 ticket. The passenger explained his loss 
 to the gateman, who said that the rule 
 of the company was (it has since been 
 changed) that he should buy another 
 and drop it into the box, and that he 
 would not be allowed to leave the sta- 
 tion until he done so. The passenger 
 declined to be detained, and endeavored 
 to force his way past the gate ; for this 
 he was arrested for disorderly conduct 
 and locked up in a police station. la 
 an action he recovered $1,000 damages. 
 The familiar rule that, for non-pay- 
 ment of fare, the conductor may expcd 
 a passenger, seems like an extraordinary 
 privilege allowed to railroads for col- 
 lecting their fares ; and has no doubt 
 led many to suppose that a similar priv- 
 ilege might be claimed of detaining a 
 passenger for the want of a ticket. 
 But expelling a non-paying passenger is 
 not, in realitj^ a special privilege. Al- 
 most ever}- one maj' stop services or 
 supplies if paj-ment is not made when 
 due. The basis of expelling a passen- 
 ger is simply this, that, if the passenger 
 will not pay, the company may decline 
 to carry him tmy further. It is not 
 bound to do so on the ground of public 
 duty, because he has not fulfilled the 
 conditions, nor on the ground of con- 
 tract, because he has not performed on 
 
RAILROAD. 
 
 353 
 
 his part. But to allow detention of a 
 passenger after his ride, because he has 
 not paid fare would be allowing to the 
 company a very extraordinary remedy, 
 viz., imprisonment for debt. 
 
 The decision sustaining the Thurman 
 act of Congress, passed in 1878, for 
 compelling the Union and the Central 
 Pacific roads to establish a sinking-fund 
 for the discharge of their immense 
 debts to the government, is of grave 
 interest. The general facts are not un- 
 famiUar. When these roads were char- 
 tered, — the Central by California, and 
 the Union by Congress, — the country 
 was convulsed by war, the far west was 
 a trackless wilderness, and commerce 
 with California was uncertain. Gov- 
 ernment aid was needed and was lib- 
 erally accorded ; the more so that the 
 construction of the road was impera- 
 tively needed by government. The 
 Utiited States loaned about twenty- 
 seven millions of government bonds 
 to each company, and each company 
 issued about as many millions of its own 
 bonds; and the whole $110,000,000 
 were sold by the companies, putting 
 them in funds to construct the road. 
 By 1878 about one-third the term of 
 the bonds had elapsed, yet Congress 
 seems to have been unconvinced that 
 the companies were making any ade- 
 quate reservation of moneys to meet 
 them at maturity. Hence the Thurman 
 act. It directed that 25 per cent of 
 the companies' surplus earnings over 
 expenses and interest on their first- 
 mortgage bonds should be accumulated 
 in the Treasury of tlie United States to 
 form a sinking-fund for payment of the 
 bonds. As was natural, the companies 
 contested this enactment ; arguing 
 that government must stand by the 
 original terms upon which it loaned its 
 bonds ; that exacting an annual contri- 
 bution years before the debt is due is 
 taking property " without due process 
 of law ; " and that Congress cannot in- 
 23 
 
 terfere with the fiscal management of a 
 company (the Central Pacific) chartered 
 bj' a State. But a majority of the 
 judges concurred in sustaining the law. 
 The decision seems to provide security 
 for the immense bonded debt ; also to 
 show that granting government aid to a 
 State chartered corporation may bring 
 its financial management under Con- 
 gressional regulation ; and to sustain 
 any legislature in requiring corporations 
 subject to its authority to set apart a 
 sinking fund toward payment of future 
 obligations. 
 
 Legislative power. The United States 
 sustains two distinct relations to the U. P. 
 E,. R. Co., viz., that of the government 
 creating it and exercising legislative and 
 visitatorial powers; and that growing out 
 of the contract contained in the charter 
 and its amendment. Supreme Ct. 1878, 
 United States v. Union Pacific R. R. Co., 
 98 U. S. 569; Sinking-Fund Cases, 99 
 U. S. 700. 
 
 The act of Congress of March 3, 1873, 
 17 Stat, at L. 509, — directing a certain 
 suit to be brought in behalf of government 
 against the Union Pacific Raib-oad Com- 
 pany and others, — is constitutional and 
 valid. It does not impair riglits, but only 
 changes procedure. Supreme Ct. 1878, 
 United States v. Union Pacific R. R. Co., 
 98 U. S. 569. 
 
 The act of Congress of May 8, 1878, 2Q 
 S. L. 56, — directing the Union Pacific and 
 Central Pacific railroad companies to main- 
 tain, in the treasury, a sinking-fund for the. 
 payment of their bonded indebtedness, — 
 is not unconstitutional. It is a reasonable 
 regulation of the administration of the 
 fiscal affairs of the companies, warranted 
 under the authority reserved to Congress to 
 change or modify the rights granted by it. 
 Supreme Ct. 1878, Sinking-Fund Cases, 99 
 U. S. 700. 
 
 The "earnings" of a road include all 
 the receipts arising from the company's 
 operations as a railroad company, but not 
 those from the public lands granted, nor 
 fictitious receipts for the transportation of 
 its own property. ' ' Net earnings, ' ' within 
 the meaning of the law requiring the Par 
 oific Railroad to devote a portion of net 
 
354 
 
 RAILROAD. 
 
 earnings to payment of bonded debt, are 
 ascertained by deducting from the gross 
 earnings all the ordinary expenses of or- 
 ganization and of operating the road, and 
 expenditures made bond, fide in improve- 
 ments, and paid out of earnings, and not 
 by the issue of bonds or stock; bat not de- 
 ducting interest paid on any of the bonded 
 debt of the company. Supreme Ct. 1878, 
 Union Pacific R. R. Co. v. United States, 
 93 U. S. 402. S. P. United States o. 
 Central Pacific R. R. Co., Id. 449; United 
 States 0. Kansas Pacific Ry. Co., Id. 455. 
 
 A railroad-ticket broker was indicted 
 under the Indiana act of March 9, 1875, — 
 regulating the issuing and taking up of 
 tickets by common carriers, &c. That law 
 prescribes, for settling the rights of railroad 
 companies and passengers in un used tickets, 
 substantially these rules : 1. Every railroad 
 company must redeem any unused portion 
 of a ticket if the traveller asks. 2. Any 
 traveller may sell the last part of his ticket 
 to another traveller who wishes to use it in 
 making the rest of the journey. 3. For a 
 traveller to sell his ticket to a dealer, or for 
 an outsider to buy tickets meaning to sell 
 them again, is made a finable offence. The 
 defence urged that the law was unconstitu- 
 tional for three reasons : — 
 
 1. For impairing the obligation of con- 
 tracts. Held, that it was clearly unobjec- 
 tionable in application to any trading in 
 tickets which took place after it took effect. 
 
 2. For conferring an exclusive privilege 
 (of buying unused tickets) on the com- 
 panies, contrary to the State Bill of Rights. 
 Held, that the statute does not grant a 
 right to, but imposes a duty upon, the com- 
 mon carrier of passengers to purchase the 
 unused portions of its tickets. It does not 
 prevent, but expressly allows, the sale by 
 the bond fide holder of such unused portions 
 of tickets to any other person, to be used 
 by such person in good faith in travelling 
 therewith. It prohibits a general brokerage 
 business in the buying and selling of such 
 unused portions of tickets, except under 
 certain well-defined restrictions. The pro- 
 visions are manifestly police regulations. 
 
 3. For attempting to regulate commerce. 
 Held, that no regulation of commerce is 
 involved in the law, because it does not lay 
 any burden upon, or in any manner restrict, 
 passenger travel among the States. The 
 true rule and limit between the State and 
 
 National powers is this : that a State cannot 
 impose any burdens or charges upon com- 
 merce to other States; cannot create ob- 
 stacles to it. Travel and transportation 
 between the States must be free, except so 
 far as Congress may lay restrictions. But 
 a law requiring a raih-oad company to re- 
 deem its unused tickets, and forbidding 
 brokers to buy them for speculation, does 
 not involve any hindering of railway traffic. 
 The companies can prosecute their busi- 
 ness of transportation, and travellers can 
 come and go as freely as ever. The law 
 affects only the disposal of the ticket as a 
 subject of sale within the State; only the 
 trade between traveller and ticket-broker. 
 It is, therefore, fully within the authority 
 of State legislatures. Supreme Ct. 1878, 
 Fry V. State, 63 Ind. 552. 
 
 Charter, The charter of a railway cor- 
 poration is a contract between it and the 
 State that it may exercise the rights and 
 privileges conferred until the expiration of 
 the charter, unless, by some act violative 
 of the obligations assumed, it shall forfeit 
 its privileges and franchises; and, under 
 the Federal constitution, the obligation of 
 such contract cannot be impaired by sub- 
 sequent legislation. But an express grantof 
 power, in a railway charter, to fix the rates of 
 tolls to be charged, does not confer unlimited 
 power, but only the right to charge reason- 
 alDle rates ; what is a reasonable maximum 
 rate may be limited by statute upon the 
 principles that the legislature of a State may 
 exercise all power not conferred on the 
 general government, or prohibited by con- 
 stitutional limitation ; and that corporations 
 created within the State are amenable to 
 the police power of the State to the same 
 extent as are natural persons. Supreme 
 Ct. 1878, Ruggles v. People, 91 III. 256. 
 
 Corporate powers. Railroad companies 
 have not implied power to lease their roads. 
 To do so requires an enabling act. The 
 general rule is not that a corporation may 
 do whatever its charter or other laws does 
 not forbid, but that it can only do what 
 they, expressly or by implication, permit; 
 it has only the powers granted. If these 
 do not include leasing, a lease is ultra oires. 
 A railroad company receives its franchise 
 in consideration of its undertaking to pro- 
 vide for public travel ; and cannot, without 
 leave from the State, transfer this obliga- 
 tion to others. Any contract by which, 
 
RAILROAD. 
 
 855 
 
 without the consent of the State, the cor- 
 poration disables itself from performing 
 its duties to the public, or attempts to ab- 
 solve itself from their obligation, is a viola- 
 lation of its contract with the State, is 
 forbidden by public policy, and is void. 
 Supreme Ct. Thomas v. West Jersey R. R. 
 Co., Opinion in Clerk's Office. 
 
 The peculiar obligations and engage- 
 ments of express business cannot be as- 
 sumed by a railroad company. The 
 Southern Express Company, organized 
 during the war to take the southern busi- 
 ness of the Adams Express Company, has, 
 ever since, performed transportation over 
 the various roads which now constitute the 
 property of the Nashville, Chattanooga, and 
 St. Louis Railroad Company, and it has 
 made large expenditures for improved fa- 
 cilities in expectation of continuing to 
 prosecute its work by aid of the railroad. 
 The connections of the railroad company 
 have also been greatly extended ; embrac- 
 ing at length a network of about four thou- 
 sand miles of track. Recently the railroad 
 company determined upon engaging in ex- 
 press business, and served notices upon the 
 express company to terminate the contracts, 
 and announced a purpose of excluding from 
 its trains the agents and goods of the expres?. 
 It did not claim to discriminate against the 
 Southern Express Company and in favor of 
 any other, but asserted the right to create 
 an express business of its own, and to forbid 
 the use of its facilities to all competitors 
 with that department. The express com- 
 pany prayed an injunction to restrain any 
 interference with its business over the rail- 
 road, and a decree that it was entitled to 
 facilities for carriage. Held, that an in- 
 junction should be granted. Railroads are 
 quasi public institutions. It is solely ou 
 the ground that they undertake to provide 
 for important public necessities that their 
 construction has been encouraged by liberal 
 grants of power (especially the power^to 
 condemn lands), and aided by private and 
 public contributions. As quasi public in- 
 strumentalities organized to promote the 
 general good, they are amenable (unless 
 specially exempted) to all just legislative 
 regulations, and to the common-law obli- 
 gations expounded by the courts. Among 
 these is the duty of providing facilities for 
 public transportation adequate to the de- 
 mand in the region the company undertakes 
 
 to serve, and the obligation of dealing im- 
 partially with the various persons needing 
 to use such facilities. A railroad company 
 may not, by assuming to render to the pub- 
 lic the full service of transportation offered 
 by expresses, deny to the latter its facilities, 
 unless upon the condition that the articles 
 in charge of the express shall be wholly 
 surrendered to the servants of the railroad, 
 who shall care for and deliver them, while 
 the peculiar care and responsibility hereto- 
 fore assumed by the express is abandoned. 
 The duties and office of railroads and those 
 of expresses are distinct ; the latter under- 
 take a higher degree of celerity and care 
 peculiarly appropriate to the carriage of 
 bullion, bonds, bank-notes, deeds, and 
 other valuable papers, jewels, and other 
 small articles of great value. Railroads 
 were not created to do an express business, 
 are not suited to such service, do not pos- 
 sess legal capacity to engage in it, cannot 
 be required to undertake and perform it, 
 and ought not to be permitted to engage 
 in it if they would. And, as they are not 
 legally competent to render express facili- 
 ties to the country themselves, they can- 
 not, by excluding the expressmen, deprive 
 the public of expresses altogether. On 
 the contrary, upon the naked obligation 
 which the law imposes on railroad com- 
 panies to carry all customers impartially, 
 they are bound to carry the agents and 
 goods of an express company willing to pay 
 the lawful freight. Qlh Circ. {Tenn.) Dins- 
 more !i. Louisville, &c. Ry. Co., 2 Fed. 
 Reporter, 415. 
 
 Held further, that, upon the ground of 
 estoppel, the injunction prayed might be 
 granted. The express company had organ- 
 ized expensive facilities and gathered a 
 large business upon the faith of using and 
 continuing to use the railroad for trans- 
 portation, under the long-standing con- 
 tracts. Conceding the right of the railroad 
 company to terminate the contracts, yet 
 those contracts were not the origin of the 
 complainant's general right. It was alto- 
 gether proper that the complainant and 
 defendant, in view of the magnitude of 
 theii- business, should, by special contract, 
 stipulate for the facilities to be furnished 
 by the one to the other, and fix the terms 
 and conditions upon which the business 
 should be done ; but no right arising to the 
 complainant fi-om public considerations, or 
 
356 
 
 RAILROAD. 
 
 the charter obligations of the defendant 
 was thereby waived. The contracts were 
 in affirmance of the pre-existing legal rights 
 of the complainant, and involved an admis- 
 sion by the defendant that the business pro- 
 posed was within the scope of its duties 
 and reasonably remunerative. It was in 
 the reliance upon these rights, conferred by 
 law and public considerations, and thus 
 recognized by defendant, that the com- 
 plainant made the investments mentioned, 
 and buUt up and established its said busi- 
 ness, and it would be no less than a fraud 
 upon it for the defendant to exclude it from 
 all further use of its road, rob it of its 
 established extensive and profitable busi- 
 ness, and transfer it to another or appro- 
 priate the business to itself. The express 
 could not claim, by contract or otherwise, 
 any peculiar privileges or reduction of 
 charges. A railroad company is bound to 
 serve all employers impartially. But it 
 could claim to share the general right of 
 the public to use the road on equal terms 
 with others, in the prosecution of its legit- 
 imate business. Ih. 
 
 Every railway corporation, and every 
 corporation organized for the purpose of 
 carrying freights or passengers, which has 
 or may be created or organized under or by 
 virtue of the laws of any State or Territory 
 of the United States, or any act of Con- 
 gress, may hereafter transact any business 
 which such corporation might, if the same 
 had been created or organized under the 
 laws of the State of California, having the 
 same right, privileges, &c., subject to the 
 same penalties, obligations, &c. Cal. Laws 
 1880 (April 3), 114, ch. 65, § 1. 
 
 Railroad corporations doing business in 
 the State of California, and organized under 
 any law of that State or of the United 
 States, or of any State or territory thereof, 
 shall have power to enter into contracts 
 with one another whereby the one may 
 lease of the other the whole or any part of 
 its railroad, or may acquire of the other 
 the right to use, in common with it, the 
 whole or any part of its railroad. Cal. 
 Laws 1880 (April 3), 114, ch. 65, § 2. 
 
 " From and after the completion of any 
 railroad, or the completion of such portion 
 thereof capable of being operated, it shall 
 be the duty of the corporation or individual 
 owning the same to operate it; and upon 
 the failure of said corporation or individual | 
 
 so owning said road to keep the same or 
 any part thereof in f uU operation for the 
 period of six months, its or his right to 
 operate the same in whole or in part, as the 
 case may be, shall be forfeited, and the 
 lands occupied for the purposes of its or hig 
 road, so far as the same shall not be ope- 
 rated, shall revert to the original owners, 
 or their successors in interest. A railroad 
 shall be deemed to be in full operation 
 when one passenger train, or one mixed 
 train , is run over it once each day in each 
 direction, and a sufficient number of freight 
 trains to accommodate the traffic on said 
 road." Cal. Laws 1880 (April 15), 205, 
 ch. 115, § 1. 
 
 " This act shall not be construed to apply 
 to a case where the operation of the road is 
 prevented by the act of God, nor to a case 
 where the operation of said road, together 
 with its branch or trunk lines, does not 
 yield income sufficient to defray the ex- 
 penses of maintaining and operating the 
 same in connection with its said branch or 
 trunk lines." Id. § 2. 
 
 ' ' Any railroad company organized or 
 created by or u^der the laws of any other 
 State, and owning or operating a line or 
 lines of railroad in such State, is hereby 
 authorized to extend and build its road, or 
 any branches thereof, into the State of 
 Iowa, and such railroad company shall have 
 and possess all the powers, franchises, 
 rights, and privileges, and be subject to 
 the same liabilities, of railroad companies 
 organized and incorporated under the laws 
 of this State, including the right to sue and 
 the liability to be sued." Proviso requir- 
 ing the charter or articles of incorporation 
 to be filed. Iowa Laws 1880 (March 25), 
 123, ch. 128. Compare Minn. Laws 1879 
 (March 6), 80, ch. 80. 
 
 Unfinished or disused railroad may be 
 deemed abandoned, in certain cases, and 
 may be completed and operated by anyone 
 else ; or, after eight years' non-user, the land 
 shall revert to the original owner. loma 
 Laws 1880 (March 2), 14, ch. 15. 
 
 In California a similar law decrees for- 
 feiture of railroad after six months' non- 
 user, when lands occupied by same revert 
 to original owner. Cal. Laws 1S80 (April 
 15), 205, ch. 115. 
 
 Recent regulations of corporate man- 
 ageinent. A railroad commission consti- 
 tuted, and appointment, by the governor, of 
 
KAILROAD. 
 
 357 
 
 railroad commissioners, authorized. Their 
 duties prescribed, in examining condition 
 and management of raih'oads in the State. 
 They may subpoena witnesses. Their re- 
 ports. They may require reports from 
 railroad companies. Act of April 19, 1880, 
 1 Ky. Acts 1879, 92, ch. 1019. 
 
 " Whenever the maximum of capital 
 stock mentioned in the certificate of incor- 
 poration of any railroad oi'' railway com- 
 pany on file in the office of the secretary 
 of state shall be insufficient to carry out 
 any plan or agreement of reorganization 
 set forth in such certificate of incorpora- 
 tion," the direction may file an additional 
 certificate and receive authority to issue the 
 requisite capital stock. 1 N. Y. Laws 1880 
 (April 27), 281, ch. 155. 
 
 Inspectors of election at stockholders' 
 meetings of any railroad company must be 
 sworn. Votes by proxy forbidden where 
 the certificates of stock or bonds on which 
 the proxies are founded are not in the pos- 
 session or under the control of the person 
 on whose behalf the vote is to be given, he 
 being still the owner. Selling a vote or 
 issuing a proxy to any person for any money 
 or thing of value, forbidden. Inspectors 
 may interrogate voters under oath as to 
 any violation of the law. False swearing 
 declared perjury; and any other violations 
 punishable by fine and imprisonment. 
 1 N. Y. Laws 1880 (May 29), 720, ch. 
 510. 
 
 An act amending § 31 of the gen- 
 eral railroad law of 1850, — which re- 
 quired the operations of the roads to be 
 reported under five different general 
 classes, subdivided into one hundred 
 heads, — calls for annual reports from all 
 railroad companies, framed in twenty ta- 
 bles designated by the successive letters 
 of the alphabet: Table A, Table B, &c ; the 
 general character of their contents being 
 as follows : Stock and debt, 29 heads and 
 Sub-heads; Cost of road and equipment, 
 13 Beads; Characteristics of road, 27 
 heads; Equipment, 22 heads and sub- 
 heads; Miscellaneous, 8 heads; Doings of 
 the year in transportation, and total miles 
 run, 12 heads; Description of freight 
 moved, 8 heads ; Amounts moved of cer- 
 tain specified articles included in foregoing 
 description, 9 heads ; Direction and des- 
 tination of freight moved, 6 heads; Des- 
 ignation of passengers carried, 2 heads ; 
 
 Average rat6 charged per ton per mile on 
 freight, 7 heads. Average rate charged 
 for passengers per mile, 5 heads ; Expenses 
 of maintaining road and real estate, 12 
 heads; Expenses of repairs of machinery 
 and cars, 6 heads; Expenses of operat- 
 ing the road, 16 heads; Amounts paid for 
 certain specific purposes included in fore- 
 going, 7 heads; Transportation expenses 
 for the year, 4 heads ; Result of the busi- 
 ness of the year, 15 heads and sub-heads; 
 Income or profit and loss account, 4 heads ; 
 Balance sheet at the end of the year, 20 
 heads and sub-heads. 1 N. Y. Laws 1880 
 (June 22), 853, ch. 575. 
 
 Street railways exempted from the gen- 
 eral statutes relative to Sunday. Act of 
 March 5, 1880, 1 Ky. Laws 1879, § 43, ch. 
 370. 
 
 North and South Carolina have forbid- 
 den loading or unloading cars, or running 
 any cars or engines, except such as carry 
 mails, on Sunday. N. C. Laws 1879 
 (March 4), 182, oh. 97; 5. C. Laws 1879, 
 (December 23), 42, No. 66. 
 
 Misconduct affecting railroads. Get- 
 ting on or off, or hanging or swinging upon 
 engine or car, while in motion, &c., made 
 punishable. Act of April 22, 1880, 1 Ky. 
 Laws 1879, 100 ch. 1084. 
 
 " Any person who shall recklessly, wan- 
 tonly, or maliciously throw any stone, stick, 
 club, or other missile, at or into, or shoot at 
 or into any engine of any railroad train in 
 Kentucky, or any car attached thereto, on 
 or in which engine or car there may be any 
 passenger or other person," declared guilty 
 of misdemeanor ; or of felony if the missile 
 was calculated to produce death or great 
 bodily harm, and any person is injured; or 
 of murder, if death ensues within one year. 
 Punishment prescribed. Act of May 4, 
 1880, 1 Ky. Laws 1879, 167, ch. 1388. 
 
 Massachusetts and Ohio have passed laws 
 punishing throwing missiles at trains ; and 
 the Massachusetts statute embraces othei' 
 modes of interfering with the persons in 
 charge. Mass. Laws 1880 (March 17), 71, 
 ch. 110; Ohio Laws 1879 (January 30), 11, 
 ch. 549. 
 
 A statute of Maine prescribes fine or 
 imprisonment for disorderly behavior com- 
 mitted, or indecent or profane language 
 used, on any railroad train, and author- 
 ises conductor to arrest the offender. Me. 
 Laws 1880 (March 16), 221, ch. 222. 
 
358 
 
 RAILROAD. 
 
 Wis. Laws 1880 (February 19), 30, ch. 
 29, is a similar act in more extended lan- 
 guage. 
 
 Subscription. A written agreement to 
 pay money if a certain railroad shall be 
 built and equipped, and running from one 
 point to another, before a certain day, re- 
 quires a finished road adapted to and capa- 
 ble of being used for the purpose of its 
 construction, and not one incomplete and 
 unfit for use. Such road cannot be said to 
 be equipped until it has the necessary 
 engines, cars, and other appliances for 
 its ordinary use, as such roads usually 
 have. The passage of a single train over 
 the road is not running, within the mean- 
 ing of the contract, where the road is 
 in an unfinished state. Therefore, where 
 a written promise was made to pay a rail- 
 road company $100 if its road was built 
 and equipped, and trains running to a given 
 point by a day named, but if not completed 
 on such line within such time, the obliga- 
 tion to be void, the proof showed that the 
 company ran an engine and tender, one 
 passenger coach, and one or two flat cars 
 over the line two days before the time 
 limited, but places on the road were only 
 half tied and regular trains were not run 
 over the same until several months after 
 the time. Held, that no recovery could be 
 had on the obligation. Supreme Ct. 1878, 
 Paris & Danville E. R. Co. v. Henderson, 89 
 III. 86. S. P. Freeman v. Matlock, 67 Ind. 99. 
 
 A statement in an advertisement of rail- 
 road bonds for sale, that "the railroad is 
 in successful operation and earning net 
 more than the interest on all its bonds." 
 Held, to be a representation, not that the 
 road was earning that amount at the exact 
 date of the advertisement or during the 
 time it might appear in the newspaper, but 
 that the road was then on a paying basis 
 and was steadily earning net more than 
 the interest on all its bonds. Ct. of Errors, 
 1877, Blake v. Watson, 45 Conn. 323. 
 
 Mortgages. After-acquired lands, which 
 cannot be regarded as accretions to the road 
 itself, will not pass under a general mort- 
 gage of a railroad, as parcel thereof. 6/A 
 Circ. (Tenn.) 1879, Calhoun v. Paducah & 
 Memphis R. R. Co., 8 Reporter, 395; 9 
 Cent. L. J. 66. 
 
 A railroad company, under authority of 
 its charter, issued bonds and secured them 
 by a mortgage to the treasurer of the State 
 
 as trustee for the bondholders, of "all and 
 singular the railways, rails, bridges, sta- 
 tion-houses, depots, shops, buildings, cars, 
 engines, machinery, materials, and all prop- 
 erty, real or personal, now belonging, or 
 that may at any time hereafter belong, to 
 said company and be used as a part of said 
 railroad or be appurtenant thereto or 
 necessary for the construction or operation 
 thereof, and also 9,11 the rights or franchises 
 of said company, with the tolls, incomes, 
 and profits thereof." The charter author- 
 ized the company to raise money in this 
 manner for the purpose " of providing for 
 the construction, equipment, and mainten- 
 ance of its road. ' ' Held, that the mortgage 
 created a valid lien upon property after- 
 wards procured by the company for the use 
 of the road. And any property was to be 
 regarded as necessary for the operation of 
 the road if it was such as the company, in 
 the reasonable exercise of its discretion, 
 considered it best to procure, for the most 
 profitable use of the road to itself and the 
 most beneficial use of it to the public, even 
 though the road could have been operated 
 without it. Ct. of Errors, 1878, Buck v. 
 Seymour, 46 Conn. 156. 
 
 A railroad company empowered by its 
 charter to issue bonds and secure them by 
 a mortgage of its property to the treasurer 
 of the State in trust for the bondholders, 
 with power on the part of the trustee to 
 take possession of and operate the road in 
 default of payment, made such a mortgage, 
 describing the property mortgaged, as fol- 
 lows: — "All and singular railways, rails, 
 bridges, station-houses, depots, shops, build- 
 ings, tools, cars, engines, equipments, ma- 
 chinery, fuel, materials, privileges, and 
 property, real or personal, belonging or 
 which may hereafter belong to the grantore 
 and be used as a part of said railroad or be 
 appurtenant thereto or necessary for the 
 construction or operation or security there- 
 of ; and also all the rights and franchises 
 of said company, with the tolls, income, 
 issues, and profits thereof." Held, that a 
 quantity of oflice furniture used in one of 
 the offices of the company was covered by 
 the mortgage. Ct. of Errors, 1878, Ray- 
 mond I'. Clark, 46 Conn. 129. 
 
 The rule with regard to the effect of gen- 
 eral words following the specification of 
 particular articles in a conveyance is that, 
 if the object was to convey a limited inter- 
 
RAILROAD. 
 
 359 
 
 est, the general words do not enlarge that 
 interest; but if a general interest, then they 
 operate to include everything that falls 
 within the general words used. This is 
 simply applying the general rule that an 
 instrument shall be constnied according to 
 the intention of the parties as gathered 
 from it. Ih. 
 
 Where a contract between A. and a rail- 
 road company for furnishing it cars provides 
 that they shall be his property until paid 
 for, a pre-existing mortgage by the com- 
 pany of all its then property, or that which 
 it might thereafter acquire, does not sub- 
 ordinate the claim of A. for the price of 
 the cars to the lien of the mortgagees. 
 Supreme Ct. 1878, Fosdick v. Schall, 99 
 U. S. 23.5; Fosdick v. Car Co., Id. 256. 
 
 Acquiring lands. A decision on a peti- 
 tion of the New York Central & Hudson 
 River R. R. Co., to condemn lands in New 
 York city, for depot purposes, indicates the 
 extent of the privilege allowed to railroads 
 by New York laws. Previous landed ac- 
 quisitions of that company in the city have 
 been large. Within this decade it has suc- 
 ceeded, notwithstanding a sharply contested 
 litigation, in enforcing condemnation of an 
 entire block north of the Grand Central de- 
 pot, for terminal facilities, additional to its 
 previous possessions in that vicinity. The 
 present petition sought to make a similar 
 extension to its depot on the Hudson 
 River. Its lands there already comprised 
 the strip between the river and the road- 
 way, from Fifty-ninth to Sixty-fifth streets, 
 and this petition sought to obtain in addi- 
 tion the strip from Sixty-fifth up to Seven- 
 ty-second street. A large portion of the 
 tract thus asked has never yet been re- 
 claimed from the river, but is under water. 
 The dry-land portion, although not yet 
 much improved by buildings, has been laid 
 out in streets and avenues and in house- 
 lots, in the same manner as the up-town 
 territory of the city, generally. There was 
 no claim that this new tract was wanted for 
 roadway purposes ; the petition of the com- 
 pany stated that it was desired for tracks, 
 switches, and sidings, where cars might 
 be loaded and unloaded, stored, received, 
 and despatched; for freight-sheds, engine- 
 houses, and a coal-yard; and for wharves, 
 docks, and piers whereon tracks might be 
 laid, and alongside which vessels might lie 
 to receive and deliver freight. In other 
 
 words, the land was desired solely for an 
 extension of terminal facilities. 
 
 1. An objection urged to the petition 
 was that the streets and avenues of a city 
 cannot be condemned to railroad uses ; and 
 that to allow the company to acquire 
 house-lots, which was all they asked in 
 these proceedings, would be nugatory 
 without a right to the streets. Held, that 
 although the streets of the city of New 
 York cannot be taken by a railroad com- 
 pany, in ordinary proceedings to acquire 
 lands, for the reason that they belong to 
 the city for the benefit of the public at 
 large ; yet consent of the corporation to 
 use of city streets by a railroad may law- 
 fully be granted, and it can make no dif- 
 ference to the owners of lots whether the 
 company condemns the lots first, and after- 
 wards asks a city license to use the streets, 
 or seeks first the city license and proceeds 
 against the city lots in the second place. 
 There is no rule that authority to use 
 streets and avenues within a city tract can- 
 not be conferred on a railroad ; for such a 
 rule would prevent the extension of rail- 
 roads in large cities, and greatly restrict 
 the facilities for transportation of the pro- 
 ducts of the country at large to the great 
 centres of trade and commerce. Therefore 
 a proceeding to condemn the lots may be 
 sustained upon the assumption that the 
 company will, in due season, obtain the 
 requisite leave to use the streets. 
 
 2. The petition (as is obvious) included 
 the entire water-front of the city on the 
 Hudson River from Sixty-fifth to Seventy- 
 second streets ; and one objection to the 
 petition was that a railroad company has 
 no right to be acquiring water-fronts, be- 
 cause navigation by water is not within 
 its corporate purposes or powers. Held, 
 that in building and using piers within a 
 city a railroad company must be subject to 
 the municipal authority, which very prob- 
 ably may regulate the piers owned by a 
 railroad company in the same manner as 
 those of other owners ; but there is no ab- 
 stract rule of law that land under water or 
 a water-front cannot be taken when it be- 
 comes needful to the proper business of a 
 railroad. Such a rule would lead to great 
 embarrassment in the prosecution of rail- 
 road enterprises. Experience in the man- 
 agement of railroads demonstrates clearly 
 that piers, wharves, and docks, at which 
 
6Q0 
 
 RAILROAD. 
 
 ■vessels may lie to deliver and receive 
 freight to and from the cars, are essential 
 in many cases to the usefulness of a rail- 
 road. To hold that the operations of a 
 company must be summarily arrested when 
 they approach a water-front where wharves 
 are required for the accommodation of ves- 
 sels connecting in transportation with the 
 road, would greatly interfere with the 
 accomplishment of the corporate objects. 
 The appropriation of land for wharves to 
 aid the transfer and delivery of freight be- 
 tween railroads and vessels is not an inter- 
 ference with the right of the public to have 
 access to navigable waters for the purposes 
 of trade and commerce, but is in further- 
 ance of it. Even where the water-fronts 
 and the lands under water have been 
 granted to the city corporation for the use 
 of the public, an appropriation of a reason- 
 able portion for the structures of a railroad 
 is not thereby forbidden, for it is en- 
 tirely consistent with the purposes of such 
 a grant. 
 
 3. A chief purpose in obtaining the land 
 ■was, according to the petition, the erection 
 of storehouses for keeping property await- 
 ing transportation or delivery to consign- 
 ees ; and one objection urged was that 
 storing property is not a part of the legiti- 
 mate business of a railroad. Held, that 
 although a railroad company may not be 
 authorized to establish an independent 
 business of warehousing, it must be allowed 
 to establish reasonable places of deposit or 
 storage for property received for transpor- 
 tation until it can be forwarded, and for 
 property arriving over the road until it can 
 conveniently be taken by the consignees. 
 If it cannot have a warehouse for these pur- 
 poses at itst terminus, it must either allow 
 the property to accumulate in the cars and 
 thus obstruct transportation, or must re- 
 move it to some distant place at increased 
 expense to the consignee. A company con- 
 tinues liable, at least as warehouseman, for 
 property transported and remaining un- 
 delivered ; and to provide a proper ware- 
 house for its preservation is fully within 
 its corporate powers and duties. Even if 
 the company has profitable arrangements 
 with grain-elevator companies, produce 
 exchanges, or water-transportation lines, 
 invoWng the receipt and delivery at its ter- 
 minus of large quantities of produce, its ar- 
 rangements for such storage of the produce 
 
 as is required by and is incidental to ite 
 share of the transp^tation may be sus- 
 tained. In short, the only limit to the 
 power to take land is the reasonable neces- 
 sity of the corporation in the discharge of 
 its duties to the public. This necessity in- 
 cludes the acquisition of lands for all de- 
 pots and buildings convenient and proper 
 for storing its cars and locomotives when 
 not in use, and property in its charge for 
 transportation. 
 
 5. At the time ■when the petition was 
 filed, the price of real property in the city 
 was much depressed. The purposes for 
 which the lands were desired were in great 
 pai-t to provide for the prospective increase 
 in the company's business. And the land- 
 owners urged that it was unjust to allow 
 their lands to be taken at the reduced 
 prices then prevailing, for the purpose of 
 enabling the company to provide for its 
 wants in -the future ; especially as any gen- 
 eral revival of prosperity in the country, 
 which would cause any material increase 
 in the volume of the company's business, 
 would be almost certain to improve the 
 valuation in the lands. On a review of 
 the evidence, a majority of the judges were 
 of the opinion that there was an existing 
 necessity for some increase in the com- 
 pany's facilities, and that the plan pro- 
 posed was not more than a reasonable 
 provision for the future ; and they held that 
 if a necessity exists and the company has 
 exercised reasonable discretion in marking 
 out the land which it proposes to take, the 
 question what property may be taken is for 
 the company rather than for the court. 
 But land-owners are not liable to have their 
 lands taken for future uses at the prices 
 ruling in an unusually depressed market. 
 The fact that real estate is at the time very 
 low may properly be taken into account in 
 estimating damages. Ct. of Appeals, 1879, 
 Matter of New York Central, &c. K. E. Co., 
 77 N. Y. 248. 
 
 When necessary to build road under 
 ground or under water, company may enter 
 upon and acquire lands, and may construct 
 masonry foundations, &c. Tunnel to be 
 built so as to make surface of ground to 
 be firm and safe. When consent of own- 
 ers must be obtained. In case owners do 
 not consent, general term of supreme court 
 may appoint commissioners to determine 
 whether road ought to be built, &c. Pi'O- 
 
RAILROAD. 
 
 361 
 
 viso as to connection with other roads in 
 cities and villages. Consolidation with 
 other companies. Liability for damages. 
 Act not to be construed to allow the build- 
 ing of surface elevated roads. 1 N. Y. 
 Laws 1880 (June 25), 872, ch. 582. 
 
 Construction. In an action to recover 
 damages caused to a house and lot by the 
 construction and operation of a railroad in 
 a street in close proximity to the plaintiff's 
 property, the true measure of damages is, 
 the loss sustained by the nuisance ; the in- 
 jury from jarring the building, and the 
 throwing of cinders and smoke upon the 
 plaintiff's premises, and the depreciation 
 of the value of the property by these causes 
 may be considered, but not general depre- 
 ciation in value from other causes, such as 
 mere inconvenience in approaching or leav- 
 ing the pi-operty, or the noise and confu- 
 sion in the vicinity. The injury must be 
 physical. Supreme Ct. 1878, Chicago, Mil- 
 waukee, &c. K. R. Co. V. Hall, 90 III. 42. 
 
 The term " property " — in the constitu- 
 tional provision forbidding taking property 
 for public use without compensation — in- 
 cludes every right and interest in things ; 
 and any injuiy to property which deprives 
 the owner of the ordinary enjoyment of it, 
 should be deemed a taking. The owner of 
 a lot and buildings on a city street has the 
 right to the use and occupation of them 
 free from disturbance by noise, smoke, 
 smells, jar, &c., and if a railroad, — here, 
 one of the New York elevated railroads, — 
 running along the roadway, thus disturbs 
 his enjoyment to a degree amounting to 
 nuisance, he is entitled to damages on the 
 ground that his property is taken. The 
 fact that the legislatm-e and city have 
 authorized the road to be built will ex- 
 empt it from proceedings against it as a 
 public nuisance, but cannot relieve its pro- 
 prietors from the obligation of paying 
 damages for all property taken. And that 
 obligation is not limited to lands corpor- 
 ally occupied by the track, but extends to 
 such as are invaded by the sounds, odors, 
 jar, and other inconveniences resulting 
 from the operation of the road. A court of 
 equity may enjoin until proper proceedings 
 for paking compensation are instituted. 
 N. Y. Superior Ct. 1880, Caro v. Metro- 
 politan Elevated Ry. Co., 19 Am. L. Reg., 
 N. s., 376. 
 
 A railroad was authorized by its charter 
 
 to construct its road to any given point in 
 the town of Warren. It constructed its 
 road on a public strfeet, immediately in 
 front of plaintiff's premises, who brought 
 suit to recover damages for the inconve- 
 nience and annoyance occasioned thereby. 
 Held, — 
 
 1. That the discretion of the directors of 
 the company in selecting the route of the 
 road could not be inquired into by the 
 court. 
 
 2. In the absence of any express provi- 
 sion therefor in the charter, the company 
 was not liable in damages for the annoy- 
 ance to a, property-owner fronting on a 
 public street so taken, caused by the pas- 
 sage of trains, the cinders and smoke, and 
 the hindrance to the passage of carriages. 
 Supreme Ct. 1878, Struthers v. Dunkuk, 
 &c. Ry. Co., 87 Pa. St. 282. 
 
 A railroad company is bound to use or- 
 dinary care in supplying a proper road-bed 
 and track of a railroad, and in keeping 
 that road-bed and track in repair. It can- 
 not escape the consequences of the negli- 
 gence of its agents whom it has charged 
 with the duty of that nature ; and this is 
 so, whether the injury complained of as 
 resulting from a defective road-bed is in- 
 iiicted on" a fellow-servant of the corpor- 
 ation or another. Supreme Ct. 1878. 
 Houston, &o. R. R. Co. v. Dunham, 49 
 Tex. 181. 
 
 A railroad company is not liable for 
 damages resulting from negligent manage- 
 ment of one of its trains used and con- 
 trolled by construction contractors, for 
 construction purposes, on a portion of its 
 road built under the construction contract, 
 and not yet turned over to the railroad 
 company. Supreme Ct. 1879, Cunningham 
 V. International R. R. Co., 51 Tex. 503. 
 
 The station and grounds. The wait- 
 ing-rooms of a railway station are for the 
 use of incoming and outgoing passengers, 
 and, while one not entering there as a pas- 
 senger, or on business with the company, is 
 not a trespasser, yet, upon a request by an 
 agent of the company to leave, it is his 
 duty to do so, and upon his refusal, it is 
 the right of the agent to eject him, using 
 no more force than is reasonably necessary. 
 Supreme Ct. 1879, Johnson v. C, R. L, & 
 P. R. Co., 41 loiva, 25. 
 
 A railway turn-table was situated in 
 open prairie near a populous city, where 
 
362 
 
 RAILROAD. 
 
 persons frequently passed, and whither 
 children often went to play ; yet it was not 
 fastened, watched,' or guarded, or even 
 fenced. A lad of about twelve, a native of 
 Ireland, and unconversant with railroad 
 machinery, was sent one day to search for 
 his father's cow. He found her near the 
 turn-table. Other boys of about the same 
 age were present. They became engaged 
 in play on and about the turn-table, and 
 the plaintiff was severely injured. Held., 
 that the company owning the road — which 
 was one the construction of which had 
 been suspended for several years — was 
 negligent in leaving the table in the condi- 
 tion shown ; and that the boy injured was 
 not barred from an action for damages by 
 the doctrine of contributive negligence. 
 Supreme Ct. 1879, Kansas Central Ry. Co. 
 V. Fitzsimmons, 22 Kan. 686. 
 
 A railroad corporation is not liable for 
 running over a child who is using the track 
 of the coi-poration as a play-ground, if the 
 act is not done maliciously or with gross 
 and reckless carelessness. Supreme Ct. 
 1879, Morrissey v. Eastern R. R. Co., 126 
 Mass. 377. 
 
 A railroad company is bound to keep its 
 platforms free from dangerous snow and 
 ice ; it is not a defence that they appointed 
 servants to do it, and that the slippery 
 spot was the servants' fault. Ct. of Ap- 
 peals, 1878, Weston v. New York Elevated 
 R. R. Co., 73 N. Y. 595. 
 
 The act of April 4, 1868, — providing 
 that when any person shall sustain per- 
 sonal injury or loss of life, while lawfully 
 engaged or employed on or about the roads, 
 works, depots, and premises of a railroad 
 company, his right of action against such 
 company shall be such only as belongs to 
 an employee in like cases, — applies to one 
 who was injui-ed while unloading his own 
 goods from the cai's of the company, per- 
 mission to do which had been granted by 
 an agent of the company. Supreme Ct. 
 1879, Ricard i'. North Pennsylvania R. R. 
 Co., 89 Pa. Si. 193. 
 
 Employees, generally. In an action 
 against a railroad company, to recover the 
 penalty for neglecting to stop its train be- 
 fore crossing another railroad on the same 
 level, there is no error in not allowing the 
 defendant to prove that the company had 
 rules requii'ing the engine-driver to comply 
 with the law in stopping at all railroad 
 
 crossings, and that the rules were in his 
 hands, and this constitutes no defence. A 
 railroad company must see that its servants 
 obey the law, and is liable for neglect to do 
 so. Supreme Ct. 1879, Indianapoli's & St. 
 Louis R. R. Co. V. People, 91 III. 452. 
 
 Orders of one subordinate do not justify 
 another, though acting under him, in vio- 
 lating rules of the company which are ad- 
 dressed to both. Two trains came into 
 collision upon the Georgia Railroad, and 
 the engineer of one had his arm broken. 
 In a suit brought by him for damages, the 
 answer was that he had brought the injury 
 upon himself by running his train in vio- 
 lation of the time-table, having started 
 from a previous station fifteen minutes 
 after the time prescribed by positive print- 
 ed rules. He admitted that he had, but 
 said it was done by orders of the conductor. 
 Held, that the schedule and rules, as pro- 
 mulgated, were obligatory on both engineer 
 and conductor alike. The engineer could 
 not plead the conductor's orders as a justi- 
 fication for violating the printed orders of 
 the common superior. There must be, on 
 the part of enginemen and conductors, ab- 
 solute and invariable compliance with the 
 schedules prescribed to them. Nothing is 
 more important. In no other way can 
 there be security to passengers and em- 
 ployees, or to the trains as property. Any 
 other mode of running means wreck and 
 death. Supreme Ct. 1877, Georgia K. R., 
 &c. Co. V. McDade, 59 Ga. 73. 
 
 An act of Connecticut, directing the ex- 
 amination of railroad employees in regard 
 to color-blindness, provides that the State 
 board of health shall prepare rules and 
 regulations for the examination and re- 
 examination of raih-oad employees in re- 
 gard to color-blindness and visual power, 
 and that every railroad company and trus- 
 tee operating any railroad in the State 
 shall cause every person in their employ 
 as locomotive engineer or fireman, train 
 conductor or brakeman, station agent, 
 switchman, flagman, gate- tender, or signal- 
 man, to be examined at the expense of the 
 railroad company, and shall cause re-exam- 
 inations to be made in accordance with the 
 the rules prescribed by the board of health. 
 Conn. Laws 1880 (March 25), 31, ch. 95. 
 
 Strikes, &c. " If any locomotive en- 
 gineer, in furtherance of any combination 
 or agreement, shall wilfuUy and mali- 
 
RAILROAD. 
 
 363 
 
 ciously abandon his locomotive, upon any 
 railroad, at any other point than the regu- 
 lar schedule destination of such locomo- 
 tiye," he shall be punishable by flue and 
 imprisonment. Kan. Laws 1879 (March 
 11), 254, ch. 134, § 1. 
 
 Persons who "wilfully and maliciously, 
 by any act or by means of intimidation, 
 impede or obstruct, except by due process 
 of law, the regular operation and conduct 
 of the business of any railroad company or 
 other corporation, firm, or individual in 
 this State, or of the regular running of 
 any locomotive engine, freight, or passen- 
 ger train of any such company, or the 
 labor and business of any such corpora- 
 tion, firm, or individual," shall be punish- 
 able by fine and imprisonment. Id. § 2. 
 
 Combining or conspiring to obstruct or 
 impede, &c., as above, declared punishable 
 by fine and imprisonment, /rf, § 3. 
 
 Exception of persons voluntarily quitting 
 employment. Id. § 4. 
 
 A Maine statute prescribes fine and im- 
 prisonment for combinations to stop or 
 delay trains, or injure property of rail- 
 roads ; or malicious obstruction of any en- 
 gine, railway-carriage, or abandonment of 
 same on railway, &c. ; or gross carelessness 
 and neglect in management and control of 
 railroads; or the use of violence or intimi- 
 dation in furtherance of any combination 
 to injure the service of any gas, telegraph, 
 or railroad corporation ; or refusal of em- 
 ployees of corporations to perform duty. 
 How punished. Me. Law.i, 1880 (March 9), 
 201, ch. 200. 
 
 Agent. To impute the negligence of an 
 agent to the master, he must be something 
 more than a mere foreman over other 
 hands; he must have the entire manage- 
 ment of the business, clothed in that re- 
 spect with the authority of the master, to 
 whom the laborers are put in subordination , 
 and to whom they owe the duty of obedi- 
 ence. Supreme Ct. 1879, Dobbin v. Rich- 
 mond, &c. R. R. Co., 81 N. C. 446. 
 
 An agent of a railroad company went 
 before a justice and swore to a complaint 
 that Miller had committed a burglai'y, and, 
 upon this. Miller was arrested. Apparently, 
 though the report does not explicitly say so, 
 the burglary was charged to have been upon 
 the company's buildings. However that 
 may have been, the complaint, on inquiry, 
 was found to be false and malicious, and was 
 
 I dismissed for that reason. Miller then 
 sued, not the agent as an individual, but 
 the company, for damages for the arrest. 
 Held, that the company could not be 
 charged. A corporation is liable the same 
 as a natural person for the tortious acts of 
 its servants or agents in the com'se of their 
 employment. But to make the corporation 
 liable for the wrongful acts of employees, 
 though done in obedience to the commands 
 of its officers, the act must be connected 
 with the transaction of the business for 
 which the company was incorporated. 
 The officers' powers are limited within the 
 scope of the purposes of the corporation. 
 When an injury is committed by an em- 
 ployee of a corporation wilfully and of his 
 own malice, and not in the course of his 
 employment, the corporation is not bound 
 by his acts. It is not in the general line of 
 duty of an agent of a railroad corporation, 
 as such, to make complaints of commission 
 of crimes; and if it is so in a particular 
 case, that must be specially shown, to war- 
 rant charging the company with damages 
 if the agent makes a false complaint. Su- 
 preme Ct. 1879. Miller v. Burlington & Mis- 
 souri R. R. Co., 8 Neh. 219. 
 
 Neither ticket-agent nor conductor has 
 implied power to bind the company by a 
 special engagement with a passenger hold- 
 ing a through ticket that the train shall 
 stop for him at a station not appointed by 
 the regulations of the company as one of 
 the stopping-places of the train the pas- 
 senger has taken. Supreme Ct. 1877, Ohio 
 & Mississippi Ry. Co. v. Hatton, 60 Ind. 
 12; Pittsburgh, &c. Ry. Co. v. Nuzum, Id. 
 533. 
 
 Conductor. The conductors of all rail- 
 road trains, and captain or master of any 
 steamboat carrying passengers, within the 
 jurisdiction of the State of Illinois, invested 
 with police powers while on duty on their 
 respective trains and boats. 111. Laws 1879, 
 (May 14), 223. 
 
 An act for " the better protection of the 
 travelling public " authorizes the governor 
 to appoint conductors or brakeraen on steam 
 railroads as policemen; and authorizes who- 
 ever may be so appointed to arrest, for 
 criminal prosecution, "any or all persons 
 whom they may find engaged in, or endeav- 
 oring to entice others to engage in, any 
 game of cards or any other game of chance 
 whatever, in which money or any repre- 
 
36i 
 
 RAILROAD. 
 
 sentative of money, or any other valuable 
 thing is to be lost or won." Neglect to 
 make such arrests punishable by fine or 
 imprisonment. The law must be posted in 
 eveiy steam railroad car. 1 N. Y. Laws 
 1880(May8),112, ch. 23. 
 
 Carriage of merchandise. Michigan 
 and Nevada have passed general laws for- 
 bidding railroad companies to discriminate, 
 in their freight charges, among their em- 
 ployers. Mich. Laws 1879 (May 21), 188, 
 No. 207; Neo. Laws 1879, 28, ch. 19. 
 
 An act in relation to freight charges on 
 railroads provides that no railroad owned 
 or operated in the State of New Hamp- 
 shire shall charge a higher tariff on like 
 classes of freight by the car-load, when de- 
 livered at any station on its line, than is 
 charged to deliver the same at any station 
 on the road when the transportation is for a 
 greater distance. N. H. Laws 1879 (July 
 19j, 366, ch. 55. 
 
 An act of South Carolina, to provide for 
 the furnishing by railroads of an itemized 
 Statement, to consignees, of freight-charges, 
 and requiring them to settle according to 
 the bill of lading, requires raih'oad com- 
 panies receiving articles shipped to any 
 point within South Carolina to give, on 
 demand by the consignee and before the 
 payment of any charges upon the same, a 
 full and correct statement of said charges 
 showing the total amount to be paid by 
 said consignees or consignee, together with 
 the proportion of the same to be paid to 
 each road over which, or any part of which, 
 said freight may have passed, whether such 
 road be beyond the limits of the State or 
 not. S. C. Laws 1879, (December 23), 24, 
 No. 40, § 1. 
 
 " In all cases the railroad company de- 
 livering freights to consignee shall be 
 required to settle their freight-charges ac- 
 cording to the contract as set forth in the 
 bill of lading from the shipping point, and 
 they are hereby forbidden to retain the 
 article of freight after the consignee offers 
 and is ready and willing to comply with the 
 terms of said bill of lading." Id. § 4. 
 
 A railroad company's liability does not ter- 
 minate with the deposit of the goods at their 
 destination, or with the delivery of them to 
 a warehouseman, but continues for a time 
 reasonably sufficient to enable a diligent 
 consignee to examine and receive the goods. 
 " Reasonable time " is such as would en- 
 
 able one residing in the vicinity of the 
 place of delivery, and who was informed of 
 the probable time of the arrival of the 
 goods and of the course of the carrier's 
 business, to inspect and remove the goods 
 during business hours. When such time has 
 elapsed, the carrier's liability becomes that 
 of a warehouseman. It is not discharged 
 by delivering the goods to a third person to 
 keep before the reasonable time has passed. 
 St. Louis Ct. of Appeals, 1878, Bell v. St. 
 Louis, &c. R. R. Co., 6 Mo. App. 363. 
 
 A cai-riage was shipped on defendants' 
 railroad. The bill of lading given to plain- 
 tifi provided that, except when the agents 
 of defendants were guilty of gross negli- 
 gence, they were not to be responsible for 
 any of the damages of railroad or of 
 fire. The carriage reached its destina- 
 tion much injured by fire. On inquiiy 
 by the plaintiff as to the occasion of 
 the fire and where it occurred, the de- 
 fendants refused to give him any infor- 
 mation in regard thereto. In an action by 
 plaintiff for damages, — fleW, that, by the 
 refusal of the defendants to give any ac- 
 count of the cause of the injury, a pre^ 
 sumption of negligence arises which they 
 must rebut, and this presumption is not, 
 ipso facto, repelled by evidence that de- 
 fendants exercised ordinary care, but the 
 court properly left it to the jury to deter- 
 mine whether the defendants had been 
 guilty of negligence or not. Supreme Ct. 
 
 1878, Pennsylvania R. R. Co. v. Miller, 87 
 Pa. St. 395. 
 
 The acceptance by the shipper, on the 
 day of shipment, of a bill of lading for his 
 goods containing valid stipulations against 
 liabilities for loss, and retaining it without 
 objection, raises a presumption, in the 
 absence of anything to the contrary, that 
 the shipper knew the contents of the re- 
 ceipt and assented to its terms. But such 
 exemptions by contract merely reduce the 
 responsibilities of a common carrier with- 
 out changing his character. Supreme Ct. 
 
 1879, Dillard v. L. & N. R. R. Co., 2 Lea 
 (Tenn.), 288. 
 
 It is not a defence to a railroad company 
 sued for loss of goods entrusted to it, to 
 show that they were destroyed by a mob 
 growing out of and acting in aid of a strike 
 among its employees for higher wages. 
 Such mob is not a public enemy; that term 
 means a government at war with ours. 
 
RAILROAD. 
 
 Robbers, rioters, or insurreotionists, how- 
 ever numerous or powerful, are not in- 
 cluded. Jnd. Supreme Ct. Pittsburgh, &c. 
 Ry. Co. V. Hallowell, 19 Am. L. Reg. n. s. 
 118; M Circ. (Pa.) Hall v. Pennsylvania 
 R. R. Co., Id. 250. 
 
 — of live-stock. A railroad company, 
 as a common carrier, is bound to receive 
 and transport cattle when they are first 
 offered for shipment, unless it has a reason- 
 able excuse for its refusal; and when such 
 refusal is without such excuse, it will be 
 liable in damages to the owner for the de- 
 terioration in the value of the .cattle between 
 the time when they were first ofiered for 
 shipment and the time when they were re- 
 ceived and shipped. An unconstitutional 
 law, prohibiting railway companies from 
 carrying Texas or Cherokee cattle into or 
 'through the State, being void, will afford 
 no excuse for a refusal or delay in receiving 
 and shipping such cattle when offered. 
 Such a statute cannot be regarded as im- 
 posing obligations or as affording protec- 
 tion. Supreme Ct. 1879, Chicago & Alton 
 R. R. Co. V. Erickson, 91 III. 613. 
 
 In an action against a railroad company 
 for refusal of the agents in charge of a train 
 to delay it for the purpose of taking on 
 board a drove of hogs, it appeared that the 
 hogs were at a way station awaiting a train 
 to take them ; they had not, however, been 
 delivered to the company's agent, but were 
 in a private stock-yard and in charge of an 
 agent of the owner. The owner arrived 
 by the very train in which he expected to 
 send them forward, and desired that the 
 train should be detained until they could 
 be taken on board. It was under these 
 circumstances that the refusal to wait oc- 
 curred. Held, it was justifiable; the con- 
 ductor was not bound to wait, and the 
 company was not chargeable with any loss 
 through the delay in keeping the drove over. 
 If a train may be stopped at way stations 
 along its journey at the demand of any 
 person wishing to put droves of beasts on 
 board, there will be no knowing when it 
 might' reach its destination; the owner 
 should have made arrangements before- 
 hand to have the animals loaded in a car 
 and ready for the start. Supreme Ct. 1878, 
 Frazier v. Cooper, 48 Inwa, 571. 
 
 At New Creek, W. Va., thirty-six head 
 of fat cattle, in good condition, were en- 
 trusted to the Baltimore and Ohio Kail- 
 
 road Company for transportation to Balti- 
 more, to be there sold in market. During 
 the journey they suffered greatly from heat ; 
 two died, and the others were seriously in- 
 jured. Their owner sued for damages, 
 framing his suit in a way to recover on 
 either of two grounds: (1) If the court 
 should decide that a railway company is 
 an insurer of live-stock against hot weather, 
 and hence liable irrespective of neglect; or 
 (2) If plaintiff should be able to prove 
 special charges of neglect and misconduct 
 of the train-men, in omitting to water the 
 beasts at proper times. The company 
 seems not to have seriously disputed that 
 the train-men were somewhat in fault, but 
 contended that the shipper had agreed by 
 the railroad receipt to bear any risk of in- 
 juries by negligence of agents. Held : 
 
 1. Railroad companies are common car- 
 riers, equally whether live-stock or dead 
 merchandise is in question. They hold 
 themselves out as carriers of all sorts of 
 property, including cattle. But the com- 
 mon-law liability of a carrier was always 
 understood to be subject to an implied ex- 
 ception of losses arising from the inherent 
 nature of the thing. If milk is sent by 
 cars and it 'sours on the way; or cider, and 
 it turns to vinegar and spoils ; if barrels 
 leak, or boxes are insufficient to protect 
 their contents ; fruit rots, or flowers wilt, — 
 the loss does not devolve on the carrier, 
 because it is attributable to the inherent 
 qualities of the article. And this principle 
 is fully applicable to animals. If the loss, 
 arises from their vitality, as where vicious 
 and unruly animals injure or destroy them- 
 selves or each other, or starve themselves 
 by refusing food, or die of fright or heat, 
 the company is not liable, provided its em- 
 ployees have used foresight, diligence, and 
 care to avoid such damage. It does not 
 matter whether the injury comes from the 
 susceptibility of the creature as a live or- 
 ganization to injurious influences, or from 
 its viciousness, or its unruly temper; in 
 either case the company is not chargeable, 
 if proper care has been taken. 
 
 2. The duty of taking proper care cannot 
 [overruling 1 W. Va. 87] be thrown off 
 by an agreement that the owner of the herd 
 shall bear that risk. It would be unrea- 
 sonable and against public policy for a 
 carrier to be allowed to take a contract 
 exempting him from the consequences of 
 
366 
 
 RAILROAD. 
 
 his own negligence, or, what is the same 
 thing, for a railroad company to stipulate 
 not to be responsible for neglect of duty by 
 its employees. If the owner of live-stock 
 can prove that prudent feeding, watering, 
 rest, and shelter for his animals was 
 neglected on the trip, he can (in West 
 Virginia) hold the company, notwithstand- 
 ing the receipt which he holds may declare 
 to the contrary. Cl. of Appeals, 1878, 
 Maslin ». B. & O. R. R. Co., 14 W. Va. 
 180. 
 
 Passengers. A railway company has 
 the right to make reasonable regulations 
 for conducting its business; and parties 
 dealing with it must conform to such regu- 
 lations. A regulation that fi-eight and 
 passengers will be carried on its road in 
 separate trains is reasonable, and even 
 highly salutary for the public as well as 
 the company. When a railroad company 
 makes other suitable provision for passen- 
 ger travel, no one has the right to demand 
 that he shall be allowed to ride in its freight 
 trains; and if a person, in violation of such 
 regulation, and without consent of the com- 
 pany, forces himself into one of its freight 
 trains the company is not responsible to 
 him in its character as a carrier' of passen- 
 gers. Supreme Ct. 1878, Railway Co. v. 
 Moore, 49 Tex. 31. 
 
 Their tickets. The agent of a railroad 
 company for the sale of tickets is in duty 
 bound to exercise reasonable care in de- 
 livering a ticket to a purchaser. If the 
 purchaser, after applying for his ticket and 
 putting down money to pay for it, is called 
 away, it would be no delivery to put the 
 ticket on the counter in his absence if it 
 did not in fact come to his possession. 
 9th Circ. {Nev.) 1878, Quigley v. Central 
 Pacific R. R. Co., 5 Sawyer, 107. 
 
 Authority of a railroad company to re- 
 quire passengers to buy distinct tickets for 
 separate trains is conditioned on their main- 
 taining reasonable arrangements for selling 
 tickets immediately before such train's de- 
 parture. A company prescribed rules that 
 passengers might ride on freight trains if 
 they purchased tickets before entering the 
 cars, but not otherwise; the conductor was 
 not allowed to take fares in money ; also that 
 the ticket-office at T. should be kept open 
 a half-hour before the starting of the regu- 
 lar passenger train ; it was not open before 
 the starting of freight trains. A passenger 
 
 taking a freight train at T. sought to buy 
 a ticket before starting, but could not, be- 
 cause the office was closed. He explained 
 the facts to the conductor, and offered to 
 pay fare in money. The conductor re- 
 fused this, in obedience to the company's 
 rule, and expelled the passenger, who sued 
 for damages. Held, that he was entitled 
 to recover. The power of a railroad com- 
 pany to prescribe regulations is limited to 
 such as are reasonable. A rule that pas- 
 sengers on freight trains must buy tickets 
 in advance is reasonable and valid if con- 
 venient facilities for buying tickets are pro- 
 vided; but not if they are denied. To 
 sustain such a rule the ticket-office must be 
 open, or other equivalent opportunity to buy 
 provided, for a convenient time before the 
 departure of the train which the passenger , 
 proposes to take. A regulation which re- 
 quires purchase of tickets for all trains, 
 yet opens the ticket-office only just before 
 passenger trains start, misleads the public 
 and is unreasonable, for it obliges an in- 
 tending passenger per freight train to come 
 in advance of his journey for purchasing a 
 ticket, or else to wait for hours until the 
 office is opened. If tickets are not on sale 
 at a station for a convenient time before de- 
 parture of any particular train, passengers 
 who are thereby prevented from buying 
 tickets establish a right to ride by tender- 
 ing fare in money. Supreme Ct. 1876, 
 Evans v. Memphis & Charleston R. R. Co., 
 mAla. 246. 
 
 The words " good on passenger trains 
 only," contained on a ticket issued and sold 
 by a railroad company to a passenger, do 
 not amount to an agreement that all of its 
 passenger trains will stop at the stations 
 designated on the ticket. A complaint in 
 an action for being carried past the destin- 
 ation named on such ticket should aver 
 that the train on which the plaintiff was 
 so carried was one which, under the regu- 
 lations of the company, should have stopped 
 at that station. Supreme Ct. 1879, Ohio, 
 &c. Ry. Co. V. Swarthout, 67 Ind. 567. 
 
 The purchase of a ticket constitutes a 
 contract between the company and the pas- 
 senger, in accordance with which the former 
 undertakes to carry the latter to his destin- 
 ation on the particular train he takes, and 
 no other, unless he is permitted by some 
 regulation of the company, upon compliance 
 with some condition, to stop over at an in- 
 
RAILROAD. 
 
 867 
 
 tervening station and resume his journey 
 by another train. The contract for the 
 transportation of the passenger is an en- 
 tirety, and if without the consent of the com- 
 pany he stops before reaching his destina- 
 tion, he cannot again impose the obligation 
 of the contract upon the company by in- 
 sisting that he shall be carried the remain- 
 der of the journey. If he does so and 
 refuses to pay his fare, he becomes a tres- 
 passer, not entitled to the rights and privi- 
 leges of the passenger, and may be right- 
 fully ejected from the train by an employee 
 of the company. Testimony that the plain- 
 tiif had been permitted at other times to 
 stop over at intervening stations and ride 
 upon subsequent trains with the same ticket 
 and without stop-over checks, was held in- 
 admissible. Supreme Ct. 1877, Stone v. C. 
 & N. W. R. Co., 47 Iowa, 82. 
 
 A railroad company had employed a band 
 to attend an excursion on their road, for a 
 fixed sum of money and a ticket for a lady 
 for each member. The prepared tickets for 
 ladies contained the following words only : 
 "Maine Central R. R., July 30, 1877, 
 Dexter," — which form was different from 
 common tickets. In an action by a brother 
 of a member of the band for refusing to 
 carry him on such a ticket, — Held, that the 
 ticket did not on its face entitle him to a 
 passage. Supreme Cl. 1879, Crosby v. 
 Maine Central R. R. Co., 69 Me. 418. 
 
 ' ' All railroad and sleeping-car companies 
 running or operating sleepers or sleeping- 
 cars within this State, upon railroads ter- 
 minating therein, shall establish, maintain, 
 and keep open to the public at such ter- 
 mini, ticket-offices at accessible and con- 
 venient places, in which they shall keep a 
 diagram of the berths and staterooms in 
 such sleepers or sleeping-cars, and shall 
 at all times during the daytime keep such 
 offices open for the sale of tickets for such 
 berths and staterooms." Iowa Laivs 1880 
 (March 26), 165, ch. 169, §1. 
 
 Any neglect shall be deemed a misde- 
 meanor, and be punishable by fine or im- 
 prisonment. 7c?. § 2. 
 
 Their baggag'e. A raih-oad company 
 is responsible for an article of personal 
 baggage, kept by a passenger exclusively 
 within his own control, which is lost 
 through the negligence of the corporation 
 or its servants, and without fault on the 
 part of the passenger. Supreme Ct. 1878, 
 
 Kinsley v. Lake Shore, &c. R. R. Co., 125 
 Mass. 54. 
 
 But this liability does not exceed in 
 amount the value which the passenger is 
 entitled to carry as baggage. Ct. of Ap- 
 peals, 1878, Weeks v. New York, New 
 Haven, &c. R. R. Co., 72 N. Y. 50. See 
 Carrier, p. 73. 
 
 If a passenger delivers to a railroad com- 
 pany a trunk containing samples of mer- 
 chandise belonging to a third person, whose 
 agent he is, to be transported to a place to 
 which he has a ticket, the only contract 
 entered into is for the transportation of the 
 personal baggage of the agent. The com- 
 pany is not liable in contract to the owner 
 of the trunk for its loss ; nor in tort, ex- 
 cept for gross negligence; evidence that a 
 large part of the defendant's business con- 
 sists 111 transporting passengers known as 
 commercial travellers with trunks like the 
 one lost, containing merchandise; that such 
 trunks are known as sample trunks and are 
 of special construction ; and that such travel- 
 lers buy tickets for ordinary passenger trains 
 and receive checks for their trunks, and are 
 transported for the price of the tickets, — is 
 immaterial. Supreme Cl. 1879, Ailing ;;. 
 Boston & Albany R. R. Co., 126 Mass. 121. 
 
 Evidence that a passenger delivered to 
 the baggage-master of a railroad corpora- 
 tion a package of merchandise, and received 
 a check for it, on showing his passenger 
 ticket, that the baggage-master knew it 
 was merchandise, and that other passen- 
 gers had similar packages, will not warrant 
 a jury in finding that the corporation 
 agreed to transport the merchandise, or 
 became liable for it as a common carrier, 
 in the absence of an agreement that it 
 should be carried as freight, or that the 
 baggage-master had authority to receive 
 freight to be carried on a passenger train, 
 or to bind the corporation to carry mer- 
 chandise as personal baggage. Supreme 
 Ct. 1879, Blumantle v. Fitchburg R. R. 
 Co., 127 Mass. 322. 
 
 Plaintifi bought a ticket of the Grand 
 Trunk Railway Co. at Montreal, from that 
 city to Troy or Albany, thence by steam- 
 boat on the Hudson River to New York. 
 His baggage was checked to go by the 
 same route, but the railroad agent at Troy 
 delivered it to defendant, who received 
 and transported it over its road to New 
 York. It was placed in its baggage-room. 
 
RAILROAD. 
 
 Three days thereafter, and as soon as the 
 plaintiff had reason to believe that his 
 baggage had been carried by defendant, he 
 demanded it. A portmanteau could not be 
 found. In an action to recover for the 
 loss, held, that the delivery of the baggage 
 to defendant was the wrongful act of the 
 railroad agent at Troy, who was not plain- 
 tiff's agent in any sense that would enable 
 him to bind the plaintiff by his acts; that 
 the defendant at least incurred the liability 
 of a warehouseman, and was bound to ex- 
 ercise ordinary care, to account for the bag- 
 gage in some way when the demand was 
 made, and to show that it had disappeared 
 without its fault. Cl. of Appeals, 1878, 
 Fairfax i'. New York Central, &c. R. R. 
 Co., 73 N. Y. 167. 
 
 Ejections. Where there is no statute 
 requiring the ejection of a person refusing 
 to pay his fare at a station, the right to 
 eject is not limited to points not remote 
 from stations. In exercising the right of 
 ejection, reasonable and ordinary care should 
 be employed. In determining whether 
 such care has been exercised, all the cir- 
 cumstances should be considered, as the 
 physical condition of' the person ejected ; 
 the time, whether daylight or late at night; 
 the condition of the country, whether 
 thickly or sparsely settled; the place of 
 ejection, whether near to or remote from 
 dwellings of any character, including sta- 
 tions ; the character of the weather, whether 
 pleasant or inclement, &c. , &c. The rules 
 of law, as well as the dictates of humanity, 
 require that the ejection shall occur at such 
 place and be conducted in such manner as 
 not unreasonably to expose the party to 
 danger. But, as a rule of law, a railroad 
 company cannot be held liable simply for 
 ejecting a recusant passenger at a point 
 remote from a station, if in other respects 
 he is not subject to uni-easonable danger. 
 Supreme. Cl. 1879, Brown v. C. E. & P. R. 
 Co., 51 Iowa, 235. S. P. Toledo, &c. R. R. 
 V. Wright, 19 Am. L. Reg. N. s. 513. 
 
 Valleley took the cars at about dusk, 
 after having been riding about among 
 saloons during the afternoon, and drinking 
 until he became, as the witnesses described 
 him, "not very drunk, but ugly, fighting 
 drunk." He behaved in such a foolhardy, 
 reckless manner, by leaning off from the 
 platform, that a brakeman interfered to 
 pull him back for his own safety ; and this 
 
 brought on a fight with the brakeman, to 
 the alarm and annoyance of the other pas- 
 sengers. They demanded of the conductor 
 that the fellow should be put off; and this 
 was done without his sustaining an injury. 
 But he staggered along the track and was 
 run over and killed during the night by 
 another train. His mother sued for dam- 
 ages. The case was twice tried. On the 
 first trial the counsel contended that the 
 man was but little intoxicated, so very 
 little that the conductor had no right to 
 put him off; but the jury thought other- 
 wise. On the second trial they contended 
 that he was so very drunk as to be unable 
 to take care of himself, and for that reason 
 could not be expelled. Held, that when a 
 man is so intoxicated as to be without 
 reason, sense, or intelligence, it would be. 
 unlawful, as it would be inhuman, to ex- 
 pel him from cars at night, when he would 
 be most likely to lie down upon the rails 
 and go to sleep; or to put him ofi in bitter 
 cold weather at a spot far from any house, 
 under a probability that he would freeze to 
 death ; or to leave him upon a high bridge 
 or the brink of a precipice, where his first 
 step would be destruction. The authority 
 of the conductor is not absolute, but must 
 be exercised reasonably under the circum- 
 stances. He must use his best judgment 
 and discretion ; and if he acts not wantonly, 
 not abusively, but with that prudence 
 which the case demands, the company can- 
 not be made responsible. But in this case 
 the evidence indicated that Valleley was not 
 so drunk as to be bereft of intelligence ; on 
 the contrary he was excited, rendered 
 vicious and quarrelsome by the liquor, 
 rather than stupefied. He was not help- 
 less, but furious; flourishing a knife and 
 threatening to shoot. To put him off the 
 train was not only the right but the duty 
 of the conductor. The place selected must 
 not be one involving special danger; but if 
 he afterwards wandered to another spot, 
 where he was injured by another train, that 
 was not the fault of the conductor. Su- 
 preme Ct. Commission, 1877, Railroad Co. 
 V. Valleley, 32 Ohio St. 345. 
 
 Drawing-room or sleeping cars. A 
 passenger purchased of the Pullman Palace 
 Car Co., a corporation engaged in furnish- 
 ing sleeping-cars for the use of psvssengersi 
 over a certain continuous line of railroadsj 
 a ticket purporting to entitle him to ao- 
 
RAILROAD. 
 
 369 
 
 commodations between certain stations, in 
 a certain sleeping-car, and in a berth to be 
 designated on the ticket, by the conductor 
 of such car, in the manner directed by the 
 ticket. Upon entering the car at the start- 
 ing point, a berth was assigned to him, 
 and designated on the ticket, in the man- 
 ner provided by it, by the conductor, but, 
 before arriving at his destination, such car 
 was removed from the train by the defend- 
 ant, and a different berth in a different 
 sleeping-car was offered to him, which he 
 refused, and sued such corporation for a 
 breach of its contract. Held, that, by the 
 contract evidenced by the ticket, the pass- 
 enger was entitled to a continuous passage 
 in the berth taken, or at least in an equally 
 desirable berth on an equally safe, conven- 
 ient, and comfortable sleeping-car. It was 
 for the particular berth in the car that 
 plaintiff paid his money. That berth was 
 the one which, by the contract, he was to 
 have. There is, doubtless, some choice in 
 berths; and, whether from mere caprice or 
 from good reason the plaintiff chose and 
 paid for that berth, he was entitled to have 
 it. The company could not, without 
 breach of its contract, deprive him of 
 that berth, although it offered to furnish 
 him another, any more than the plain- 
 tiff could have claimed another, if he 
 had happened to change his mind and de- 
 sire another. Supreme Ct. 1879, Pullman 
 Palace Car Co. v. Taylor, 65 Ind. 153. 
 
 If a person, who has made a contract 
 with a railroad corporation for his personal 
 transportation from one place to another, 
 takes a seat in a sleeping-car, and there 
 loses an article of personal baggage, through 
 the negligence of a person in charge of the 
 car, and without fault on his part, it is no 
 defence to an action against the corporation 
 that the car was not owned by the defend- 
 ant, but by a third person, who, by a con- 
 tract with the defendant, provided con- 
 ductors and servants; in the absence of 
 evidence that the plaintiff had knowledge 
 of these facts. Supreme Ct. 1878, Kinsley 
 ji. Lake Shore, &c. R. R. Co., 125 Mass. 51. 
 
 Thorpe entered a New York Central Rail- 
 road train at Syracuse, without asking for 
 a drawing-room-car ticket, his -purpose be- 
 ing to ride in one of the ordinary passenger 
 cars to Auburn. There were two plain 
 cars attached to the train. He passed 
 through them both, seeking a seat, but 
 24 
 
 could not find one. Most of them were 
 filled with passengers, a few, as usual, 
 with hand-bags and overcoats ; there were 
 none vacant, and several persons were 
 obliged to stand up or sit upon the woodbox 
 for want of seats. He passed forward into 
 the drawing-room car. There was no door- 
 man stationed to forbid him. He enteied 
 the car without opposition, found a vacant 
 seat, and took it. In due time the drawing- 
 room-car collector called upon him for the 
 extra charge. He declined to pay it ; said 
 that he had taken the seat only because the 
 other cars were full ; and declared that he 
 was willing to go back to the ordinary car 
 whenever he could have a seat there. The 
 porter of the drawing-room car thfen at- 
 tempted to eject the passenger from that 
 car by force, and for this assault Thorpe 
 sued the railroad company. The defence 
 made was simply that he had sued the 
 wrong defendant ; that the porter was the 
 servant of the owners of the drawing-room 
 car, not of the railroad company ; and that 
 the latter company was in no respect re- 
 sponsible for his acts, even if wrongful. 
 Held, that the persons in charge of a 
 drawing-room car are to be regarded and 
 treated, in respect of their dealings with 
 passengers, as the servants of the railj'oad 
 company, and that the latter company is 
 responsible for their acts toward passengers 
 to the same extent as if it selected them 
 and paid their wages. In the ordinary 
 management of railroad trains, these cars 
 are mingled with the other cars of the com- 
 pany, are open to passengers generally, are 
 apparently a part of the train, and the 
 manner of conducting the business amounts 
 to an invitation by the railroad company 
 to-the public to use them. Passengers can- 
 not know what private or special arrange- 
 ments, if any, exist between the company 
 and third persons, under which these spe- 
 cial cars are run ; and a passenger who 
 takes one of these cars has a right to as- 
 sume that he does so under a contract with 
 the railroad company, and that the servants 
 in charge of that car are its servants. Ct. 
 of Appeals, 1879, Thorpe v. New York 
 Central, &c. R. R. Co., 76 N. Y. 402. 
 
 A minor point raised in the case was that 
 Thorpe ought, before claiming a seat in the 
 drawing-room car, to have formally asked 
 the conductor to clear away the hand-bag- 
 gage from one of the seats in the ordinary 
 
370 
 
 RAILROAD. 
 
 oar, and assign it to him. Held, that this 
 is not a passenger's duty; it is the duty of 
 the company's servants to keep the seats 
 available for passengers, lb. 
 
 Care required in rnnning trains. The 
 speed of trains is not a matter for scientific 
 testimony; nor can it be shown from the 
 opinions of passengers observing only from 
 inside, unless their experience and obser- 
 vation is such as to make their judgment 
 reliable. And more than ordinary speed is 
 not evidence of negligence in running a 
 train. Testimony as to the speed of trains 
 should not be merely relative, vrithout 
 some standard of rapidity, but should, at 
 least approximately, show the real rate 
 and show that it was unsafe, before the 
 question whether it was negligent can be 
 left to the jury. Ordinary railway travel- 
 lers are not presumed to form, while riding, 
 such habits of observation as will make 
 their opinion as to the speed of trains reli- 
 able. Supreme Ct. 1878, Grand Rapids, 
 &c. R. R. Co. V. Huntley, 38 Mich. 537. 
 
 Sparks escaping from a locomotive set 
 fire to the prairie adjoining the company's 
 right of way at a place where the grass 
 was very rank and dry. The wind being 
 high, the fire extended three miles before 
 night, and continued to burn during the 
 night, though slowly, the wind having 
 fallen. The following morning the wind 
 arose again and blew with great violence, 
 carrying the fire about five miles further, 
 in the course of a few hours, to the plain- 
 tiff's farm, where -it swept over a fire-line 
 of sixteen feet of ploughed ground, and de- 
 stroyed plaintiff's property. Such violent 
 winds were not unfrequent in that country. 
 Held, that as the rise of the wind was a 
 thing which a prudent man might reason- 
 ably have anticipated, it could not be re- 
 garded as the intervention of a new agency, 
 so as to relieve the company from the con- 
 sequences of its negligence in permitting 
 the fire to escape ; and that as the fire was 
 in fact one continuous confiagration, not- 
 withstanding the lapse of time and the 
 great distance over which it travelled be- 
 fore reaching plaintiff's property, a judg- 
 ment in his favor was correct. Supreme 
 Ct. 1878, Poeppers v. Missouri, Kansas, 
 &c. Ry. Co., 67 Mo., 715. 
 
 " It shall be the duty of all railroad com- 
 panies, operating in this State, to have at- 
 tached to each and every locomotive engine 
 
 a whistle, such as is now in use, or may be 
 hereafter used, by all well-managed rail- 
 road companies, and the engineers or other 
 persons in charge of or operating such en- 
 gine upon the line of any such railroad 
 shall, when such engine approaches the 
 crossing of any turnpike or other public 
 highway in this State, and when such en- 
 gine is not less than eighty nor more than 
 one hundred rods from such crossing, sound 
 the whistle on such engine attached there- 
 to, continuously, from the time of sounding 
 such whistle until such engine shall have 
 fully passed such crossing," but city ordi- 
 nances on the subject remain unaffected. 
 Ind. Laws 1879 (March 29), 173, ch. 77, § 1. 
 
 Penalties for neglect to comply with the 
 above provision, and how they may be 
 enforced. Id. § 2. 
 
 Constitutionality of the above law sus- 
 tained ; on the ground of its being within 
 the police power. Supreme Ct. 1879, Pitts- 
 burgh, Cincinnati, &c. Ry. Co. v. Brown, 
 67 Ind. 45. 
 
 No car or cars, disconnected from a 
 train, shall be left or permitted to remain 
 standing on the main track of any railroad 
 in the State of Maine, " unless accom- 
 panied by danger signals, such as flagging 
 by day and lanterns by night, placed at 
 such distances therefrom, on the main line 
 of the road, as will insure safety to and 
 from moving trains, such signals to he in 
 charge of and constantly attended by em- 
 ployees of the corporation owning or oper- 
 ating the road." Me. Laws 1880 (March 
 6), 196, ch. 197, § 1. 
 
 Penalty for violation. Id. § 2. 
 
 Liability for injury to passenger. 
 Persons who are ill have a right to enter 
 and travel in the cars of a railroad company, 
 and as a common carrier of passengers the 
 company has no right to prevent them, but 
 the increased risk arising from conditions 
 of health affecting their fitness to travel, 
 certainly where such conditions are un- 
 known to the carrier, must be assumed by 
 the passenger. A woman took passage on 
 a sleeping-car which during tlie night 
 caught fire through the negligence of the 
 men in charge. The flames had already 
 reached her berth when she was awakened, 
 and the suddenness of the alarm and 
 urgency of the danger compelled her to 
 leave the car with but slight clothing and 
 in her stocking feet. This occurred m an 
 
RAILROAD. 
 
 371 
 
 extremely cold night in January. She 
 caught a severe cold. It was at the time 
 of her usual monthly sickness, and the ex- 
 posure and cold caused a suppression which 
 resulted in a long period of illness. Held, 
 that this illness was not ground for increased 
 damages. It was not the result of the ex- 
 posure, but the result of the exposure in 
 her then condition. An independent cause 
 intervened, a cause resting in her physical 
 condition, appertaining exclusively to her- 
 self, with which the appellant had no con- 
 cern, and to which it sustained no relations 
 either by contract or by the general duty 
 imposed by law on carriers of passengers. 
 Where physical weakness or disability is 
 apparent to, or is brought to the attention 
 of the carrier, undoubtedly that high de- 
 gree of care which the law imposes on him, 
 would, under certain circumstances, involve 
 duties in reference thereto ; as that he shall 
 allow an aged, infirm, or crippled person a 
 reasonable time in which to get on or off the 
 coach or car, having reference to their crip- 
 pled or infirm condition. But it cannot be 
 said that the law imposes any duty respecting 
 the possible secret complaints and diseases 
 of passengers affecting their fitness to travel. 
 Where no duty is imposed, no liability can 
 attach. Supreme Ct. 1878, Pullman Palace 
 Car Co. V. Barker, 4 Col. 344. 
 
 A passenger on a railroad train takes all 
 the risks attending that mode of travel, 
 except such as are caused or increased solely 
 by the negligence of the company. A com- 
 mon carrier is an insurer of the passenger's 
 safety only against the risks caused or in- 
 creased solely by its own negligence, which 
 includes the negligence concerning the 
 condition of its road, the character of its 
 machinery, the quality of its cars, the suf- 
 ficiency of its equipments, the skill and 
 conduct of its agents and employees, and 
 everything else necessary to the safety of a 
 passenger who himself is not at fault. Su- 
 vreme Ct. 1879, Grand Rapids, &o. R. R. 
 Co. V. Boyd, 65 Ind. 526. 
 
 By mismanagement of the couplings of 
 passenger cars, two rear cars were detached ; 
 this being perceived by the engineer, the 
 forward cars, which had run some thirty 
 feet ahead, were stopped, when the rear 
 oars came upon them with such violence 
 that a woman passenger was badly hurt. 
 In her action for damages, the company 
 showed that the cars were fitted with the 
 
 best couplings, that judicious rules were pre- 
 sci-ibed, and that the general management 
 was good; but they could not bring wit- 
 nesses to explain how those two rear cars 
 broke loose. Held, that it must be taken 
 for granted, no explanation being given, 
 that there was some fault or neglect, at the 
 time, on the part of the company. But the 
 presumption of fault from the mere fact 
 of a disaster does not go so far as to require 
 the company to produce proof of the precise 
 cause. General evidence that the machin- 
 ery and management were good, and that 
 due care was used, is a sufficient defence 
 where the plaintiff's case rests on the fact 
 of the casualty only. Supreme Ct. 1878, 
 Tuttle V. Chicago, &c. R. R. Co., 48 Iowa, 
 236. 
 
 — as affected by contributire negrli- 
 gence. A common carrier of passengers 
 contracted to take plaintiff from a railroad 
 depot to her home, but, before arriving 
 there, set her down in the city, within a 
 mile of her residence, on the sidewalk of a 
 frequented street on which ran a line of 
 street cars which passed within a square of 
 her house, in daylight, on a diy, but very 
 cold winter day; the plaintifi being of a 
 delicate constitution, but not sick at the 
 time, and being warmly clad and in com- 
 pany with an intimate friend. The plaintiff 
 walked home, and in doing so contracted 
 such a cold as to permanently injure her 
 health. Held, that the injury was too re- 
 mote, and the contributive negligence of 
 plaintiff too dii-ect, to warrant a recovery 
 for the sufferings, loss of employment, and 
 permanent injury to the health of the 
 plaintiff ; and her recovery could only be 
 for the reasonable cost of a conveyance 
 home, and her expenses in endeavoring to 
 avoid exposure to the cold. St. Louis Ct. 
 of Appeals, 1877, Francis v. St. Louis Trans- 
 fer Co., 5 Mo. App. 7. 
 
 White took passage on a local train for 
 "Penn Valley." After leaving the fii-st 
 station east of his destination, the brake- 
 man, as was the custom of the road, an- 
 nounced, " The next station will be Penn 
 Valley." Shortly after the train slowed 
 up and stopped opposite a platform and 
 station-house marked " Penn Valley Sta- 
 tion." White stepped off the car on the 
 left side, for the purpose of crossing the 
 track to reach the platform, and was struck 
 by a passing express train and instantly 
 
372 
 
 RAILROAD. 
 
 killed. It appeared that the train had 
 stopped in compliance with a rule of the 
 company, that the local trains should give 
 the preference to the express trains at sta- 
 tions, and that the regular platform for 
 passengers to alight was on the right and 
 some distance beyond where the train had 
 stopped. Held, that the question of con- 
 tributive negligence was properly submitted 
 to the jury. Supreme Ct. 1879, Pennsyl- 
 vania R. R. Co. V. White, 88 Pa. St. 327. 
 
 The rule that it is the duty of a person 
 about to ci'oss a railroad track to stop and 
 listen is not always applicable to passengers 
 leaving a train and crossing the track to 
 reach the depot at the point of destination. 
 lb. 
 
 Although the passenger may have been 
 guilty of negligence, and that negligence 
 may, in fact, have contributed to the ac- 
 cident, yet if the agents of the company 
 could in the result, by the exercise of or- 
 dinary care and diligence, have avoided the 
 mischief which happened, the plaintiff's 
 negligence will not excuse. Ct. of Appeals 
 1879, Richmond, &c R. R. Co. v. Ander- 
 son, 31 W. Va. 812. 
 
 Liability for injury to employee. The 
 doctrine that a railroad company or other 
 employer is not liable to an employee for 
 injuries received in the service is subject 
 to several well-settled exceptions; one of 
 which is that the employer may not expose 
 the servant, when conducting the master's 
 business, to perils or hazards against which 
 he may be guarded by proper diligence 
 upon the part of the master. To that end 
 the master is boimd to observe all the care 
 which prudence and the exigencies of the 
 situation require, in providing the servant 
 ^ith machinery and other instrumentalities 
 adequately safe for use by the latter. It is 
 implied in the contract between the parties 
 that the servant risks the dangers which 
 ordinarily attend or are incident to the 
 business in which he voluntarily engages 
 for compensation- among which is the care- 
 lessness of those, at least, in the same work 
 or employment, with whose habits, conduct, 
 and capacity he has, in the course of his 
 duties, an opportunity to become acqviaint- 
 ed, and ifigainst whose neglect or incompe- 
 tency he may himself take such precautions 
 as his inclination or judgment may suggest. 
 But it is equally implied in the same con- 
 tract that the master shall supply the phys- 
 
 ical means and agencies for the conduct of 
 his business. It is also implied, and public 
 policy requires, that in selecting such means 
 he shall not be wanting in proper care. 
 His negligence in that regard is not a 
 hazard usually or necessarily attendant 
 upon the business. Nor is it one which 
 the servant, in legal contemplation, is pres 
 sumed to risk, for the obvious reason that 
 the servant who is to use the instrumen- 
 talities provided by the master, has ordin- 
 arily no connection with their purchase in 
 the first instance, or with their preservation 
 or maintenance in suitable condition, aft«r 
 they have been supplied by the master. 
 Care in the selection of superior officers is 
 not all which is due to inferior ones. The 
 obligation stiU remains to provide and 
 maintain, in suitable condition, the ma- 
 chinery and apparatus to be used by its 
 employees — an obligation the more im- 
 portant, and the degree of diligence in its 
 performance the greater, in proportion to 
 the dangers which may be encountered. 
 Those, at least, in the organization of the 
 corporation, who are invested with con- 
 trolling or superior authority in that regard, 
 represent its personality ; their negligence, 
 from which injury results, is the negligence 
 of the corporation. The latter cannot, in 
 respect of such matters, interpose between 
 it and the servant, who has been injured 
 without fault on his part, the personal re- 
 sponsibility of an agent who, in exercising 
 the master's authority, has violated the 
 duty he owes, as well to the servant as to 
 the corporation. Supreme Ct. 1879, Hough 
 V. Railway Co., 100 U. S. 213. 
 
 A railroad corporation is not to be held 
 as guaranteeing or warranting the absolute 
 safety, under all circumstances, or tlie per- 
 fection in all of its parts, of the machineiy 
 or apparatus which may be provided for 
 the use of employees. Its duty, in that 
 respect, to its employees is discharged 
 when, but only when, its agents whose 
 business it is to sujiply such instrumen- 
 talities, exercise due care as well in their 
 purchase originally, as in keeping and 
 maintaining them in such condition as to 
 be reasonably and adequately safe for use 
 by employees. lb. 
 
 That the companies are liable for injury 
 to an employee sustained through a defect 
 in. the road or rolling-.stock attributable to 
 the negligence of a general superintendent 
 
RAILROAD. 
 
 373 
 
 to whom the company has delegated its 
 powers of construction and repair, — see Su- 
 preme Ct. 1877, Mobile & Montgomery Ry. 
 Co. , !). Smith, 59 Ala. 245. St. Louis Ct. of 
 Appeals, 1879, Bridges v. St. Louis, &c. R. 
 R. Co.,6 Mo. App. 389. Compare, however, 
 Barringer v. Delaware, &c. Canal Co., 19 
 Bim(N.Y.), 216. 
 
 If the employee of a railway company is 
 taken from his woi"k for the company by 
 his superior, and directed to perform an 
 individual service for the latter, the com- 
 pany is not liable for an accident occurring 
 while he is in the performance of such 
 service; but if he simply be taken from 
 one place of employment to another, in the 
 company's service, it is liable for the re- 
 sults of its negligence therein. Supreme 
 Ct. 1878, Hurst v. C, R. I., & P. R. Co., 
 49 Iowa, 76. 
 
 It is true that where a master places one 
 servant in a position of subordination to 
 another servant, and the subordinate serv- 
 ant, without fault of his own, is injured 
 through the negligence of the superior 
 servant, while both are acting in the com- 
 mon service, the master is liable therefor. 
 But where an engineer and brakeman were 
 employed by a railroad company in oper- 
 ating the same train, and there was no 
 evidence to prove that the brakeman was 
 placed in a position of subordination to 
 the engineer, other than what may be im- 
 plied from the rules of the company, re- 
 quiring the engineer to give certain speci- 
 fied signals as a " notice " to apply or loose 
 the brakes, and requiring the brakeman to 
 manage the brakes ' ' according to circum- 
 stances and the signals of the engineman," 
 and placing the brakeman, while on the 
 train, in subordination to the conductor, — 
 Held, that the engineer and brakeman were 
 servants of the company engaged in a com- 
 mon service; that the relation of superior 
 and subordinate did not exist between them ; 
 and that, therefore, the company was not 
 responsible to the brakeman for an in- 
 juiy occasioned by the negligence of the 
 engineer. Supreme Ct. Commission, 1877, 
 Pittsburgh, &e. R. R. Co. v. Lewis, 33 
 Ohio St. 196. 
 
 When two railway companies occupy and 
 use a portion of the same road as a common 
 track, the one as owner thereof, and the 
 other as lessee, under proper rules and 
 regulations as to the joint use so as to 
 
 secure care and safety, the lessor company, 
 in the employment of servants to operate 
 its road trains over such road, does not im- 
 pliedly contract with such servants that the 
 employees of the lessee company will ob- 
 serve strictly the rules adopted to secure 
 safety in the running of trains over the 
 common road ; and it will not be liable to 
 a servant for an injury caused by the neg- 
 ligence of the servants of the lessee com- 
 pany. A person engaging in the service of 
 a railroad company as an engine-driver, 
 with full knowledge of the dangers incident 
 to the service, who receives an injury while 
 in the discharge of his duties, by a collision 
 with a train of another company using the 
 same part of the road under a lease from 
 his employer, through the negligence and 
 recklessness of the employees of the lessee 
 company in running the train in violation 
 of the reasonable rules of the lessor com- 
 pany, cannot recover damages of the com- 
 pany employing him; such an accident 
 being one of the ordinary perils of the 
 service, and not attributable to any negli- 
 gence on the part of the employer. Su- 
 preme Ct. 1879, Clark w. Chicago, Burling- 
 ton, &c. R. R. Co., 92 III. 43. 
 
 It does not constitute negligence for a 
 railroad company, in the ordinary course 
 of business, to receive and transport the 
 cars of other roads, in general use, which 
 may not be constructed with the most ap- 
 proved appliances, and the transportation 
 or use of such cars by the company is one 
 of the risks which the employee assumes in 
 undertaking the employment. Supreme Ct. 
 1879, Baldwin v. C, R. I., &P. R. Co., 50 
 Iowa, 680. 
 
 A railroad company is bound to furnish 
 and maintain implements and machinery 
 reasonably suitable to perform the work 
 which the servant is required to do in the 
 discharge of his duty under his employ- 
 ment. The degree of care and diligence 
 with which this should be done should be 
 proportioned to the amount of hazard 
 which may be i-easonably anticipated as 
 consequent upon its neglect, considering 
 the work to be performed. When the ser- 
 vant accepts service upon being furnished 
 with machinery capable of doing the work 
 required of him, which is ostensibly defect- 
 ive in some particular; by which it is ob- 
 viously more dangerous than if it were 
 complete and fully suitable, the servant has 
 
374 
 
 RAILROAD. 
 
 assumed the increased risk which may 
 reasonably be anticipated from the defect, 
 and no more ; and if the defect rendered 
 its use more hazardous than could reason- 
 ably have been discoverable by the use of 
 ordinary care, then the master may be in 
 default in the discharge of his duty, and 
 maybe liable for the injury produced by 
 said defect in a manner not anticipated. 
 Supreme Ct. 1878, International, &c. R. R. 
 Co. V. Doyle, 49 Tex. 190. 
 
 It is the duty of a railroad company to 
 use ordinary care to provide such cars, road 
 beds, tanks, &c., as are reasonably safe. A 
 failure to do this is negligence chargeable 
 to the company; and it is responsible in 
 damages to an employee for an injury re- 
 sulting, without his negligence, from a 
 tank, or other appendage of the road, so 
 negligently constructed as to subject the 
 employee to unnecessary and extraordinary 
 danger which he could not reasonably an- 
 ticipate or know, and of which he was in 
 fact not informed. Supreme Ct. 1878, 
 Houston, &c. R. R. Co. v. Oram, 49 Tex. 
 341. 
 
 Instances. To shelter the company, the 
 directors must employ a skilful superin- 
 tendent, conductor, &c., and these superior 
 officers must perform their duties skilfully 
 and give judicious directions. On the 
 South and North Alabama Railroad, 
 on one occasion, when the night engineer 
 was sick and the day engineer worn out 
 ■with fatigue, the yard-master put a fire- 
 man named Lovelace in charge of the 
 engine. Lovelace was not competent to 
 manage an engine while cars were being 
 coupled, and, in consequence of his mis- 
 management the coupling-man was badly 
 hurt. Held, that the latter could recover 
 damages; the company was in fault for 
 not having a skilful engineer in charge. 
 SupremeCt. 1878, Tyson v. South, &c. Ala- 
 bama R. R. Co., 61 Ala. 554. 
 
 A railroad company engaged in ballast- 
 ing its i-oad, employed a laborer to assist in 
 loading and unloading a gravel train. In 
 the execution of this service it was neces- 
 sary for him to ride on the train from the 
 gravel-pit to the place of unloading, — the 
 train being run under the direction of a 
 conductor, the laborer having nothing to 
 do with its management. Held, that the 
 laborer while riding on the train, was a 
 mere employee, and did not assume the 
 
 character of a passenger ; that he and the 
 engineer of the train were engaged in a 
 common service, and that, as he was not 
 under the control of, or subject to the orders 
 of, the engineer, the railroad company 
 could not be held liable for negligence of 
 the engineer, resulting in his death, if not 
 guilty of negligence in selecting the en- 
 gineer. Supreme Ct. Commission, 1877, 
 Kumler v. Junction R. R. Co., 33 Ohio St. 
 150. 
 
 A railway company permitted a telegraph 
 pole to stand, for a period of some three 
 years, so near to a side track that it was 
 within eighteen inches of freight cars pas- 
 sing on such track, so that a brakeman in 
 descending from the top of a freight car 
 while in motion, in the pei-formance of his 
 duty, came in collision with the pole and 
 was thrown from the car and killed. Held'. 
 
 1. It was culpable negligence in the rail- 
 road company to permit, for so long a time, 
 such an obstruction to be in such close 
 proximity to its track. 
 
 2. It was not essential to the liability of 
 the railroad company, in case of injury 
 resulting from such obstruction, that it 
 should have placed the telegraph pole where 
 it was; that the company suffered it to 
 have remained in such dangerous prox- 
 imity to the track was enough. 
 
 3. From the length of time of the tele- 
 graph pole standing where it did, as shown 
 by the evidence, the jury were warranted 
 in finding that the company knew it; that 
 they ought to have known of it, and so might 
 be considered as having notice. Supreme 
 Ct. 1878, Chicago & Iowa R. R. Co. v. Rus- 
 sell. 91 111. 298. 
 
 Upon a road built with T rails a brake- 
 man walked between two cars while the 
 train was moving slowly, to uncouple them 
 at a switch. While walking, having his 
 right foot outside and his left foot inside 
 the rail, his left foot was caught and held 
 fast between the guard rail and that of the 
 main track and was crushed. He sued for 
 damages, and his lawyer called witnesses 
 to testify that if the track had been laid 
 with U rails, the accident would not have 
 occurred. The court said that this made 
 no difference; that the company was not 
 bound to have the very safest possible rail, 
 but only to have a good, well-made road. 
 Supreme Ct. 1878, Smith v. St. Louis, 
 Kansas, &c. Ry. Co., 69 Mo. 32. 
 
RAILROAD. 
 
 375 
 
 A switchman, while standing on the foot- 
 board of a tender that was backing on a 
 side track, let go the hand-rail to shift his 
 lantern from one hand to the other, and 
 was thrown off by a jerk caused by a worn 
 rail left there by his fellow employees, the 
 trackmen. He had full means of knowing 
 the condition of the track, and the custom 
 of the road as to using worn rails for side 
 tracks. Held, that the risk was one of the 
 ordinary risks of his employment, and that 
 he had no ground for recovery. Supreme 
 Ct. 1879, Michigan Central R. R. Co. v. 
 Austin, 40 Mich. 217. 
 
 A railroad was so constructed that the 
 trains ran underneath bridges which were 
 not so high that a man could stand on the 
 top of a car as it passed beneath. As a brake- 
 man was passing from one car to another 
 in the duty of switching ofi some cars at a 
 flying switch, the train came vmderneath 
 one of these bridges and he was badly hurt. 
 Held, that no damages could be recovered, 
 for such perils are a part of the service. A 
 company is not bound to build its bridges 
 six feet above car tops, or to give brakemen 
 any formal notice that the bridges are dan- 
 gerous; the brakemen must judge of these 
 things for themselves. Supreme Ct. 1878, 
 Baylor v. Delaware R. R. Co., 40 N. J. L. 
 23. 
 
 The ladder upon a stock-car, although it 
 looked strong and safe, was, in fact, badly 
 made. While the brakeman was climbing 
 it, and as he reached the top, the round on 
 which he stood pulled out, and he was 
 thrown to the ground. Held, that he was 
 entitled to damages if the proper officers of 
 the company knew, or were, under the 
 circumstances, shown chargeable with no- 
 tice, of the defect in the ladder, and he 
 himself excusably ignorant. A railroad 
 company is required to use the highest 
 degree of diligence in furnishing safe cars 
 and fixtures thereto, but it is not an abso- 
 lute insurer, and cannot be held liable for 
 defects of which diligence would not inform 
 it. Actual knowledge of the defect is not 
 necessary; it is sufficient that the company 
 might have been informed by the use of 
 diligence. But when the company did not 
 know, and could not have informed itself 
 of the defect, it cannot be held responsible. 
 Supreme Ct. 1878, Chicago & Alton R. R. 
 Co. V. Piatt, 89 III. 141. 
 
 Employers are only required to provide 
 
 machinery of good material, and to have it 
 constructed in a good and workmanlike 
 manner. They, whether as individuals or 
 corporations, are not insurers of their em- 
 ployees against injury fi'om its use. Where 
 an engineer of a railway company was killed 
 by the explosion of a boiler of a locomotive, 
 and it appeared that the boiler was made 
 of the best material, and by first-class 
 manufacturers, and had not been used long 
 enough to create any suspicion of its unsafe 
 condition, and the defect was not of such 
 character as could have been discovered by 
 any of the tests usually employed for the 
 purpose, and there was no sign or indication 
 of its unsafety, it was held that the com- 
 pany was not liable for the injury. Su- 
 preme Ct. 1875, Indianapolis, Bloomington, 
 &c. Ry. Co. V. Toy, 91 111. 474. 
 
 The averments in a petition by a brake- 
 man suing for damages for personal injury 
 were that the baggage car was fitted up with 
 the Miller patent buffer and coupler, but 
 the freight cars had only common bumpers 
 and were not high enough to couple by the 
 Miller coupler safely, unless the brakeman 
 should have a "crooked link;" that the 
 plaintiff asked for such link, but, by the 
 neglect of the superintendent, none was 
 furnished; and hence, while the plaintiff 
 was doing his best in attempting to make 
 a coupling, he was badly crushed between 
 the two cars. Held, that a good cause of 
 action was shown. Supreme Ct. 1878, 
 Conway r. Illinois Central R. R. Co., 50 
 Iowa, 465. 
 
 De Graff, a brakeman in the employment 
 of the New York Central & Hudson River 
 Company, was thrown from a moving train, 
 in consequence of the breaking of the chain 
 as he was applying the brake, and brought 
 a suit for damages, founded on the theory 
 that the chain was defective. No distinct 
 evidence was given as to the cause of the 
 fracture, or nature of the defect. There 
 is no proof that the chain was not perfect 
 when it was put in place, and there was 
 proof that inspectors, employed by the com- 
 pany, examined the chains frequently, to 
 see that they appeared strong, and also that 
 such chains frequently break, without, as 
 a general rule, causing any serious harm. 
 That such a casualty is within the risks 
 and dangers incident to the business, which 
 are assumed by an employee. The degree 
 of vigilance required from a railroad com- 
 
376 
 
 RAILROAD. 
 
 pany in any particular part or branch of 
 its business is measured by the gravity of 
 the danger to be apprehended or avoided. 
 There does not appear to be any practical 
 necessity that the full strength of brake- 
 chains should be maintained. Upon a 
 train of say thirty oars, it cannot be indis- 
 pensable that the brake-chains upon every 
 car should be perfect; for only a portion of 
 the number would be used in controlling 
 the train. Moreover, the fracture of a chain 
 does not ordinarily or probably involve any 
 serious danger or injury. The company is 
 therefore not liable to a brakeman for an 
 injury received through the breaking of a 
 chain, except upon proof that the company 
 is chargeable with negligence; such as al- 
 lowing the cars to be equipped with defec- 
 tive or insuflBcient chains in the first 
 instance, or failing to maintain a proper 
 inspection, sufficient to provide against 
 decay. The mere fact that the chain ap- 
 pears, from the breakage, to have been at 
 the time insufficient, is not enough to charge 
 the company. Ct. of Appeals, 1879, De 
 Grafi V. New York Central, &c. R. R. Co., 
 76 N. Y. 125. 
 
 It was shown on behalf of De Graff that 
 he was only seventeen years of age, but the 
 Court said this could make no difference. 
 It is an element in the contract of employ- 
 ment that the employee bears the risks 
 which are incident to the nature of the 
 work. His youth and inexperience may 
 be important when the question is whether 
 he was chargeable with contributive negli- 
 gence, or whether the company was in fault 
 for assigning to him a service beyond his 
 age, strength, or skill. But a youth who 
 accepts employment in work for which he is 
 competent cannot claim, on account of in- 
 fancy, to be relieved from its risks. He 
 assumes the perils inseparable from the 
 service in the same manner as a grown per- 
 son would do. lb. 
 
 A brakeman upon defendants' railroad 
 was injured while applying a brake on a 
 train, by the breaking of a rod. On the 
 trial it was found that in the original con- 
 struction of the rod defendant had exercised 
 proper care ; that at the starting-point of 
 the train there was no person charged with 
 the duty of inspecting the machinery, &c. ; 
 that there was a defect in the rod which 
 rendered it unfit for use, discoverable upon 
 an ordinarily careful inspection, but which 
 
 was unknown both to plaintiff and defend- 
 ant; that plaintiff had no reasonable oppor- 
 tunity to make examination, and in the 
 exercise of ordinary prudence could not 
 have avoided the accident. Held, that all 
 the conditions, upon which the defendants' 
 responsibility depended, existed, and none 
 by which it could be removed; and that 
 plaintiff was entitled to recover. Supreme 
 Ct. 1879, Johnson v. Richmond, &c. R. R. 
 Co.,81iV. C. 453. 
 
 In a water-tank case which occurred on 
 the Houston & Texas Central Railway, the 
 tank was built too close to the road to allow 
 of a man ascending a side-ladder on a car, 
 as it was passing. But it was the duty of 
 the brakeman to climb that ladder as the 
 train drew near this particular stopping 
 place. Of course he was at last knocked 
 off, and was seriously and permanently 
 injured, — made helpless for life. Held, 
 that he might recover damages because 
 the directors were in fault for building the 
 tank too near the track, and giving orders 
 that a brakeman should climb the side- 
 ladder as was done. Supreme Ct. 1878, 
 Houston & Texas Ry. Co. v. Oram, 49 
 Tex. 341. 
 
 -A section-hand of a railway company, 
 while operating a hand-car, worked at the 
 handle to a crank, which was an octagonal- 
 shaped piece of metal, and was not fur- 
 nished with a shield of wood, as is usual, 
 within which the handle could revolve. 
 To save his hand he used a glove, which was 
 caught by the handle while working the car, 
 and his thumb was torn ofi in consequence. 
 In an action against the road, — Held, that 
 the plaintiff, to recover, should allege and 
 prove that the use of the glove was reasonable 
 and proper to save his hand while gi-asping 
 the handle, and that the danger, in other 
 respects, from the structure of the handle 
 (of which he was ignorant), was not ap- 
 parent with ordinary care and attention, 
 and that thereby he was injured. Supreme 
 Ct. 1878, International, &c. R. R. Co. v. 
 Doyle, 49 Tex. 190. 
 
 In an action by a brakeman, it appeared 
 that one of the cars was badly made in 
 respect that the bolt in the brake-beam pro- 
 jected too far and was in the way of coup- 
 ling ; and the plaintiff, in attempting to 
 couple the car with another, was hurt. His 
 right to recover was sustained. Supreme 
 Ct. 1878, Wedgwood v. Chicago, &o. Ry. 
 
RAILROAD. 
 
 377 
 
 Co.jiiWis. 44 ; followed, Bessexr. Chicago, 
 &c. Ry. Co., 45 Wis. 477. 
 
 On the Pittsburgh, Fort "Wayne, & Chi- 
 cago Railway, while a brakeman was busy 
 in shifting cars from a side track to the 
 main track, the train, without any signal 
 being given, was suddenly started forward, 
 by which he was thrown off ; and they were 
 then as suddenly run backward, by which 
 his arm was crushed. He sued for dam- 
 ages, complaining that the conductor and 
 engineer neglected to give signals. Held, 
 that the company was not responsible. 
 Pittsburgh, &c. Ry. Co. v. Lewis, 33 Ohio 
 St. 198. See also 93 III. 580. 
 
 An engineer upon the locomotive of one 
 train of a railroad company was injured by 
 collision of a train belonging to the same 
 company which was started in advance, but 
 coming to an -up grade broke and ran back 
 upon the first train. The reason of the 
 running back of the advance train was 
 that there were not enough brakemen upon 
 it to control it; and this, under the circum- 
 stances, was the fault of the company, not 
 of the engineer. The advance train was 
 started by its conductor, who knew that one 
 of the necessaiy brakemen was absent, and 
 who did not give the officer in charge of 
 starting the trains information of the de- 
 ficiency. Held, that the engineer was en- 
 titled to damages from the company; it 
 was not a case for the application of the 
 rule that employers are not liable to one 
 servant for the negligence of another em- 
 ployed in the same general business. Ct. of 
 Appeals, 1878, Booth v. Boston and Albany 
 E. R. Co., 73 N. r. 38. 
 
 Workmen employed in track-repairing 
 were accustomed to return from work on 
 three hand-cars, and formed a habit of 
 racing. One day the second of the cars 
 came up behind the first one too fast; and, 
 owing to the neglect of the brakemen upon 
 the second car to apply the brakes in time, 
 3. workman on the foremost car was hurt. 
 He recovered $2,500 damages. On appeal 
 the doctrine of contributive negligence was 
 urged for that the men ought not to have 
 raced. Held, that conceding racing to 
 have been the cause of the disaster, and to 
 be contributive negligence, only the men 
 operating the car were in fault for it ; a 
 workman riding as passenger was not to 
 blame, unless he advised or encouraged the 
 racing, — which had not been shown. Su- 
 
 preme Ct. 1877, Lombard v. C, R. I., & P. 
 R. Co., 47 Iowa, 494. 
 
 — as affected by contributive negli- 
 gence. The fact that an engineer con- 
 tinued, after knowledge of defects in a loco- 
 motive, to use it, is not conclusive against 
 his right of action for an injury sustained. 
 If he has notified the proper superintending 
 officer of the necessity of repairs, and the 
 latter has promised to have them made, 
 continuing to use the engine for a time not 
 unreasonably long, in expectation that it 
 will be repaired, is not contributive negli- 
 gence. Supreme Ct. 1879, Hough v. Ry. 
 Co., 100 U.S. 213. 
 
 In a suit brought by the widow of a fire- 
 man killed on a railroad train, it appeared 
 that the deceased was leaning or swinging 
 outside the car on which he rode, when his 
 head came in contact with a water-tank 
 built very near to the track; whereby he 
 was killed. Held, that irrespective of any 
 fault of the company in building the tank 
 so near the track, if the deceased idly and 
 unnecessarily exposed himself to danger by 
 leaning out, the action could not be sus- 
 tained. Supreme Ct. 1878, Atlanta, &c. R. 
 R. Co. 0. Webb, 61 Ga. 586. 
 
 Some freight cars were standing on a 
 side track, to be attached to a train which 
 was upon the passing track of the road. A 
 locomotive and one car were switched on 
 the side track, a brakeman coupled the cars, 
 and as they were moving out he climbed 
 up on the side of a car next to the passing 
 track; but, finding another brakeman on 
 the top of one of the cars, he started down 
 on the other side of the car — the business 
 side — to turn the switch so as to throw 
 the engine and cars attached to it back 
 upon the passing track. In descending the 
 ladder of the car, the brakeman was struck 
 by a standing telegraph pole, which was 
 only eighteen inches from the car, and 
 knocked between the cars and killed. 
 Held, that under the circumstances, the 
 brakeman, in abandoning the safe side of 
 the side track and going over the car to the 
 obstructed side, was not guilty of such con- 
 tributive negligence as would preclude a 
 recovery against the company. Nor was 
 the brakeman chargeable with negligence 
 in not looking and seeing the pole in time 
 to save himself. There was no evidence 
 he knew anything of the pole; and his 
 eyes, it may be supposed, were directed to 
 
378 
 
 RAILROAD. 
 
 the side of the car while he was in the act 
 of getting down. Supreme Ct. 1878, Chi- 
 cago & Iowa R. R. Co. ». Russell, 91 III. 
 298. 
 
 The mere facts that an engineer, running 
 a train upon a railroad, after seeing a 
 signal to stop, and after reversing his en- 
 gine, might, with probable safety to him- 
 self, have got off from his locomotive be- 
 fore its collision with another train then 
 approaching, and that he remained at his 
 post grasping the reversing lever and 
 throttle until the collision occurred, will not 
 justify the court in holding, as a matter of 
 law, that he was negligent. Supreme Ct. 
 1879, Cotrill w. Chicago, &c. R. R. Co., 47 
 Wis. 634. 
 
 While workmen were busy making re- 
 pairs upon the track, their horses took fright 
 and ran, and were on the point of running 
 over one of them. In his alarm and effort 
 to get out of their way he stepped upon 
 the track, which seemed, under the cir- 
 cumstances, to be the only place of escape. 
 There, was, however, a hand-car approach- 
 ing; the men running it neglected to put 
 down the brake, and the man on the track 
 was run over. He recovered $2,000 dam- 
 ages. Held, on appeal, that it ought to be 
 sustained; considering the sudden alann, 
 the injured man was not to blame for step- 
 ping on the track ; and the hand-car men 
 were bound, when they saw him in the way, 
 to make due effort to stop the car. Su- 
 preme Ct. 1878, Moore v. Central R. R. of 
 Iowa, 47 Iowa, 688. 
 
 A bi'akeman undertook to couple a bag- 
 gage car with a flat car loaded with rocks, 
 which was lower than the baggage car. 
 He was an experienced man and knew the 
 difficulty, and that he needed a crooked 
 link. However, he tried to couple without 
 it, but, being mistaken in his calculation of 
 the difference in height of the two cars, he 
 failed, and was very badly injured. Held, 
 that he was chargeable with contributive 
 negligence and could not recover. Supreme 
 Ct. 1878, Hulett v. St. Louis, &c. Ry. Co., 
 67 Mo. 2.39. 
 
 On the Lake Shore & Michigan Southern 
 Railway, a brakeman's hand was crushed 
 while coupling oars; and he brought suit 
 upon the ground that the company was in 
 fault because the coupling apparatus was 
 insufficient, and the locomotive was out of 
 order so that the engineer could not con- 
 
 trol it. The company proved that they had 
 published a rule for the men, forbidding 
 them to couple cars by hand, and requiring 
 them to use a stick. Held, that the brake- 
 man should not have disobeyed the rule. 
 If he could not or would not obey it, he 
 should have resigned; to disobey it was at 
 his own risk. Supreme Ct. 1877, Wob- 
 sey V. Lake Shore, &c. R. R. Co., 33 Ohio 
 St. 227. 
 
 The customary mode of making flying 
 switches on a railroad was injudicious, and 
 exposed the men to danger ; but Knittal, a 
 brakeman employed on the road for several 
 years, pursued such mode without objection 
 or remonstrance. At last he was hurt. 
 Held, that he could not recover damages. 
 By continuing, week after week, to make 
 switches in the manner which had come 
 into use, without communicating to the 
 superior officers as to the danger involved, 
 he impliedly consented to it. Supreme Ct. 
 Commission, 1878, Lake Shore, &c. Ry. Co. 
 V. Knittal, 83 Ohio St. 468. 
 
 Injury to person on the track. A rule 
 of a railway company prohibiting freight 
 trains from passing between a station-house 
 and a standing passenger train while re- 
 ceiving or discharging passengers, has for 
 its object the protection of passengers be- 
 tween the standing train and the passenger 
 house, and not that of strangers at a dis- 
 tance away, and a failure to observe the 
 rule will not of itself render the company 
 liable for an injury to a person carelessly 
 walking upon the track, some distance 
 from the station. Supreme Ct. 1877, Lake 
 Shore, &c. R. R. Co. v. Hart, 87 lU. 529. 
 
 Nor does it excuse a person, entering 
 upon a railroad track to travel along the 
 ties, from first looking behind him to see 
 if any train is approaching, to show that 
 the company had, before, been in the habit 
 of moving its trains going in such direction 
 over another and different track. lb. 
 
 A railroad corporation, neglecting, when 
 a train is approaching a place where its 
 road crosses a highway at grade, to give 
 due warning of its approach, is liable to 
 one injured thereby, though the injury re- 
 sults, not from a collision, but from the 
 fright of the horse he is driving, which was 
 not guarded against for want of such warn- 
 ing. Supreme Ct. 1878, Pollock v. Eastern 
 R. R. Co., 124 Mass. 158. 
 
 The purpose of requiring railway trains 
 
RAILROAD. 
 
 379 
 
 to give signal by bell or whistle at a high- 
 way crossing is for the protection of per- 
 sons who may be approaching to cross as 
 well as of those actually crossing. A 
 woman driving alone a horse and buggy 
 drew near to a railroad crossing ; and looked 
 and listened carefully for any train. One 
 was approaching, but it was not visible in 
 consequence of obsti'uctions, and the en- 
 gineer neglected to give the proper signals 
 until she had reached a spot near the cros- 
 sing, and the locomotive had quite reached 
 it. A loud blast of the whistle was then 
 given; it frightened the horse; although a 
 steady one it backed and turned suddenly ; 
 and the driver was thrown out and injured. 
 Held, that the jury were authorized to find 
 that, if timely signals had been given, the 
 plaintiff would have stopped far enough 
 from the track to avoid the fright to the 
 horse ; and therefore that she was entitled 
 to damages. Ct. of Appeals, 1878, Voak v. 
 Northern Cent. Ry. Co., 75 iV". Y. 321. 
 
 Between a person injured upon the rail- 
 road track, through failure of the engineer 
 to give the proper signals, and the com- 
 pany, the question is not whether the 
 statutory signals were given, but whether 
 the signals given were reasonable and suf- 
 ficient under the circumstances of the case. 
 The obligation of the company, as towards 
 persons rightfully approaching the track to 
 cross it, is to make all reasonable effort to 
 warn them of the approach of the train. 
 Giving the signals prescribed by statute 
 does not necessarily relieve the corporation 
 from the duty of ^ving others indicated to 
 be proper by the circumstances, nor absolve 
 it from the charge of negligence if these 
 are omitted. Ct. of Appeals 1877, Dyer v. 
 ErieRy. Co., 71 iV. F. 228. 
 
 Two men in a wagon drove toward a rail- 
 road-crossing just as a train had passed; the 
 conductor, however, had need to back 
 the train, which was done unexpectedly to 
 the travellers, and one of them was hurt. 
 In an action for damages it was denied, for 
 plaintiff, that signals were given. But the 
 local law only required the engineers to 
 sound the signals as the trains were ap- 
 proaching crossings while running their 
 tiips, and did not lay any command upon 
 them in respect to backing a train which 
 had overrun its stopping-place ; and it was 
 urged for the defence that the engineer 
 had complied with the law, such as it was, 
 
 and nothing more could be demanded; the 
 legislature had undertaken to say what 
 signals should be given, and they had been 
 given, promptly and faithfully; if they 
 were not enough, the fault was in the law; 
 the company had performed its whole duty. 
 Held, that, independent of any law, rail- 
 roads are bound to use judicious, prudent 
 means to warn all travellers of danger 
 from their engines and cars, and passing a 
 law to command this in some specific cases 
 does not diminish the obligation of doing 
 it in other cases where common sense de- 
 mands it. The obligation of the company 
 is double ; to obey the statute and to give 
 any person rightfully approaching the track 
 due warning of his danger. lb. 
 
 There is a spot in the city of Albany 
 where the track of the Delaware and Hud- 
 son Canal Company's railroad crosses a city 
 street, among warehouses; and an ordin- 
 ance of the city requires the company to 
 keep a flagman at that crossing. The com- 
 pany had uniformly done so ; one day, how- 
 ever, he absented himself without any good 
 cause. Dolan came driving toward the 
 crossing. The wai-ehouses and a long train 
 of cars obstructed his view. He looked 
 for any coming train, and also for the flag- 
 man, and listened for signals; but hearing 
 and seeing nothing to indicate danger, he 
 drove upon the track and was run over and 
 hurt by an approaching train. Held : 
 
 1. Irrespective of whether a flagman was 
 necessary at that point, as one had usually 
 been stationed there, his absence was im- 
 putable to the company as negligence. 
 
 2. Dolan was not chargeable with con- 
 tributive negligence. The care he had 
 taken to avoid a collision was enough to 
 warrant the jury in saying that he was not 
 in fault. Ct. of Appeals 1877, Dolan ». 
 Delaware & Hudson Canal Co., 71 N. Y. 
 285. 
 
 AVhere there is extensive travel upon a 
 highway crossing a railroad track it is the 
 duty of the company to give timely and 
 sufficient notice of the approach of trains 
 to such crossing. And if, at a public cross- 
 ing, a railroad company has been in the 
 habit of keeping a watchman to open and 
 close a gate at the approach of trains, it is 
 a question for the jury, whether the com- 
 pany is not chargeable with negligence in 
 leaving the gate open and fastened back 
 without a watchman. Supreme Ct. 1879, 
 
380 
 
 RAILROAD. 
 
 Kaseu. Greenough, 88 Pa. St. 405. S. P. 
 Casey v. New York Central, &c. R. R. Co., 
 6 Abh. N. Cas. (N. Y.) 104. 
 
 — as aifected by contributive negli- 
 gence. Tanner was killed by a train while 
 riding on horseback along the track, and 
 his administrator sued for damages. In 
 reply to the evident objection that he had 
 no business to ride upon the track, and 
 should be held to have done so at his own 
 risk, the plaintiff set up: (1), that the 
 purpose of his taking to the track in the 
 manner he did was to examine and mark 
 cross-ties which he was supplying to the 
 road to be used in repairs ; a duty to the 
 company which justified and indeed ne- 
 cessitated his travelling on the road-bed; 
 and (2) , that he was wantonly run over, 
 no pains or care having been taken by the 
 engineer to avoid injury. It appeared that 
 the train overtook Tanner, as he was riding 
 along the track; the engineer and fireman 
 saw him, and the whistle was blown; he 
 saw the train approaching and endeavored 
 to urge his horse forward to reach a high- 
 way-crossing a little in advance, where he 
 might best turn off ; but the horse became 
 frightened by the engine and threw him, 
 and he fell upon the track stunned and 
 unable to exert himself. The horse escaped 
 unhurt; the man was killed. Upon the 
 trial the judge charged in very general 
 terms that the plaintiff could not recover 
 unless the preponderance of evidence satis- 
 fied the jury that Tanner was not chargeable 
 with any fault or negligence contributing 
 to the casualty; and the jury, apparently 
 under this charge, found a verdict for the 
 company. Upon appeal, — Held, that dili- 
 gence in such cases is required in both 
 stages of the affair in respect to the . acts 
 which bring the person into a situation of 
 peril ; and to those proper to be employed, 
 after peril has arisen, to avert it. The 
 negligence of the traveller in entering an 
 exposed situation does not necessarily ex- 
 cuse the train hands from employing proper 
 diligence to avoid doing injury. If they, 
 although without fault on their part, find 
 a person dangerously exposed on the track, 
 the fact that such exposure was brought 
 about by his negligence does not diminish 
 their duty of diligence thereafter. And, 
 although they are free of blame and he is 
 in fault for his exposed situation, yet if, 
 after the danger has become manifest, he 
 
 employs proper care and diligence to escape 
 from it, and the train hands fail to apply 
 proper skill and diligence to avoid doing 
 injury when it might have been avoided 
 by effort on their part, they are chargeable 
 with wanton or reckless negligence for which 
 the company will be held accountable. In 
 such a case the negligence of the person 
 injured, which first placed him in jeopardy, 
 becomes remotely contributive to the actual 
 injury sustained, and is no bar to the suit. 
 In other words, if the traveller, although 
 he has contributed by his own negligence 
 to place himself in peril, employs proper 
 diligence to extricate himself, and the de- 
 fendant neglects to use diligence which 
 might have prevented the catastrophe, the 
 defence of contributive negligence is not sus- 
 tained. Wantonness, as well as intention, 
 on the part of the persons inflicting the in- 
 jury, under such circumstances, will over- 
 come the defence of contributive negligence. 
 Supreme Ct. 1877, Tanner v. Louisville, &c. 
 R. R. Co., 60 Ala. 621. 
 
 A girl eight or nine years of age, Stillson 
 by name, lived with her parents on one 
 side of a raUroad track, her father's store 
 being on the other side. One day, on his 
 return to the store after dinner, the daughter 
 accompanied him. As they walked toward 
 the track she asked, " Papa, how did you 
 get over?" This was because the track 
 appeared quite filled up with stationary 
 cars. He explained that he had found a 
 gap between two cars, and had got through 
 there. This was so; but since his crossing 
 the cars had moved somewhat, and the 
 gap, which was large enough before noon, 
 had now been made very small. Before 
 he could check her she said, " I will beat 
 you over to the store," and ran in advance 
 of him toward the gap. It was now so 
 narrow that she had to " squeeze through." 
 As she was doing so the cars, without any 
 signal that they were about to move, were 
 started, and she was crushed between them 
 at the waist. This casualty did not occm- at 
 a regular street-crossing, but at a point in 
 the company's yard where there was no 
 ordinary invitation for persons to pass 
 across. Held, that, notwithstanding the 
 neglect to sound a signal, no damages 
 could be recovered, because the child and 
 her father were wanting in proper care in 
 her attempt to pass between cars under 
 such circumstances. The rule that the 
 
RAILROAD. 
 
 381 
 
 same degree of care is not to be expected 
 or required from a person of immature age 
 as would be required of one who had 
 reached years of discretion, relates to cases 
 in which the father, guardian, or other 
 protector of the party injured is not present 
 when the injury occurs. In the present 
 case the father and child were together, 
 and it was not simply a permission on his 
 part that his little daughter should cross 
 the railroad at the point she attempted, but 
 the exact place was pointed out to her by 
 her father, and she was proceeding within 
 his view to follow his directions when the 
 injury happened. If, under such circum- 
 stances, the father was guilty of negligence, 
 that negligence must be imputable to the 
 child in a suit by the child for damages. 
 The injury did not occur at any street- 
 crossing, but on a part of the track where 
 there was not even a private or occasional 
 pathway, and where, consequently, the 
 company had a right to presume that no 
 one would attempt to cross. It is true the 
 street-crossing was entirely obstructed by 
 the train. This obstruction the municipal 
 authorities of the town might at any time 
 have prohibited, and for it the company 
 might have been held liable in damages, but 
 it did not authorize one who was about to 
 cross to attempt to do so at any accidental 
 opening between the cars, either of that 
 train or the adjoining one, except at his 
 peril. Supreme Cl. 1878, Stillson v. Hanni- 
 bal, &c. R. R. Co., 67 Mo. 671. S. P. 
 Memphis, &c. R. R. Co., v. Copeland, 61 
 Ala. 376. 
 
 Liability for live-stock killed. Where 
 an engine-driver sees, or can see, in time 
 to slacken the speed of his train, a lot of 
 cattle crossing the railroad track upon a 
 highway, but does not stop the train or 
 slacken its speed, and kills an animal which 
 has escaped from the owner's enclosure, 
 this will show negligence, on his part, of a 
 high degi-ee, and the railroad company will 
 be liable for the value of the animal killed. 
 Such a case is not like the cases where the 
 cattle were quietly grazing alongside the 
 track when discovered. Supreme Ct. 1879, 
 Chicago & Alton R. R. Co. v. Kellam, 92 
 III. 245. 
 
 Street railroads. The right of a cor- 
 poration to condemn property and appro- 
 priate the same for the construction, 
 operation, and maintenance of a horse or 
 
 dummy railway in the streets of a city, is 
 derived solely from the State law, and the 
 consent of the city authorities to the con- 
 struction and operation of such railway is 
 not a condition precedent to proceedings to 
 condemn. Such consent can be obtained 
 after condemnation as well as before, and, 
 if given, is a mere license, revocable at any 
 time before it is acted on. Supreme Cl. 
 1877, Metropolitan City Ry. Co. v. Chicago, 
 &c. Ry. Co., 87 III. 317. 
 
 Under Illinois statutes, a company incor- 
 porated for the purpose of constructing and 
 operating " horse and dummy lailways," 
 has the right to enter upon and appropriate 
 any property necessary for constructing its 
 road, upon making compensation therefor, 
 when ascertained according to law. Where 
 a horse-railway company operating its rail- 
 way has, by contract with a city, acquired 
 a right in not having a similar railway on 
 certain other streets running parallel with 
 its road, this will be property, in the sense 
 of the eminent domain act, and may be 
 taken and condemned for the use of a new 
 company, where the public necessity so 
 requires. Under the constitution of Illi- 
 nois, the property and franchises of in- 
 corporated companies may be subject to 
 public necessity, as well as the property of 
 individuals; and the exercise of the right 
 and power of eminent domain can never 
 be so construed or abridged as to prevent 
 the general assembly from appropriating 
 such property, where the public exigency 
 demands it. Whatever exists in any form, 
 whether tangible or intangible, is subject 
 to the exercise of this power. The inter- 
 est a city railway company may have in 
 certain streets, derived by contract with 
 the city prohibiting their use by any other 
 company, is no part of the company's fran- 
 chise, but is in the nature of property, and 
 is an incorporeal right. A franchise 
 emanates from the sovereign power of the 
 State alone. Property, in its broadest and 
 most comprehensive sense, includes all 
 rights and interests in real and personal 
 property, and, also, in easements, fran- 
 chises and incorporeal hereditaments. lb. 
 
 A street-railroad company has the right 
 to remove snow from its tracks and to cast 
 it in a prudent manner upon the bed of the 
 street between the track and the sidewalk. 
 But it has not the right to throw it in the 
 gutter so as to obstruct the usual flow of 
 
382 
 
 RAILROAD. 
 
 water ; and if it does so and the premises 
 of an adjoining lot-owner are flooded, he 
 can sustain an action for damages. Ct. of 
 Appeals, 1878, Short v. Baltimore City Ry. 
 Co.,50iW(i. 73. 
 
 A horse-railroad company, chartered by 
 the legislature, may, while legally operat- 
 ing its road, enjoin a rival coach company, 
 organized under the general corporation 
 act, and licensed by the city where the 
 tracks are laid, from regularly using its 
 tracks with coaches adapted thereto, in 
 competition with it in its business in trans- 
 porting passengers and goods for hire, and 
 from obstructing it in the use of such 
 tracks by impeding the passage of its cars, 
 by stopping thereon to take up and let 
 down passengers. Ct. of Errors, 1879, 
 Camden Horse Car R. R. Co. v. Citizens' 
 Coach Co., 31 N. J. Eq. 525. 
 
 Adolph was driving a heavily loaded one- 
 horse wagon along Avenue A, and made 
 use of the street-railroad track. A car 
 came up behind him, moving at an unusual 
 rate of speed. The car-driver shouted to 
 him to clear the track, and he immediately 
 endeavored to do so. But before his heavy 
 wagon could turn off completely, the car 
 ran into it and upset it, aud the wagon- 
 driver was badly hurt. Held, that he was 
 not in the wrong in using the car track, but 
 was bound, while doing so, to take reason- 
 able care and keep ordinary watch against 
 any car overtaking his wagon, and to 
 make prompt effort to turn out for it; 
 that the judge should have explained this 
 obligation clearly to the jury; and that 
 whether he took such care, and the acci- 
 dent was wholly due to the excessive speed 
 of the car, or neglected it and thus con- 
 tributed to the injury, were questions for 
 the jury. Ct. nf Appeals, 1879, Adolph v. 
 Central Park, &c.R. R. Co., 76 N. Y. 530. 
 There are (says Folger J.), three clas- 
 ses of ways for travel, — the common road 
 or street, the horse railroad, and the steam 
 railroad. The right of the general public 
 to use these is different. In the common 
 street or road, and as respects ordinary 
 vehicles, each member of the public has, as 
 a general rule, equal right with another; 
 he may drive fast or slowly as he pleases, 
 and is not bound to look back or listen for 
 the approach of faster drivers behind him ; 
 but if a faster driver overtakes him, and 
 asks him to let him pass, he is bound' to do 
 
 80 if it can be done with safety. The right 
 of the general public to be upon the track 
 of a steam railroad is very restricted. The 
 trains of the company have the exclusive 
 right to use the track as a whole, and the 
 right of the general public is pretty nearly 
 confined to crossing it at a place where it 
 intersects a highway. Even at those spots 
 the railroad train has the superior right; it 
 is the duty of the highway traveller to 
 look and listen for any coming train. He 
 is not privileged to wait for a signal or re- 
 quest from the engineer before he begins to 
 leave the track clear. He is in duty bound 
 at first to take every care to ascertain that 
 no train is coming, and secondly, having 
 ascertained this, to cross as promptly as he 
 can. The track of a street railroad laid 
 for horse-ears holds an intermediate place. 
 Any one of the general public has the right 
 to drive his team and vehicle along the 
 track lengthwise, as well as to cross it at 
 the intersection of streets. But the law 
 accords to the street-car company the ex- 
 clusive right to any part of the track over 
 which, at the time, its horees and cars are 
 passing, or just ready to pass. Private 
 travellers are bound to leave the track to 
 the unrestricted use of the company when- 
 ever a car wishes to occupy it. The reason 
 of giving this privilege to the street-car 
 company is, that the car is necessarily con- 
 fined to the track, while carts and carriages 
 can come on or turn off at pleasure. The 
 track is not given to the company in a 
 sense which forbids the use of it by the 
 public. But private drivers who use it are 
 in duty bound to keep watch for the ap- 
 proach of any overtaking car, and to keep 
 themselves in readiness to turn out 
 promptly. They are not entitled to jog 
 along until a car-driver asks them to clear 
 the track, but must keep out of the way of 
 the street cars as far as reasonable watch- 
 fulness and care can enable them to do so, 
 provided the street cars are not travelling 
 at improper speed. lb. 
 
 Street-railroad companies are carriers of 
 passengers, and, as such, are bound to ex- 
 traordinary diligence, and liable for negli- 
 gence of their agents and employees in and 
 about such carriage ; and when passengers 
 are injured by riotous fighting among other 
 pa.ssengers, it is for the jury to say, under 
 all the facts, whether the company was 
 negligent in not providing a suitable con- 
 
RAILROAD. 
 
 883 
 
 ductor to preserve order, or -whether the 
 pelson in charge of the car as driver was 
 negligent in the preservation of order 
 thereon, and the safe carriage of the pas- 
 sengers to the place of destination. A 
 declaration alleging such negligence in the 
 company, both in respect to the failure to 
 have a conductor aboard to preserve order, 
 and in respect to the negligence of the 
 driver in failing to suppress the fight or 
 to eject the combatants, is good, and should 
 not he dismissed on demurrer. Supreme 
 Ct. 187S, Holly o. Atlanta Street R. R., 
 61 Ga. 215. 
 
 If a child, while riding with due care 
 on the platform of the car of a horse-rail- 
 road corporation, not as a passenger for 
 hire, but by invitation of the driver, and 
 without collusion with him to defraud the 
 corporation, is injured through his negli- 
 gence in driving the car, the parent of such 
 child may maintain an action against the 
 corporation for the loss of service of the 
 child, occasioned by such injury. Supreme 
 Ct. 1878, Wilton v. Middlesex R. R. Co., 
 125 Mass. 130. 
 
 It wiU not be held to be negligence, per 
 se, to expose the elbow to some extent from 
 the window of a street car drawn by horses 
 on a track laid upon the streets of a city. 
 What is ordinary prudence as to the po- 
 sition to be assumed by a passenger in such 
 car cannot be determined by any arbitrary 
 rule. St. Louis Ct. of Appeals, 1878, Miller 
 V. St. Louis R. R. Co., 5 Mo. App. 471. 
 
 In an action for damages for injuries sus- 
 tained by being run over by a street car, 
 where it appears that the plaintiff was 
 guilty of negligence directly contributing 
 to the accident, he must show that the in- 
 jury could have been avoided if defendant 
 had exercised ordinary care. The driver 
 of such car is not bound to regulate his 
 speed at such a rate as may be necessary to 
 avoid harm to persons crossing the road in 
 an unreasonable and improper manner. It 
 is as much the duty of persons crossing 
 the street on foot to look out for vehicles as 
 it is the duty of the driver to look out for 
 those crossing the street. St. Louis Ct. of 
 Appeals, 1878, Meyer v. LindellRy. Co., 6 
 Mo. App. 27. 
 
 A boy, ten years of age, was riding free 
 on the front platform of a horse-railroad 
 car, with the knowledge of the conductor 
 and driver, the latter having requested him 
 
 to hand in a package at a place they were ' 
 to pass. Before quite reaching the place 
 for stopping for this purpose, the plaintiff 
 jumped off the platform and fell under the 
 car and was badly hurt. A printed notice 
 was posted conspicuously in the car, for- 
 bidding passengers to stand upon, or get 
 on or off at, the front platform, or to get on 
 or off the car when in motion, and declar- 
 ing that the company would not be re- 
 sponsible for any accident^happening there- 
 by. In an action against the company for 
 the injury, the court below found that it was 
 caused by careless driving and management 
 of the car, that the plaintiff, in getting off 
 under the circumstances, used as much care 
 as could be expected from a person of his 
 age, and that no contributive negligence 
 on his part was proved. Held, on a motion 
 of the defendant for a new trial, that it 
 was within the scope of the authority of 
 the conductor and driver to receive and let 
 off the plaintiff as a passenger, and it did 
 not alter the case that the conductor did 
 not require him to pay fare. Even if the 
 driver was not authorized to deliver the 
 package, nor employ the plaintiff to do it, 
 yet evidence that he requested him to carry 
 it in was admissible, on the question of 
 negligence, to show that he knew that the 
 plaintiff was on the car and was intending 
 to get off at the place in question, and even 
 if the plaintiff was to be regarded as a 
 trespasser in the car, that fact would not 
 necessarily defeat his right of action. A 
 special duty devolved upon the conductor 
 and driver, in view of the fact that the 
 plaintiff was so young, to see that the rule 
 forbidding him to stand upon the front 
 platform, or get off from it, was observed 
 by him. Ct. of Errors, 1877, Brennan v. 
 Fair Haven, &c. R. R. Co. , 45 Conn. 284. 
 Where a city railway car stopped at a 
 place where the conductor made his report 
 and waited for the return of the car, and a 
 passenger attempted to get off without 
 notice of such intention, and it did not 
 appear that such place was one where pas- 
 sengers usually got on and off, or that those 
 in charge knew that persons actually got 
 off, and they started the car, whereby a 
 passengerwas thrown and injured, the rail- 
 way company was held, not chargeable 
 with negligence in starting the car forward; 
 the passenger, before gettingoff, should have 
 ascertained that the stoppage was for the 
 
384 
 
 RAILROAD. 
 
 purpose of letting persons get oS, or have 
 made his intention to get off known. Su- 
 preme Ct. 1878. Chicago West Division Ry. 
 Co. V. Mills, 91 III. 39. 
 
 Minor Decisions on Bailroad. 
 
 Legislation. A statute declaring a com- 
 pany liable for animals killed on the track 
 irrespective of any neglect of duty is un- 
 constitutional, for taking property without 
 due process, &c.: 58 Ala. 594. Consti- 
 tutionality of a statute rendering com- 
 panies liable for double damages for live- 
 stock killed on track through defect of 
 fences, sustained: 92 III. 97; Id. 157; 6 Mo. 
 App. 397. A State law authorizing a town 
 to pass ordinances requiring company to 
 station flagmen at crossings within the 
 township is valid, as a police regulation: 
 41 N. J. L. 127; for the same reason a 
 statute authorizing municipal authorities 
 to require companies to place lights along 
 their tracks within the city or village is 
 constitutional: 32 Okio St. 152. Consti- 
 tutionality of statute requiring passenger 
 trains to stop at least five minutes at all sta- 
 tions, sustained, as a police regulation: 51 
 Tex. 189; 4 Tex. App. 545; and see 6 Tex. 
 App. 166. 
 
 Charter and franchise. Legislation of 
 Alabama, limiting rate of railway charges, 
 construed ; meaning of "rate" explained; 
 and power of railroads to exact tolls, con- 
 sidered: 56 Ala. 321; 61 Id. 559. Tax 
 voted to aid road not forfeited because not 
 expended wholly within the township: 50 
 Iowa 61. An exemption of the property of 
 company from taxation does not exempt the 
 shares of stock from being taxed against 
 their owners: 82 iV. C 415. A company 
 may be indicted for Sabbath-breaking, 
 — here, for running Sunday trains: 15 
 W. Va. 362. Burglary in breaking into 
 a car, or office of company: 34 Oliio St. 79; 
 Id. 82. What charter power enables com- 
 pany to buy land and to mortgage or sell 
 its road: 3 Woods, 281. One company has 
 corporate power to guarantee bonds of an- 
 other: 52 Cal. 53. A company which has 
 forfeited a land grant by delay in con- 
 struction cannot enforce claim to lands 
 in the courts, although legislature has not 
 asserted the forfeiture: 49 Iowa, 601. 
 Though land-owner did not object to build- 
 ing of road, if he objects to running trains, 
 company must make compensation or pay 
 
 damages: 86 III. 20. Road may not he 
 sold in portions on execution, but should be 
 subjected to payment of debts by means of 
 a receivership: 3 Woods, 434. A lien upon 
 a part only of a continuous road and 
 branches is not authorized: 6 Mo. App. 
 205. Liability of receiver for rental of 
 locomotives hired by the company, but 
 used by him ; and for neglect to make re- 
 pairs: 8 Reporter, 453. 
 
 Construction. Propriety of requiring 
 company to change the location of its road 
 at an intersection with the highway when 
 travel on both roads had greatly increased, 
 rendering their proximity much more 
 dangerous than at first: 45 Conn. 331. 
 Rights and duties of corporations in re- 
 spect to carrying a highway under or over 
 its track by bridge: 74 N. Y. 302. To 
 build road weakly at a spot exposed to 
 floods is negligence ; and if a passenger is 
 drowned in consequence, company is liable: 
 3 Col. 94. Constructing roadway so as to 
 cast surface-water from ordinary rains 
 upon adjoining lands injuriously is negli- 
 gence rendering company liable: 49 Iowa, 
 378. See, as to extraordinary rains, 50 Tex. 
 330. If immediate cause of disaster is un- 
 precedented storm washing out track, neg- 
 ligence in running the train, which only 
 remotely contributed, will not make the 
 company liable: 6 Mo. App. 554. Com- 
 pany cannot avoid liability for damage 
 done in construction of road because the 
 persons doing it were employed by a con- 
 tractor, not by the company directly: 67 
 Mo. 118. 
 
 Employees. Company has right of 
 action against employee for a collision 
 caused by his negligence; and may recoup 
 damages therefor in his action for wages: 
 59 Ala. 392. Prosecution for a conspiracy 
 to defraud a company by stealing and sell- 
 ing passes and tickets; several questions 
 of evidence, determined; and the effect of 
 acts done in different counties and States, 
 reviewed: 48 Jl/rf. 521. Division superin- 
 tendent has not implied authority to charge 
 company with cost of medicine for pereon 
 hurt by train: 67 Mo. 122. 
 
 Transportation. Liability of company 
 for delay i n transportation , caused by a strike 
 among its employees attributable to insuf- 
 ficient wages, — determined: 65 Ind. 188. 
 Companies not entitled to require each other 
 to transport goods: 9 6'. C. 325. How to 
 
RAILROAD. 
 
 385 
 
 estimate damages for breach of agreement 
 to give a pass for life over road: 88 Pa. St. 
 243. A company may make a rule forbid- 
 ding passengers to stop over without " stop- 
 over" tickets; and passenger disobeying 
 may be put off, notwithstanding he has 
 conductor's individual check: 50 Tex. 43. 
 Husband was allowed to recover for lost 
 baggage, although the articles were for use 
 of wife and child, and they, and not he, 
 were passengers accompanying: 74 N. Y. 
 116. For wrongful expulsion from cars, 
 passenger may recover for loss of time, 
 expenses while delayed, cost of another 
 ticket, and a fair compensation for the in- 
 dignity: 5 Sawyer, 107. Proper damages 
 where conductor put off child offering half- 
 price ticket, but old enough to pay full fare, 
 in consequence of which party of six had 
 to stop: 86 III. 296. Company is liable for 
 acts of its conductor in wrongfully ejecting 
 a passenger from the train ; and is liable 
 for exemplary damages if there was malice, 
 excessive violence, &c.: 90 III. 126; 68 Mo. 
 329. A company's agreement, in consider- 
 ation of advances from an express company, 
 to afford the latter facilities for express bus- 
 iness over its road, held, not a license to 
 travel, but a contract for transportation: 99 
 U. S. 191. 
 
 Liability for negrligence. Fault is pre- 
 sumed where car is thrown from the track: 
 8SIII. 418. Statute obligation to keep a look- 
 outon engine: 1 Lea (Tenn.'), 523. Liabil- 
 ity of company for in j ury f I'om fire spreading 
 from engine sparks: 86 III. 443. Liability of 
 company where its servants, acting under 
 orders, set fire to rubbish on the road- 
 bed, and the fire spreads and injures 
 neighboring property: 92 III. 437. The 
 mere fact that fire spread from sparks 
 from a locomotive does not warrant pre- 
 sumption of negligence in the management : 
 34 Ohio St. 96; 89 Pa. St. 458; and see 87 
 Pa. St. 274. 
 
 Company is not liable as of course 
 for passenger's injury attributable to run- 
 ning train beyond proper stopping-place 
 and backing with a jerk; the question of 
 negligence is for the jury: 71 N. Y. 489. 
 Person allowed by conductor to ride in 
 caboose car may have damages for injury 
 in train- wreck, irrespective of the car not 
 being designed for passengers : 86 Pa. St. 
 139. Riding on platform, or passing from 
 car to car, contributive negligence (within | 
 25 
 
 accident policy): 15 BZafc^/. 216. Passen- 
 ger injured in leaping from train because 
 carried beyond his station cannot recover 
 damages ; he should go to next station and 
 claim for delay: 86 III. 467; 68 Mo. 593. 
 Passengers attempting to board moving 
 train is contributive negligence: 90 III. 586. 
 Liability of company for death of pas- 
 senger who mistook cars moved back and 
 forth in depot for regular train, and was 
 run over in trying to board them: 38 
 Mich. 714. When the question is of an 
 injury to a passenger, the highest degree of 
 care is required: 49 Tex. 573. Company 
 held chargeable with negligence where con- 
 ductor, late at night, aroused a passenger 
 from sleep, and hurried him to leave the 
 train while it was in motion, and at a place 
 not lighted; but not liable in damages, be- 
 cause the passenger was chargeable with 
 contributive negligence: 31 Gratt. (Va.^ 
 200. 
 
 When company is liable for medical ser- 
 vices to employee injured in his work: 61 
 Ala. 247. Mother of minor son killed by 
 negligence of r. company may recover ex- 
 penses of surgical attendance, nursing, and 
 burial, and value of probable services of 
 child during minority; but nothing for loss 
 of companionship or grief: 33 Ark. 350. 
 Company must use highest diligence in 
 equipping a road; but is not, towards em- 
 ployees, an insurer; nor liable for undis- 
 coverable defects: 89 III. 141. Company 
 is not liable to employee hurt by striking A 
 signal-post, merely because post was placed 
 injudiciously near the track: 125 Mans. 79. 
 The fact that injury of employee is attrib- 
 utable to defect in machinery is not enough 
 to render company liable; negligence on 
 the part of the company must be shown : 
 67 Mo. 2T2. Under what circumstances a 
 fireman injured in consequence of a mis- 
 placed switch may recover on the ground 
 that the regulations of the company were in- 
 judicious in imposing too much labor on the 
 switchman: 19 Hun (N. Y.), 556. Company 
 may be liable to employees injured, where 
 its failure to give adequate signals after a 
 change made in the running of trains led 
 to the injury: 30 Gratt. (Va.) 805; 44 Wis. 
 638. Company operating a road under 
 lease is liable to employees for injuries 
 through its defects: 46 Wis. 497. Consti- 
 tutionality of an " employers' liability 
 law," sustained: 47 Wi.i. 138. Whether 
 
386 
 
 RAILROAD. — RAPE. 
 
 engineer moving cars about the yard is 
 chargeable with negligence in running over 
 ■workman repairing track; and whether 
 workman is chargeable with contributive 
 negligence, — are questions for the jury: 
 lb. If one employed to superintend re- 
 pairs of the road or rolling-stock fails in 
 duty, and sustains injury through a de- 
 fect, he cannot recover ; for his negligence 
 has contributed: 3 Col. 499. 
 
 A statute that companies shall be liable 
 for all damages if signal, at crossing, is not 
 given, does not make them liable where 
 there is contributive negligence: 52 Cal. 
 602. Company is liable for killing person 
 walking on track and run over by train 
 driven backwards without a look-out: 58 
 Ala. 672. Walking on or across track 
 without looking and listening for trains is 
 contributive negligence: 87 III. 529; 91 III. 
 35; 22 Kan. 296; 80 N. J. Eq. 240; Id. 
 604; 13 Nev. 376; 14 Nev. 351; Id. 376; 
 15 Hun (N. Y.), 572; 17 Id. 395; 32 Ohio 
 St. 66; 89 Pa. St. 59; 47 Wis. 144; 30 
 Gratt. (Va.) 602; not so of passenger: 
 78 N. Y. 328. Omission of a sign at 
 the crossing does not excuse crossing the 
 track without looking: 49 Iowa, 469. In- 
 toxication of person walking on track, which 
 prevents his using due caution, is contribu- 
 tive negligence: 39 Mich. 537; 61 Ga. 114; 
 87 Pa. St. 405. A trespasser on the track 
 cannot recover for being run over unless 
 wilfully injured: 125 Mass. 75. Engineer 
 need not slow train merely because he sees 
 man walking on the track ; but only when 
 he sees danger that the walker will not leave 
 it in time : 59 Ala. 471 ; 60 Ala. 621 ; 62 /nrf. 
 566. Presumption that company is liable 
 for frightening traveller's horse by exces- 
 sive whistling at crossing is not rebutted by 
 proof that the engineer acted maliciously : 
 60 Ga. 492. That plaintiff was injudicious 
 in driving so near the track does not defeat 
 action for frightening his horses by excessive 
 whistling, if engineer acted maliciously: 88 
 III. 431. One who brings an unusually 
 timid, restive horse near a railroad, takes 
 the risk of its being frightened, and cannot 
 recover damages therefor, if the servants of 
 the company used care adequate for ordin- 
 ary horses: 2 Bradw. (111.) 116; 69 Me. 208. 
 Neglect of engineer to give statutory signals 
 
 charges conipany (in Massachusetts) with 
 injury sustained by traveller at crossing, 
 unless traveller was grossly in fault: 125 
 Mass. 62. 
 
 Company not liable where fence has been 
 accidentally broken, unless they delayed re- 
 pairing: 88 III. 368. Where one company 
 owns road and another company operates 
 it, the statutory liability for live-stock killed 
 through defect of fences is upon the owner 
 company: 61 Ind. 183; Id. 285, 287. Com- 
 pany is not liable for animal frightened to 
 death : 60 Ind. 107. Suit for killing ani- 
 mal on defendant's track cannot be sus- 
 tained, even by amending, by proof of 
 killing by defendant's cars on road of 
 another company: Id. 183. The presump- 
 tion that killing of live-stock on the track 
 is attributable to negligence may be rebutted 
 by proof that the train hands took every pre- 
 caution, under the circumstances, to avoid 
 injury: 82 N. C. 352; 15 W. Va. 628. Engi- 
 neer must slacken speed to avoid running 
 over live-stock on the track: 1 Lea (Tenn.), 
 576; unless so doing will endanger persons; 
 then he need not: 56 Ala. 507; 24 Minn. 
 410, 69 Mo. 215; 1 Lea {Tenn.), 516; Id. 
 520. Head-light becoming obscured by sud- 
 den, extraordinary rain does not necessarily 
 render company liable for nmning over 
 live-stock which the look-out failed to see: 
 2£ea(renre.),262. 
 
 Horse railroads. A horse railway may, 
 a steam railway may not, be laid in a city 
 street without compensation to lot-owners: 
 38 Mich. 62. Relative liabilities of two 
 street-railway companies for mismanage- 
 ment of switches, by which highway travel- 
 ler was injured: 76 N. Y. 28. 
 
 RAPALJE. A Digest of Federal Deci- 
 sions and Statutes, comprising all the Cases 
 (and such Statutory Provisions as are of 
 present practical use), from the Earliest 
 Period to the Year 1880 ; together with a 
 Table of Cases Affirmed, Reversed, Over- 
 ruled, and Otherwise Criticised, covering 
 the same period. By Stewart Rapalje. 
 Jersey City: Linn & Co. 
 
 RAPE. Statute punishing abuse of 
 female child does not abrogate common- 
 law crime of r. : 46 Conn. 349. R. cannot 
 be predicated of obtaining intercourse by 
 means of mock marriage, though woman 
 
 Bape. Lustful assault, p. 29. 
 nition of rape, p. 167. 
 
 Assault with intent to ravisli, p. 30. Abuse of child, p. 148. Defi- 
 
RAPE. — REAL PROPERTY. 
 
 387 
 
 was very weak-minded: 6 Baxt. (Tenn.) 
 614. Intercourse with a girl under ten is 
 r. under any circumstances: 7 Tex. App. 
 342 ; 45 Wis. 86 ; hence there may be a con- 
 viction for attempt to commit r. on such a 
 girl, notwithstanding her consent: 7 Tex. 
 App. 342. Force is necessary; using famil- 
 iarities which disable the woman from 
 resisting is not enough : 53 Cal. 62. Prose- 
 cution must show that accused intended to 
 overcome any resistance : 47 Iowa, 152. 
 There may be r. where the woman fails to 
 resist from mental imbecility : 50 Iowa, 189. 
 Utmost resistance is not always needful; 
 there may be submission induced by fear : 
 21 Kan. 583. Defence may prove specific 
 actsofunchastity by witness: 2 iea (^Tenn.), 
 169. Effect of proof that woman was a 
 prostitute, was intoxicated, &c. : 45 Conn. 
 256. On indictment for r. , accused may be 
 convicted of simple assault: 49 Iowa, 241. 
 There may be burglary with intent to com- 
 mit r., although the accused was mistaken 
 in supposing that the woman intended 
 was within the building: hence indictment 
 need not allege she was there: 5 Tex. App. 
 74. 
 
 REAL PROPERTY. Liability of own- 
 ers. The owner who makes excavations 
 on his land is liable if he thereby deprives 
 that of adjoining proprietors of its lateral 
 support, while it is in its natural condition ; 
 but their right to such support does not pro- 
 tect whatever they have placed upon the 
 soil increasing the downward and lateral 
 pressure. Supreme Ct. 1878, Transporta- 
 tion Co. V. Chicago, 99 U. S. 635. 
 
 Where a building is let in separate tene- 
 ments, the occupants of each tenement are 
 in duty bound towards those of another to 
 exercise reasonable care in the management 
 of water-fixtures, &c. If the servants of the 
 occupant of an upper tenement negligently 
 leave the water running, by which the tene- 
 ment below is flooded and injury done, the 
 
 Heal property. Germane titles are: Easf,- 
 ment; Fixture; Personal Property; Public 
 Lasds; Riparian. Transfers, see Aeandon- 
 mest; Adverse Possession; Deed; Devise; 
 Mortgage. 
 
 _ Abandonment of homestead, p. 2; of public land 
 rights, p. 4. Advancements in lands, p. 16. 'I'he 
 Jefferson Davis case of adverse possession, p. 16 ; 
 the sea-beach case, p. 18 : the Clyde case, p. 18. 
 Points on adverse possession, p. 19 Not to be de- 
 faced, in Colorado, b_v advertisements, p. 19. Tak- 
 ing property for public use, in California, pp. 55, 
 62. Land and homestead, p. 65. Landlord's lia- 
 bility for liquor sold on his premises, p. 88. Dedi- 
 
 occupant above is liable for damages. Su- 
 preme Ct. 1878, Simonton v. Loring, 68 Me. 
 164. 
 
 The owner of land who makes a contract 
 with a firm of masons, by which the latter 
 are to furnish all the labor and materials 
 in building a party wall, half on his land 
 and half on the land of an adjoining owner, 
 is liable in tort to such adjoining owner, 
 alter the wall has been completed and ac- 
 cepted, for an injury to his property by a 
 fall of the wall, resulting from its defective 
 and unsafe condition, whether owing to 
 his own negligence or that of the masons. 
 Supreme Ct. 1878, Gorham v. Gross, 125 
 Mass. 232. 
 
 Wood, an innkeeper, let a hall in his inn 
 for a public dance. t)ne of the guests, who 
 had paid the admission fee, when leaving, 
 passed out at a door which he supposed was 
 the street door, but which in fact opened 
 upon an awning, and fell to the ground and 
 was injured. The door was not properl}' 
 watched or guarded; it was unsafe under 
 the circumstances. Held, that, by letting 
 the hall with knowledge that it was to be 
 used for public purposes, he legally held 
 out to the public that the hall was safe for 
 their coming ; he was bound to exercise due 
 care in providing for the safe entrance and 
 departure of whoever bought tickets ; and 
 he was liable directly to a guest thus in- 
 jured, notwithstanding there was no direct 
 contract between him and such guest. Ct. 
 of Appeals, 1879, Camp v. Wood, 76 N. Y. 
 92. 
 
 Minor Decisions on Seal Property. 
 A house erected under covenant that 
 builder may remove it is a chattel, maybe 
 transferred without writing, and is a sub- 
 ject of trover: 57 Ala. 139. % Actual visible 
 occupation of land is enough to put all 
 persons dealing with the title upon inquiry 
 as to the occupant's right: 33 Ark. 465. 
 
 cation, p. 143. Convevance, p. 144. What is an 
 encumbrance, p. 154. fcasement, p. 182. Goddard 
 on Easements, p. 224. Ejectment, p. 182. Respon- 
 sibility for elevators in buildings, pp. 195, .319. Tak- 
 ing lands for public use, pp. 197, 198 ; in California, 
 p. 55. What are fixtures, generally, pp. 211, 212; 
 instaneesof gas-fixtures, furnace, boiler, p 212; ma- 
 chinery, steam-engine, ferry-boat, p. 213. Tarrying 
 in highway, and misbehaving, is a trespass, p. 226. 
 Mechanics' liens, p. 300. Mining laws and rights, 
 p. 301. Mortgage of cemetery lots not allowable, 
 p. 303. Nature of mortgage, p. 304. Various 
 points on mortgage, p. 304. Inheritance of adopt- 
 ed child, p. 327. 
 
388 
 
 REAL PROPERTY. — REEVES. 
 
 Owner who, with full knowledge, stands 
 by and permits land to be sold without 
 asserting his claim is estopped: lb. Title 
 by occupancy may be conveyed by deed, 
 and may sustain ejectment: 4 Col. 38. 
 Owners of distinct lots injured by obstruc- 
 tion of watercourse cannot unite their 
 claims for damages in one action: 22 Kan. 
 352. Title to manure accumulated on a 
 farm determined between a mortgagor in 
 whose husbandry it was produced, and a 
 mortgagee, on his taking possession after 
 default: 68 Me. 204. Between wife who 
 owned the farm and husband who carried 
 it on with live-stock and hay belonging to 
 himself: Id. 275. Action does not lie for 
 building fire on one's own land, but only 
 for negligence in letting it spread: 60 Ind. 
 469. Relative rights of adjoining land- 
 owners where freshets carry driftwood from 
 one place to another: 64 Ind. 167. Owner 
 of burned house, who leaves the walls stand- 
 ing unsafe, is liable if they fall on adjoining 
 buildings, on the ground of negligence; 
 notwithstanding the burned premises have 
 been placed in the hands of a skilled con- 
 tractor employed to rebuild: 67 Ind. 408. 
 Liability of one who, by blasting rock, 
 does injury to neighboring premises: 127 
 Mass. 481; 34 Ohio St. 638. Principles 
 governing accounting for rents between 
 purchaser in good faith of land from person 
 without title, and the true owner : 55 Miss. 
 261. City is not liable for injury of a per- 
 son by the fall of a market-house blown 
 down by an unprecedented storm : 69 Mo. 
 341. One who knowingly allows his build- 
 ing to be used as a brothel is liable in 
 damages for depreciation of adjoining 
 dwellings: 4 Mo. App. 498. Land-owner 
 may not discharge surface-water on his 
 neighbor's lot: 8 Neb. 43. The relative 
 rights of upper and lower proprietors in 
 respect to flooding by discharge of waste 
 water drawn from artificial sources for use 
 in irrigation: 14 Nev. 17. There is no 
 presumption that the person occupying and 
 working a farm is owner of all the produce: 
 
 Seasonable donbt. What is one, p. 135. As 
 to insanity of accused, p. 136. 
 
 Beceipt. Limitations of carrier's liability, pp. 
 67, 74. Lawson on Express and Railway Receipts, 
 pp. 269, 270; they cannot limit carrier's liability 
 for negligence, p. 270. 
 
 Kecord. Of deeds, Deed ; of mortgage, Moet- 
 oaoe; of instruments relative to lopyrights or pa- 
 tents, Copyright; Patjiht. Effect of records 
 as evidence. Evidence. 
 
 71 N. Y. 85. Intent to injure adjoining 
 owner does not render land-owner liable for 
 digging rightfully upon his own land: 72 
 iV. F. 39. If true owner wrongfully ex- 
 cluded from possession can regain it peace- 
 ably, he may; and then may lawfully resist 
 attempts of the intruder to return: 73 
 N. Y. 529. Statute forbidding setting 
 fires does not forbid one on whose land the 
 fire is spreading from setting a fire against 
 it: 1 Lea (Tenn.), 392. 
 
 RECEIPT. Gi ving the sheriff r . in full 
 for less than is due from him for his default 
 to pay over money, held, not a discharge: 
 61 Ala. 518. E. for "one letter envelope 
 sealed, said to contain " money, is not proof 
 to charge signer as bailee of the money: 55 
 Miss. 94. R. given by heir to executor for 
 a specific sum "in full of his share "is 
 binding only for the sum specified; it does 
 not discharge the executor for any surplus: 
 51 Tex. 14. 
 
 RECEITEE. Federal court will not 
 sustain a suit commenced against its r. 
 without its leave, although commenced in 
 a State court and under authority of a State 
 law: 12 West. Jur. 593. What protection 
 is accorded to r. against being sued: 22 
 Kan. 414. Parties who obtain property 
 by means of a receivership take it subject 
 to payment of receiver's compensation: 56 
 Ala. 12. Title of r. appointed in another 
 State, if lawful there, to property which he 
 brings into Connecticut, will be sustained 
 there irrespective of local law: 45 Conn. 
 126. 
 
 RECORDS. The provisions of Rev. 
 Stat. §§ 902-904, relating to proceedings 
 to restore records of district and circuit 
 courts lost or destroyed, — amended as 
 to the notice to be given of proceedings 
 to restore; the effect of the restored copy; 
 and the duties of judges, district attorneys, 
 and clerks of court. Act of Jan. 31, 1879, 
 20 Stat, at L. 277. 
 
 REETES. History of the English Law. 
 New American edition. By W. F. Fin- 
 LASON. Philadelphia: M. Murphy. 
 
 Treasury transcripts, p. 12. Recording deeds, 
 generally, p. 144. Index, pp. 144, 145. Meaning 
 of " record," p. 168. Actual notice under recording 
 law, pp. 146, 322. Notary may take acknowledg- 
 ments for Maine, p. 322. 
 
 Registration. Index to registry of deeds, pp. 
 144, 145. Registration of voters, pp. 184, 185; au- 
 thorized in Georgia, p. 217. Revision of registry, 
 p. 214. 
 
RELIGIOUS SOCIETY. — REVISED STATUTES. 
 
 RELIGIOUS SOCIETY. Committee 
 of incorporated one has authority to de- 
 fend, at cost of society, legal proceedings 
 threatening the corporate rights or prop- 
 erty, — such as a suit to enjoin sale of pews ; 
 but not proceedings which affect only them- 
 selves, — such as a suit to contest their elec- 
 tion: 46 Conn. 529. A parsonage distinct 
 from a church is not exempt from taxes : 
 41 N. J. L. 117. Delivery of deed and 
 possession and payment of price will not 
 make valid a sale of real property made 
 without leave of court; but church seeking 
 to rescind must restore the price : 73 N. Y. 
 82. Union and conveyance of property 
 between Madison Avenue Baptist Church 
 and Oliver Street Baptist Church: lb. 
 Rights of rival parties in a church decided, 
 where the minority held business meetings 
 at the regular place of worship, and the 
 majority met elsewhere: Id. 323. Obli- 
 gations of a subscription towards building 
 a " Presbyterian " church ; and how it may 
 be enforced: 74 N. Y. 72. Sale of land 
 and building entire is not breach of con- 
 dition in deed forbidding seats in the church 
 to be sold: Id. 196. Communion service 
 of a church is not liable to execution on a 
 judgment against trustees for pastor's sal- 
 ary: 82 N. Y. 241. Favor with which 
 Sunday-schools are to be regarded in con- 
 nection with questions of church incorpo- 
 ration: 88 Pa. St. 42. Right of burial in 
 churchyards; and power of legislature to 
 direct removals for sanitary reasons: lb. 
 
 REPORTER. The Federal Reporter. 
 Cases Argued and Determined in the Cir- 
 cuit and District Courts of the United 
 States, March, 1880. Peyton Boyle, 
 editor. St. Paul: West Publishing Com- 
 pany. 
 
 The engagement of the "Federal Re- 
 porter " is to give immediate publication of 
 
 Bemoval. Of cause, when allowable since act 
 of 1875. pp 85-87. Of county seat, what vole is 
 needful to authorize it, p. 128. Tenant's right of 
 removal of fixtures lost at expiration of term. p. 
 2]3. What is "cause" of removal of officer, pp. 
 149, 326. Power to remove "city officers," p. 150. 
 
 Beports. Houstob's Criminal Reports, p. 231. 
 American Insolvency Reports, p. 247. Change in 
 numbering of Kentucky reports, p. 265. Mykick's 
 Probate Reports, p. 316. Pearson's Common Pleas 
 Eeports, p. 336. 
 
 ' Eesidenee. Abandonment of homestead or resi- 
 dence, pp. 2, 5. Bearing of residence or absence 
 on adverse possession in a remarkable case, p. 16. 
 Besidence of parties to suit in circuit court, pp. 84, 
 85. Domicile and residence, p. 152. Dwelling- 
 house, p. 64. Meaning of " reside," p. 168. 
 
 all the current decisions of the circuit and 
 district courts, issued every week, in the 
 ordinary size and form of State reports. 
 The number of pages in each issue varies 
 in accordance with the quantity of matter 
 received, the object being to give every 
 opinion promptly, which makes some issues 
 large and some small. The copies of the 
 opinions published are in most instances, 
 supplied by the clerks of the courts. The 
 head-notes are prepared by the editor. 
 The enterprise, which has now (October, 
 1880) reached nearly a third volume, well 
 deserves approval and support. 
 
 REVISED STATUTES. Section 5596 
 of the U. S. Revised Statutes, — All acts of 
 Congress passed prior to the first day of De- 
 cember, 1873, any portion of which is era- 
 braced in any section of said revision, are 
 hereby repealed, and the section applicable 
 thereto shall be in force in lieu thereof; all 
 parts of such acts not contained in such 
 revision having been repealed or superseded 
 by subsequent acts, or not being general or 
 permanent in their nature, — indicates a 
 belief on the part of Congress that all parts 
 not contained in the revision of acts, other 
 portions of which are in it, have been re- 
 pealedor superseded bysubsequent acts ; but 
 it ought not to be considered as more than an 
 expression of opinion or a recital of belief. 
 It is not in the form of an enactment. It 
 is not a declaration of Congressional will. 
 It is not a rule for the future. It certainly 
 is not conclusive. M'^hether a statute was 
 repealed by a later one is a judicial, not a 
 legislative question. Supreme Ct. 1878, 
 United States v. Claflin, 97 U. S. 546. 
 
 The acts of Congress embodied in the 
 Revised Statutes and in the i-epealing 
 clause, § 5596, are no longer in force ; and 
 cannot be referred to as controlling the re- 
 vision. Where there is a substantial doubt 
 
 Bevenne. Of California, p. 64; of Georgia, p. 
 220; of Louisiana, p. 285. Removal of prosecution 
 of revenue officer, p. 86. Meaning of '' raise rev- 
 enue," p. 167. 
 
 Review. By appeal, p. 24. Of judge's decision, 
 to hold him personallv liable, p. 130. In circuit 
 court, by bill, p. 84 ; 6y writ of error, pp. 84, 85. 
 Revision of circuit court decision on habeas corpus, 
 p. 225. Of judgment of court of another State, pp. 
 261, 262. Of New York canvass, bv mandamus, 
 pp, 291, 292. Granting new trial, p. 3^1. Revision 
 of election, in quo warranto, p. 324. 
 
 Bevised statutes. Code; Statute. 
 
 As to census, p. 77. Incorporating invalid law 
 in revised code does not cure defect, p. 96. 
 
390 
 
 REVISED STATUTES. — RIPARIAN. 
 
 as to the meaning of the language used in 
 the revision, the old law is a valuable 
 source of information. But the Revised 
 Statutes must be treated as the legislative 
 declaration of the statute law on the sub- 
 jects which they embrace on the first day 
 of December, 1873. When their meaning 
 is plain, the courts cannot look to the stat- 
 •utes which have been revised, to see if Con- 
 gress erred in that revision; though they 
 may do so when necessary to construe 
 doubtful language used in expressing the 
 meaning of Congress. Supreme Ct. 1879, 
 United States v. Bowen, 100 U. S. 508. 
 
 Where the language of the Revised Stat- 
 utes is plain and unambiguous, the gram- 
 matical structure simple and accurate, and 
 the meaning of the whole intelligible and 
 obvious, a court is not at liberty, by con- 
 struction, to reproduce the law as it stood 
 before the revision. Whatever palpable 
 modifications, alterations, or changes of 
 pre-existing laws may be found in the Re- 
 vised Statutes are as much in force as any 
 of their provisions. The Revised Statutes 
 ■were enacted to present the entire body of 
 the laws in a concise and compact form. 
 It would defeat their object if courts were 
 to disregard their language and administer 
 previous enactments as if the Revised Stat- 
 utes did not exist. 1878, Bowen v. United 
 States, 14 Ct. of CI. 2. 
 
 The enactment of the Revised Statutes 
 by act of Congress was not the enactment 
 of a body of laws as original legislation, but 
 was simply the enactment of a more con- 
 venient expression of the law as it existed 
 on Dec. 1, 1873; it does not enact or re- 
 enact anything as law which was not the 
 law on that date. 5th Circ. (Ala.) 1878, 
 United States r. Moore, 7 Reporter, 198. 
 
 Section 4 of act of March 7, 1877, 19 
 Slat, at L. 268, ch. 82, which, after provid- 
 ing for preparation, examination and pub- 
 lication of a second edition of the Revised 
 Statutes, enacted that, when printed and 
 promulgated as herein provided, the printed 
 volume shall be legal and conclusive evi- 
 dence of the laws and treaties therein con- 
 
 BightB. New declaration of rights, in California, 
 
 &6.5; in GeoTfjia, p. 215; in Louisiana, p. 278. 
 ip^tit of suffraf^e in California, p. 56 ; in Connecticut, 
 p. 10.3; generally, p. 184; in Georgia, p. 216. Fights 
 of Chinese under Burlingame Treaty, pp. 80-83; 
 under 1 +th Amendment, pp. 82, 8.3. liights respect- 
 ing "civil damage" laws, pp. 88, 89; or "local 
 option " laws, p. 107. Civil rights, e. y. serving on 
 
 tained, in all courts of the United States, 
 and of the several States and Temtories, 
 and said secretary shall cause, &c. — amend- 
 ed to read as follows : " When printed 
 and promulgated as herein provided, the 
 printed volume shall be legal evidence of 
 the laws therein contained, in all courts of 
 the United States, and of the several States 
 and Territories, but shall not preclude ref- 
 erence to, nor control, in case of any dis- 
 crepancy, the effect of any original act as 
 passed by Congress since the first day of 
 December, eighteen hundred and seventy- 
 three." Act of March 9, 1878, 20 Stat, at 
 i..27, ch. 26. 
 
 RICE. Digest of Decisions in Law and 
 Practice in the Patent Office from 1869 to 
 1880. By D. H. Rice and L. C. Rice. 
 Baston: Geo. B. Read. 
 
 RIPARIAJf. The common-law rule as 
 to what is a navigable stream — viz. : the 
 flow and reflow of the tide — has never 
 been recognized or adopted in the State of 
 Tennessee as the test. Whether the river, 
 in its ordinary state of water, is capable of 
 and suited to the usual purposes of naviga- 
 tion by such vessels as are employed in the 
 ordinary purposes of commerce, is the test. 
 Upon this definition the rights of riparian 
 owners are to be tested. If the river be 
 technically navigable, the soil covered by 
 the water, as well as the use of the stream, 
 belongs to the public. But if the stream 
 be not navigable in the legal sense, the 
 ownership of the bed of the stream is in 
 the riparian proprietors ; but still the pub- 
 lic have an easement therein, for the pui^ 
 poses of transportation and commercial 
 intercourse. Supreme Ct. 1874, Sigler ». 
 State, 7 Baxt. {Term.) 493. 
 
 A coal-mining company pumped from 
 its mines water which polluted a previously 
 pure stream into which it found its way. 
 In an action for damages against the com- 
 pany by a riparian owner on the stream, — 
 Held, that the fact that coal-mining is an 
 important industry would not relieve de- 
 fendants from liability, and that they 
 could not justify their action upon the 
 
 jury, p. 90; admission to the bar, p. 92; attend, 
 ance on public school, p. 93; travel, p. 93; mar- 
 riage, p. 93; judicial remedies, pp. 93, 94. Eight 
 to bear arms, p. 102. Rights of citizens of one 
 State in another, p. 107. Cooley on Constitutional 
 Law, p. 113. "Eight" not synonvraous with law, 
 p. 168. 
 
RIPAEIAN. — SALE. 
 
 391 
 
 ground that it was the customary mode 
 of disposing of water pumped from mines 
 in that region to aUow it to flow into the 
 streams, there being a lack of the neces- 
 sary age to establish a general custom, 
 and such a custom would be unreasonable 
 and unlawful. Pa. Supreme Ct. 1880, 
 Pennsylvania Coal Co. o. Sanderson, 22 
 Alb. L. J. 249. 
 
 Uinor Decisions on Biparian. 
 Kelative rights of upper and lower pro- 
 prietors to use of water: 53 Cal. 578; 88 
 Mich. 493. An owner below cannot build 
 dam so high as to back water against 
 wheels of mill above in ordinary freshets; 
 but is not liable for damage by extraordin- 
 ary floods: 67 Ind. 236. Mill-owner may 
 repair dam to retain more water if he does 
 not increase height: 69 Me. 19. Prescrip- 
 tive right of saw-mill more than thirty 
 years old to cast sawdust into the stream : 
 74 N. Y. 341. Owners of distinct lots in- 
 jured by obstruction of watercourse can- 
 not unite their claims for damages in one 
 action: 22 Kan. 352. Right of owner up 
 stream to yard live-stock upon his bank, by 
 which the water is injured for use below: 
 46 Wis. 391. The relative rights of upper 
 and lower proprietors in respect to flooding 
 
 by discharge of waste water drawn from 
 artificial sources for use in irrigation: 14 
 Nev. 17. The State, or its grantees, is 
 owner of the water in navigable rivers: 2 
 Pearson {Pa.), 208. Right of laud-owner 
 on bank of a navigable liver to construct 
 booms: 44 Wis. 295; 46 Wis. 237; iTWis. 
 314. Rights of owners of land bounded on 
 harbor to construct wharves; and relative 
 right of legislature to restrict interference in 
 navigation : 45 Conn. 358. Doctrine of the 
 rights of land-owners abutting on the large 
 lakes, in respect to fishery, — see 34 Ohio 
 St.- 492. 
 
 BOBBEBT. Robbery must be by vio- 
 lence, or by fear amounting to it; snatch- 
 ing money from the hand of one who has 
 been induced by trick to exhibit it is not 
 enough. Supreme Ct. 1878, Shinn v. State, 
 64 Ind. 13. 
 
 BOGEBS. Illinois Citations, being a 
 Table of all the Cases, alphabetically ar- 
 ranged, mentioned in the Opinions of the 
 Supreme Court of Illinois, from its Organ- 
 ization to the Present Time, and showing 
 in what Manner each Case has been men- 
 tioned: Whether Approved, Denied, Over- 
 ruled, Modified, or Criticised. By Henry 
 Wade Rogers. Chicago: Callaghan & 
 Co. 
 
 S. 
 
 SALE. A contract for the sale of goods 
 for future delivery is not rendered a wager 
 by reason of the mere fact that the vendor 
 has not the goods on hand to fill the con- 
 tract, but expects to go into the market 
 for them. If both parties undei'stand that 
 the goods sold are not to be delivered, but 
 a settlement of differences made according 
 to market fluctuations, the contract is a 
 wager and will not be enforced. But 
 where either party to the contract intends 
 a bona fide sale or purchase, the contract is 
 not a wager, whatever may have been the 
 secret intent of the other party, and the 
 courts will enforce it at the suit of the in- 
 
 Eobbery. Definition, p. 168. Eobberj' culmi- 
 nating in murder, p. 316. 
 
 Sale. Sale of chattels, only ; sale of lands, Ven- 
 dor, &c. 
 
 Detection and punishment of adulterations of 
 food, pp. 14, 15. Prohibition on certain aliens sel- 
 ling, void, p 20. Sale of counterfeit bonds, p. 53. 
 
 nocent party. St. Louis Ct. of Appeals, 
 1878, Williams v. Tiedemann, 6 Mo. App. 
 269. 
 
 One who subscribes a vn'itten instrument, 
 — here an engagement to pay for a patent 
 right purchased, which, upon its face as 
 submitted to him, is so framed that it may 
 be separated into a distinct and absolute 
 promissory note and a condition or defeas- 
 ance — is chargeable with negligence; and 
 if the payee of the note, although fraud- 
 ulently, detaches the condition and sella 
 the note to a bona fide purchaser for value 
 and without notice, the latter can recover 
 the amount of the note from the maker. 
 
 Cole on Conditions of Sale, p. 97. Married wo- 
 man's guaranty of sale in another State, p. 109. 
 Meaning of sending goods "G. 0. D." p. 150. 
 Definition of sale, p. 168. Ice may be sold by 
 parol, p. 238. Sale of patent-right cannot be re- 
 stricted bv State law, p. 335. Sale of church prop- 
 erty, p. 389. 
 
392 
 
 SALE. 
 
 Supreme Cl 1878, Woollen v. Ulrich, 64 
 Ind. 120; Noll v. Smith, Id. 511; 1879, 
 Maxwell v. Moreheart, 66 Ind. 301. Con- 
 sult Bills, &c. 
 
 Where writings exchanged by the parties 
 on a trausfeii of a sewing-machine or a 
 piano called the transaction a hiving or 
 loan for use, and designated the payments 
 to be made by the receiver as rent, and 
 stipulated that the article should remain 
 the property of the original owner until 
 full payment of the designated sum, but 
 should then become the property of the 
 other, — Held, that the transaction must be 
 considered a sale. The provision for trans- 
 fer of title on completion of the payments 
 was inconsistent with the idea of a letting, 
 and the instrument could not be sustained 
 as a chattel mortgage for want of compliance 
 with the statute regulations. Supreme Ct. 
 1878, Lucas v. Campbell, 88 III. 447; La- 
 tham V. Sumner, 89 111. 233. 
 
 Defendant employed plaintiff to manu- 
 facture for him a set of circus-tents, within 
 a specified time, material to be furnished 
 by plaintiff. No place of delivery or price 
 was specified. Plaintiff performed, and 
 thereafter was requested by letter to ship the 
 tents to defendant at Lewiston. Plaintiff 
 shipped them C. O. D., and they were de- 
 stroyed by fire en route. In an action to 
 recover their value, — Held : 
 
 1. The contract, being for labor and ma- 
 terials, was not within the statute of frauds. 
 
 2. Defendant's liability did not depend 
 upon the question as to where the technical 
 title was, but was complete when the re- 
 quest to ship was made. 
 
 3. Plaintiff had a lien upon the tents for 
 the value of his labor and materials, and 
 his retaining the lien by shipping them 
 C. O. D. was not inconsistent with, and did 
 not affect, his right to enforce such liability. 
 Ct. of Appeals, 1878, Higgins v. Murray, 
 73 N. Y. 252. 
 
 The Marine Bank of Buffalo discounted 
 the note of Nims, receiving from him as 
 security a transfer of the bill of lading of 
 a cargo of wheat shipped at Chicago, 
 owned by and consigned to Nims at Buf- 
 falo. While the wheat was in transit to 
 Buffalo, the bank accepted and paid drafts 
 di-awn by Nims against an alleged consign- 
 ment of other wheat, described in bills of 
 lading as having been shipped by Nims at 
 Buffalo on board specified canal-boats, con- 
 
 signed to Fiske at New York; but the 
 bills of lading which Nims transferred to 
 the bank in this transaction were false; no 
 wheat had been shipped as described. 
 When the wheat named in the genuine 
 bill reached Buffalo, Nims, without the 
 bank's knowledge, put it on board the canal- 
 boats named in the false bill, and sent it to 
 Fiske. The bank demanded it from Fiske 
 in virtue of their right as holders of the 
 genuine bill. Fiske refused to deliver it; 
 and sold it. The bank sued him for con- 
 version. Held, that a conversion was estab- 
 lished. The bank was special owner and in 
 possession of the wheat by the transfer of 
 the genuine bill. While it continued so, 
 the general owner had no right to control 
 or dispose of the wheat, and any possession 
 obtained or dominion exercised by him 
 without assent of the special owner was 
 tortious, and he could transfer no title. 
 And as the bank had not clothed Nims 
 with any apparent power, or in any manner 
 aided the fraud perpetrated upon Fiske, it 
 was not estopped from reclaiming its prop- 
 erty. Ct. of Appeals, 1877, Marine Bank 
 V. Fiske, 71 N. Y. 353. 
 
 All persons engaged in manufacture and 
 sale, in Kentucky, of fertilizing material, 
 must send sample and written statement 
 of ingredients to State Commissioner of 
 Agriculture at Frankfort. Further provis- 
 ions to prevent frauds in sale of fertUizers. 
 Act of April 22, 1880, 1 Ky. Laws 1879, 
 96, ch. 1029. 
 
 Sale of poisons regulated, by provisions 
 requiring distinct labels, inquiry into age 
 and purpose of purchaser, and record of 
 his name and address. Schedule of articles 
 deemed poisons. 1 Ky. Laws 1879, 181, 
 ch. 1483. 
 
 Stringent regulations for inspection and 
 sale of milk in cities and towns. Mass. 
 Laws 1880 (April 22), 160, ch. 209. 
 
 An act to regulate the sale of trees, shrubs, 
 and patent-rights provides that no party 
 shall sell, or act as the agent or receive sub- 
 scriptions for the sale of, trees, shrubs, or 
 vines not grown in the State, nor sell, as 
 principal or agent, patent-rights of farm or 
 household implements, except those in- 
 vented by parties in the State ; nor for- 
 mulas or recipes for special fertilizers, 
 paints, or other compounds, unless he shall 
 have first obtained a license for that pur- 
 pose as prescribed by the act. Fraud or 
 
SALE. 
 
 393 
 
 misrepresentation in one's sales forfeits his 
 license. N. H. Laws, 1879 (July 18), 359, 
 oh. 44. 
 
 Procuring advances upon merchandise 
 under engagement to deliver it as security, 
 and neglecting to deliver it accordingly, or 
 selling it, or sending it elsewhere, without 
 repaying the advances, declared a mis- 
 demeanor punishable by imprisonment. 
 Term. Laws, 1879 (March 22), 169, ch. 
 131. 
 
 Minor Decisions on Sale. 
 
 S. of furniture for keeping a bawdy- 
 house is illegal; but the defect may be 
 remedied by changing the use : 61 Ala. 312. 
 That billiard-table may be used for gaming, 
 unless seller knows buyer intends so to use 
 it, does not defeat recovery of price: 50 
 lotea, 120. Selling patent medicines, not 
 within a license or right to carry on busi- 
 ness as an apothecary: 2 Pearson (Pa.), 
 410. 
 
 For delivering goods sold in damaged 
 condition, measure of damages is difference 
 between their market value, if sound, and 
 their value in their unsound condition ; both 
 values to be computed as of the time when 
 the goods were or should have been deliv- 
 ered: 5 Sawyer, 137. Actual delivery of 
 lumber sold and paid for will pass title, 
 notwithstanding contract said it should be 
 measured when delivered; that provision 
 maybe waived: 89 III. 218. Indorsement 
 of note for price of chattel containing stip- 
 ulation that chattel remains property of 
 seller and payee, does not pass title : 68 Ind. 
 322. Separation of parcel of grain sold, 
 from the entire mass, is not always neces- 
 sary to pass title: 40 N. J. L. 581. Deliv- 
 ery and acceptance of lumber will vest title, 
 and cast risk upon buyer, notwithstanding 
 measurement to determine value is not com- 
 pleted : 71 N. F. 291. One who buys goods 
 from their general owner while they are 
 pledged for advances, having notice of the 
 pledgee's lien, and who receives the goods 
 fi'om the pledgee knowing the amount of 
 his demand, becomes bound to pay it: Id. 
 360. Title of purchaser for value of gov- 
 ernment or corporate bonds which have 
 been stolen is not impeached by showing 
 want of care ; proof of bad faith is neces- 
 sary; 73 N. Y. 226. The seller of heavy, 
 bulky machinery may make tender of it in 
 performance of his engagement to deliver, 
 
 without corporate production of it ow the 
 spot : 7 Oreg. 49. While goods are yet in the 
 hands of local carrier entrusted with them 
 by railroad company for delivery to buyer, 
 they are subject to stoppage in transit: 38 
 Mich. 390. Right of stoppage in transit is 
 not terminated by arrival of goods in store- 
 house of carrier at buyer's place of residence 
 and awaiting orders from him ; nor by 
 sheriff's levy upon them: 2 Pearson (Pa.), 
 517. Buyer's privilege and duty as to 
 selecting place of delivery where contract 
 gives him option: 14 W. Va. 1. 
 
 Stipulation, that title shall not pass until 
 payment, is valid ; and although buyer gets 
 warehouse papers to enable him to inspect 
 and re-weigh, and fraudulently borrows 
 money on them of lender without notice, 
 the latter cannot enforce a lien against the 
 true owner: 58 Ala. 165. See also 3 Hugh. 
 295. Delivery of goods to buyer, on condi- 
 tion that they remain property of seller 
 until payment, is only bailment as against 
 purchaser from buyer: 2 Pearson (Pa.), 
 205; or as against creditors of buyer: Id. 
 257 ; and see Id. 260. If buyer on credit 
 fails to give security for the price as prom- 
 ised, and seller delivers, he retains title as 
 against buyer, but not as against an inno- 
 cent purchaser from the buyer or creditor 
 who obtains lien by execution without 
 notice: 90 III. 499. Limit of the right of 
 one who has sold furniture, title not to pass 
 until payment, to enter house of third per- 
 son, where buyer lodges and the furniture 
 is, to remove it after default: 126 Mass. 
 519 
 
 Selling property, here a stock bull, for a 
 purpose of which seller knows, implies a 
 warranty that it is suitable: 59 Ala. 648. 
 Upon sale of provisions for human food 
 there is an implied warranty that they are 
 wholesome and fit for that use; especially 
 where seller has better knowledge than buy- 
 er of their condition: 15 Hun (N. Y.), 504. 
 One who manufactures aitioles under an 
 order to supply them for a particular pur- 
 pose — here shingles for roofing a house — 
 warrants them fit for that purpose : 80 N. C. 
 4. Articles — here gas-meters — ordered of 
 a manufactory for a designated purpose are 
 furnished under an implied warranty that 
 they are fit for that purpose; but not that 
 they are equal to the best that are anywhere 
 made: 51 Vt. 480. Mere fact that buyer 
 of leather is a shoemaker known to be 
 
394 
 
 SALE. — SCHOOL. 
 
 buying for use in his trade does not raise 
 implied warranty that the leather is suit- 
 able to be used in making boots and shoes: 
 126 Mass. 10. Seller's assertion that a 
 breast-pin sold was "a diamond," held, 
 a warranty: 86 III. 125. Seller of a second- 
 hand article as second-hand is not bound 
 to disclose visible defects, if buyer has op- 
 portunity of inspection: 89 III. 598; 3 Hugh. 
 214. Acceptance of machines sold under 
 warranty with knowledge of defects bars 
 action on warranty: 51 Iowa, 129. In sell- 
 ing by a particular description an article 
 which purchaser has no opportunity to in- 
 spect, a warranty is implied that the article 
 answers the description: 6 Mo. App. 114; 
 71 N. Y. 118. Where warranty of title 
 would be implied if the transaction were 
 selling a chattel for money, one will be im- 
 plied though it is an exchange or barter: 
 15 W. Va. 702. The word "warrant" is 
 not necessary to a warranty; what proof 
 suffices: 8 Neb. 530. 
 
 SAYINGS BANK. An act ' ' to conform 
 all savings ba,nks or institutions for savings 
 to uniformity of powers, rights, and liabil- 
 ities, and to provide for the organizations 
 of savings banks, for their supervision, and 
 for the more efficient protection of deposi- 
 tors in such institutions," is a comprehen- 
 sive general law of fifty-four sections, 
 prescribing stringent regulations for the 
 conduct of those institutions. Minn. Laios 
 1879 (March 1), 105, ch. 109. 
 
 SAXTON. Laws of the State of New 
 York relating to the Assessment and Col- 
 lection of Taxes, including the Statutes of 
 1880; containing the Laws relating to all 
 Officers under the General Tax Laws. 
 With Notes of Decisions and Forms. By 
 William W. Saxton. New York: S. A. 
 Wilder & Co. 
 
 The method of the volume is that of a 
 reprint of various enactments, arranged 
 under a logical order of subjects, each sec- 
 tion being accompanied by citations of the 
 decisions upon it. The chief topics are: 
 Tax to be levied. Property of individuals 
 liable to taxation. On corporations. On 
 rents and debts owing non-residents. As- 
 sessments, how made. Where and to whom 
 
 Salvage. Admiralty will not arrest fviendly 
 war vessel for salvage, p. 14. Definition, p. 
 168. 
 
 School. Children in Connecticut must be sent 
 to school, p. 79. Stereoscope not an appendage to 
 
 property to be assessed. Assessors. Duty 
 of assessors as to dog tax. Duties of super- 
 visors; of collector; of county treasurers. 
 Sales for unpaid taxes. 
 
 SCHOOL. " No person shall be deemed 
 ineligible to serve as any school officer, or 
 to vote at any school meeting by reason of 
 sex, who has the other qualifications now 
 required by law." 1 N. Y. Laws 1880 
 (February 12), 10, ch. 9. 
 
 Although a father of a pupil in the public 
 school has no right to insist that his child 
 shall be instructed in particular studies, or 
 placed in particular classes, or allowed to 
 use .specified text-books, yet he may direct 
 that the child shall be excused from pur- 
 suing any particular study. No parent can 
 insist that his child shall be kept in parti- 
 cular classes, when by so doing others will 
 b^ retarded in their studies, or that his 
 child shall be taught studies not in the pre- 
 scribed course of the school, or be allowed 
 to use a text-book different from that 
 adopted, or that he shall be allowed to 
 adopt methods of study that interfere with 
 others in their studies. Supreme Ct. 1877, 
 Trustees of Schools v. People, 87 III. 303. 
 
 A girl nearing one-and-twenty entered 
 the public school ; but, as it was doubtful 
 whether she would have a right to remain 
 beyond twenty-one, she stated her age as 
 twenty. In a few weeks she attained 
 majority, but the teacher did not know it; 
 she did not celebrate her birthday. Later, 
 he assumed to chastise her. He was prose- 
 cuted for assault and battery, and made 
 answer that the blows were given as a mode- 
 rate and proper punishment in school. The 
 magistrate refused to hear this defence ; for 
 he said that the teacher had no authority 
 of the kind over a pupil past twenty-one ; the 
 father's right, delegated to the teacher, had 
 completely expired. Held, error. By enter- 
 ing the school and claiming its privileges, the 
 young lady impliedly consented to submit 
 to its rules and discipline, and could not 
 complain that she was too old to be pun- 
 ished if she misbehaved; especially as she 
 had understated her age, to enter. The 
 pupils in a public school, irrespective of age 
 or sex, are subject to such moderate and 
 
 school-house, p. 147. Common schools in Cali- 
 fornia, p. 60 ; in Georgia, p. 222 ; in Louisiana, p. 
 287. Authority of town or city over schools, pp. 
 a06, 307. BUHKE on Law of Public Schools, p- 
 54. 
 
SCHOOL. — SCHOULER. 
 
 395 
 
 reasonable correction as their misconduct 
 may render necessary. Supreme Ct. 1876, 
 State c. Mizner, 45 Iowa, 248. 
 
 Upon a second trial of the case abore- 
 mentioned, the testimony of the pupil was 
 that she was in poor health, not able to at- 
 tend continuously or study hard, and she 
 brought to the teacher a note of excuse 
 from her father, requesting that she might 
 be excused from afternoon school, and also 
 from the algebra class. The teacher would 
 not accept the excuse, and required her to 
 come into the algebra recitation. She did so ; 
 but he found fault with her for inattention. 
 She answered back, and then was whipped; 
 but she testified that she did not know 
 whether it was for absence from afternoon 
 school, or for not studying algebra, or for 
 impertinence in answering back. The 
 teacher's account was not materially differ- 
 ent from this. Held, that a defence was 
 not established. The legal objects of al- 
 lowing punishment in schools are three — 
 reformation of the pupil, maintenance of 
 correct discipline, and example to others. 
 No punishment can be justified unless it is 
 inflicted for some definite offence, nor un- 
 less the pupil is given to know that the 
 punishment is for that offence. Punish- 
 ment suffered in ignorance cannot promote 
 its true objects. Moreover, the father's 
 excuse was a complete protection to the 
 pupil from being whipped for absence or 
 declining algebra. The child cannot be 
 punished in school for obeying its father's 
 commands. If the father restricts the child 
 in attendance or studies, so as to be incon- 
 venient to the school, he may be told he 
 must take the child away, it cannot be al- 
 lowed to attend unless the full course is 
 taken ; but whipping is not allowable. Su~ 
 preme Ct. 1878, State v. Mizner, 50 Iowa, 
 145. 
 
 Minor Decisions on School. 
 
 Legislature (of Illinois) has plenary power 
 in forming s. districts and regulating s. 
 taxes: 87 III. 595. S. lands are perman- 
 ently appropriated to 8. purposes; general 
 words in a statute will not change their 
 appropriation : 51 Tex. 360. A law author- 
 izing s. districts to levy taxes for s. pur- 
 poses, held, unconstitutional, as involving 
 an unauthorized delegation of the power to 
 tax: 1 Lea (Term.), 546. A statute that a 
 teacher's certificate " may be " drawn in a 
 certain form should not be read that it 
 
 " must be: " 86 III. 595. Teacher's contract 
 for personal services; she. cannot provide 
 substitute and be absent : Id. 563. Teacher 
 may, in case of emergency, suspend a pupil 
 without prior authority from board of edu- 
 cation, but should report case promptly to 
 the board: 45 Wis. 150. Teacher employed 
 for a definite term, but dismissed for alleged 
 incompetency, may prove that she was com- 
 petent and recover entire salary: 2 Bradw. 
 (III.) 458. Township trustee cannot bind 
 civil township by contract employing 
 teacher: 67 Ind. 380. Relative powers of 
 county superintendent as to locating school- 
 house: Id. 397. The district board can 
 bind the district by engagement for making 
 repairs to school-house ; even beyond a sum 
 voted at annual meeting: 22 Kan. 521. 
 Directors of s. district have power to borrow 
 money on the credit of the district to pay a 
 district debt: 51 Iowa, 102. Without pop- 
 ular vote directors cannot buy lightning 
 rods for school-house on the credit of 
 the township : Id. 102 ; and an order 
 drawn by the president of the s. direc- 
 tors on the district treasurer for such 
 purpose is void: Id. 432. Board has not 
 implied power to buy stereoscope and views : 
 21 Kan. 536. To allow school-house to be 
 used for religious meeting is not unlawful: 
 50 Iowa, 11. Directors will not be removed 
 for refusing to build school-house if they 
 have exercised honest discretion : 2 Pearson 
 (Pa.), 24. 
 
 SCHOUIER. Treatise on the Law of 
 Bailments, including Carriers, Innkeepers, 
 and Pledge, by James Schouler. Bos- 
 ton: Little, Brown, & Co. 
 
 This treatise aims to supply both students 
 and practitioners with afresh and exhaust- 
 ive exposition of legal principles, whose 
 influence far transcends the limits placed 
 by our jurists fifty years ago ; and treats of 
 the whole subject from a modern stand- 
 point, newly classified, so as to make it 
 better understood, and gives each special 
 branch its due consideration. Divided as 
 follows: — Part I., containing Bailments in 
 general; Part II., Bailments for the bail- 
 or's sole benefit: Gratuitous service about 
 a chattel ; Part III. , Bailments for the 
 bailee's sole benefit: Gratuitous loan for 
 use ; Part IV. Ordinary bailments for 
 mutual benefit ; Part V., Exceptional mu- 
 tual-benefit bailments : Postmasters and 
 innkeepers. Part VI., Exceptional mutu- 
 
396 
 
 SCHOULER. —SELF-DEFENCE. 
 
 al-benefit bailments : Common carriers. 
 Part VII., Carriers of passengers. Ap- 
 pendix, giving English forms of pleading 
 by and against Carriers. The subject of 
 Carriers is very fully treated. 
 
 History of the United States under the 
 Constitution. By James Schohler. Wash- 
 ington: W. H. & O. H. Morrison. The 
 plan of the author is to continue a standard 
 history of the United States, commencing 
 with the period occupied by Bancroft's 
 history. Volume I., which has appeared, 
 embraces the years 1783-1801. 
 
 SEAMAN. A State court may entertain 
 an action against a United States shipping 
 commissioner who has exacted from a sea- 
 man an additional shipping fee for succes- 
 sive shipments upon the same vessel for 
 several successive voyages. Such a charge 
 is not authorized by the acts of Congress ; 
 and the fact that the money was paid with- 
 out an accompanying protest does not defeat 
 the action. Supreme Ct. 1879, American 
 Steamship Co. v. Young, 89 Pa. St. 186. 
 
 The common seaman in a vessel at sea is 
 bound to submit to the discretion and judg- 
 ment of the master, and obey his orders, 
 in the management of the vessel and its 
 repairs, especially in rough weather and 
 cases of emergency; and the fact that the 
 seaman, on receiving from the master an 
 order otherwise unlawful, and being im- 
 peratively commanded to perform it in a 
 manner or by means which he regards as 
 unnecessarily dangerous, does not refuse to 
 so pei-forra it, or undertake then and there 
 to withdraw from the service, will not pre- 
 vent his recovering for personal injuries 
 caused by the master's fault. The owners 
 of a vessel, as well as the master, are liable 
 for injuries thus caused by the negligence 
 or unskilfulness of the master while acting 
 within the scope of his authority as such. 
 Supreme Ct. 1879, Thompson v. Herman, 
 47 Wis. 602. 
 
 SEDUCTION. No special artifices, 
 promises, or urgency are necessary; proof 
 of intercourse and loss of services sustains 
 action: 89 III. 545. The fact that the 
 promise to marry was offered upon con- 
 dition that the woman would consent to 
 intercourse might defeat an action for 
 
 Sea-beach. Adverse possession of, p. 18. User, 
 p. 154. 
 
 Seaman. The navy generally, p. 318. Pensions, 
 p. 336. 
 
 breach, but will not defeat a prosecution 
 for s. : 63 Ind. 198. Loss of health, with- 
 out pregnancy, resulting in failure of ser- 
 vice, may sustain action by father: 127 
 Mass. 191. Letting daughter's services for 
 term of years, with any right reserved to 
 recall her, does not impair father's right to 
 sue for 8. . 86 Pa. St. 358. Enticing a girl 
 from her parents' house for a few hours at 
 a time for prostitution may sustain a con- 
 viction under the Illinois statute. She 
 need not be enticed away permanently: 90 
 III. 274. Complaint under statute enabling 
 female to sue for s. of herseK must allege 
 that plaintiff was unmarried: 65 Ind. 56. 
 Unmarried at the time of the 8. ; her mar- 
 riage after to third person is no defence: 
 Id. 209. Plaintiff suing for debauching 
 his wife must prove adultery; alienation of 
 her affections is not enough : 47 Iowa, 409. 
 If, on indictment for s., proof shows rape, 
 jury should acquit: 48 Iowa, 578. " Did 
 seduce and debauch " is sufficient averment 
 of the offence in the indictment; those 
 words import illicit intercourse accom- 
 plished by arts, promises, or deceptions: 
 51 Iowa, 112. What proof of light or lewd 
 conduct of prosecutrix with other men is 
 admissible in defence of indictment for s. : 
 lb. ; Id. 467. Previous chaste character 
 cannot be impeached by bad reputation, 
 but maybe by wanton conduct: id Iowa, 
 531 ; Id. 440. 
 
 SELF-DEFENCE. Any serious bodily 
 harm, like mayhem, apprehended from a 
 felonious attack, justifies extreme resist- 
 ance and the assailed cannot be required to 
 draw fine distinctions as to the quality of 
 the injuries likely to be inflicted. Nor is 
 there a presumption that the mere presence 
 of bystanders wiU prevent an assailant 
 from inflicting extreme injury. Supreme 
 Ct. Brownell v People, 38 Mich. 732. 
 
 A man assaulted, or about to be as- 
 saulted, with a deadly weapon, is not re- 
 quired to wait until his assailant gets upon 
 equal terms with himself before he can 
 lawfully slay him. But he may justly use 
 the advantage which his own innocence 
 and his assailant's rashness have given. 
 Supreme Ct. 1877, Fortenberry v. State, 55 
 Miss. 403. 
 
 Sedaotion. Avowed intention of seducingsister - 
 does not justify brother in shooting, p. 230. yalid- 
 itv of marriage induced by fear of prosecution, p. 
 232. 
 
SELF-DEFENCE. — SERVICES. 
 
 397 
 
 Every man has a right to defend his 
 premises from intrusion, as well as his per- 
 son from attack, and for that purpose to 
 employ such force as may reasonably ap- 
 pear to him to be necessary ; and if, in the 
 use of such force, fatal consequences un- 
 expectedly ensue to the intruding or at- 
 tacking party, he is not answerable for 
 them. If one resists by force the violence 
 of a hostile intruder directed against both 
 his person and his property, he is responsible 
 only for the natural and probable conse- 
 quences of his act, and not for any unfore- 
 seen and unfortunate consequences. And 
 one's business office is pro hac vice his 
 dwelling, and the owner has the same right 
 to use force in defending it against intru- 
 sion as he has in defending his dwelling. 
 Supreme Ct. 1879, Morgan v. Durfee, 69 
 Mo. 469. 
 
 A man was attacked after dark, upon his 
 own premises, where his wife and family 
 were, by a powerful and violent man who 
 was in liquor, and in self-defence killed 
 him. Held, that if he believed with reason 
 that it was necessary to kill his assailant 
 for the protection of his own life, or to 
 save himself from great bodily harm, it 
 was an excusable homicide, and that he was 
 under no obligation to flee, nor to call for 
 the interference of bystanders. Supreme 
 Ct. 1878, People v. Lilly, 38 Mich. 270. 
 
 Minor Decisions on Self-Defence. 
 
 Threats made by deceased, unaceom- 
 panied by any act or attempt to execute 
 them, do not support the plea of s. d. : 88 
 Ill.'SU. What proof that the killing of 
 another was necessary to save one's own 
 life is sufficient to sustain the plea: 90 III. 
 221. However imminent the danger at the 
 moment, one who has commenced the 
 affray, or who has armed himself for it 
 without necessity, cannot plead S. d. : 69 Mo. 
 197. Accidental injury to a third person, 
 done in lawfully defending one's self from 
 attack, is not criminal: 4 Tex. App. 310. 
 Soldier in time of peace has no higher right 
 of s. d. than citizen: 3 Woods, 496. 
 
 SERVICES. Contracts for the services 
 of an attorney are not subject to the rule 
 that where the employer rejects the service 
 
 Services. Wife's right to her own earnings, 
 p. 2.35. Minor's right to damages from employer, 
 p. 2-12. Liability of master to third person for fault 
 of servant, p. 295. Liability of master to servant, 
 generally, p. 236 ; in respect to dangerous machin- 
 
 the employee can recover only the differ- 
 ence between what he received or might 
 have received and the agreed price. Legal 
 services cannot be apportioned either by 
 time or the amount of physical labor ex- 
 pended in drawing papers, attending courts, 
 and oi-al arguments. It is the attorney's 
 judgment, his learning, his responsibility 
 and advice, which is relied upon, and 
 which gives the peculiar value to legal 
 services. Perhaps the most difficult and 
 valuable services of the attorney may be 
 rendered in considering his client's case, 
 and giving him confidential information 
 before any visible act is done. Therefore, 
 in cases of special contract for legal servi- 
 ces, which are wrongfully prevented by the 
 client, and which the attorney holds him- 
 self continually ready to serve, the latter 
 may claim the whole compensation, subject 
 to such abatement as would, in the natural 
 course of things, have been incurred if 
 the services had been continued. The 
 attorney will not be put upon the quantum 
 meruit, but he ought not to recover more 
 than he would have made if he had gone 
 on with the case. No deduction can, in 
 ordinary cases, be justly made on the pre- 
 sumption that his time was occupied in 
 other professional business. Supreme Ct. 
 1878, Brodie v. Watkius, 83 Ark. 545. 
 Consult Attorney. 
 
 Hinor Decisions on Services. 
 Provision in a contract for skilled s. , that 
 the employee will make good all losses 
 caused by his mistakes, does not forbid the 
 employer from terminating the contract on 
 account of the mistakes: 56 Ala. 604. If 
 S. were intended as gratuitous when given, 
 the party cannot afterwards recover for 
 them on an implied contract: 33 Ark. 215. 
 Mutual s. rendered by two persons to each 
 other without any agreement for payment 
 or making charge in account do not war- 
 rant implying a promise to pay: 76 N. Y. 
 157. Value of s. rendered under special 
 contract may be recovered, notwithstand- 
 ing it was not fully performed, if they were 
 of value to employer, and employer did not 
 voluntarily abandon: 7 Oreg. 110. An 
 action on a contract to pay a specific salary 
 
 ery, materials, &c., p. 297; as affected by contri- 
 butive negligence, p. 238 ; for negligence of fellow- 
 servant, p. 299. Recent statutes as to master and 
 servant, p. 300. V\ ho may offer a reward, pp. 306, 
 325. 
 
898 
 
 SERVICES. — SHIPPING. 
 
 cannot be sustained by proving value of the 
 S. instead of a promise to pay : 39 Mich. 100. 
 A bill alleging a special contract to pay for 
 8. cannot be sustained by proof of their 
 value: 31 N. J. Eq. 331. Estate of single 
 man who was cared for in his sister's family 
 on understanding that she should be paid, 
 held liable, notwithstanding the relation- 
 ship: 41 Mich. 657. Measure of compen- 
 sation when an attorney, who was retained 
 for and has commenced a cause, is dis- 
 charged without his fault, is the entire 
 agreed price: 6 Mo. App. 9i. There is no 
 presumption here, as in England, that a 
 hiring in general terms is for one year: 3 
 Col. 142. 
 
 SHIPPING. A vessel abandoned at sea 
 and towed into a port of the United States 
 by salvors, is not " a vessel wrecked in the 
 United States," for which, after repairs, an 
 American register may be issued under act 
 of Dec. 23, 1832, Rev. Stat. § 4136. That 
 act means a vessel actually wrecked within 
 the limits of the United States. A register 
 obtained for such abandoned vessel under 
 pretence that .she was wrecked within the 
 United States is fraudulently obtained, 
 and the vessel may be forfeited therefor. 
 S. Dist. of N. Y. 1875, United States v. 
 The Victoria Perez, 8 Ben. 109. 
 
 The provisions of Rev. Stat. § 4192 — 
 requiring any conveyance or mortgage of a 
 vessel of the United States to be recorded 
 — do not apply to a vessel which has never 
 been enrolled or registered. E. Dist. of 
 N. Y. 1876, Thurber v. The Fannie, 8 Ben. 
 429. 
 
 Any steam vessel which engages in carry- 
 ing passengers for hire must obtain in- 
 spection as prescribed by Rev. Stat. § 4417. 
 The statute casts the duty of applying an- 
 nually for inspection, on the owners ; and is 
 not confined to steamers which make carry- 
 ing passengers a regular business. /S. Disl. 
 ofN. Y. 1875, The Neafie, 8 Ben. 251. 
 
 The owner of a vessel who offers her for 
 charter is understood, unless the contrary 
 is expressed, to warrant her as seaworthy; 
 and to undertake to keep her in repair, un- 
 less prevented by perils of the seas or un- 
 avoidable accident. lie is not excused 
 
 Shipping. .Turisdiction over, Admiralty. Em- 
 ployment of, Carhikr; Commehck; Navigation. 
 Steamboat, Sjeamboat. 
 
 Admiralty jurisdiction, pp. 13, H, Eevised reg- 
 ulations to prevent collisions', p. 97. Action for 
 causing death at sea, p. Ii2. What vessels are em- 
 
 from liability for a defect because it was 
 not known at the time of chartering. A 
 defect in the vessel, which is developed 
 without any apparent cause, is presumed to 
 have existed when the service began. Su- 
 preme Ct. 1878, Work v. Leathers, 97 U. S. 
 379. 
 
 A canal-boat laden with coal for trans- 
 portation is not, because of having on board 
 the master, with his family, a " barge carry- 
 ing passengers," within the meaning of 
 Rev. Stat. § 4492, — which requires that 
 such a barge, while in tow of a steamer, 
 shall be provided with " fire-buckets, axes, 
 life-preservers, and yawls." Supreme Ct. 
 1878, Transportation Co. v. Cooper, 99 
 U. S. 78. 
 
 A floating elevator used in the harbor of 
 New York, being in fact a canal-boat upon 
 which was erected an elevating apparatus 
 for hoisting grain, although not enrolled or 
 licensed, without motive power of its own 
 or capacity for cargo, except the permanent 
 cargo of its elevator, was held to be, never- 
 theless, a vessel, and a subject of maritime 
 lien. E. Diu. of N. Y. 1876, The Heze- 
 kiah Baldwin, 8 Ben. 556. 
 
 A lien given by a State law may be en- 
 forced by proceedings in admiralty [21 
 Wall. 558; Supreme Ct. Rules in Adm. 
 No. 12, as modified 1872] ; and this is so, 
 notwithstanding the statute contemplates 
 and provides a mode of enforcing the lien 
 by proceedings in a State court, which is 
 void for infringing the exclusive admiralty 
 jurisdiction of Federal courts. 2d Circ. 
 (N. Y.) 1876, The John Farron, UBlatchf. 
 24. 
 
 " Except the captain, all the officers and 
 hands employed on board a steamboat, or 
 any brig, schooner, or sloop, or model barge, 
 shall have a lien on the boat or vessel, her 
 engine, tackle, furnishing, and apparel, for 
 their wages, whether contracted for or 
 earned in or out of the State, with a pre- 
 ference or priority therefor over any other 
 debt due from the owner of the boat or 
 vessel, and over all other liens thereon. 
 Mechanics, tradesmen, and others shall also 
 have a like lien for work, supplies, ma- 
 terials, stores, and provisions, done or fur- 
 ployed in coasting trade, p. 153. Meaning of " port 
 lisle," p. 166. Computation of tonnage, p. 170. 
 State laws for collection of head-moneys upon immi- 
 grants, p 2:!9. New laws and minor decisions as 
 to navigation, p. 318. The navy, p. 318. Eights 
 of passengers, p. 329. 
 
SHIPPING. — STATE. 
 
 899 
 
 liished on or towards the building, repair- 
 ing, fitting, furnishing, or equipping the 
 boat or vessel in this State, with a prefer- 
 ence or priority therefor over any other 
 debt or debts of the owner, except to the 
 officers and hands, and over all other liens 
 thereafter created. What lien when the 
 work or goods were done or furnished out 
 of the State. Act of May 5, 1880, 1 Ky. 
 Laws 1879, 178, ch. 1447, §1. 
 
 " A steamboat or other vessel in the last 
 section named, and owner, shall also be 
 liable to indemnify the party injured for 
 any damage unlawfully done by her to 
 any other boat, vessel, or river craft, or to 
 any other property, through the wilful or 
 negligent conduct of her ofiScers or crew, 
 and for any other damage wilfuUy or neg- 
 ligently committed by her officers or crew 
 while acting for her as such. lb. § 2. 
 
 Mode of proceeding, by attachment of 
 chancery, to enforce either of above de- 
 mands, authorized and regulated. lb. 
 
 §§ 1-8. 
 
 Minor Secisiens on Shipping. 
 
 Nominal foreign ownership and regis- 
 try of ship does not give material-man a 
 lien, if the real ownership is American, 
 and is known to him: 14 Bldtchf. 41 ; and 
 see 8 Ben. 407. Grounds of lien on vessel 
 for supplies under Maine statute: 69 Me. 
 228. Doctrine of lien by the general mari- 
 time law explained : 14 Blatchf. 34. Canal 
 boat liable to admiralty process: 8 Ben. 
 150. Exceptions in bill of lading against 
 breakage, leakage, rust, and perils of the 
 seas, do not relieve from liability for in- 
 jury to iron injured by salt water in con- 
 sequence of improper stowage and leaky 
 condition of the vessel: 1 Fed. Reporter, 
 54. There is no presumption that sick- 
 ness of animals not corporally injured, 
 arising during transportation, is due to 
 fault of cai-rier: 3 Woods, 380. Act of 
 1851 does not affect liability of owner for 
 loss of cargo through burning of vessel 
 which takes fire from negligent construc- 
 tion or use of pier and buildings thereon: 
 125 Mass. 292. Shipper may assign por- 
 
 Soldier. Criminal liability of, p. 326. Civil lia- 
 bilitj- of, p. 327. Militia in California, p. 360 ; in 
 Georgia, p. 223 ; in Louisiana, p. Wi. Pensions, 
 p. 336. 
 
 Stamp. Inteenal Revenue. 
 
 Fraudulent issue, p. 256. Lost stamps, p. 258. 
 Stamping patented articles, p. 325. 
 
 State. Particular States, see their names. Ke- 
 
 tion of general contract to carry 1,000 tons 
 of freight: 76 N. Y. 207. 
 
 8IM0NDS. Digest of Patent Office 
 Decisions. By Wm. Edgah Simonds. 
 Washington: W. H. & 0. H. Morrison. 
 
 SLANDER. " Any person who shall 
 falsely and maliciously, by word, writing, 
 sign, or otherwise, accuse or impute to an- 
 other the commission of any crime, felony, 
 or misdemeanor, or any infamous or de- 
 grading act, or impute to any female a 
 want of chastity, shall be deemed guilty of 
 a misdemeanor " punishable by fine or im- 
 prisonment. Mich. Laws 1879 (May 3), 
 177, No. 192. 
 
 "Any person who may attempt in a 
 wanton and malicious manner to destroy 
 the reputation of an innocent woman by 
 words written or spoken, which amounts 
 to a charge of incontinency, shall be guilty 
 of a crime " punishable by fine or impris- 
 onment. N. C. Laws 1879 (March 8) , 290, 
 ch. 15. 
 
 Minor Decisions on Slander. 
 
 Charge of swearing to a lie is slander- 
 ous, though spoken of testimony at an in- 
 quisition in lunacy; that is a judicial 
 proceeding, even if lunatic is not noti- 
 fied or personally present: 62 Ind. 214. 
 Answers to a parent's questions as to con- 
 duct of his child are privileged, if made in 
 good faith: 47 Iowa, 239. Charging mar- 
 ried woman with adultery is not actionable 
 without special damage ; and her being 
 made sick by mental disturbance is not 
 such damage: 48 Md. 171. Calling one a 
 thief is not actionable if the words were 
 spoken and understood to relate to matter 
 not the subject of larceny: /rf. 494. Origi- 
 nal author is not liable for voluntary rep- 
 etition independent of him: 126 Mass. 329. 
 If the words complained of may have been 
 understood as imputing the crime of lar- 
 ceny, they are actionable, notwithstanding 
 the transaction, on a close examination, is 
 not strictly larceny: 72 N. Y. 418. 
 
 STATE. The power conferred on Con- 
 gress to grant letters-patent for inventions 
 
 lations in the Union, United States. Secession 
 and the civil war, War. 
 
 State cannot exclude introduction of cattle, p. 21. 
 Public regulations as to diseased cattle, p. 24. State 
 institutions and buildings in California, p. 60. As- 
 signment and prosecution of claim against State, 
 p. 94. Adoption of State practice for Federal 
 courts, p. 131. Extradition between States, p. 209. 
 
400 
 
 STATE. 
 
 does not prevent the several States from 
 legislating to protect their communities 
 against the sale of deleterious or dangerous 
 mamifactured articles. The goods and 
 merchandise which, by the application of 
 the invention or discovery for which letters- 
 patent have been granted by the United 
 States, come into existence, are, to the same 
 extent as that of any other species of prop- 
 erty, subject, within the several States, to 
 the control which they may respectively 
 impose in the legitimate exercise of their 
 powers over their purely domestic affairs, 
 whether of internal commerce or of police. 
 Supreme Ct. 1878, Patterson ti. Kentucky, 
 97 U. S. 501. 
 
 The political society which in 1796 be- 
 came a State of the Union, by the name of 
 the State of Tennessee, is the same which 
 is now represented as one of those States 
 in the Congress of the United States. Not 
 only is it the same body politic now, but it 
 has always been the same. There has 
 been perpetual succession and perpetual 
 identity. There has from that time always 
 been a State of Tennessee, and the same 
 State of Tennessee. Its executive, its leg- 
 islative, its judicial departments have con- 
 tinued without interruption and in regular 
 order. It has changed, modified, and re- 
 constructed its organic law, or State con- 
 stitution, more than ouce. It has done 
 this before the Rebellion, during the Rebel- 
 lion, and since the Rebellion. And it was 
 always done by the collective authority and 
 in the name of the same body of people 
 constituting the political society known as 
 the State of Tennessee. Supreme Ct. 1878, 
 Keith V. Clark, 97 U. S. 454. 
 
 This political body has not only been all 
 this time a State, and the same State, but 
 it has always been one of the United States, 
 — a State of the Union. Under the con- 
 stitution of the United States, by virtue of 
 which Tennessee was born into the family 
 of States, she had no lawful power to de- 
 
 State laws for collection of head-moneys, p. 239. 
 State courts may try Indiana, when, pp. 240, 241. 
 State insolvency laws revived bv repeal of bank- 
 rupt law, p. 246. State inspection laws, p. 248. 
 State insurance departments, p. 252. Connecticut 
 Code, p. 103. Insurance companies of one State 
 doing business in another, pp. 252, 253. State 
 laws as to jurors, pp. 263, 264. Authority over 
 lotteries, p 277; over municipal corporations, pp. 
 305, 312; over officers, p. 326. Cannot legislate so 
 as to impair right of patentee to sell his patent, p. 
 335. 
 
 part from that Union. The effort which 
 she made to do so, if it had been success- 
 ful, would have been so in spite of the con- 
 stitution, by reason of that force which in 
 many other instances establishes for itself 
 a status, which must be recognized as a 
 fact, without reference to any question of 
 right, and which in this case would have 
 been, to the extent of its success, a de- 
 struction of that constitution. Failing to 
 do this, the State remained a State of the 
 Union. She never escaped the obligations 
 of that constitution, though for a while she 
 may have evaded their enforcement. [7 
 WainOQ; 13 7c?. 646.] Ih. 
 
 Being the same political organization 
 during the Rebellion, and since, that it was 
 before, — an organization essential to the 
 existence of society, — all its acts, legisla- 
 tive and otherwise, during the period of 
 the Rebellion, are valid and obligatory on 
 the State now, except where they were done 
 in aid of that Rebellion, or are in conflict 
 with the constitution and laws of the United 
 States, or were intended to impeach its au- 
 thority. [Reviewing 7 Wall. 700; 12 Id. 
 342; 17 /d. 570; 20/rf.459; 96 U. S. 176.] 
 lb. 
 
 An act of a State legislature, granted on 
 the petition of an individual, directing the 
 court to open any judgment rendered by 
 default, and to scale down the amount ad- 
 judged according to the depreciation of 
 Confederate money, is void. 
 
 1. Such an act is an attempted exercise 
 of judicial power, because it authorizes a 
 com't to reopen and review a case which 
 has already passed into judgment. The 
 legislative power can no more exercise ju- 
 dicial power than the judicial department 
 can exercise legislative power. The pro- 
 vince of the courts is to decide what the law 
 is or has been, and to determine its appli- 
 cation to particular facts in the decision of 
 causes. The province of the legislature is 
 to declare what the law shall be in future; 
 
 Constitutional changes in State of California, p. 
 55; Connecticut, p. 102; various States, pp. 105- 
 108 ; Georgia, p. 215 ; Illinois, p. 2-39 ; Indiana, p. 
 241; Kansas, p. 265; Kentucky, p. 265; Louisiana, 
 p. 288; Maine, p. 289; Mas"sachusetts, p. 295; 
 Minnesota, p. 301; Mississippi, p. 302 ; New York, 
 p. 321 ; North Carolina, p. 321 ; West Virginia, p. 
 428-430. . 
 
 Codes in Colorado, Connecticut, Mississippi, and 
 New York, p. 95; in Alabama, p. 56; Connecticut, 
 p. 102 i Iowa, p. 260 ; Mississippi, p. 302. 
 
STATE. — STATUTE. 
 
 401 
 
 and neither of these departments can law- 
 fully invade the province of the other. 
 The legislature may pass statutes in aid of 
 judicial proceedings and which tend to 
 their support by precluding parties from 
 taking advantage of errors apparent on the 
 face of the proceedings which do not affect 
 their substantial rights, but not an act 
 which authorizes the reopening of a judg- 
 ment. The legislature has no right, directly 
 or indii'ectly, to annul in whole or in part 
 a judgment or decree of a court already 
 rendered, or to authorize the com-ts to re- 
 open and rehear judgments and decrees al- 
 ready final, by which the rights of the 
 parties are finally adjudicated, fixed, and 
 vested. 
 
 2. Such an act impairs the obligation of 
 the contract embodied in the indebtedness 
 and judgment; and impairs the vested 
 rights of the judgment creditor. Cl. of 
 Appeals, 1878, Ratcliffe v. Anderson, 31 
 Gralt. (Ja.) 105. 
 
 Uinor Secisions on State. 
 Several States may unite in creating one 
 corporation, or in consolidating several cor- 
 porations into one : 3 Woods, Qol. The S. 
 or its grantees is owner of the water in 
 navigable rivers: 2 Pearson (Pa.), 208. 
 A. S. cannot be estopped ; hence its accep- 
 tance of a bonus from a corporation does 
 not preclude it from disputing the corporate 
 existence: Id. 374. Action does not lie in 
 name of S. for public moneys which a fiscal 
 officer has, without authority, deposited 
 with bankers, defendants: 8 Neb. 63. 
 Changing the investments of a trust estate 
 is within the authority of the legislature : 
 8 Reporter, 616. Authority of a S. legis- 
 lature to compel a county to pay entire cost 
 of improvements chiefly but not wholly 
 beneficial to such county: 3 Woods, 555. 
 An act of a S. legislature, appointing suc- 
 cessor to trustee in deed, held not an execu- 
 tion of judicial power, but valid: 60 Ala. 
 170. A statute abolishing an office is not 
 void for exercising judicial power, because 
 of its ousting the incumbent : 45 Conn. 134. 
 A statute authorizing county commissioners 
 to change the sentence of a convict from 
 
 Statute. What local or special laws are for- 
 bidden, in California, p. 56; in Georgia, p. 217; in 
 LoBisiana, p. 279. Regulation of appropriation 
 bills, p. 68. Effect of the new constitution on ex- 
 isting statutes, p. 67. Statutes not to operate ter- 
 ritorially, pp. 142, 178. Expostfaeto laws, p. 154. 
 
 26 
 
 work in the chain-gang to service as a hired 
 laborer is void, for infringing the pardon- 
 ing power: 59 Ga. 800. Legislature can 
 enact a right of appeal in a case in which 
 the time for appealing has expired ; doing 
 so is not exercising judicial power: 45 Conn. 
 306. Notice to individual members of leg- 
 islature does not bind the S. ; there must 
 be notice to one branch of the legislature 
 in session: 41 N. J. L. 394. 
 
 STATUTE. Section 1 of the Nevada 
 homestead act is a literal copy of § 1 of the 
 California homestead act of 1860, which, 
 when copied, had been so construed as to 
 deny the right of homestead exemption to 
 a tenant in common in the common prop- 
 erty, but the constitutions of the two States 
 in regard to such exemptions are different. 
 Held, the language of the law being free 
 from ambiguity, and the intention of the 
 legislature and the framers of the constitu- 
 tion of Nevada plain, that in construing 
 the law of Nevada the court was not bound 
 to adopt the construction of the coui-ts of 
 California. Dist, ofNev., 1877, i?e Swear- 
 inger, 5 Sawyer, 52. 
 
 The Federal government being one of 
 enumerated powers the constitutionality of 
 an act of Congress is to be tested by a 
 grant of powers contained in the Federal 
 constitution; but the State governments 
 are presumed to be invested with general 
 power of legislation, and, therefore, in 
 determining whether an act of a State legis- 
 lature is in violation of its constitution, the 
 inquiry is directed to the limitations im- 
 posed on the legislature by the terms of 
 the constitution. Ct. of Appeals, 1878, 
 Exp. Mabry, 5 Tex. App. 93. S. P. Logan 
 V. State, Id. 306. 
 
 The constitutional provision that " no 
 law shall embrace more than one subject, 
 which shall be expressed in its title," is 
 violated if an act is amended so as to em- 
 brace a purpose outside of its title and 
 inconsistent with provisions remaining un- 
 repealed Supreme Ct. 1879, Stewart v. 
 Father Matthew Soc, 41 Mich. 67. 
 
 The constitution contained the following 
 provision : " On the final passage of all bills 
 the vote shall be taken by yeas and nays. 
 
 What is a general law, p. 154; a local law, p. 161. 
 Statutes of Georgia, p. 223. New internal revenue 
 laws, p. 255. Limitation laws, p. 274. Local-op- 
 tion laws, p. 275. Recent statutes as to master and 
 servant, p. 300. U. S. revised statutes, p. 389. 
 Saxtoh on New York tax statutes, p. 394. 
 
402 
 
 STATUTE. 
 
 and entered on the journal." Upon the 
 passage of a bill in the house, the journal 
 showed the number of votes in the affirm- 
 ative and the number in the negative, 
 and the names of those voting in the af- 
 firmative, but there was no entry of the 
 names of those who voted in the negative. 
 Held, that the failure to enter the names of 
 those voting in the negative was a disre- 
 gard of the constitutional requirement, and 
 the bill did not become a law. Supreme 
 Ct. 1S79, Smith v. Garth, 33 Ark. 17. 
 
 The rule, that where a legislature adopts 
 and enacts a statute of another State it is 
 presumed to enact the language in the 
 sense in which it has been construed by 
 the courts of the state of origin, does not 
 warrant presuming that the legislature in- 
 tended to adopt adjudications which have 
 not yet been published. Supreme Ct. 1879, 
 Hunter v. Truckee Lodge, 14 Nev. 24. 
 
 If the several actions of an act refer to 
 and are germane to the same subject-mat- 
 ter which is described in its title, it is con- 
 sidered as embracing but a single subject, 
 and as satisfying the requirement of the 
 constitution in this respect. While the 
 title must indicate the subject of the act, 
 it need not give an abstract of its contents, 
 nor need it mention the means and method 
 by which the general purpose is to be ac- 
 complished. If foreign, or irrelevant, or 
 discordant matter is introduced, it will be 
 rejected, if other sections of the act can 
 stand without it. But if the act is com- 
 posed of a number of discordant and dis- 
 similar subjects, so that no one could be 
 clearly recognized as the controlling or prin- 
 cipal one, the whole act would be void. 
 Ct. of Appeals, 1878, Baltimore v. Reitz, 50 
 Md. 574. 
 
 The constitutional rule as to expressing 
 the subject of a statute in its title is satis- 
 fied if the general subject or purpose of 
 the act is fairly expressed in its title, and 
 the various provisions are all germane 
 to the subject and appropriate to accom- 
 plishing the purpose. Where the title was 
 " an act for the suppression of the trade in 
 obscene things," — Held, that a section pun- 
 ishing the having in one's possession such 
 things, independent of any intent to sell 
 them, was not unconstitutional. Supreme 
 Ct. 1879, Fuller v. People, 92 III. 182. 
 
 Language adopted in framing a statute 
 which has already acquired a fixed mean- 
 
 ing presumably known to the legislatnre 
 will be presumed to have been used in that 
 meaning. Supreme Ct. 1878, The Abbots- 
 ford, 98 U. S. 440; Swift, Courtney, & 
 Co. V. United States, 14 Ct. of CI. 481. 
 Compare Re Swearinger, 5 Sawyer, 52; 
 Hahn v. United States, 14 Cl. of CI. 305. 
 
 The fact that the provisions in the body 
 of a statute are different from what the 
 title of the statute would naturally suggest 
 does not bring it within the rule that an 
 act is void when the subject is not ex- 
 pressed in the title. A provision in an act 
 concerning the dissolution of attachments 
 is a matter properly connected with the 
 "subject" of disposing of an insolvent 
 debtor's property. And when the title of 
 an act states that it is to provide a just 
 disposition of an insolvent debtor's prop- 
 erty, it cannot be maintained that the 
 " subject " of the act is not expressed in 
 the title, because the disposition of such 
 property provided for in the body of the 
 act is, in the opinion of the court, not just. 
 9th Circ. {Oreg ) 1879, Mayer v. Cahalin, 
 5 Sawyer, 357; 7 Reporter, 327. 
 
 Extra-territorial operation. A statute 
 of a State — here of California — giving a 
 right of action to representatives, for neg- 
 ligence causing death, does not operate be- 
 yond the limits of the State, and therefore 
 cannot authorize an action for a death 
 caused by negligence on the high seas. 
 Such a statute operates to give a new right 
 of action, not merely a new remedy for any 
 existing right. Qth Circ. (Cal.) 1879, Arm- 
 strong V. Beadle, 5 Sawyer, 484. 
 
 minor Decisions on Statute. 
 A law of the Confederate Congress, if 
 adopted and enforced as a law of one of 
 the States, should be deemed a law of that 
 State: 97 U. S. 594. History and effect 
 of the constitutional rule that a biU for 
 raising revenue must originate in the lower 
 house: 58 j4fa. 546. Ofiicial certificate that 
 act was published in one newspaper cannot 
 warrant presuming that it was published in 
 two, if that were required; 47 Iowa, 147. 
 Courts cannot supply a provision lacking in 
 a law as enrolled and approved by the gov- 
 ernor, on proof that it was in the bill as it 
 passed both houses, and was omitted by ac- 
 cident in enrolment: 9 Neb. 462. A bill 
 sent to the governor on the last day of the 
 first session of the legislatnre, and returned 
 
SUATUTE. — STEAMBOAT. 
 
 403 
 
 by him approved on the first day of the 
 next regular annual session, becomes a law, 
 notwithstanding an extra session was held 
 meantime: 9 S. C. 335. Act appearing in 
 session laws presumably valid; notwith- 
 standing error apparently clerical in certi- 
 ficate of passage: 45 Wis. 543. Act which 
 repealed an act creating a board, and im- 
 mediately created the same board with the 
 same powers, — held nugatory: 45 Conn. 
 134. An act authorizing a transfer of 
 causes " depending in certain courts upon 
 the adoption of the present constitution," 
 sustained ; it does not refer to any future 
 contingency, but means " when the present 
 constitution was adopted:" 55 Miss. 249. 
 Rule that all laws shall have uniform 
 operation does not forbid a law prohibiting 
 liquor-selling within two miles of any city : 
 51 Iowa, 197. An act containing extended 
 systematic provisions for the management 
 of the affairs of a particular county 
 held a public local law for that county, and 
 not a special law: 50 Md. 28. Effect of 
 rule, that statutes shall embrace but one 
 subject to be expressed in title, upon pro- 
 visions repealing previous laws: lb.; Id. 
 574. An act prescribing times of holding 
 court within a particular county is not a 
 local or special law: 6 Tex. App. 207; Id. 
 228. Extended provisions regulating 
 county business, held allowable under the 
 title " An act to repeal " several stat- 
 utes designated, " and to enact the fol- 
 lowing in lieu thereof " : 50 Md. 28. 
 Provisions punishing violations of a law 
 are germane to its prohibitions, and may be 
 embraced under the same title: 5 Tex. 
 App. 93. Provisions forbidding and pun- 
 ishing liquor-selling on election day may be 
 embraced under the title " An act regulat- 
 ing elections" : 7 Tex. App. 171. Change 
 of language in successive statutes on same 
 subject imports change in legislative in- 
 tent: 59 Ala. 219. Enactment in language 
 which has been judicially construed is an 
 adoption of that construction : 60 Ala. 243. 
 A law will not be allowed to operate retro- 
 spectively unless such intent is clear: 50 
 Md. 275. Law declaring an act criminal 
 in general terms does not require proof of 
 a special intent: 41 iV. /. L. 552. Law 
 imposing license taxes will not be construed 
 so as to tax the same property or privilege 
 
 twice:3Zea {Tenn.),328. Givingalease — 
 here, for ninety-nine years — is a violation 
 of law forbidding alienation of the land: 49 
 Tex. 705. Revision of an act repeals the 
 original without a formal repealing clause; 
 and it need not, under Ala. Const. 18B8, 
 pt. 4, § 2, repeat the original : 59 Ala. 306. 
 A new act providing a milder punishment 
 impliedly repeals the old punishment: 1 
 Dak 1\ 289. Repeals by implication are 
 never favored; both statutes will be en- 
 forced unless there is a clear repugnancy: 
 50 Md. 274. Repealing a general incor- 
 poration law does not necessarily impair 
 existence or powers of corporations pre- 
 viously formed under it: 39 Mich. 700. A 
 general public law is not presumed to re- 
 peal an earlier private law: 2 Pearson 
 (Pa.), 35. 
 
 STEAMBOAT. The right of a passen- 
 ger to a passage on board a steamboat is 
 not an unlimited right ; he is bound to obey 
 the orders and regulations of the proprietors 
 unless they are oppressive and grossly un- 
 reasonable. Whoever goes on board under 
 ordinary circumstances impliedly contracts 
 to obey such regulations, and may justly 
 be refused a passage if he or she wilfully 
 resists or violates them, bth Circ. {Ga.), 
 1879, Greeu k. The City of Bridgeton, 9 
 Cent. L. J. 206. 
 
 When a steamboat makes a long stop in 
 course of a trip, and puts out a staging for 
 persons to go ashore, a through passenger 
 may avail himself of the opportunity; and 
 if he is hurt by defects in the staging, or 
 neglect or misconduct of hands carrying 
 cargo across it, without carelessness on his 
 part in his attempt to cross, it is not an 
 answer to his action for damages to say 
 that, as he held a ticket for a port beyond, 
 he undertook at his peril to go on shore at 
 any intermediate port. Supreme Ct. 1878, 
 Keokuk Northern Line Packet Co. v. True, 
 88 ///. 608. S. P. Eagle Packet Co. v. De- 
 fries, 10 Reporter, 76. 
 
 Employees of steamboats having passen- 
 ger landings in Massachusetts may be ap- 
 pointed, by municipal authority of the town 
 or city, police officers to act as steamboat 
 police, with such powers as are given to 
 railroad police by Laws 1874, ch. 372, § 
 145. Mass. Laws 1880 (March 11), 57, ch. 
 85. 
 
 Steamboat. Collisions by, pp. 100,101. Colored passengers in, p. 93. Eiglits of passengers, p. 329. 
 
404 
 
 STEAMBOAT. — SUNDAY. 
 
 " It shall be unlawful for any person or 
 persons employing steam vessels for towing, 
 to receive any commission or compensation 
 for any orders given to the owners, captains, 
 or agents of such steam vessel for such 
 towage. And it shall be unlawful for any 
 person or persons to interfere with or hinder 
 any owner, captain, or agent of any steam 
 vessel engaged in towing, while in the 
 prosecution of their business." Towing 
 of canal-boats excepted. Punishment for 
 violations. 1 N. Y. Laws 1880 (May 26), 
 571, ch. 395. 
 
 Kiuor Decisions on Steamboat. 
 
 Passenger on boat — here, one chartered 
 for an excursion — has no right to sell goods 
 onboard; and captain may prevent it: 87 
 III. 545. One line is not liable for loss of 
 goods after it has been delivered by them 
 to a connecting line, unless by some stipu- 
 lation or engagement to be liable for the 
 entire transportation : 88 Pa. St. 358. Col- 
 lision between steam-vessel and row-boat 
 is not subject to the rule that steam-vessel 
 is presumably bound to change her course 
 rather than sailing-vessel: 89 Pa. St. 31. 
 Steamboats on the Mississippi are entitled 
 to follow the channel ; whoever moors raft, 
 barge, &c., must provide against swell of 
 passing steamer: 3 Woods, 16. 
 
 STEVENS. Law of Indictable Offences 
 and Summary Convictions. ByjAS. Gkay 
 Stevens. Toronto; Carswell& Co. 
 
 New Brunswick Digest of Decisions. By 
 Jas. Gray Stevens. Toronto: Carswell 
 & Co. 
 
 SUNDAY. "It shaU not be lawful 
 for any person to follow any pursuit, busi- 
 ness, or trade on the Sabbath, the first day 
 of the week, either by manual labor or with 
 animal or mechanical power, except the 
 same be work of ' necessity,' or justified by 
 
 Stockholder. Action to compel contribution to 
 impaired capital, p. 6. Individual liabilit^^ of, in 
 California, p. 62. Riglit to vote, p. 63, Liability 
 where shares are issued for over-valued property, 
 p. 119. Transfer of shares bvforp^ed power, p. 119. 
 Other transfers, p. 120. Distinguished from cor- 
 porator, p. 151. 
 
 Street. The Nicholson pavement patent, p. 3. 
 Meaning of the words, p. 169. Highways generally, 
 pp. 226-228. Liability of city for condition of 
 streets, pp. 310, 314. Mayor cannot contract to 
 keep pare in order, p. 312. " Making street improve- 
 ments, p. 313. Regulation of streets, p. 314. Cou- 
 Iributive negligence of person run over, p. 319 ; or 
 hurt by collision on higlnvay, p. 320. Nuisance 
 affecting street, ]). .322. Talu'ug street for railroad, 
 pp. 359, 361, 386. 
 
 the accident or cii'cumstances of the occa- 
 sion." Fla. Laws 1879 (March 11), 84, ch. 
 3146, § 1. 
 
 "No merchant or shopkeeper, or other 
 person, shall keep open store, or dispose 
 o£ any wares, merchandise, goods, or chat- 
 tels on the Sabbath day, or sell or barter 
 the same; provided, that in eases of emer- 
 gency or necessity they may dispose of the 
 comforts and necessaries of life to custom- 
 ers without keeping open doors." Id. § 2. 
 
 Fine for violations. Id. § 3. 
 
 Liquor-selling or keeping open liquor 
 shop or saloon on Sunday, forbidden under 
 penalty. Act of April 13, 1880, 1 Ky. Laws 
 1879, 79, ch. 980. 
 
 " No person who receives any money, or 
 valuable thing, as the consideration for a 
 contract, express or implied, made and en- 
 tered into on Sunday, shall be permitted 
 to defend any action upon such contract on 
 the ground that it was so made and entered 
 into on Sunday, until he shall restore such 
 consideration so received." Me. Laws 1880 
 (March 5), 194, ch. 194. 
 
 Processions and parades on Sunday, in 
 city streets, forbidden, excepting funeral 
 and religious processions. Limitation as 
 to funeral music. N. Y. Laws 1880 (March 
 3), 145, ch. 42. 
 
 Minor Decisions on STmday. 
 
 Additional instructions to a jury, while 
 deliberating their verdict, may be given on 
 S. : 1 Dak. T. 197. Bail bond is not in- 
 valid because given on S. : 59 Ala. 164; 
 neither is an undertaking on appeal: 13 
 Nev. 203. A note merely signed on S. in 
 completion of a contract negotiated on 
 Saturday is void: Id. 683. Subscription 
 to a church building made on S. , held, void, 
 notwithstanding a subsequent admission: 
 62 Ind. 365. Right of wayfarer, injiued 
 
 Suffrage. Eight of suffrage in California, p. 56 ; 
 in Connecticut, p. 103 ; in Georgia, p. 216 ; in Louis- 
 iana, p. 284; generally, p. 184. What is a majority 
 in voting on a constitutional amendment, p. 104. 
 Registration, p. 184. Ballot, p. 185. Elections 
 generally, pp. 182-195; how conducted, p. 185. 
 Vote bv a sick man, p. 185. Canvassing, p. 186. 
 The Maine canvass of 1879, p. 187. JIoCkary on 
 Elections, p. 289. Naar on Suffrage, p. 317. 
 Right of foreign-born persons to vote, acquired by 
 ti'oatv, p. 88j or naturalization, pp. 88, 317. 
 
 Sunday. Claim of extra pay for Sunday work, 
 p. 95. Continuing one s business on Sunday not a 
 nuisance, p. 323. 
 
 New laws about running railroad trains on Suu- 
 dav, pp.351, 357; and see p. 384. Public holidays, 
 p. 321. . 
 
SUNDAY. — TAX. 
 
 405 
 
 while on highway by ferocious animal, to 
 recover from owner, is not impaired because 
 it was on S. . 48 Iowa, 652. S. traveller 
 who ties his horse at roadside cannot recover 
 from person who negligently drives against 
 it: 124 Masts. 387. Necessary feeding of 
 swine is lawful; and gathering and hauling 
 feed if necessarily incidental according to 
 good husbandry, is no offence: 67 Ind. 588. 
 Harvesting " dead ripe" wheat, lield, not 
 Sabbath-breaking: Id. 595. Walking for 
 exercise is not Sabbath-breaking: 69 Me. 
 116. Conduct on S. amounting to public 
 nuisance may be indicted as such, notwith- 
 standing a S. law authorizes fine by a jus- 
 tice: 1 Lea (Tfenn.), 129. A corporation 
 maybe indicted for Sabbath-breaking: 22 
 Alb. L. J 38; 15 W. Va. 362. 
 
 SUPREME COURT. "Any woman 
 who shall have been a member of the 
 bar of the highest court of any State or 
 
 Ten-itory, or of the supreme court of the 
 District of Columbia, for the space of three 
 years, and shall have maintained a good 
 standing before such court, and who shall 
 be a person of good moral character, shall, 
 on motion, and the production of such 
 record, be admitted to practice before the 
 Supreme Com-t of the United States." Act 
 of Feb. 15, 1879, ch. 81, 20 Stat, at L. 290. 
 " The final judgment or decree of the 
 supreme court of the District of Columbia 
 in any case where the matter in dispute, 
 exclusive of costs, exceeds the value of 
 $2,500, may be re-examined and reversed 
 or affirmed in the supreme court of the 
 United States, upon writ of error or appeal, 
 in the same manner and under the same 
 regulations as are provided in cases of writs 
 of error on judgments or appeals from de- 
 crees rendered in a circuit court." Act of 
 Feb. 25, 1879, ch. 99, 20 Stat, at L. 321. 
 
 T. 
 
 TASWELl-lAKGMEAD. English Con- 
 stitutional History from the Teutonic In- 
 vasion to the Present Time. Designed as 
 a Text Book for Students and others. By 
 T. P. Taswell-Langmead. London: 
 Stevens & Haynes. 
 
 TAX. The power of taxation may be 
 exercised by the State of Maryland upon 
 stocks, bonds, or other certificates of public 
 debt issued by other sovereign States, or by 
 municipalities created by them, which are 
 exempted by the States issuing them, and 
 owned by citizens or residents of Maryland. 
 The contract of exemption is limited to 
 the State granting it, as its authority is 
 only co-extensive with its territory, and 
 cannot operate on the rights and powers 
 of other States. The situs of the stock 
 being that of the domicile of its holder, 
 his property is subject to the sovereign 
 
 powers of the State wherein he resides. 
 Whether this power should be exercised or 
 not is a legislative, not a judicial question. 
 The owner being, under the constitutional 
 obligation, bound to contribute to the sup- 
 port of the government, according to his 
 actual worth in real or personal property, 
 he cannot complain if he is fairly taxed by 
 the legislature of his domicile. Taxation 
 and representation are correlative rights. 
 Whenever a citizen or resident is repre- 
 sented actually or constructively, he is pre- 
 sumed to owe obedience to the laws of the 
 State which protects him. They secure 
 every right which he enjoys, and the State 
 is entitled to all the means necessary to 
 maintain them. Ct. of Appeals, 1878, Ap- 
 peal Tax Court v. Patterson, 50 Md. 354. 
 
 The palace and sleeping cars built and 
 owned by the Pullman Palace Car Co., and 
 
 Supreme court. Courts generally, Coubt. 
 
 Jurisdictional amount, p. 24 Determination of 
 appeals, p. 24. Power of justice to revise circuit 
 court decisions on habeas corpus, p. 225. Supreme 
 court of California, p. 68; its jurisdiction, p. 58; of 
 Georgia, p. 220; of Louisiana, p. 281. 
 
 Suretyship. Letter mailed by married woman 
 in one State to guarantee paj-ment in another, p. 
 109. Guaranty, p. 224. Sureties in official bond, 
 pp. 325, 326. 
 
 Surrogate, Howell on surrogate's business in 
 
 Canada, p. 231. McClellan on surrogate's court 
 practice, p. 289. Myriok's reports, p. 316. 
 
 Tax. Ou national banks, p. 34. Not barred bjr 
 discharge in bankruptcy, p. 44. Taxation in Cali- 
 fornia, pp. 64, 65; in Georgia, p. 220; in Louisi- 
 ana, p. 285. Difference between tax and assessment, 
 p. 147. Taxes not debts, p. 152. Taxation in 
 Georgia, pp 218-221. Various State laws on taxes 
 given by Hubbell, p. 232. New laws on internal 
 revenue tax, p. 255. Tax returns, p. 256. Muni- 
 cipal taxes, p. 307. 
 
406 
 
 TAX. 
 
 leased or hired out by it to railroad com- 
 panies, and which are used upon the 
 various railroads "which run in and through 
 the State of Maryland, are not subject to 
 taxation under the act of 1876, ch. 280, as 
 the appellee is a corporation created by the 
 laws of Illinois, and has its principal office 
 or place of business in the city of Chicago. 
 Ct. of Appeals, 1878, Appeal Tax Court i;. 
 Pullman Palace Car Co., 50 Md. 452. 
 
 A statute of Missouri, passed in 1877, 
 introducing a new system of provisions for 
 collection of delinquent taxes, declares that 
 taxes should be deemed delinquent in one 
 year; and that the collectors should proceed 
 to collect them by suit in the county court; 
 for which they were authorized to em- 
 ploy attorneys, publish advertisements, &c. 
 Notice by publication only is required. 
 Judgment may be passed at the first term, 
 and execution and sale can follow soon. 
 This sale is absolute; the land-owner can, 
 before sale, terminate proceedings by pay- 
 ment, but after sale no opportunity of re- 
 demption is given. Under these provisions, 
 an-ears of taxes amounting to $78 having 
 accumulated upon the lands of Mrs. Henry, 
 notice was published, not that her land 
 would be sold for non-payment, but that 
 judgment would be entered against her, if 
 she did not defend. She was not person- 
 ally served, and did not defend. Interest 
 and costs were added to the tax due, and 
 judgment rendered and execution issued for 
 the amount — about $124. The land was 
 then sold for $8. The purchaser brought 
 suit, not against Mrs. Henry, but against 
 the tenant in possession under her, to re- 
 cover possession. On the ti-ial the pur- 
 chaser recovered judgment; and the tenant 
 appealed, urging several irregularities in 
 the pi'ooeedings ; as that the published 
 notice did not show that the lands were 
 delinquent or that the proceedings sought 
 to procure a sale, and that the sheriff sold 
 the farm entire instead of in subdivisions ; 
 also that a previous law forbidding a tax 
 sale for a less sum than for the amount due 
 had been disobeyed; also that the act of 
 1877 was unconstitutional. Held, that the 
 judgment must be sustained. 
 
 1. As to the irregularities in the suit be- 
 fore judgment, and the objection to making 
 sale in one tract, these objections would 
 have been good if they had been presented 
 in due season and by Mrs. Henry. But 
 
 such objections cannot be received collater- 
 ally to impeach title under the tax deed. 
 The rule, that if the court had jurisdiction 
 its judgment cannot be impeached in a col- 
 lateral proceeding for irregularity or error, 
 is fully applicable, notwithstanding the 
 State is a party. No principle requires 
 the application of different rules to test the 
 validity of a judgment when the cause is 
 between the State and an individual, from 
 those which apply to a judgment between 
 individuals; the same presumptions in favor 
 of the judgment are indulged in one case 
 as in the other. 
 
 2. The law of March 20, 1872, § 183, re- 
 lied upon as re.stricting the jurisdiction of 
 county courts in the matter of tax sales, 
 was in truth repealed by the act of 1877; 
 although, by an erroneous numbering of 
 sections in printing the laws, the repeal is 
 not apparent. 
 
 3. The statute of 1877 is constitutional. 
 It is not retrospective as to rights. It 
 simply provides a different remedy from that 
 which the State had, by previous laws, for 
 the collection of back taxes. There can 
 be no doubt of the power of the legisla- 
 ture to change the remedy in such cases. 
 Supreme Ct. 1879, Wellshear v. Kelley, 69 
 Mo. 343. 
 
 The legislature (of Texas) has power to 
 impose a tax upon the persons following 
 any particular vocation or profession, except 
 such as may be exempted by the constitu- 
 tion. Thus a tax upon lawyers is valid, 
 and may be enforced against persons al- 
 ready admitted to practice. The power 
 extends to prohibiting any person from con- 
 tinuing the practice without having paid 
 the tax; and to imposing criminal punish- 
 ment for a violation. Ct. of Appeals, 1878, 
 Languille ii. State, 4 Tex. App. 312. See 
 also Tonella v. State, Id. 325; Galveston 
 County V. Gorham, 49 Tex. 279. 
 
 Steamboats which ply between different 
 ports on a navigable river may, under a 
 State statute, be taxed as personal property 
 by the city where the company owning 
 them has its principal office, and which is 
 their home port, although they are duly en- 
 rolled and licensed as coasting- vessels under 
 the laws of the United States, and all fees 
 and chai'ges thereon, demaudable under 
 those laws, have been duly paid. Supreme 
 Ct. 1 878, Transportation Co. v. Wheeling, 
 99 U. S. 273. 
 
t{Jl 
 
 Taxing national banks. The provision 
 of Rev. Stat. § 5219,— forbiddiug the States 
 to tax national-bank .shares at a higher rate 
 than other moneyed capital, — prohibits ex- 
 acting a higher tax on them by means of 
 imposing a peculiar and onerous mode of 
 assessment, equally with laying a tax at a 
 higher per centage. Supreme Ct. 1879, 
 People V. Weaver, 100 U. S. 539. 
 
 Laws passed by the State of New York, 
 relative to assessment of taxes, permitted a 
 citizen who had moneyed capital invested 
 otherwise than in banks to deduct from his 
 capital the sum of all his debts, leaving the 
 remainder only subject to taxation ; while 
 he whose money was invested in bank shares 
 could not make any such deduction. The 
 effect was, as nearly all the banks in the 
 State were national banks, that a share- 
 owner owing debts was subjected to a 
 heavier tax than an owner of moneyed 
 capital otherwise invested, also owing 
 debts; because the latter might diminish 
 the taxable amount of his property by de- 
 ducting his debts, which the former could 
 not do. Held, that this was practically a dis- 
 crimination against national-bank shares 
 which was a violation of Rev. Stat. § 5219. 
 That provision was enacted in the antici- 
 pation that the States might be disposed to 
 tax the capital invested in the national 
 banks, oppressively; and for the purpose of 
 preventing such discrimination. The pur- 
 pose is to allow the States to tax national- 
 bank shares to the same extent as other 
 moneyed capital, and no further. The re- 
 striction is not confined to the mere per- 
 centage of tax. The section declares that 
 these shares may be " included in the 
 valuation of the personal property of the 
 owner, in assessing taxes imposed by au- 
 thority of the State within which the 
 association is located." This valuation is 
 part of the assessment of taxes. It is a 
 necessary part of every assessment of taxes 
 which is governed by a ratio or percentage. 
 There can be no rate or percentage without 
 a valuation. Congress had in mind an 
 assessment, a rate of assessment, and a 
 valuation; and, taking all these together, 
 the taxation on these shares was not to be 
 gi'eater than on other moneyed qpipital. lb. 
 Compare 1 N. Y. Lam 1880, (April 21), 
 249, ch. 140, infra. 
 
 The constitution and tax laws of Ohio 
 have declared that taxes shall be imposed 
 
 by a uniform rule on various kinds of prop- 
 erty, according to its true value in money; 
 and have created separate boards of equali- 
 zation for real property, for railroad capital, 
 and for bank shares, whose duty it is to 
 revise and readjust valuations made by the 
 county boards of assessment. Personal 
 property and ordinary moneyed capital is 
 assessed by coupty boards without revision 
 by any State board. Thus the law con- 
 templates an equal rate of taxation. But 
 the boards of equalization adopted a sys- 
 tem by which real and ordinary personal 
 property was estimated at about one third 
 of true value, moneyed capital at six 
 tenths of true value, and bank shares at 
 fuU value. The effect was to require bank 
 shares to pay a higher tax than other 
 moneyed capital. Two national banks, ag- 
 grieved by this administration of the law, 
 paid the amount they considered fairly due 
 on the shares of their stock at the rate of 
 valuation of ordinary moneyed capital, and 
 brought two suits, in the circuit courts, to 
 restrain collection of the remainder. In 
 one of these suits the claim chiefly urged 
 was that this administration of the tax 
 law was a violation of the Ohio constitu- 
 tion, which directs taxing "by a uniform 
 rule." Held, that the provisions of the 
 law contemplated a uniform rule ; the want 
 of uniformity arose in the administration 
 of it. And the courts cannot annul a law 
 as unconstitutional because officers ad- 
 minister it, contrary to its terms, in a 
 manner to produce results which violate 
 the constitution. But a citizen has a right 
 to be protected against unjust taxation by 
 a mal-administration of the law, and a 
 national bank can claim such protection in 
 the Federal courts. It might have an in- 
 junction to forbid the collection of the ex- 
 cess of tax. Supreme Ct. 1879, Cumraings 
 i;. Merchants' Nat. Bank, 101 U. S. 153. 
 
 In the other of the two catises mentioned 
 the claim chiefly pressed was that the Ohio 
 method violated the act of Congress limit- 
 ing State taxation of the bank shares to 
 the rate imposed on other moneyed capital. 
 Held, that it was objectionable. Any sys- 
 tem of assessment of taxes which exacts 
 from the owner of the shares of a national 
 bank a larger sum in proportion to the 
 actual value of those shares than it takes 
 from other moneyed capital, valued in like 
 manner, does tax the shares " at a greater 
 
408 
 
 TAX. 
 
 rate," within the meaning of the act of 
 Congress; The operation of the method 
 employed was to compel money invested in 
 national-bank shares to pay about fifty per 
 cent moi'e tax than the like sum in other 
 investments of capital. This is forbidden, 
 and the bank, after paying a proper tax 
 was entitled to an injunction restraining 
 collection of any more. Supreme Ct. 1879. 
 Pelton V. Commercial Nat. Bank, 101 U. S. 
 143. 
 
 Exceptions. Bonds of the Baltimore & 
 Ohio R. 11. Co. and of the Northern Cen- 
 tral Ry. Co. , not alleged to be secured by 
 the mortgages upon property within this 
 State, are not embraced in the terms of the 
 exemption contained in the act of 1876, ch. 
 260, § 1, which exempted from taxation 
 " mortgages upon property in this State, 
 and the mortgage debts respectively se- 
 cured thereon." The power of taxation 
 by the State of Maryland extends as well 
 to the stocks, bonds, and certificates of debt 
 of other States, and of corporations created 
 by them, and taxed by the States issuing 
 them, or creating such corporations as to 
 those not taxed by such States, whenever 
 such stocks, bonds, or certificates of debt 
 are owned by citizens or residents of Mary- 
 land. Ct. of Appeals, 1878, Appeal Tax 
 Court V. Gill, 50 Md. 377. 
 
 Courts do not favor exemptions of prop- 
 erty from taxes; and will prefer that con- 
 struction of an ambiguous statute which 
 preserves the right of the State to collect a 
 tax. Thus a law declaring that moneys 
 received by insurance companies, upon un- 
 expired fire policies, for premiums, shall 
 not be deemed surplus profits, but shall be 
 considered in making dividends, as " un- 
 earned premiums" will not be construed 
 as affecting the status of such receipts as 
 property, for purposes of taxation ; nor will 
 it be allowed to interfere with the opera- 
 tion of the general tax laws of the State, 
 imposing taxes upon surplus profits. Such 
 receipts, although they must be treated as 
 un-earned premiums in the administration 
 of the company's affairs, continue to be 
 surplus earnings for other purposes, and if 
 the tax law allows assessment of surplus 
 earnings of coi'porations, they are not ex- 
 empt. Ct. of Appeals, 1879, People v. 
 Commissioner of Taxes, 76 N. Y. 64. 
 
 The provision of Pa. Const, art. 9, § 1, 
 that the legislature may exempt from 
 
 taxation, "institutions of purely public 
 charity, is not necessarily one solely con- 
 trolled and administered by the State, but 
 extends to private institutions for purposes 
 of purely public charity and not adminis- 
 tered for private gain. It was shown that 
 the Library company of Philadelphia per- 
 mitted the use of its library : 
 
 1. By all persons within the librai-y 
 building, free of charge or fee of any 
 kind. 
 
 2. By all persons who desire to take out 
 books for a small hire and leave a deposit 
 as security therefor, 
 
 3. By members who pay an annual fee 
 for the privilege of taking out books. 
 These members have the further privilege 
 of voting for the managers, and are nom- 
 inally the owners of the library. No divi- 
 dends are paid, but the entire income is 
 dedicated to the expenses and purchase of 
 books. Held, that such an institution is 
 purely a public charity within the meaning 
 of the constitution. The essential features 
 of a public use are that it is not confined 
 to privileged individuals, but is open to the 
 infinite public. It is this indefinite quality 
 that gives it its public character.' Supreme 
 Ct. 1878, Donohugh v. Library Co., 86 Pa. 
 St. 306. 
 
 Recent statutes. The Florida act " for 
 the assessment and collection of revenue " 
 is a comprehensive and general act regu- 
 lating the subject of State taxation, and 
 repealing the law of February 17, 1874. 
 Fla. Laws 1879 (March 7), 17, ch. 3099. 
 
 Maine imposes a tax of 2J per cent on 
 the value of any telegraph line, including 
 apparatus, &c. Me. Laws 1880 (March 
 19), 289, ch. 246. 
 
 Mode of appraising railroads for taxation 
 prescribed anew. Me. Laws 1880 (March 
 19), 294, ch. 249. 
 
 Life-insurance companies of Massachu- 
 setts required to " annually pay an excise 
 tax of an amount to be determined by 
 assessment of the same upon a valuation 
 equal to the aggregate net value of all 
 policies in force on the thirty-first day of 
 December, then next preceding, issued or 
 assumed by such corporation or association, 
 and held «by residents of the Common- 
 wealth at the rate of one half of one per 
 centum per annum." Mass. Laws 1880 
 (April 22), 177, ch. 227, § 1. 
 
 ProvisioDiS for sworn return of company's 
 
TAX. 
 
 409 
 
 business and assessment of tax, — and for 
 penalty for violation of the law. Id. § 2. 
 
 " The shareholders of any bank, bank- 
 ing association , or corporation doi ng a bank- 
 ing business under the general banking 
 law or a special charter of this State, shall 
 be assessed and taxed with respect to their 
 shares of stock, only at the same rate and 
 place, to the same extent, and in the same 
 manner as shareholders of national banks 
 may be liable at the same time to be as- 
 sessed and taxed by authority of the State 
 of New York; provided, however, that no 
 debts shall be deducted from any such 
 assessment of any person applying for the 
 benefit of this act, which have been de- 
 ducted from the assessment of other per- 
 sonal property of such person, and in 
 making application for such deduction 
 every person making the application shall 
 make oath that he has not applied to have 
 such debts deducted from any other assess- 
 ments against him, and that no such de- 
 duction has been made." 1 N. Y. Laws 
 1880 (April.21), 249, ch. 140. 
 
 The true intent and meaning of this act 
 declared to be to place and maintain share- 
 holders of the State banks, &c., upon an 
 equality with shareholders of national 
 banks. Id. § 2. 
 
 Life insurance companies of N. Y. re- 
 quired to pay a tax equal to one per cent 
 upon gross income exclusive of rents. How 
 the return shall be made; and how real 
 property of life-insurance companies shaU 
 be assessed. 1 N. Y. Laws 1880 (May 31), 
 754, ch. 534. 
 
 Extended provisions for raising taxes 
 from all corporations, joint-stock companies 
 and incoporated associations doing business 
 within the State of New York, except 
 savings banks, &c., life insurance com- 
 panies, foreign insurance companies and 
 manufacturing corporations. IN. Y. Laws 
 1880 (June 1), 763, ch. 542. 
 
 Foreign corporations, &c., engaged in 
 banking to pay State tax of one half of 
 one per cent on capital. 1 N. Y. Laws 
 1880 (June26),888, ch. 596. 
 
 " The stockholders in every bank, bank- 
 ing association or trust company, organized 
 under the authority of this State, or of 
 the United States, shall be assessed and 
 taxed on the value of their shares of 
 etock therein; said shares shall be included 
 in the valuation of personal property of 
 
 such stockholders in the assessment of 
 taxes at the place, city, town, or ward where 
 such bank, banking association or trust 
 company is located, and not elsewhere, 
 whether the said stockholder reside in said 
 place, city, town, or ward, or not; but in 
 the assessment of said shares each stock- 
 holder shall be allowed all the deductions 
 and exemptions allowed by law in assessing 
 the value of other taxable personal property 
 owned by individual citizens of this State; 
 and the assessment or taxation shall not be 
 at a greater rate than is made or assessed 
 upon other moneyed capital in the hands 
 of individual citizens of this State." 
 
 " In making such assessment there shall 
 also be deducted from the value of such 
 shares such sum as is in the same propor- 
 tion to such value as is the assessed value 
 of the real estate of the bank, banking as- 
 sociation, or trust company, and in which 
 any portion of their capital is invested, in 
 which said shares are held, to the whole 
 amount of the capital stock of said 
 bank, banking association, or trust com- 
 pany; nothing herein contained shall be 
 held or construed to exempt the real estate 
 of banks, banking associations, or trust 
 companies from either State, county, or 
 municipal taxes; but the same shall be 
 subject to State, county, municipal, and 
 other taxation to the same extent and rate, 
 and in the same manner according to its 
 value, as other real estate is taxed." 1 N. 
 Y. Laws 1880 (June 26), 888, ch. 596, § 3. 
 
 Various provisions for making return of 
 tax due ; for keeping correct list of stock- 
 holders liable to tax ; and for collection of 
 taxes on banks, &c. Id. §§ 2, 4-6. 
 
 Minor Decisions on Tax. 
 The power is primarily in legislature; 
 but may be delegated to municipalities. 
 98 U. S. 381. Legislature cannot authorize 
 an arbitrary or artificial valuation of prop- 
 perty for taxation ; actual value must govern : 
 59 Ala. 551. Special t. on foreign insur- 
 ance companies, held, no violation of rule 
 that taxes must be uniform: 92 111. 339. 
 A constitutional provision that property 
 shall be taxed in proportion to its value 
 does not require the rate to be determined 
 before the valuation is made: 52 Cal. 598. 
 A law confiding adjustment or equalization 
 of taxes to a board of commissioners, lield, 
 not objectionable for want of trial by jury: 
 
410 
 
 TAX. 
 
 2 Pearson (Pa.), 421. The property owned 
 by a iiatioual bank, and the stockholders' 
 shares, may be taxed by a State; but not 
 the franchise, — the right to do banking 
 business: 59 Ga. 648. During the time 
 while a State bank is in process of conver- 
 sion to a national bank, it is liable to State 
 taxes: 2 Pearson (Pa.), 386. Validity of 
 State t. on lumber exported, TJ. S. Const, 
 pt. 1, § 10: 60 Ga. 61. Whether a State 
 law assessing the gross receipts of a rail- 
 road company, derived from transportation 
 through the State, is void: 2 Pearson (Pa.), 
 376. When United States public lands 
 become taxable, under State laws, by sale 
 to individuals : 40 Mich. 14. Illegal item 
 in t. levy does not invalidate legal items, if 
 separable : 53 Cal. 380. At. voted in aid 
 of a railroad is assignable: 50 Iowa, 61. 
 T. in aid of railroad not forfeited by chang- 
 ing the proposed route ; nor by three or four 
 years' suspension of work; nor by delaying 
 collection while the work was suspended: 
 lb. Application of the statute of limita- 
 tions to claims for taxes: liNev. 220. An 
 award by the commissioners of Alabama 
 claims, in favor of a ship-owner, is not 
 taxable'until appropriation is made for pay- 
 ment: 68 Me. 33. To assess both the 
 shares of stock in a bank, and alsb the cor- 
 porate property of a bank, would be double 
 taxation: 48 Md. 117. Real property of 
 toll-bridge company is assessable where it 
 lies, not where the tolls are collected: 74 
 N. Y. 365. The right to vote is not neces- 
 sarily connected with liability to taxation : 
 80 N. C. 154. A person residing in North 
 Carolina is taxable there in respect to stock 
 owned by him in foreign corporations : 82 
 N. C. 420. Property brought within county 
 by annexation of new territory may be 
 taxed for precedent debts: Id. 17. A note 
 due from a resident of Colorado to a resi- 
 dent of another State, not being in any 
 sense the property of the maker, is not 
 taxable in Colorado, though secured upon 
 land there; 3 Col. 349. Bonds deposited 
 in another State, in good faith, for safe 
 keeping, are not taxable in Missouri though 
 owner is domiciled there: 69 Mo. 454. 
 Mode of assessing migratory live-stock: 53 
 Cal. 675. Construction of^act of April 
 17, 1876, prescribing the manner of assess- 
 ing mortgage debt, explained: 41 N. J. L. 
 98. Decision of assessors as to facts neces- 
 sary to their jurisdiction is not conclusive: 
 
 77 N. Y. 342. Authority of Colorado 
 board of equalization : 3 Col. 428 ; all mem- 
 bers of the board must have notice of meet- 
 ings ; but if a majority attend, they can act: 
 Ibi Proper course of proceedings by State 
 assessors in the equalization of assessments, 
 upon appeal by town: 76 N. Y. 337. State 
 legislature may grant judicious exemptions; 
 so doing does not infringe rule requiring 
 uniformity of taxes: 14 Blatchf. 426. A 
 legislature has power, as against a public 
 officer, or a county, to remit any t. which 
 has been levied under its laws: 57 Ala. 33. 
 Exemption must be clearly expressed ; will 
 not be aided by construction : 99 U. S. 348. 
 Presumption is against exemption from 
 taxes ; even in favor of institution for 
 charitable education: 48 Md. 34. Enact- 
 ment of a code of t. laws embodying the 
 substance of former laws, with a clause 
 repealing in general terms all laws on that 
 subject, will not be treated as a release of 
 taxes already assessed: 2 Pearson (Pa.), 
 365; and see Id. 383. Construction of 
 exemption of railroad: 97 U. S. 697; and 
 when it passes to succeeding company: lb. 
 Scope of exemption of cemetery lands: 86 
 III. 336. What institutions are, in Mary- 
 land, exempt as charitable or benevolent : 
 50 Md. 321; Id. 421, 432, 437,449,457. 
 A parsonage distinct from a church is not 
 exempt: 41 N. J. L. 117. County court 
 may order supervisors to refund a t. which 
 is illegal, although it has not been judicially 
 adjudged so: 77 i\^. F. 342. An exemption 
 of the property of a railroad company does 
 not exempt the shares of stock from being 
 taxed against their owners : 82 N. C. 415. 
 Exemption of a railroad and appui-tenances 
 in general terms, does not extend to a hotel 
 built by the company for the accommoda- 
 tion of passengers: 6 Baxi. (Tenn.) 441. 
 Validity of sale depends on the law in force 
 when it is made; a statute passed between 
 assessment and sale applies: 58 Ala. 46. 
 When collector's threat to sell property for 
 illegal t. is coercion: 53 Cal. 380. Power 
 to distrain and sell can be exercised only 
 by collector in person, or deputy regularly 
 appointed: 2 Pearson (Pa.), 114. Lien of 
 t. on land, held, discharged by proceedings 
 to sell: 10 S. C. 226. An unconstitutional 
 enactment that a tax-deed shall be conclu- 
 sive evidence, cannot be sustained by 
 striking out "conclusive," and treated as 
 rendering the deed prima facie evidence: 
 
TAX. — TELEGRAPH. 
 
 411 
 
 56 Ala. 121. A tax-deed is prima facie 
 evidence (1) that the land was taxable; 
 (2) that taxes were in default; (3) that 
 the land had not not been redeemed at date 
 of deed; all other facts to sustain sale must 
 be proved by pm-chaser: 57 Ala. 481. A 
 tax-deed void upon its face, a part of taxes 
 levied being valid and a part illegal, is not 
 a cloud on title ; and a collector's threat to 
 make it is not duress : 53 Cal. 152. 
 
 TELEGKAPH. A telegraph company 
 is not absolutely bound to make its lines 
 safe to the public, or to erect posts so 
 strong that they cannot be blown down; 
 nor is it an insui-er of the safety of travel- 
 lers in the streets against injuries from the 
 posts or wires which it has lawfully erected. 
 Its obligation is to use reasonable care to 
 avoid injuries from the construction and 
 maintenance of its line, proportioned to 
 the amount of danger, and the liability to 
 accident. A telegraph pole erected in a 
 street in Brooklyn fell in consequence of 
 accumulation of snow upon the wires in a 
 storm of unusual length and severity ; 
 many witnesses testified that the line was 
 properly constructed and adequate to resist 
 all storms likely to occur; but that this 
 storm was unprecedented. Held, that the 
 company was not liable for injuries sus- 
 tained by a person struck by the falling 
 pole. Ct. of Appeals 1877, Ward v. At- 
 lantic & Pacific Tel. Co., 71 N. Y. 81. 
 
 Where a telegraph cable, laid across the 
 Passaic River at Newark, N. J., under 
 water, was caught up by the screw of a 
 propeller that backed up over the crossing- 
 place, and was wound around the shaft, so 
 that the cable was broken and damaged, 
 and the propeller had to go on the dock to 
 get off the cable and repair damage to her 
 machinery. In suit for damages, Held : 
 
 1. The telegraph company was bound 
 not only to lay, but also to maintain its 
 cable, in such a way as not to interfere 
 with the movements of boats engaged in 
 proper manoeuvres at that place. 
 
 2. The boat was not in fault in endeavor- 
 ing to free herself from the cable by such 
 devices and skill as were at her command ; nor 
 for refusing an offer of assistance from the 
 employees of the telegraph company, made 
 at a time when it was thought the screw 
 was cleared from the cable. E. Dist. of 
 N. Y. 1876, Stephens, &c. Transp. Co. v. 
 Western Union Tel. Co., 8 Ben. 502. 
 
 " The city council of any city, and the 
 selectmen of any town, may establish 
 reasonable regulations for the erection and 
 maintenance of all telegraph and tele- 
 phone lines of wire within their respective 
 cities or towns, including fire alarm and 
 police lines, and all other lines owned or 
 used by said cities or towns, and may per- 
 mit the same to be laid under any public 
 way or square. In cities such regulations 
 shall be made by ordinance. " Mass. Laws, 
 1880 (March 11), 56, ch. 83, § 1. 
 
 Lines maintained in violation of regula- 
 tion so established, after notice by the 
 municipal authorities to abate them, may be 
 enjoined or removed, or an alteration in 
 them may be ordered by the supreme court 
 or any justice on complaint of the muni- 
 cipal authorities, or, if they are the offend- 
 ers, upon the complaint of any party 
 injured. Id. § 2. 
 
 Construction of Mass. Gen. Stat. ch. 64, 
 — relative to authority for establishing 
 telegraphic wires — enlarged. Id. § 3. 
 
 The engagement of a telegraph company 
 is that each message shall be transmitted 
 with reasonable despatch under the circum- 
 stances. If the message is handed . in for 
 transmission at a small station where the 
 amount of business done does not justify 
 keeping an operator constantly in attend- 
 ance ; or if it must necessarily pass through 
 a repeating office, delay incident to these 
 circumstances must be allowed for, before 
 the company is held chargeable in damages 
 for a detention. 1th Circ. (Ind.) 1879, 
 Belun u. Western Union Tel. Co. , 25 Int. 
 Rev. Rec. 170; 7 Reporter, 110. 
 
 Washburn, the agent of the Western 
 Union Telegraph Co. at Colusa, Cal., was 
 accustomed to employ a young man named 
 Crowell to transmit messages in his place. 
 Crowell by this means had access to the 
 office and instrument at Colusa, became ac- 
 quainted with the routine of the business, 
 and was known to operators of other sta- 
 tions as one in charge sometimes of the 
 Colusa office. Crowell, at length, fraudu- 
 lently sent a despatch signed in the name 
 of the cashier of the bank at Colusa to the 
 Bank of California at San Francisco, de- 
 siring, on behalf of the Colusa bank, that 
 the Bank of California would pay $1,200, 
 gold, to Charles H. Crowley. This despatch 
 was spurious, and there was no such person 
 as Crowley. Crowell then went to San 
 
412 
 
 TELEGRAPH. — TERRITORY. 
 
 Francisco, where he procured a person to 
 identify him at the Bank of California as 
 Charles H. Crowley. By means of this 
 identification, and on the strength of the 
 telegram he had previously sent, he obtained 
 from the bank the $1,200. The Bank of 
 California sued the telegraph company for 
 reimbursement. Held, that the telegraph 
 company was liable. It was by the want of 
 care — at least by the act — of their agent at 
 Colusa, that Crowell had the opportunity of 
 perpetrating the fraud ; and, under the cir- 
 cumstances, the cashier of the Bank of 
 California was not chargeable with negli- 
 gence. Supreme Ct. 1877, Bank of Califor- 
 nia V. Western Union Tel. Co., 52 Cal. 280. 
 An imposter at Cincinnati sent a des- 
 patch in the name of Max, over defendant's 
 line, to Marcus, at Selma, Alabama, re- 
 questing Marcus to send a telegraphic 
 money order to Max at Cincinnati. Marcus 
 thereupon purchased of defendant at Selma 
 a telegraphic money order payable to Max 
 at Cincinnati and defendant paid the 
 money there to the impostor, who was the 
 sender of the message. Held : 
 
 1. Where there is nothing to create sus- 
 picion in the minds of the agents of the 
 telegraph company, it is the duty of the 
 party of whom the request is made to remit 
 the money, to ascertain for himself whether 
 he who makes the request is the person he 
 professes to be. 
 
 2. In the absence of anything generat- 
 ing suspicion, the telegraph company has 
 no right to refuse payment of the money 
 to him in reply to whose message it was 
 sent; and is not liable for a payme|kt made 
 honafide to such person, though it turns out 
 that he was an impostor. Supreme Cl. 1878, 
 Western Union Tel. Co. v. Meyer, 61 Ala. 
 158. 
 
 " Every person who wilfully discloses 
 the contents of a telegraphic message or 
 any part thereof, addressed to another 
 person, without the permission of such 
 person, unless directed so to do by the law- 
 ful order of a court " — declared punishable 
 by iiiie and imprisonment. Cal. Laws 1880, 
 (April 15), 224, ch. 125. 
 
 Hinor Decisions on Telegraph. 
 By writing message on company's blank 
 and handing it in for transmission, the 
 
 sender impliedly assents to any reasonable 
 limitation of liability stated in the printed 
 form: 18 Hun (iV. F.), 157. Indiana stat- 
 ute requires company to make personal de- 
 livery of messages; failure to find the 
 person in evening or on Sunday is no ex- 
 cuse for omission to deliver next day: 62 
 Ind. 371. Customers of Gold & Stock 
 Telegraph Co. enjoined from disclosing 
 quotations furnished to them by the com- 
 pany: 17 Hvn {N. F.), 548. 
 
 TENNESSEE. Courts. Appointment 
 of a district judge for the western district 
 of Tennessee authorized; the former dis- 
 trict judge for the State to remain district 
 judge for the middle and eastern districts. 
 Act of June 14, 1878, ch. 196, 20 Stat, at 
 L. 132. 
 
 Grundy County transferred from middle 
 to eastern district ; and the eastern district 
 divided into the northern and southern 
 divisions. Act of Congress of June 11, 
 1880, §§ 1, 3. 
 
 " A term of the circuit court and of the 
 district court for the eastern district of 
 Tennessee shall be held at Chattanooga in 
 said State in each year on the first Mondays 
 of April and October, after the passage of 
 this act." 76. § 2. 
 
 Regulations prescribed for determining 
 in which district or division various suits 
 must be brought or crimes prosecuted; and 
 governing transfer of causes from one dis- 
 trict or division to another, or removal of 
 causes from a State to a Federal court; and 
 directing how jurors shall be summoned 
 and process served for the two divisions. 
 lb. §§ 4-9, 
 
 TERRITORY. The act of Congress for- 
 bidding and punishing bigamy in the Ter- 
 ritories is constitutional and valid. S«- 
 preme Ct. 1878, Reynolds o. United States, 
 98 U. S. 145. 
 
 Congress cannot pass a law for the gov- 
 ernment of the Territories which shall pro- 
 hibit the free exercise of religion. The 
 first amendment to the constitution ex- 
 pressly forbids such legislation. Religious 
 freedom is guaranteed everywhere through- 
 out the United States, so far as Con- 
 gressional interference is concerned. lb. 
 
 But the law in question does not inter- 
 fere with the free exercise of religion, in 
 the proper sense of that phrase, lb. 
 
 Territory. Cooley on Constitutional Law treats of Territories, p. 113. 
 district court, p. 176. 
 
 Admiralty jurisdiction o{ 
 
TERRITORY. — TRADEMARK. 
 
 413 
 
 Vacancy in office of justice of the peace 
 in a Territory may be temporarily filled as 
 may be directed by laws of the Territory. 
 Act of Congress of April 16, 1880. 
 
 TEXAS. Texas divided into three ju- 
 dicial districts, — northern, southern, and 
 western. Their bounds and limits defined. 
 Times and places of holding terms of 
 courts designated. Civil jurisdiction de- 
 clared. Appointment of district attorney, 
 marshal, and clerk for the northern district 
 authorized. Act of Feb. 24, 1879, ch. 97, 
 20 Stat, at L. 318. 
 
 THOMPSON. Charging the Jury. By 
 Seymour D. Thompson. St. Louis: W. 
 H. Stevenson. 
 
 The Law of Negligence in Relations not 
 resting in Contract. Illustrated by Leading 
 Cases and Notes. By Seymour D. Thomp- 
 son. St. Louis : F. H. Thomas & Co. 
 
 The Law of Carriers of Passengers. Illus- 
 trated by Leading Cases and Notes. By 
 Seymour D. Thompson. St. Louis: F. H. 
 Thomas & Co. 
 
 The method of the last two of these vol- 
 umes is that of presenting leading cases, 
 each accompanied by notes of germane de- 
 cisions of less important. 
 
 THROOP. The New York Justice's 
 Manual, containing all the Laws of the 
 State relating to the Official Tenure and 
 Duties of a Justice of the Peace, and the 
 Proceedings in Civil Cases before him, in 
 force September 1, 1880, with Explanatory 
 Notes and an Appendix of Forms. By 
 Montgomery H. Throop. Albany: John 
 D. Parsons. 
 
 TODD. Parliamentary Government in 
 the British Colonies. By Axpheus Todd. 
 Boston: Little, Brown, & Co. 
 
 A work of historico-legal character. The 
 leading topics are: The sovereign in re- 
 lation to parliamentary government in Eng- 
 land. Application of parliamentary gov- 
 ernment to colonial institutions. Histori- 
 cal account of its introduction . Practical 
 operation of parliamentary government in 
 
 Time. Definition of "day," p. 151. Computing 
 time when loss under policy occurs, p. 164. 
 "Temporarily" p. 169. "Permanent," p. 165. 
 Leap Year, p. 270. New Year's Day, p. 321. 
 
 Town. Municipal Coepokation. The term 
 embraces "city," p. 170. Liability of towns for 
 horses frightened on highways, p. 227. Municipal 
 corporations generally, including powers of legis- 
 lature over towns, pp. 305, 312; town propertj' and 
 funds, pp. 306,313; taxes, pp. 307, 314; debts, pp. 
 
 the British colonies. Position and func- 
 tions of a colonial governor. 
 
 TRADEMARK. The decision of the 
 supreme court adverse to the consti- 
 tutionality of the legislation of Congress 
 upon trademarks (see infia, 100 W. S. 
 82), is understood to defeat prosecu- 
 tions, under those laws, for penalties, 
 and to deprive United States courts of 
 the power to grant injunctions unless 
 the parties are citizens of different 
 States. But it does not check — it 
 has rather stimulated — suits in the 
 State courts of equitable jurisdiction, 
 founded upon the ancient and familiar 
 doctrine of equity on the subject. And 
 whoever sues in a State court will find 
 that the registration of his mark at 
 Washington answers as proof that he 
 designed and used it earlier than his 
 competitor. It will not have statutory 
 support, and force of law, but it will be 
 of service to show that be was first. 
 The record will be just as competent 
 as old advertisements, account-books, 
 and letters, or recollections of wit- 
 nesses, to prove priority ; and wiU be 
 more persuasive and convincing. And 
 upon proof of priority the complainant 
 may have a very helpful and efficient 
 decree from a State court. 
 
 Unless there shall be some efficient 
 movement for a constitutional amend- 
 ment rendering a national lav? allow- 
 able, State laws will probably soon be 
 brought forward in various legislatures. 
 A tolerably comprehensive' statute in 
 Connecticut, and a partial one in New 
 Jersej', have been passed this j'ear (see 
 infra). Prior to the act of Congress 
 there were laws on the subject, at least 
 in New York, California, and Oregon. 
 
 307, 313; contracts, pp, 308, 313; power over voca- 
 tions, pp. 309, 314 ; liabilities on contract, pp. 309, 
 314; for condition of streets, pp. 310, 314, for acts 
 of officers, p. 311; ordinances, p. -313; local im- 
 provements, p. 313; regulation of streets, p. 314; 
 officers, p. 315. 
 
 Trademark. Abandonment of " Durham " to- 
 bacco trademark, pp. 4, 5. Licensee's loss uf right, 
 p. 5. 
 
414 
 
 TRADEMARK. 
 
 They were incomplete and unsatisfac- 
 tory, and are quite insufficient for pres- 
 ent wants. Most of them seem to 
 have been passed at the instance of 
 particular trades. There may be a 
 substantial advantage in systematic, 
 comprehensive statutes on the subject. 
 Equity can and will, in a clear case, pre- 
 vent imitations bj' injunction, but has 
 only a limited and doubtful power to 
 award damages, and none at all to in- 
 flict punishment ; and her authority is 
 often thwarted by lack of proof of the 
 plaintiff's priority. To cure these de- 
 fects ought to be the leading objects of 
 a trademarks law. It should prescribe 
 some means — such as registration — by 
 which a manufacturer or merchant may 
 make his claim known to all rivals, and 
 so assure evidence of his prioritj- ; and 
 it should authorize an action for dama- 
 ges, and possibly inflict punishment as 
 well as grant injunctions. The various 
 provisions of the acts of Congress, of 
 the English merchandise-marks act 
 (1862) and trademarks registration act 
 (1875) should be considered in framing 
 such laws. 
 
 It is doubtful whether a trademarks 
 law should attempt any complete, ex- 
 haustive definition of what devices 
 may be protected. The attempt is 
 likely to embarrass the courts in ap- 
 plying the principle of the law to 
 new developments of business ingenuity 
 which are constantly arising. The 
 English laws endeavor to give defi- 
 nitions, but their clumsiness, verbosity 
 and incompleteness show that the task 
 is diflScult. The act of Congress prof- 
 fered no definition, but authorized the 
 commissioner of patents to register 
 trademarks, and left it to him, guided 
 by the decisions of the courts, to decide 
 what might be registered. A grave 
 defect in the New York general act 
 (1878), and the same is noticeable in 
 the California law, is that only mer- 
 chandise is protected ; and other States 
 for the most part protect only particular 
 
 kinds of merchandise, — mineral waters, 
 beer, butter, &c. These laws overlook 
 a sign on a building, the name of a 
 hotel, and the like. The Oregon law is 
 broader: anj' person may secure the 
 exclusive use of any name, mark, brand 
 or description "for any article of manu- 
 facture or trade, or for any miU, 
 hotel, factory, machine-shop, or other 
 place of business." But this would 
 not protect a newspaper in its name ; 
 j'et the question has arisen, and the 
 courts have decided several times that 
 a newspaper is within the principle. 
 Other cases can be imagined ; the char- 
 acteristic names given to seedlings and 
 new varieties of fruit and flowers, for 
 instance. In the nature of the case the 
 protection cannot be secured bj- label- 
 ling the parent plants as articles of 
 goods. It is not possible to anticipate 
 all the cases likely to arise ; and the act 
 of Congress did well to leave to the 
 courts the question, — What is a trade- 
 mark ? 
 
 That there will be a registration is a 
 matter of course, but there is need of a 
 distinct declaration of the effect of the 
 record. A good trademarks law will 
 make the record conclusive evidence of 
 the date of the person's claim to his 
 mark ; of the time when he devised and 
 adopted it ; but, at the utmost, only 
 probable evidence of aught else. If it 
 is necessary, under the Constitution, 
 that the country should have thirty- 
 eight registrations, in as many different 
 States, some provision is needed to 
 prevent B., in New York, from regis- 
 tering there a trademark which A. 
 has already registered in New Jersey, 
 or further away, and has begun to in- 
 troduce. The secretary of state can 
 search his own record, and refuse A.'s 
 application if he finds B. has pre- 
 ceded A. in his State ; but he cannot 
 search the records of all the States ; and 
 it is too much to expect that B. wiU 
 register in all the thirtj'-eight at once. 
 A good State trademarks law should 
 
TRADEMARK. 
 
 415 
 
 allow it as a valid defence that defend- 
 ant's sales are under a registration of 
 the mark in another State, made be- 
 fore the plaintiff's registration in this. 
 Manufacturers and merchants are con- 
 stantly desiring to sell out, and to trans- 
 fer their trademarks with the goodwill 
 and stock. A good trademarks law 
 should provide for assignments of the 
 right. Much perplexity has been felt 
 about a person's right to use his own 
 name, exclusively, as a trademark, and 
 the claim of another person bearing the 
 same name to enter the same business 
 and be a competitor. A good trade- 
 marks law will prescribe simple rules on 
 this subject. These laws generally- limit 
 the claim to a term of j-ears ; thej"^ should 
 also make some pro^dsion to annul the 
 exclusive right vrhen the first owner 
 disuses it. This often happens. A 
 man registers a mark, does business a 
 while, but abandons the vocation and 
 disuses the mark, long before the statute 
 time expires. Proof of this ought to be 
 a good defence. 
 
 To what extent the law should be 
 available to protect dealers in other 
 States and in foreign countries who 
 have no houses or agencies in this 
 State, but whose goods are on sale here, 
 is a topic to be carefully and prudently 
 treated. Treaty rights and the Consti- 
 tutional provision as to equal rights of 
 citizens of the States ought not to be 
 overlooked. 
 
 Power of Congress. The act of Con- 
 gress of Aug. 14, 1876, — to punish counter- 
 feiting of trademarks, &c. , — is not within 
 the constitutional powers of Congress: 
 
 1. It cannot be sustained under the 
 patents and copyrights power, because a 
 trademark is neither a discovery nor a 
 writing. The ordinary trademark does not 
 involve discovery, but is generally the 
 growth of use, rather than an invention; 
 is often the result of accident rather than 
 design; and when, under the act of Con- 
 gress, registration is sought, neither origin- 
 ality, invention, discovery, science, nor art 
 
 is in any way essential to the right con- 
 ferred by that act. To bring it under the 
 head of writings is equally impracticable; 
 in these, as in inventions^ originality is re- 
 quired. And while the word " writings " 
 may be liberally construed, as it has been , to 
 include " original " designs for engravings, 
 prints, &c., such only as are original, and 
 are founded in the creative powers of the 
 mind are within the constitutional pro- 
 vision. The writings which are to be pro- 
 tected are " the fruits of intellectual labor," 
 embodied in the form of books, prints, en- 
 gravings, and the like. A trademark may 
 be, and generally is, the adoption of some- 
 thing already in existence, as the dis- 
 tinctive symbol of the dealer using it. 
 At common law the exclusive right to it 
 grows out of its use, and not its mere 
 adoption. By the act of Congress this 
 exclusive right attaches upon registration. 
 But in neither case does it depend upon 
 novelty, invention, discovery, or any work 
 of the brain. It requires no fancy or im- 
 agination, no genius, no laborious thought. 
 It is simply founded on priority of appro- 
 priation. 
 
 2. The law cannot be sustained under 
 the commercial power, because it is not 
 limited to sales in commerce with foreign 
 nations, among the States, and with the 
 Indian tribes. Traffic between citizens of 
 the same State is beyond the control of 
 Congress. The law in question does not 
 recognize this ; the broad purpose which it 
 expresses is': To establish a universal system 
 of trademark registration, for the benefit 
 of all who had already used a trademark, 
 or who wished to adopt one in the future; 
 without regard to the character of the trade 
 to which it was to be applied or the resi- 
 dence of the owner, with the solitary ex- 
 ception that residents of foreign countries 
 which extend no such privileges to us are ex- 
 cluded from them here ; nor is it so framed 
 that the courts can administer it as regards 
 foreign and inter-state commerce, on the 
 principle of rejecting the void part and en- 
 forcing the valid part, because it does 
 not contain distinct, separable provisions, 
 some unconstitutional; othei's, capable of 
 being independently enforced, which are 
 not. Supreme Ct. 1879, Trademark cases, 
 100 U. S. 82. 
 
 Jnrisdiction of equity. The right to 
 adopt and use a symbol or a device to dis- 
 
416 
 
 TRADEMARK. 
 
 tinguish the goods or property made or sold 
 by the person whose mark it is, to the ex- 
 clusion of use by all other persons, has been 
 long recognii^ed by the common law and 
 the chancery courts of England and of this 
 country, and by the statutes of some of the 
 States. It is a property right for the 
 violation of which damages may be re- 
 covered in an action at law, and the con- 
 tinued violation of it will be enjoined by a 
 court of equity, with compensation for 
 past infringement. This exclusive right 
 was not created by the act of Congress, and 
 does not now depend upon it for its en- 
 forcement. The whole system of trade- 
 mark property and the civil remedies for 
 its protection existed long anterior to that 
 act, and have remained in full force since 
 its passage. lb. 
 
 Independent of legislation declaring 
 rights in trademarks, there is a general 
 doctrine of equity protecting them, which 
 is well understood. Every one is at liberty 
 to affix to a product of his own manufac- 
 ture any symbol or device, not previously 
 appropriated which will distinguish it from 
 articles of the same general nature manu- 
 factured or sold by others, and thus secure 
 to himself the benefit of inci-eased sale by 
 reason of any peculiar excellence he may 
 have given to it. The symbol or device 
 thus becomes a sign to the public of the 
 origin of the goods to which it is attached, 
 and an assurance that they are the genu- 
 ine article of the original producer. In 
 this way it often proves of great value to 
 the manufacturer in preventing the substi- 
 tution and sale of an inferior and different 
 article for his product; and the courts will 
 protect him in the exclusive use of it. But 
 there are well-defined limitations on the 
 use of devices as trademarks. The le- 
 gitimate object is to indicate, either by the 
 meaning of the mark, or by association, the 
 origin or ownership of the article to which 
 it is applied. If it does not do this it 
 serves no useful purpose ; it affords no pro- 
 tection against sale of a spurious, in place of 
 the genuine, article. Hence a generic name, 
 or a name merely descriptive of an article, 
 or indicating, its q\ialities, ingredients, or 
 characteristics, cannot be appropriated as 
 a trademark. No one has a right to ex- 
 clusive use of words or symbols which are 
 employed to indicate the names or qualities 
 of his goods, and have no relation to origin 
 
 or ownership. Supreme Ct. 1879, Amog- 
 keag Manuf . Co. v. Trainer, 17 Pat. Off. 
 Gaz. 1217. 
 
 A publisher or author has, either in the 
 title of his work, or in the application of his 
 name to the work, or in the particular 
 marks which designate 'it, a species of 
 property similar to that which a trader has 
 in his trademark, and may, like a trader, 
 claim the protection of a court of equity 
 against such a use or imitation of the name, 
 marks, or designation, as is likely, in the 
 opinion of the court, to be a cause of 
 damage to him in respect to that property. 
 This doctrine, in cases where the facts are 
 sufficient to sustain it, has been held ap- 
 plicable to names of such publications as 
 newspapers, magazines, and almanacs. To 
 entitle a complainant to relief he must 
 clearly show a property right in himself, 
 and a fraudulent or colorable imitation by 
 the defendant. It is impossible to lay 
 down any general rule as to what degree 
 of resemblance between the symbols, marks, 
 and devices used on one publication and 
 those used on another, is necessary to con- 
 stitute a fraudulent or colorable imitation. 
 All that can be done is to ascertain, in 
 every case occurring, whether there is such 
 a resemblance that ordinary purchasers, 
 purchasing with ordinary caution, are likely 
 to be misled. Supreme Ct. 1878, Robert- 
 son V. Berry, 50 Md. 591. 
 
 A company engaged in manufacturing 
 certain stoves and ranges not patented was 
 accustomed to place upon each of these 
 stoves and ranges a name and number as a 
 trademark, and also to place upon such of 
 their respective parts as were particularly 
 liable to be worn out rapidly the initial 
 letter and number of the stove or range to 
 which it belonged; each of these parts was 
 well known, had acquired a high reputa- 
 tion, and was sold under the name of the 
 letter and number placed upon it. The de- 
 fendant procured some of these pai-ts, mads 
 patterns from them, and cast from the pat- 
 terns parts of stoves and ranges inferior in 
 quality to the plaintiff's, but having all 
 their peculiarities of ornamentation, letter- 
 ing, and numbering; and advertised these 
 parts for sale as manufactured by himself, 
 describing the parts by the names used 
 by the plaintiff to designate them. Held, 
 that a bill to enjoin him from continuing 
 this business could not be maintained. 
 
TRADEMARK. — TRAMP. 
 
 417 
 
 The defendant was not chargeable with 
 any pretence or representation that the 
 articles he sold were manufactured by the 
 plaintiff. The names and marks used were 
 not of a character to import by whom the 
 parts were made, but only that they were 
 designed to fit certain stoves. And the 
 defendant's mode of dealing, his cata- 
 logue, &c. , clearly showed that he offered 
 them for sale as being of his own manu- 
 facture. Supreme Ct. 1879, Magee Furnace 
 Co. V. Le Barron, 127 Mass. 115. 
 
 A manufacturer of scales cannot claim 
 protection, after expiration of his patent for 
 scales, against another person's making 
 scales in imitation of the form, color, &c., 
 of those manufactured by plaintiff. Neither 
 a patent nor a trademark relates to the 
 accidental exterior appearance of such an 
 article. The patent (while it lasted) pro- 
 tected only the novel, substantial mechan- 
 ism; and the trademark only forbids 
 representing defendant's article as being 
 of the manufacture of plaintiff. 2d Circ. 
 (N. y.) 1877, Fairbanks v. Jacobus, 14 
 Blatchf. 337. S. P. FUley v. Child, 16 Pal. 
 Off. Gaz. 261. 
 
 New State laws. Trademarks may be 
 recorded in the office of the secretary of 
 State. Contents of the certificate pre- 
 scribed; and proceedings to ascertain its 
 truthfulness authorized. Conn. Laws 1880, 
 (March 25), 21, ch. 77, § 1. 
 
 " Every party having the lawful right to 
 make and file such a certificate and affi- 
 davit, upon the recording of the same in 
 said office, shall become entitled to the 
 exclusive use of the trademark therein 
 described for so long as he or his assigns 
 shall conttuue to be engaged in the 
 manufacture or sale of the merchandise 
 or description of goods to which it is ap- 
 propriated, and such right shall be assign- 
 able in writing; but all assignments thereof 
 shall be good only against the assignor and 
 his personal representatives until lodged 
 for record in said office." Id. § 4. 
 
 " Any person who shall reproduce, copy, 
 counterfeit, or imitate any such recorded 
 trademark, knowing the same to have been 
 recorded, and afiix such reproduction, copy, 
 counterfeit, or imitation to goods resem- 
 bling, or designed to resemble, those to 
 which such trademark is so appropriated, 
 shall pay to the owner of such trademark 
 penal damages." Id. § 6. 
 27 
 
 Punishment for various false uses of 
 trademarks prescribed. Id. § 8. 
 
 Manufacturers of ginger ale, soda water, 
 &c., may file with secretary of state and 
 county clerk description of bottles used by 
 them, and cause the same to be printed in 
 newspapers. To use such bottles with con- 
 sent of owners, declared unlawful. Ohio 
 Laws 1880 (April 9), 140. 
 
 Minor Becisiona on Trademark. 
 
 Manufacturer retiring and selling out 
 his factory can sell his trademarks with 
 it: 100 U. S. 617. Though mere form is 
 not one, form may be considered in con- 
 nection with imitation of color, wording of 
 label, &c. : 14 Blatchf. 432. " Appolinaris " 
 protected: 7rf. 380. " Hamburg tea " al- 
 lowed: Id. 432. " Worcestershire sauce " 
 protected: 18 Am. L. Reg. N. s. 322: 7 
 Beporler, 261. A tin pail for paper collars 
 disallowed: 14 Blatchf. 128; 4 Am. L. T. 
 N. 8. 47; 12 Pat. Off. Gaz. 188. A system 
 of lines marked upon a tobacco, disallowed: 
 15 Pat. Off. Gaz. 559. New Jersey law, 
 publishing imitation of marks in glass 
 bottles, does not apply to manufacturers out 
 of the State who send within the State to 
 sell: 41 N. J. L. 462. 
 
 TRAMP. • During the year or two 
 past a number of the States have been 
 led to pass laws for the suppression of 
 misconduct by tramps. These statutes, 
 while they have a common general pur- 
 pose, differ considerably in the language 
 used in defining what shall be deemed a 
 tramp ; and somewhat, also, in the pro- 
 visions made for dealing with such 
 persons. Representative provisions of 
 the different laws are given below. 
 
 Definition of a " tramp." " Any per- 
 son without a home in the town or hundred 
 in which he may be found wandering about 
 without employment, and the regular and 
 visible means of living, shall be deemed 
 a tramp." Del. Laws 1879, (March 27), 
 223, ch. 155, § 1. 
 
 All persons who roam about from place 
 to place, begging, or living without labor 
 or visible means of support, shall be held 
 to be tramps. And any act of begging or 
 vag^'ancy by any person having no known 
 residence within the State shall be primd 
 facie evidence that the person committing 
 
418 
 
 TRAMP. — TRESPASS. 
 
 the same is a tramp. Mass. Laws 1880, 
 (April 24), 231, ch. 257, §§ 2, 3; S. P. 
 1 iV. Y. Laws 1880, (May 5), 296, ch. 176, 
 §§ 2, 3; N. C. Laws 1879 (March 12), 855, 
 ch. 198, §§ 1, 4. 
 
 " Every person, not insane, who wanders 
 about in this State and lodges in market- 
 houses, market-places, or in other public 
 buildings, or in barns, out-houses, bar- 
 racks, sheds, or in the open air, without 
 having any fixed place of residence, and 
 without having any lawful occupation in 
 the city, town, or county in which he may 
 so wander, and without having any visible 
 means of support, shall be deemed to be a 
 tramp," and guilty of misdemeanor punish- 
 able b}' imprisonment. Jurisdiction of 
 justices of the peace; and proceedings be- 
 fore them, against tramps. Md. Acts 
 1880 (March 15), 43, ch. 31. 
 
 Wandering about without a home, and 
 living by begging constitutes one a tramp 
 by Neb. Laws 1879 (Feb. 24), 64, § 1; 
 Ohio Laws 1879 (June 12), 191, ch. 243; 
 Pa. Laws 1879 (April 30), 33, No. 31, § 1. 
 
 Females, minors (under ages specified), 
 and blind persons are expressly excepted 
 from the acts of Delaware, Nebraska, New 
 York, and North Carolina ; females and 
 blind persons from the law of Ohio : and 
 there is a similar but broader exception 
 in Pennsylvania. 
 
 Proceedings. Tramps may be arrested 
 and either set to work on municipal im- 
 provements, receiving food, lodging, and 
 such wages in addition as may be reason- 
 able; or may be hired out to private em- 
 ployers. The term of such compulsory 
 working of any tramp cannot exceeed one 
 month, but for offending again he may 
 again be set to work. Del. Laws 1879 
 (March 27), 223, ch. 155, §§ 2-4. 
 
 Any tramp who shall enter any dwelling- 
 house or kindle any fire in any public 
 highway, on laud of another, without con- 
 sent of the owner or occupant thereof, or 
 shall be found carrying any firearm or 
 other dangerous weapon, or shall do or 
 threaten to do any injury to any person. 
 
 Treasury. Treasury transcripts as evidence, p. 
 12. Proper niime of H. S. notes, p. 157. Limit of 
 necretary's power over custom-house records, p. 
 174. 
 
 Treaty. The Builingame treaty aud the Chi- 
 nese, pp. 20, 80-83 ; as respects queues, p. 81 ; labor 
 and wages, pp. 81, 82; disinterments, p. 82; fish- 
 eries, p. 83. Citizenship under the treaty of Wasb- 
 
 or to the real or personal estate of another, 
 shall be guilty of a misdemeanor. Id. § 8. 
 To very nearly the same effect: Mass. Laws 
 1880 (April 24), 231, ch. 257, §§ 2, 3; 
 Me. Laws 1880 (March 1.3), 212, ch. 213; 
 1 iV. Y. Laws 1880, 291, ch. 176, § 4; Ohio 
 Laws 1879 (June 12), 191, ch. 243; Pa. 
 Laws 1879 (April 30), 33, No. 31, § 1. 
 
 Begging by tramps ; or malicious injur- 
 ies ; or robberies by them, — declared pun- 
 ishable. Neb. Laws 1879 (February 24), 
 64, §§ 2, 3. 
 
 " Every tramp, upon conviction as such, 
 shall be punished by imprisonment at hard 
 labor for not more than six months, the 
 expense during such imprisonment not to 
 exceed one dollar a week per capita, to be 
 paid by the State. 1 N. Y. Laws 1880 
 (May 5), 296, ch. 176, § 1. 
 
 Punishment prescribed for trespasses ; 
 carrying weapons; threats; malicious in- 
 juries, — by tramps. N. C. Laws 1879 
 (March 12), 355, ch. 198, §§ 2, 3. 
 
 TREASURY. " The secretary of the 
 treasury, at the request of a senator, rep- 
 resentative, or delegate in Congress, the 
 head of a department or bureau, art asso- 
 ciation, or library, be, and he is hereby, 
 authorized to furnish impressions from any 
 portrait or vignette which is now, or may 
 hereafter be, a part of the engraved stock 
 of the Bureau of Engraving and Printing, 
 at such rates and under such conditions as 
 he may deem necessary to protect the pub- 
 lic interests." Act of Congress of Dec. 
 22, 1879. 
 
 Rates of payment allowable for govern- 
 ment advertising, prescribed anew. Act 
 of June 20, 1878, ch. 329, 20 Slat, at L. 
 216. • 
 
 TRESPASS. Entering the premises of 
 another and carrying away, against the 
 owner's consent, any animal, vehicle, or 
 property, declared a misdemeanor punish- 
 able by fine and imprisonment, even though 
 done with intent only to obtain the thing 
 for present use, and not to appropriate or 
 convert it. Md. Laws 1880 (April 10), 
 253, ch. 164. 
 
 ington, p. 88. International copyright treaty 
 discussed, p. 11.3. The General Postal Union 
 Treaty, p. 180. Extradition treaties, p. 210. 
 
 Trespass. Tarrying on a highway and misbe- 
 having is a trespass, p. 226. Setting spring-gun to 
 shoot trespassers, unlawful, p. 229. Trespass and 
 larceny, p. 268. 
 
TRIAL, 
 
 419 
 
 TRIAL. Jurors. Relationship (if near 
 enough) between party and juvor disquali- 
 fies juror, although neither knew of it. 
 Upon a cause being called and a jury im- 
 panelled, the officer put the usual question, 
 " Are either of you related by blood or 
 marriage to either party," and the jurors 
 all answered, " No." The cause was tried 
 and a verdict found. The defeated party 
 then moved for a new trial upon affidavits 
 that one of these jurors was a blood rela- 
 tive of the plaintiff. It was shown that 
 neither of the parties nor the juror knew of 
 the relationship until after the trial. lidd, 
 that a new trial must be granted. The 
 juror was disqualified by law. It could not 
 be said that the defendant waived the ob- 
 jection by assenting to the juror's serving, 
 because he did not know the facts. The 
 ignorance of the plaintiff and the juror had 
 no bearing on the question; the defendant 
 had a right to have his cause tried by qual- 
 ified jurors. Supreme Ct. 1878, Hudspeth 
 V. Herston, 64 Ind. 133. 
 
 A juror is not compellable to disclose on 
 the voir dire his guilt of a crime which 
 would disqualify. If he declines to an- 
 swer, the objecting party must pi'ove such 
 disqualification by other evidence. Su- 
 preme Ct. 1878, Burt v. Panjaud, 99 
 U. S. 180. 
 
 As the jury have (under the constitution 
 of Pennsylvania) the power, so they have 
 the right, to give a verdict, in a criminal 
 case, contrary to the instructions of the 
 court upon the law. The court is appoint- 
 ed to instruct jurors upon the law, and the 
 instructions of the court are their best evi- 
 dence of what the law is, but the ultimate 
 power to judge the law, in a criminal case, 
 is with the jury. Supreme Ct. 1879, Kane 
 V. Commonwealth, 89 Pa. St. 522. 
 
 Challenge. A juror who declares him- 
 self able and willing to return a verdict 
 according to the evidence is not (even in a 
 criminal cause) disqualified by having re- 
 
 Irial. Lack of forty-eight grand jurors not a de- 
 fence to an indictment, p^ 7. Trial for producing 
 abortion does not bar trial for killing foetus, p. 8. 
 What is evidence of abortion, p. 9. Treatment of 
 State's evidence, pp. 9, 10; the Graliam (murder) 
 case, p. 10; the Ford (whiskey-tax) case, p. 10. 
 Testimony of accomplice, p. 11; corroborating it, 
 p- 11. Receiving accounts, p. 12. Trial by jury 
 in California, p. 65; generally, p. 160. Negroes on 
 juries, pp. 90-92, 263, 264. Admissibility and effect 
 of detective's evidence, pp. 173, 174. Taking ju- 
 dicial notice, p. 200. Burden of pi-oof, p. 200. Re- 
 
 ceived an impression about it, from con- 
 versations before he was drawn. Supreme 
 Ct. 1878, Reynolds v. United States, 98 
 U. S. 145. S. P. Guetig v. State, G6 Ind. 
 94; State v. Bruce, 48 Iowa, 530; Stevens 
 V. People, 38 Mich. 739 ; Parker v. State, 
 55 Miss. 414; Manke v. People, 17 Hun 
 (N. Y.), 410; Balbo v. People, 19 Id. 424; 
 Grissom v. State, 4 Tex. App. 374; Roths- 
 child V. State, 7 Id. 520. 
 
 Upon a challenge for principal cause, if 
 one called as a juror testifies that, although 
 he has formed and expressed an opinion, 
 yet he believes he can, and he will, render 
 an impartial verdict according to the evi- 
 dence, uninfluenced by his previous impres- 
 sion, the challenge is not sustained, but 
 the juror is competent under Laws 1872, 
 p. 1133, ch. 475; Laws 1873, p. 681, ch. 427. 
 Ct. of Appeals, 1878, Phelps v. People, 72 
 N. Y. 334. 
 
 The distinction between the challenge 
 for principal cause and the challenge for 
 favor has not been abrogated in New York. 
 And notwithstanding Laws 1872, 1133, 
 ch . 475, — directing that a juror's having an 
 impression in reference to the guUt or in- 
 nocence of a prisoner shall not be ground 
 of challenge for principal cause if the juror 
 declares that it will not influence his 
 verdict, — a challenge for favor must be 
 sustained if the juror admits that he has 
 formed an opinion or impression against 
 the prisoner, notwithstanding he believes 
 he can give an impartial verdict according 
 to the evidence. Where a proposed juror, 
 upon being challenged for favor, testified 
 that he had read and heard accounts of the 
 evidence given upon a former trial of the 
 same indictment when the jury failed to 
 agree, and had derived an impression which 
 it would require evidence to remove ; though 
 he believed he could disregard it and ren- 
 der a fair and impartial verdict upon the 
 evidence as it might be adduced' anew, —r 
 Held, that it was error to overrule the 
 
 ceiving admissions and confessions, pp. 200-202 ; or 
 documentary proofs, p. 202. Various points on 
 evidence, p. 203. Trial of extradited offender, pp. 
 209. 210. Harris's Hints on Conduct of, p. 225. 
 Striking cases of evidence received on trials for 
 murder, pp. 230, 231. Showing vertebral column 
 to jury, p. 231 ; or bullet and bullet-mould, p. 231. 
 Remarkable trials involving validity of marriages, 
 pp. 232, 233. Second trial after conviction re- 
 versed, allowable, p. 261. Colored men on juries, 
 pp. 263, 264. Proving a person a common thief, 
 p. 208. Mason on New England Practice, p. 294. 
 
420 
 
 TRIAL. 
 
 challenge. The effect of the statute of 
 1872, as applicable to such a case, is that 
 the existence of the impression is not, as 
 matter of law, conclusive proof of bias. 
 But as matter of fact a proposed juror who 
 admits such an impression adverse to the 
 accused cannot readily be received as a 
 juror indifferent and wholly unpermitted. 
 And if the decision of the question as one 
 of fact is reviewable, as in Nev^ York it is 
 ILaws 1873, p. 681, ch. 427], an appellate 
 court must hold the juror disqualified. Ct. 
 of Appeals, 1878, Greenfield u. People, 74 
 N. Y. 277. 
 
 Jurors are not impartial who have foimed 
 or expressed an opinion, either from hear- 
 ing tlie evidence, or from hearing others 
 detail it who did hear it, or from convers- 
 ing with those who professed to know the 
 facts and to give a detail of them, or from 
 hearing such persons in convei'sation with 
 others giving such details, and a juror who 
 has thus formed or expressed an opinion 
 cannot render himself impartial by ex- 
 pressing his belief, on his examination, 
 that he can render a fair and impartial 
 verdict according to the law and the 
 proof, notwithstanding the opinion then 
 in his mind. A trial by such a jury is not 
 a fair and impartial one. An impartial 
 j\iror is one who enters the box indifferent 
 between the parties, indifferent in feeling 
 and opinion. Either partiality or preju- 
 dice, in the usual acceptation of these 
 words, or an opinion based on the sup- 
 posed facts, existing in his mind, renders 
 it impossible for him to be indifferent, and, 
 therefore, to be impartial. The act of 
 1870-71 is therefore unconstitutional and 
 void, which provided that no juror should 
 be disqualified by any opinion which he 
 may have, based upon any published ac- 
 count of the facts of the offence with which 
 the prisoner is charged. Supreme Ct. 1873, 
 Eason v. State, 6 Baxt. (Term.) 466. 
 
 Reading from books. Long practice 
 has established a rule, in Connecticut, that 
 counsel for an accused pleading insanity 
 may read extracts from standard treatises 
 as portions of his argument. The plea is 
 usually supported primarily by the testi- 
 mony of experts; but it is allowable to 
 read extracts from such treatises as are 
 shown by the testimony of experts to have 
 been accepted by the profession as authori- 
 tative ; such treatises as have helped to form 
 
 the opinion expressed by the expert. So, 
 also, counsel may read from the published 
 reports opinions of the court of errors in 
 cases involving insanity ; and in so doing 
 should not be restricted to reading passages 
 which discuss abstract questions of law, 
 but may within fair limits read portions 
 which relate to the facts of such earlier 
 easel. Ct. of Errors, 1878, State v. Hoyt, 
 46 Conn. 330. 
 
 Where a physician, as a witness, testifies 
 to the symptoms of a disease of which a 
 person died, whose life was insured, and 
 pronounces it delirium tremens, induced 
 by the use of intoxicating liquors, para- 
 graphs from the standard authors treating 
 of that disease may be read to the witness 
 on the cross-examination, and he may be 
 asked if he agrees with the author, as one 
 of the means of testing his knowledge, and 
 this is in no just sense reading such books to 
 the jury. Supreme Ct. 1878, Connecticut 
 Mut. Life Ins. Co. v. Ellis, 89 III. 516. 
 
 Counsel may not read to the jury from 
 the reports of the decisions of the supreme 
 court; matter of law is for the court Su- 
 preme Ct. 1877, Douglass v. Boynton, 59 
 Ga. 283. 
 
 Nor may they read from a digest, to the 
 judge, in the hearing of the jury. Supreme 
 Ct. 1878, Porter v. Cohen, 60 Ind. 338. 
 
 Inspection of subject-matter. In an 
 action for damages for a personal injury, 
 here, for crushing of plaintiff's limb by 
 fall of timbers from a railroad bridge, the 
 court has power in a proper case to require 
 the plaintiff to submit his person to an 
 examination by competent physicians or 
 surgeons, as a means of ascertaining the 
 character and extent of his injuries. The 
 defendant has the same right that this 
 means of ascertaining the truth shall be 
 used as he has to cajl for others. If the 
 plaintiff refuses his consent, the court has 
 power to compel obedience by process for 
 contempt as in other cases where a witness 
 is recusant. Supreme Ct. 1877, Schroeder 
 V. C, R. I., & P. R. Co., 47 Iowa, 375. 
 
 Upon a trial for burglary, it appeared 
 that one of the articles stolen was the 
 wedding-ring of the heads of the house- 
 hold. There was only circumstantial evi- 
 dence to connect the accused with the crime. 
 One of these circumstances was that soon 
 after the burglary he had pawned a ring; 
 if the ring pawned could be indentified 
 
TRIAL. 
 
 421 
 
 with the ring stolen, this would be an im- 
 portant link in the chain of evidence. The 
 ring, while it was in the possession of the 
 family, bore an inscription of the names 
 of the married couple, &c. No such in- 
 scription remained obvious upon the ring 
 pawned; but the prosecution contended it 
 had been effaced by the prisoner. The 
 ring pawned was exhibited to the juiy, and 
 they were allowed to inspect it through a 
 magnifying glass as an aid in determining 
 whether there were traces that an inscrip- 
 tion had been effaced. Held, that here 
 was no error. If the glass augmented 
 the natural power of the eye to discover 
 the inscription, it did that which, in the 
 light of science, it was made for ; and if it 
 did not, its use could have dofle no harm. 
 Supreme Ct. 1878, Short v. SUte, 63 Ind. 
 376. 
 
 Upon a trial for seduction it is not com- 
 petent to produce the child brought forth 
 by the woman for inspection by the jury, 
 and to instruct them that they may con- 
 sider any resemblance which they may 
 observe between it and the defendant, in 
 determining whether he is its father. Su- 
 preme Ct. 1878, State v. Danforth, 48 Iowa, 
 43. 
 
 Upon a trial for murder, upon which the 
 identity of the accused was disputed, a wit- 
 ness testified that he knew the defendant, 
 and knew that be had tattoo marks upon his 
 right fore-arm. The court thereupon com- 
 pelled the defendant, against his objection, 
 to exhibit his arm in such a manner as to 
 show the marks to the jury. Held, that 
 this action of the court was not in violation 
 of the clause in the State constitution which 
 declares that no person shall be compelled 
 in any criminal case to be a witness against 
 himself; that it was not prejudicial to the 
 defendant and was not erroneous. Supreme 
 Ct. 1879, State v. Ah Chuey, 14 Nev. 79. 
 
 Upon a trial for murder committed by 
 taking a woman from her house some dis- 
 tance away, and hanging her, the proof for 
 the prosecution showed that tracks made by 
 a bare foot were observable in the mud 
 about the spot. The attorney-general then 
 brought in a pan of mud and placed it im- 
 mediately in front of the jury, and then 
 asked the witness if the mud in the pan 
 was about as soft as the mud in the branch 
 where he saw the track. Witness said it 
 was. The attorney-general then called 
 
 upon defendant to put his foot in the mud. 
 Upon objection, the court told defend- 
 ant he could put his foot in the mud 
 if he wanted to, but he would not be forced. 
 Held, that because of this action of the 
 attorney-general, and the assent of the 
 court thereto, the conviction should be re- 
 versed. The court should not have per- 
 mitted the pan of mud to have been 
 brought before the jury, and the defendant 
 asked to put his foot in it. And it is no 
 sufficient answer that the judge afterwards 
 told the jury that the refusal to put the foot 
 in the mud was not to be taken as evidence 
 against him. The bringing in of the pan 
 and the request of the attorney-general 
 were improper and should not have been 
 permitted by the court. Supreme Ct. 1875, 
 Stokes V. State, 5 Baxt. (Term.) 619. 
 
 On the trial, before a referee, of a cause 
 wherein a depositor resisted the claim of 
 the bank to charge him with payments 
 made on forged checks, the evidence was 
 conflicting, on the trial, as to the existence 
 and nature of alterations, erasures, and 
 tracings in the check and pass-book, 
 and on the forged checks. An occulist 
 testified that a certain magnifying glass 
 was a correct one, and that it magnified 
 four times. The plaintiffs offered the gla^s 
 in evidence, and handed it to the referee, 
 and requested him to inspect and examine 
 with it the three checks that were produced 
 in evidence, and that were claimed to have 
 been forged, for the purpose of determining 
 whether or not the signatures upon these 
 checks were genuine. To all this, counsel 
 for the defendant objected; but the referee 
 overruled his objection, and used the glass, 
 and defendant's counsel excepted to the de- 
 cision of the referee, and also to his action 
 in using the, glass. Held, that the referee 
 occupied the position of a jury, in determin- 
 ing the question as to the alterations, &c., 
 and he had the same right as a jury to use 
 a magnifying-glass in the investigation of 
 material objects. It was proper for him to 
 use the glass, if he could see better with it. 
 It was his duty as a referee, in a case 
 where alterations, erasures, and forgeries 
 were claimed to exist, to resort to the usual 
 and proper agencies that correctly add to or 
 increase the power and capacity of human 
 vision and consequently of human judg- 
 ment, in respect to the issues of fact that 
 he was called upon to consider and de- 
 
422 
 
 TRIAL. — TRUST. 
 
 cide. 1879, Frank v. Chemical Nat. Bank, 
 45 N. Y. Superior Ct. 452. 
 
 Minor Decisions on Trial. 
 
 No constitutional right to t. by jury 
 after default to plead: 14 Blatchf. 133. To 
 require defendant to file a sworn plea as a 
 condition of having jury t. is not unconsti- 
 tutional: 61 Ga. 293. An act directing 
 foreclosure suits to be tried by equity 
 methods does not infringe right of t. by 
 jury: 49 Iowa, 111. Accused is bound by 
 consent to t. by eleven jurors: 51 Iowa, 
 578. Doctrine of waiver of jury t. by fail- 
 ure to demand: 40 Mich. 21; is waived by 
 bringing equitable action, e. g. suit for 
 specific performance: 71 iV. Y. 383. A 
 law confiding adjustment or equalization 
 of taxes to a board of commissioners, h.eld, 
 not objectionable for want of t. by jury: 
 2 Pearson (Pa.), 421. Act requiring par- 
 ties to demand jury when joining issue is 
 not unconstitutional: 2 Lea (Tenn.), 684. 
 Decision on t. without jury does not be- 
 come opei-ative and binding mitil filed: 
 5 Saioyer, 255. If, during t., a juror be- 
 comes or is found insane, court has a dis- 
 cretion to supply his place or to discharge 
 the jury: 7 Baxt. (Tenn.) 482. The jury 
 are in general to hear testimony; applica- 
 tion to show them the thing in suit may 
 well be denied, unless by consent: 3 Col. 
 207. If they differ, the real verdict is that 
 which is recorded by the clerk, read over 
 by the jury, and assented to by them; not 
 that which appears by a memorandum 
 handed up to the clerk by the foreman : 46 
 Conn. 230. A half-hour separation of jur- 
 ors after handing in written verdict, but 
 before it was proclaimed and recorded, 
 held, not fatal: 55 Miss. 57. Formal cor- 
 rection o£ verdict made after jury were told 
 they were discharged, but before they sep- 
 arated, and with their assent, — sustained : 
 44 Wis. 265. 
 
 Conscientious scruples against inflicting 
 capital punishment on circumstantial evi- 
 dence disqualify a juror: 7 Tex. App. 239. 
 " I would not like for a man to be hung " 
 is not sufficient scruple against capital 
 punishment to disqualify: 55 Miss. 410. 
 Officer reading instructions to the jury 
 
 without order of court avoids verdict of 
 guilty of murder: 22 Kan. 222. Prisoner 
 entitled to be present at rendition of ver- 
 dict: 14 Bush {Ky.), 769. Handing writ- 
 ten verdict to clerk who reads it to jury is 
 not a good verdict for felony; foreman 
 must announce the verdict. 125 Mass. 
 203. Verdict of guilty of larceny, taken 
 during voluntary absence of prisoner, su.s- 
 tained : 88 Pa.' St. 189. A verdict set- 
 tling the term of imprisonment by means 
 of the jurors each naming a term, adding 
 them up, and dividing the amount by 
 twelve must be set aside: 7 Baxt. (Tenn.) 
 273. 
 
 TRUST. Interference by the attorney- 
 general with corporations on the ground of 
 a trust in the government is limited to two 
 classes: (1) Where religious, charitable, 
 municipal, or other corporations whose func- 
 tions are solely public, and whose managers 
 have destroyed or misappropriated the fund, 
 or otherwise abused their functions; (2) 
 Where other corporations exercise powers 
 beyond those to which they are limited by 
 the law of their organization. Supreme Ct. 
 1878, United States v. Union Pacific R. R. 
 Co., 98 U. S. 569. 
 
 Minor Decisions on Tmst. 
 
 A trustee who sold government bonds, 
 and invested the proceeds in railroad bonds 
 then highly approved, was held not per- 
 sonally liable for loss by depreciation of 
 latter bonds: 125 iliois. 410. Trustee may 
 be released merely because unwilling to 
 continue: ZlN.J.Eq.SJ. What proof 
 will establish a t. resulting from payment 
 of purchase-money: Id. 164. Authority 
 of executor or trustee to pay out or invest 
 moneys upon personal securities and lia- 
 bility for losses: 9 5. C. 460; Id. 465. 
 When t. property may vest in beneficiary on 
 the ground that t. has been or cannot be 
 performed : 4 Baxt. ( Tenn.) 497. When re- 
 sulting t. arises from payment of purchase- 
 money: 7 Baxt. (Tenn.) 251; and how 
 it maybe proved: 30 Gratt. (Va.) 744; Id. 
 765. When a t. in lands may be enforced, 
 founded on an oral promise to hold the land 
 for another person: 15 W. Va. 567. 
 
UNITED STATES. — USURY. 
 
 423 
 
 u. 
 
 UNITED STATES. Congress, in the 
 exercise of its power to authorize the erec- 
 tion of a bridge over navigable waters, 
 even though it may, to some extent, im- 
 pede navigation, may devolve upon the 
 public officer the power to approve or pre- 
 scribe the plan of the structm-e, subject to 
 the authority of Congress to modify the 
 same. And under a statute requiring the 
 secretary of war to give notice to the bridge 
 company if he approve the plan, and au- 
 thorizing them, on receiving such notice, 
 to proceed with its erection, he may convey 
 such notice in any way which is effectual; 
 and a communication to their president, 
 purporting to be by the direction of secre- 
 tary of war, and signed by a subordinate 
 officer, is sufficient. Ct. of Appeals, 1879, 
 People 0. Kelly, 5 Ahb. N. Cos. (N. Y.) 
 383. 
 
 A State statute authorized the erection 
 of a bridge, to be so constructed as not to 
 obstruct the free and common navigation 
 of the river. A subsequent act of Con- 
 gress sanctioned the bridge to be construct- 
 ed, provided that it be so constructed as 
 not to obstruct, impair, or injuriously mod- 
 ify the navigation of the river, and sub- 
 mitted the plans to the approval of the sec- 
 retary of war, to secure this condition. 
 After he had approved a plan of structure, 
 the State legislature passed another act, 
 authorizing the completion of the structure. 
 Held, that this was an approval of the plan, 
 and a structure in conformity thereto could 
 not be judicially condemned on the ground 
 that it would be an obstruction to naviga^ 
 tion. lb. 
 
 McPherson's Hand-book. AHand-Book 
 of Politics for 1880: being a Record of 
 important Political Action, National and 
 State, from July 1, 1878 to July 1, 1880. 
 ' By Edward McPherson. Washington: 
 James J. Chapman. 
 
 The principal contents are: President 
 Hayes's messages ; Judicial decisions United 
 States supreme court; Chinese immigration 
 
 United States. Congress, in chartering an in- 
 surance company, acts only as municipal legisla- 
 ture, p. 7. Treasury transcripts as evidence, p. 11. 
 Limits of the United States admiralty jurisdiction, 
 
 bill ; Financial votes in XL Vth and XLVIth 
 Congresses ; Geneva award question ; United 
 States troops, jurors, supervisors, mar- 
 shals ; Proposed amendments to constitution 
 of the United States ; Amendments to State 
 constitutions ; Votes on currency, tariff, and 
 banking in XLVIth Congress; Provisions 
 for counting the electoral vote; National 
 conventions and platforms, 1880 ; Statistical 
 tables on elections, cost of Rebellion, public 
 Jebt, currency, appropriations, census, 
 &c., &c. 
 
 This volume is the seventh of a well- 
 known biennial series. Its purpose and 
 contents are chiefly political. It aims at 
 presenting every important fact, paper, or 
 vote necessary to an understanding of the 
 relative position of parties upon the great 
 public questions which have been prominent 
 in discussion in the last two years. But it 
 contains some matters of interest to law- 
 yers not easily found elsewhere ; especially 
 the text of various bills discussed in Con- 
 gress, but not appearing in the statutes at 
 large because not passed ; also constitutional 
 amendments in the States, proposed, but 
 not yet ratified; also the various amend- 
 ments to the Federal constitution which 
 have been offered in Congress during .the 
 two years. 
 
 minor Decisions on TTnited States. 
 
 The government cannot be estopped by 
 acts of its officers or by legal proceedings 
 against it founded on their consent : 98 U. 
 S. 433. Whenever, in action against offi- 
 cer, it appears that the government's posses- 
 sion is assailed, jurisdiction ceases: lb. Gov- 
 ernment is concluded by a judgment of a 
 competent court rendered in a suit to which 
 it was a party: 14 Ct. of CI. 247. The 
 government is not forbidden by Rev. Stat. 
 § 786, to sue on a marshal's bond after ex- 
 piration of six years : 3 Woods, 550. 
 
 USURY. A note made, dated and pay- 
 able in New York without intent of maker 
 that it shall be elsewhere discounted, if ue- 
 
 p. 13. Assignment of claim against United States, 
 p. 94. Cannot use patented inventions without 
 compensation, pp. 330-334. 
 
424 
 
 USURY. —VIRGINIA. 
 
 gotiated in another State at a rate of inter- 
 est lawful there, but excessive in New 
 York, is usurious: 77 N. Y. 573. A secu- 
 rity for amount of loan and lawful interest 
 is not usurious because lender's agent to 
 effect the loan exacted a bonus without 
 lender's knowledge: 45 iV. Y. Superior Ct. 
 61. Right to recover back u. is personal ; 
 
 one who buys property assuming to pay 
 usurious notes secured upon it cannot sue : 
 51 Vt. 77. To establish the defence of n. 
 to contract valid on its face, affirmative 
 proof must be made that alleged additional 
 advantage was fully contemplated by the 
 parties, and the agreement corruptly made 
 to evade the law: 97 U. S. 13. 
 
 Y. 
 
 VENDOR Xm> PURCHASER. Al- 
 though, by the terms of an oral bargain for 
 the sale of land, the buyer may be entitled 
 to demand a deed with full covenants, yet 
 if he accepts a deed without covenants, be- 
 lieving the title to be clear, and enters into 
 possession, he cannot recover from the 
 grantor, in the absence of fraud, for an in- 
 cumbrance afterwards discovered, but un- 
 known to either party when the deed was 
 passed. The acceptance of the deed merges 
 the prior bargain. And equity cannot re- 
 form the deed on the ground of mistake, 
 because that is only done where it appears 
 that the parties were under a mutual mis- 
 take as to the contents of the paper. If 
 they both knew its character and contents 
 when they executed it, it cannot be re- 
 formed because one was entitled to an in- 
 . strument of different tenor had he exacted 
 it. Ct. of Appeals, 1879, Whittemore v. 
 Farrington, 76 N. Y. 452. 
 
 Minor Decisions on Vendor and Purchaser. 
 
 Possession, to take an oral contract out 
 of the statute of frauds, must be visible, 
 notorious, exclusive, and conformable to the 
 agreement: 7 Oreg. 302. Sons living with 
 and supporting father on faith of his oral 
 promise to deed them his farm have not 
 such possession as amounts to part-perform- 
 ance warranting specific enforcement of the 
 promise: 67 Ind. 440. Statement ot vendor 
 of mill privilege as to quantity of water, 
 held, not a warranty nor a representation 
 authorizing damages if untrue, but a mere 
 expression of opinion : 50 Iowa, 275. Deed 
 merges negotiations ; purchaser cannot en- 
 force an oral warranty against incum- 
 brances : 125 Mass. 344. Whatever would 
 .put a prudent man upon inquiry affects a 
 
 purchaser of land with notice of facts he 
 might learn by .such inquiry: 6 Mo. App. 
 6. To charge a subsequent purchaserwith 
 notice of occupant's title, his possession 
 must be so visible that the purchaser, by 
 inquiry, would have obtained information : 
 76 N. Y. 463. Liability of grantee who 
 has taken deed assuming to pay off mort- 
 gage; and how to enforce it: 71 N. Y. 9; 
 Id. 26. When purchaser assumes mortgage 
 already on land, vendor becomes surety 
 only; and is discharged by material altera- 
 tion of bond made afterward without hia 
 assent: 76 N. Y. 274. Purchaser who con- 
 sents to rescission and expressly surrenders 
 all rights under the contract cannot after- 
 wards sue for his earnest-money: Id. 549. 
 Highest bid does not give absolute right, 
 but is only a preferred proposal ; confirma- 
 tion gives the right: 82 N. C. 192. 
 
 Purchaser not allowed to defend vendor's 
 suit for purchase-money by impeaching his 
 title to the land, unless fraud or eviction 
 can be shown: 98 U. S. 56. Taking a 
 mortgage for the price waives a vendor's 
 lien: 38 Ark. 63. And accepting other se- 
 curity is presumably a waiver ; but it is a 
 question of intention : Id. 240. A vendor's 
 lien is not assignable ; either specifically 
 or by transfer of the obligation for the 
 price: Id. 77. Vendor's lien sustained, 
 notwithstanding he gave second deed ac- 
 knowledging payment : Id. 307. Allowance 
 for improvements to purchaser of lands ol 
 infant, whose purchase was aftei-ward set 
 aside: Id. 490. 
 
 VIRGINIA. The regular terms of the 
 district court in the western district of 
 Virginia, at Danville, to be held on the 
 Tuesday after the fourth Monday iu Feb- 
 ruary, and on the fifteenth day of Novem- 
 
 Vagraut. Meaning of " vagrancy," p. 171. New laws for children deserted by parents, p. 79. 
 
VIRGINIA. — WAR. 
 
 425 
 
 ber: Act of June 11, 1878, ch. 182, 20 
 Stat, at L. 111. 
 TOLUNTART COKVEYANCE. The law 
 
 does not prohibit or invalidate all contracts 
 or dealings between a man and a woman 
 living within him as mistress. It refuses 
 to recognize illicit cohabitation as a con- 
 sideration which can support a conveyance ; 
 but if there is clear proof that a valuable 
 .consideration, independent of the illegal re- 
 
 lation, passed from her to him, his convey- 
 ance to her may be valid as between the 
 parties. When rights of creditors are in- 
 volved, such a transaction must be closely 
 scrutinized; unless convincing proof is 
 made to free the conveyance from the un- 
 favorable inferences which the relation be- 
 tween the parties naturally suggests, the 
 conveyance will be set aside. Supreme Ct. 
 1877, Potter v. Gracie, 58 Ala. 303. 
 
 w. 
 
 WADE. A Treatise on the Operation 
 and Construction of Retroactive Laws as 
 affected by Constitutional Limitations and 
 Judicial Interpretations. By Wm. P. Wade. 
 St. Louis: F. H. Thomas & Co. 
 
 WAGER. Recovering back money lost 
 on, or statute penalty for, a bet on an elec- 
 tion: 14 Bush (Ky.), 625; 69 Me. 118. All 
 wagers here — a bet on presidential election 
 — are unlawful in Maine: Ib.\ 6S Id. 530. 
 Stakeholder who, after demand from loser, 
 pays stakes to winner, is liable to loser: 
 lb. lb. 
 
 WALKER. A Compendium of the Law 
 relating to Executors and Administrators, 
 with an Appendix of Statutes, Annotated 
 by means of References to the Text. By 
 W. G. Walker. London: Stevens & 
 Haynes. 
 
 WAR. Amos on Political and Legal 
 Remedies for War (Harper & Bros.), after 
 discussing in a historic and philosophic 
 way the character of modern wars, their 
 causes, and some political remedies, devotes 
 two sections to legal remedies. Here are 
 discussed the legal operation of war upon 
 trade; the proposed exemption of private 
 persons and property from maritime cap- 
 ture, and the laws of war in their bearing 
 on peace. 
 
 Destrnction, within a seceded State, of 
 cotton belonging to a resident there, by 
 orders and acts of persons in the Confede- 
 rate service, done to prevent its falling into 
 the hands of the Federal forces and iuoreas- 
 
 Vote. Eight to vote, in California, p. 66; in 
 Connecticut, p. 103; in Geor^a, p. 216; in Louisi- 
 ana, p. 284. Wliat i8 a majority vote, pp. 104, 186. 
 Wiiat is vote by ballot, p. 148. ' Voter and citizen 
 not svnonvmous, p. 150- Recent laws as to voting, 
 pp. 182-184. Eight to vote, of imbecile, p. 184; of 
 
 ing their resources, must be deemed an act 
 of war upon the part of the military forces 
 of the Rebellion, for which the person exe- 
 cuting such orders was relieved from civil 
 responsibility at the suit of the owner 
 voluntarily residing at the time within the 
 lines of the insurrection. So held, under 
 the general laws of war, and irrespective of 
 any authority conferred or attempted to be 
 conferred upon Confederate commanders by 
 statute of the Confederate Congress, since 
 no such statute could be of any avail to 
 enlarge the rights or powers of persons in 
 command of the insurgent forces; and irre- 
 spective of any question whether defendant, 
 the person actively responsible for the burn- 
 ing of the cotton, was technically an officer 
 in the Confederate service. Supreme Ct. 
 1878, Ford v. Surget, 97 U. S. 594. 
 
 Effect of the civil war on local laws 
 and dealings. With respect to questions 
 arising out of the civil war, numerous de- 
 cisions of the supreme court from 2 Black, 
 635 to 96 U. S. 193, have established 
 the following propositions : — 
 
 1. The district of country declared by the 
 constituted authorities, during the late civil 
 war, to be in insurrection against the gov- 
 ernment of the United States, was enemy 
 territory, and all the people residing within 
 such district were, according to public law, 
 and for all purposes connected with the 
 prosecution of the war, liable to be treated 
 by the United States, pending the war, 
 and while they remained within the lines 
 
 pauper, p. 184. Eegistration laws, p. 184. Ballots, 
 p. 185. Sick voter, p. 185. Canvassing votes, pp. 
 186-191. Revision of registry, p. 194. McCrary 
 on Election, p. 289. Narr on Suffrage, p. 317. 
 Right of foreign-born persons to vote, acquired by 
 treaty, p. 88; or naturalization, pp. 88, 317. 
 
426 
 
 WAR. 
 
 of the insurrection, as enemies, without 
 reference to their personal sentiments and 
 dispositions. 
 
 2. There was no legislation of the Con- 
 federate Congress which this court can 
 recognize as having any validity against 
 the United States, or against any of its 
 citizens who, pending the war, resided out- 
 side of the declared limits of the insurrec- 
 tionary disti'icts. 
 
 3. The Confederate government is to be 
 regarded by the courts as simply the mili- 
 tary representative of the insurrection 
 against the authority of the United States. 
 
 4. To the Confederate army was, how- 
 ever, conceded, in the interest of humanity, 
 and to prevent the cruelties of reprisals, 
 and retaliation, such belligerent rights as 
 belonged, under the laws of nations, to the 
 armies of independent governments engaged 
 in war against each other, — that conces- 
 sion placing the soldiers and officers of the 
 rebel army, as to all matters directly con- 
 nected with the mode of prosecuting the 
 war, " on the footing of those engaged in 
 lawful war," and exempting "them from 
 liability for acts of legitimate warfare." 
 lb. 
 
 It is now settled law that during the late 
 civil war the same general form of govern- 
 ment, the same general law for the admin- 
 istration of justice and the protection of 
 private rights, which had existed in the 
 States prior to the Rebellion, remained dur- 
 ing its continuance and afterwards. As 
 far as the acts of the States did not impair 
 or tend to impair the supremacy of the 
 national authority, or the just rights of the 
 citizens, under the constitution, they are 
 in general to be treated as valid and bind- 
 ing. [90 U. S. 176; 17 Wall. 570; 20 Id. 
 459 ; 7 Id. 700.] Supreme Ct. 1878, Ketchum 
 V. Buckley, 99 U. S. 188. 
 
 Where the president, at the close of hos- 
 tilities, appointed a military governor of 
 one of the States, the people whereof had 
 been in rebellion against the United States, 
 — Held, that such appointment did not 
 change the general laws of the State then 
 in force for the settlement of the estates of 
 deceased persons, nor remove from office 
 those who were at the time charged by law 
 with public duties in that behalf. lb. 
 
 A loyal person domiciled within the in- 
 surrectionary district crossed the lines dur- 
 ing the war of the Rebellion and became a 
 
 refugee within loyal territory, without 
 change of domicile. Held, that an ante- 
 cedent agency established by him before he 
 left his domicile was not terminated by his 
 crossing the lines, and he might, through 
 his agent, acquire a valid title to personal 
 property within the insurrectionary district. 
 1877, Quigley v. United States, 13 Cl. of 
 CI. 367. 
 
 A refugee on loyal territory, during the 
 war of the Rebellion, could not carry on 
 commercial intercourse across the lines ; 
 but, apart from this, his rights are to be 
 measured as if he remained at the place of 
 his domicile. lb. 
 
 The civil war dissolved a partnership 
 existing between residents of loyal and of 
 seceding States. But such dissolution had 
 no regard to things past. The parties con- 
 tinued partners as to property actually 
 acquired, and remained bound to account 
 to each other therefor. A payment in dis- 
 charge of an actual indebtedness made by 
 one partner to his partners, absent on hostile 
 territory, after the dissolution of the concern 
 by war, whether effected by the delivery of 
 a sum of money or of goods, should be up- 
 held, if made with no purpose to evade the 
 rights of the government, to an agent on 
 the spot, whose agency was created before 
 the war began. If the money or goods 
 thus delivered were inadequate to discharge 
 the just claims of the absent partners, it 
 rests with them alone to complain. If they 
 ratify the transaction, the government is 
 not concerned in the inadequacy of the 
 consideration. 1878, Douglass v. United 
 States, 14 Ct. of Cl. 1. 
 
 Where partners domiciled on loyal and 
 disloyal territory were engaged in growing 
 cotton before the war, it was not contrary 
 to the principle of international law for- 
 bidding commercial intercourse between 
 belligerents, for the resident partner to turn 
 over to a common agent on the spot, ap- 
 pointed prior to hostilities, a mass of cotton 
 on the plantation as the share of the absent 
 partner. And the latter might ratify the 
 transaction after the war and assert a valid 
 title to the cotton. lb. 
 
 Capture ; conquest. Cotton owned by 
 a Britisli subject, although he never came 
 to this country, was, if found during the 
 Rebellion within the Confederate territory, 
 a legitimate subject of capture by the forces 
 of the United States, and the title thereto 
 
WAR. —WAREHOUSE. 
 
 427 
 
 was transferred to the government as soon 
 as the property was reduced to firm posses- 
 sion. Supreme Ct. 1877, Young v. United 
 States, 97 U. S. 39. 
 
 All property within enemy territory is in 
 law enemy property, just as all persons in 
 the same territory are enemies. A neutral 
 ewning property within the enemy's lines 
 holds it as enemy property, subject to the 
 laws of war ; and, if it is hostile property, 
 subject to capture. It has never been 
 doubted that arms and munitions of war, 
 however owned, may be seized by the con- 
 quering belligerent upon conquered terri- 
 tory. The reason is that, if left, they may, 
 upon a reverse of the fortunes of war, help 
 to strengthen the adversary. To cripple 
 him, therefore, they may be captured, if 
 necessary; and whether necessary or not 
 must be determined by the commanding 
 general, unless restrained by the orders of 
 his government, which alone is his superior. 
 The same rule applies to all hostile prop- 
 erty. The rightful capture of movable 
 property on land transfers the title to the 
 government of the captor as soon as the 
 capture is complete, and it is complete 
 when reduced to " firm possession." There 
 is no necessity for judicial condemnation. 
 In this respect, captures on land differ from 
 those at sea. lb. 
 
 A subject of a foreign nation, who fur- 
 , nished munitions of war and supplies to 
 the Confederate government, or did any 
 acts which would have rendered him liable 
 to punishment for treason had he owed 
 allegiance to the United States, by so doing 
 gave aid and comfort to the Rebellion, with- 
 in the meaning of act of Congress of March 
 12, 186.3 (12 Stat, at L. 820), and was there- 
 by excluded from the privilege conferred 
 by that act on loyal owner of abandoned 
 and captured property of suing for the pro- 
 ceeds in the treasury. lb. 
 
 But, inasmuch as by giving such aid and 
 comfort, he did not commit, in a criminal 
 sense, any offence against the United States, 
 he was therefore not included in the pardon 
 and amnesty granted by the proclamation 
 of the President, of Dec. 25, 1868. 
 
 A non-resident alien may trade with both 
 belligerents or with either. By so doing 
 he commits no crime. His acts are lawful 
 in the sense that they are not prohibited. 
 But so soon as he steps outside of actual 
 neutrality, and adds materially to the war- 1 
 
 like strength of one belligerent, he makes 
 himself correspondingly the enemy of the 
 other. If he breaks a blockade or engages 
 in contraband trade, he subjects himself to 
 the chances of the capture and confiscation 
 of his offending property. If he thrusts 
 himself inside the enemy's lines, and, for 
 the sake of gain, acquires title to hos- 
 tile property, he must take care that it is 
 not lost to him by the fortune of war. This 
 is not a crime for which he can be person- 
 ally punished, but his offending property 
 may be treated by the adverse belligerent 
 as enemy property. He has the legal right 
 to carry, to sell, and to buy; but the con- 
 quering belligerent has a corresponding 
 right to capture and condemn. lb. 
 
 WAR DEPARTMENT. The secretaiy 
 authorized to prescribe regulations for the 
 preparation, submission, and opening of 
 bids for contracts ; and may require bids to 
 be accompanied by a bond, with security. 
 Act of April 10, 1878, ch. 58,20 Stat. atL. 
 36. 
 
 WAREHOUSE. An act, "to regulate 
 public grain warehouses in Kentucky, pre- 
 scribes management of warehouses in which 
 grain is stored in such manner as that the 
 identity of different lots cannot be pre- 
 served. The proprietor must take out 
 licenses, and file a bond for faithful per- 
 formance of duty as a public warehouseman. 
 He must receive all grain offered, without 
 making any discrimination between per- 
 sons. Inspection prescribed; and mixing 
 restricted. Form, issuing, and reissuing of 
 warehouse receipts for grain, regulated; 
 and " no gi'ain warehouseman can, by any 
 proviso in the receipt or otherwise, restrict 
 the liability put upon him by law." Duty 
 of warehousemen in delivery of gi-ain in 
 store; and liability for delay prescribed. 
 Various regulations for the management of 
 grain warehouses, enacted. Act of April 
 28, 1880, 1 Ky. Laws 1879, 126, ch. 1285. 
 
 Minor Decisions on Warehouse. 
 Warehouseman's storing gunpowder in 
 quantities, in same room with merchandise, 
 is negligence. 17 ^Im. L. Keg. n. s. 783. 
 Sale of goods in store may be made by 
 transfer of w. receipt ; but not unless the re- 
 ceipt identifies the property sold, nor where 
 it calls for a portion of a large mass of 
 lioraogeneous merchandise so that separa- 
 tion, weighing, &o., is yet necessary. 14 
 
428 
 
 WAREHOUSE. — WEST VIRGINIA. 
 
 Bush (Ky.), 565. W. receipts, drawn pay- 
 able to bearer, are not negotiable (by stat- 
 ute) ; and a purchaser in good faith from a 
 thief does not get title. 6 Mo. App. 172. 
 
 WATSON. The Powers of Canadian 
 Parliaments. By S. J. Watson. Toronto: 
 Carswell & Co. 
 
 A small work, giving the gist of the stat- 
 utes applicable, and germane historical in- 
 formation. 
 
 WEEKS. A Treatise on the Law of De- 
 positions, comprising also Abstracts of the 
 Statutory Law pertaining thereto. By 
 Edward C. Weeks. San Francisco: Sum- 
 ner Whitney & Co. 
 
 WELLS. A Treatise on the Law of Re- 
 plevin, as administered in the Courts of the 
 United States and England. By H. W. 
 Wells. Chicago: Callaghan & Co. 
 
 WEST VIRGINU. No amendments 
 to the constitution have been made 
 from the close of Poore's compilation 
 to the October election in 1880. At 
 that time two were ratified by popu- 
 lar vote. They are substitutes for 
 art. 8 and § 13 of article 3 of the con- 
 stitution ; both which, as formerly in 
 force, are stricken out. 
 
 Trial by jury. "In suits at common 
 law, where the value in controversy exceeds 
 twenty dollars, exclusive of interest and 
 costs, the right of trial by jury, if required 
 by either party, shall be preserved; and in 
 such suit before a justice, a jury may con- 
 sist of six persons. No fact tried by a jury 
 shall be otherwise re-examined in any case 
 than according to the rules of the common 
 law." West Va. Const, art. 3, § 18, as 
 amended by substitute, Oct. 12, 1880. 
 
 Judicial department. " The judicial 
 power of the State shall be vested in a su- 
 preme court of appeals; in circuit courts, 
 and the judges thereof; in such inferior 
 tribunals as are herein authorized ; and in 
 justices of the peace." West Va. Const. 
 Art. 8, § 1, as amended by substitute Oct. 
 12, 1880. 
 
 Supreme court of appeals. "The su- 
 preme court of appeals shall consist of four 
 judges, any three of whom shall be a quorum 
 for the transaction of business. They shall 
 
 be elected by the voters of the State, and 
 hold their office for the term of twelve years, 
 unless sooner removed in the manner pre- 
 scribed by this constitution, except that the 
 judges in office when this article takes effect 
 shall remain therein until the expiration of 
 their present term of office." Id. § 2. 
 
 " It shall have original jurisdiction in 
 cases of habeas corpus, mandamus and pro- 
 hibition. It shall have appellate jurisdic- 
 tion in civil cases', where the matter in 
 controversy, exclusive of costs, is of greater 
 value or amount than $100; in controversies 
 concerning the title or boundaries of land, 
 the probate of wills, the appointment or 
 qualification of a personal representative, 
 guardian, committee, or curator; or concern- 
 ing a mill, road, way, ferry, or landing; or 
 the right of a coi-poration or county to levy 
 tolls or taxes, and also in cases of guo war- 
 ranto, habeas corpus, mandamus, certiorari 
 and pi-ohibition, and in cases involving 
 freedom or the constitutionality of a law. 
 It shall have appellate jurisdiction in crimi- 
 nal cases where there has been a conviction 
 for felony or misdemeanor in a circuit court, . 
 and where a conviction has been had in any 
 inferior court and been affirmed in a circuit 
 court, and in cases relating to the public 
 revenue, the right of appeal shall belong to 
 the State as well as the defendant, and such 
 other appellate jurisdiction, in both civil 
 and criminal cases, as may be prescribed by 
 law." Id. § 3. 
 
 " No decision rendered by the supreme 
 court of appeals shall be considered as bind- 
 ing authority upon any of the inferior 
 courts of this State, except in the particu- 
 lar case, decided, unless such decision is 
 concurred in by at least three judges of 
 said court." Id. § 4. 
 
 " When a judgment or decree is reversed 
 or affirmed by the supreme court of ap- 
 peals, every point fairly ai-ising upon the 
 record of the case shall be considered aud 
 decided ; and the reasons therefor shall be 
 concisely stated in writing, and preserved 
 with the record of the case; and it shall 
 be the duty of the court to prepare a sylla- 
 bus of the points adjudicated in each case, 
 concurred in by three of the judges there- 
 of, which shall be prefixed to the published 
 report of the case." Id. § 5. 
 
 Water. Aqueduct company, p. 25. Artesiau wells, p. 29. Bawdy-houses on the water, p. 45. 
 Water ri{;hts in California, p. 65. 
 
WEST VIRGINIA. 
 
 428 
 
 " A writ of error, supersedeas, or appeal 
 shall be allowed by the supreme court of 
 appeals, or a judge thereof, upon a petition 
 assigning error in the judgment or pro- 
 ceedings of the inferior court, and then 
 only after said court or judge shall have 
 examined and considered the record and 
 assignment of errors, and is satisfied that 
 there is error in the same, or that it pre- 
 sents a point proper for the consideration 
 of the supreme court of appeals." Id. § 6. 
 
 Mode of filling vacancy in supreme court 
 of appeals. Id. § 7. 
 
 Its officers. Id. § 8. 
 
 Two terms to be held annually. Id. § 9. 
 
 Circuit courts. "The State shall be 
 divided into thirteen circuits. For the 
 circuit hereinafter called the first, two 
 judges shall be elected, and for each of the 
 other circuits one judge shall be elected by 
 the voters thereof. Each of the judges so 
 elected shall hold his office for the term of 
 eight years, unless sooner removed in the 
 manner prescribed in this constitution." 
 Provision as to judges in office at the 
 date of the amendment's taking effect ; and 
 as to filling vacancies ; residences of judges 
 and apportionment of business. Id. § 10. 
 
 Terms of circuit courts. Id. § 11. 
 
 " The circuit court shall have the super- 
 vision and control of all proceedings be- 
 fore justices and other inferior tribunals, by 
 manrfamus, prohibition, and certiorari. They 
 shall, except in cases confined exclusively by 
 this constitution to some other tribunal, 
 have original and general jurisdiction of 
 all matters at law where the amount in 
 controversy, exclusive of interest, exceeds 
 fifty dollars; of all cases of habeas corpus, 
 mandamm, quo warranto and prohibition ; 
 and all cases in equity, and of all crimes 
 and misdemeanors. They shall have ap- 
 pellate jurisdiction in all cases, civil and 
 criminal, where an appeal, writ of error or 
 supersedeas faay be allowed to the judgment 
 or proceedings of any inferior tribunal. 
 They shall also have such other jurisdic- 
 tion,whether supervisory, original, appellate, 
 or concurrent, as is or may be prescribed 
 by law. Id. § 12. 
 
 Present division of the State into circuits 
 prescribed. Id. § 13. 
 
 The legislature may rearrange the cir- 
 cuits. Id. § 14. 
 
 And provide for failure of terras. Id. 
 §15. 
 
 General proTisions. Commission and 
 salaries of judges. " No judge, during his 
 term of office, shall practice the profe.ssion 
 of law or hold any other office, appoint- 
 ment, or public trust, under this or any 
 other government, and the acceptance there- 
 of shall vacate his judicial office. Nor 
 shall he, during his continuance therein, 
 be eligible to any political office." Id. 
 § 16. 
 
 " Judges may be removed from office by 
 a concurrent vote of both houses of the 
 legislature, when from age, disease, mental 
 or bodily infirmity, or intemperance, they 
 are incapable of discharging the duties of 
 their office." 
 
 A two thirds vote required; and the 
 judge concerned must have notice. Id. 
 § 17. 
 
 Election (or appointment) of clerks of 
 circuit courts. Id. § 18. 
 
 Establishment of courts of limited juris- 
 diction in the vaiious municipalities, au- 
 thorized. Id. § 19. 
 
 " No citizen of this State who aided or 
 participated in the late war between the 
 government of the United States and a 
 part of the people thereof on either side, 
 shall be liable in any proceeding, civil or 
 criminal ; nor shall his property be seized or 
 sold under final process issued upon judg- 
 ments or decrees heretofore rendered, or 
 otherwise, because of any act done in ac- 
 cordance with the usages of civilized war- 
 fare in the prosecution of said war. The 
 legislature shall provide, by general laws, 
 for giving full force and efiect to this sec- 
 tion." Id. § 20. 
 
 " Such parts of the common law, and of 
 the laws of this State, as are in force when 
 this article goes into operation, and are not 
 repugnant thereto, shall be and continue 
 the law of the State until altei-ed or re- 
 pealed by the legislature. All civil and 
 criminal suits and proceedings pending in 
 the former circuit courts of this State, shall 
 remain and be proceeded in before the cir- 
 cuit courts of the counties in which they 
 were pending." Id. § 21. 
 
 County courts. There shall be in each 
 county a county court composed of three 
 commissioners. Four regular sessions pre- 
 scribed, and special sessions may be au- 
 thorized. Id. § 22. 
 
 Manner of electing commissioners; and 
 of their choosing a president. Id. § 23. 
 
430 
 
 WEST VIRGINIA. — WILL. 
 
 " The county courts,- through their clerks, 
 shall have the custody of all deeds and 
 other papers presented for record in their 
 counties, and the same shall be preserved 
 therein, or otherwise disposed of, as now 
 is, or may be prescribed by law. They 
 shall have jurisdiction in all matters of pro- 
 bate, the appointment and qualification of 
 personal representatives, guardians, com- 
 mittees, curators, and the settlement of 
 their accounts, and in all matters relating 
 to apprentices. They shall also, under 
 such regulations as may be prescribed by 
 law, have the superintendence and admin- 
 istration of the internal police and fiscal 
 affairs of their counties, including the es- 
 tablishment and regulation of roads, ways, 
 bridges, public landings, ferries, and mills, 
 with authority to lay and disburse the coun- 
 ty levies ; provided, that no license for 
 the sale of intoxicating liquors in any incor- 
 porated city, town, or village, shall be 
 granted without the consent of the munici- 
 pal authorities thei-eof, first had and ob- 
 tained. They shall, in all cases of contest, 
 judge of the election, qualification, and re- 
 turns of their own members, and of all 
 county and district officers, subject to such 
 regulations, by appeal or otherwise, as may 
 be prescribed by law. " Other powers may 
 be conferred. Provisions as to existing 
 tribunals for police and fiscal purposes. 
 Id. §24. 
 
 Transfer, and hearing, and determina- 
 tion of pending causes in county courts. 
 Id. § 25. 
 
 Election of clerks of county court. Id. 
 §26. 
 
 Election of justices of the peace. Id. § 27. 
 
 Their jurisdiction ; and appeals from 
 their decisions. Id. § 28. 
 
 Power of legislature to modify any county 
 court, and,with assentof majority of voters, 
 create another tribunal. Id. § 29. 
 
 Ofiice of county commissioner and justice 
 of the peace incompatible. Vacancies, 
 how filled. Id. § 30. 
 
 Wharf. Wharfage collectable in admiralty, p. 
 13. Right of city to exact wharfage, p. 101. 
 
 Wife. Husband and Wife. 
 
 Death of husband during his suit for injury of wife 
 on railroad does not abate suit, p. G. Adultery, p. 16. 
 Lustfully embracing against consent, an assault, 
 p. 29. Wife spendijig night at hotel with husband's 
 attorney, to facilitate divorce, p. 32. WJfe's right of 
 recovery under civil damage laws, p. 89. Married 
 woman mailing letters in Massachusetts guarantee- 
 ing payment for goods sold in another State, p. 109. 
 Her rights in case of " cruelty," p. 151. Property 
 
 Courts. Times and places of holding 
 U. S. circuit and district courts, prescribed 
 anew. Act of Dec. 21, 1878, ch. 9, 20 
 Stat, at L. 259 ; Act of March 9 1878, ch. 
 27;7rf. 27. 
 
 WHARF. The owner or occupant of a 
 dock is liable in damages to a person who, 
 by his invitation, express or implied, makes 
 use of it for an injury caused by any de- 
 fect or unsafe condition of the dock, which 
 the occupant negligently causes or permits 
 to exist, if such person was himself in the 
 exercise of due care. The wharfinger is 
 not an insurer of the safety of his dock, 
 but he is required to use reasonable care to 
 keep his dock in such a state as to be reas- 
 onably safe for use by vessels which he in- 
 vites to enter it, or for which he holds it 
 out as fit and ready. If he fails to use such 
 due care, if there is a defect which is known 
 to him, or which, by the use of ordinary 
 care and diligence, should be known to him, 
 he is guilty of negligence and liable to the 
 person who, using due care, is injured 
 thereby. Supreme Cl. 1878, Nickerson v. 
 Tirrell, 127 Mass. 236. 
 
 The New York act of 1875, prescribing 
 rates of wharfage and dockage to be paid 
 by vessels using wharves, &c., in New York 
 City, Brooklyn, and Long Island City, is a 
 valid law, and the rates prescribed may be 
 recovered, in a proper case, in an action in 
 rem in admiralty. Such a law is not ob- 
 jectionable as involving a tonnage tax, 
 obstructing commerce or navigation, creat- 
 ing a discrinnination between citizens of 
 different States, or an impost upon foreign 
 goods, or laying a tax on non-citizens for 
 the use of a domestic port. E. Dist. of N. 
 Y. 1878, Brock v. The John M. Walsh, 24 
 Int. Rev. Rec. 207. 
 
 WHITMORE. Index to the California 
 Reports, Vols. 1 to 53, inclusive, by Wel- 
 les Whitmore. San Francisco: Sumner 
 Whitney & Co. ; A. L. Bancroft & Co. 
 
 WILL. In the case of a devise or legacy 
 to a corporation if there is not in fact any 
 
 in business, p. 167. Eightsof descent, p. ITl. Di- 
 Dower-rights, p. 179. Wife's sep- 
 
 vorce, p. 177 
 avate property 
 
 p. 234. Elaborate opinion of 
 
 Gheen, J., thereon, pp. 234, 235. Services by mar- 
 ried woman, p. 235. Her separate property, p. 236. 
 Conveyances by her, p. 237. Rights of creditors, 
 p. 237 i suits, p! 237. Wife enabled to insure hus- 
 band's life, p. 249. New laws as to married women, 
 p. 2S)3. 
 
 Will. Devise, Devise; Legacy, Legacy. 
 
 Devise to government, p. 174. " Between" in a 
 will, p. 148; '-children," p. 150; "heir," p. 158; 
 
WILL. 
 
 431 
 
 corporation, whose name precisely corres- 
 ponds with the designation used in the will, 
 but there is one of similar name, proof may 
 be received that the testator knew that coi-- 
 poration by the name employed in the will, 
 and that his intention was to make the gift 
 to it; and the gift will be enforced accord- 
 ing to such intention. Thus, upon proof 
 of extrinsic facts showing that testator in- 
 tended to benefit a particular corporation, 
 but was under a mistake as to its name, 
 a legacy expressed to be given to " The 
 American and Foreign Missionary Soci- 
 ety " was awarded to the American Board 
 of Commissioners for Foreign Missions; 
 and a bequest to " The Home Mission So- 
 ciety," to the American Home Missionary 
 Society. Ct. of Errors, 1877, Dunham v. 
 Averill, 45 Conn. 61 ; Beardsley b. Ameri- 
 can Home Missionary Soc. , Id. 327. 
 
 But if there is an existing corporation of 
 the exact name employed in the will, capa- 
 ble of taking the devise or legacy for such 
 uses as are indicated by the will, the gift 
 will inure to its benefit. A testator gave 
 a legacy to " The American & Foreign 
 Bible Society." It appeared that there 
 was an incorporated society of that name 
 for the distribution of the Bible, estab- 
 lished and mainly supported by the Baptist 
 denomination; and another, incorporated 
 earlier for the same general purpose, named 
 "The American Bible Society," which 
 was mainly supported by the Congrega- 
 tional and Presbyterian denominations. 
 Th« latter society was sometimes called 
 " The American & Foreign Bible Society," 
 but there was no evidence that it was as 
 well known by that name as the other 
 Boeiety, and none that the testator had 
 ever called it or heard it called by that 
 name. Both societies were in the habit 
 of soliciting contributions for their work 
 fi'om the neighborhood where the tes- 
 tator lived. The testator's denomina- 
 tional associations and preferences were 
 wholly with the Congregationalists, and he 
 had no special sympathy with the Baptist 
 denomination. Held, that evidence was 
 not admissible, upon a claim of the Amer- 
 ican Bible Society to the legacy, that while 
 the will was being drawn, the testator said 
 to the scrivener that he wished to give the 
 
 money to the Bible society sustained by the 
 Congregationalists and Presbyterians; that 
 he was not sure as to its corporate name, 
 but believed it to be " The American & 
 Foreign Bible Society." The name used 
 in the will being perfectly descriptive and 
 plainly written, and there being nothing in 
 the will to suggest any different intention 
 from that expressed, the court would not 
 be warranted in intermeddling, even though 
 satisfied that the testator did iu fact make 
 a mistake. Ct. of Errors, 1877, Dunham 
 V. Averill, 45 Conn. 61. 
 
 The will, dated Jan. 7, 1862, of Gard- 
 ner, a resident of Massachusetts, contained 
 the following clause: "Wishing to con- 
 tribute my mite towards suppressing the 
 Rebellion and restoring the Union, I give 
 and devise the rest and residue of my 
 estate to the United States of America. " 
 Testator died in 1876; after the Rebellion 
 had been suppressed and the Union re- 
 stored. The residue comprised, beside per- 
 sonal property, land lying in Massachusetts 
 and land lying in loWa. By consent of all 
 parties, the executors managed the lands 
 and collected rente upon them. The heirs 
 opposed payment of these to the treasury 
 of the United States, claiming that the de- 
 vise was void. Held, that it was valid. 
 
 1. The introductory clause as to sup- 
 pressing the Rebellion, &c., was merely a 
 statement of the testator's motives ; it did 
 not limit the use of the property by the 
 devisee. 
 
 2. The United States as a body politic 
 has capacity to take property, real as well 
 as personal, by gift, bequest, or devise, in 
 trust to be applied to the public piu-poses 
 for which the government was organized. 
 If the local law of a State where land in 
 question lies, limits, as it does in New 
 York (52 N. Y. 530; 94 U. S. 315), the 
 power of testators to devise lands so that 
 devises to the government are forbidden, 
 this will avoid a devise within that State. 
 But there is no such restriction in Massa- 
 chusetts; and no proof of any in Iowa. 
 Supreme Ct. 1878, Dickson v. United 
 States, 125 Mass. 311. 
 
 Every will shall be construed with refer- 
 ence to the real and personal estate com- 
 prised in it, to speak and take effect imme- 
 
 " legal representatives," p. 161; "possessions,' 
 HuEBELL, p. 230. As to legacies, p. 271. 
 
 p. 166. Various State laws on wills, given by 
 
432 
 
 WILL. —WISCONSIN. 
 
 diately after the death of the testator, un- 
 less a contrary opinion shall appear by the 
 will; specific directions given for lapsed 
 and void devises, to be included in resid- 
 uary devise ; and for execution of powers 
 over real and personal estate by persons in 
 whom vested. Pa. Laws 1879 (June 4), 
 88, No. 101. 
 
 Minor Decisions on Will. 
 A testamentary paper: " i am not in 
 good health; i wish to make a devide of 
 what I have past me," &c., not duly exe- 
 cuted as a w. cannot be enforced as a trust: 
 86 Pa. St. 196. A paper written as the 
 subscriber was about starting to cross a 
 dangei-ous river, headed, " Let all men 
 know if I get drowned this morning," and 
 making dispositions of property, sustained 
 as aw., although subscriber was not 
 drowned: 14 W. Va. 458. Sufficiency of 
 execution and attestation: 30 Gratt. (Fa.) 
 56; 44 Wis. 392. Erasing previous sig- 
 nature and subscribing a second time, held, 
 not to involve a revocation: 7 Baxt. (Tenn.) 
 550. 
 
 Wife may influence her husband's mak- 
 ing w. , even for her own benefit, if his free 
 agency is not overcome: 38 Mich. 238. 
 Intoxication of person making w. does 
 not avoid it if it does not prevent him 
 from knowing what he is about: Id. 412. 
 Range of inquiry proper when w. is im- 
 peached for undue infiuence: Ib.\ 22 Kan. 
 69. Advanced age, or infirmity, of testa- 
 tor raises no presumption against his w. : 
 72 N. Y. 269. That draftsman is chief 
 legatee does not avoid w., but calls for 
 scrutiny: 30 Gralt. (Fa ) 56. 
 
 In construing wills the courts agree in 
 favoring the vesting of interests and in 
 treating future interests as vested when a 
 present interest in the income is given: 41 
 Mich. 552. General rules of construction 
 of wills in respect to identifying land de- 
 vised, explained: 40 N. J. L. 402. Gene- 
 ral rules of construction in respect to 
 quality of estate passed by a devise: 32 
 Ohio St. 1. Express terms or necessary 
 implication in a w. are needful to disin- 
 herit the heir: 15 W. Va. 646. Construc- 
 tion of description of lands devised in case 
 depending on obscure interlineations: 45 
 Wis. 211. The phrase "^jro ;-aM" means 
 ordinarily, ratably, proportionately, ac- 
 cording to some rate or proportion fixed by 
 
 circumstances or a scale in the writer's 
 mind: 19 Am. Law Reg. 355. 
 
 Constitutionality and operation of In- 
 diana statute regulating proof of foreign 
 wills: 61 Ind. 117. That the probate 
 judge is a legatee does not forbid his mak- 
 ing preliminary orders to bring application 
 for probate before another judge: 39 Mich. 
 44. Proof of due execution of the w. ia 
 sufficient in the first instance; testamentary 
 capacity is presumed; whoever impeaches 
 it must make affirmative proof; 7 Baxt. 
 (Term.) 550; Id. 575. Right to maintain 
 suit to set aside probate on proof that w. 
 was forged ; but bond jide purchaser from 
 legatee will be protected: 50 Tex. 119. 
 
 WILSON. The Law of Bills of Sale, 
 comprising Law and Practice, under Acts 
 1854-1866, 1878, with Notes, Precedents 
 and Forms, Notes on the Law of Fixtures, 
 and Bankruptcy, so far as they relate to 
 Bills of Sale. By Darcy B. Wilson. 
 London : Horace Cox. 
 
 WINTHROP. A Digest of the Opin- 
 ions of the Judge- Advocate-General of the 
 Army, with Notes, by Bvt.-Col. W. 
 WiNTHEOP. Washington : Government 
 Printing Office. 
 
 WISCONSIN. Since Poore's compil- 
 ation, two amendments have been made 
 to the constitution, as follows : — 
 
 " The supreme court shall consist of one 
 chief justice and four associate justices, to 
 be elected by the qualified electors of the 
 State. The legislature shall, at its first 
 session after the adoption of this amend- 
 ment, provide by law for the election 
 of two associate justices of said court, to 
 hold their offices respectively for terms end- 
 ing two and four years respectively after 
 the end of the term of the justice of the 
 said court then last to expire. And there- 
 after the chief justices and associate justices 
 of said coui-t shall be elected and hold their 
 offices respectively for the term of ten 
 years." Wis. Const, art. 7, § 4, as amend- 
 ed Nov. 0, 1877. 
 
 " No money shall be paid out of the 
 treasury except in pursuance of an appro- 
 priation by law. No appropriation shall 
 Ije made for the payment of any claim 
 against the State, and claims against the 
 United States, and judgments, unless filed 
 within six years after the claim accrued." 
 Wis. Const, art. 8, § 2, as amended Nov. 6. 
 1877. 
 
WISCONSIN. — WITNESS. 
 
 433 
 
 Oaths. Commissioners of the United 
 States circuit or district courts residing in 
 the State of Wisconsin authorized to ad- 
 minister oaths and take and certify the 
 acknowledgment of deeds and other in- 
 struments in writing, as if by a court com- 
 missioner of the circuit courts of that State. 
 Wi':. Laws, 1880 (February 13), 14, ch. 9. 
 
 WITHROW. The American Corporar 
 tion Cases, embracing the Decisions of the 
 United States Supreme and Circuit Courts 
 and the Courts of Last Resort in the Seve- 
 ral States since Jan. 1, 1868, of Questions 
 Peculiar to the Law of Corporations. Ed- 
 ited by Thomas F. Withrow and Hen- 
 ry BiNMORE. Vol. 3, Private Corpora- 
 tions. Chicago: E. B. Myers. 
 
 WITNESS. Compelling attendance. 
 An officer of a foreign corporation, as well 
 as of a New York corporation, may be 
 required by subpoena duces tecum under 
 N. Y. Code Civ. Pro. § 868, to produce 
 books of his corporation which he has in 
 his custody and under his control in New 
 York State. S. Dist. of JV. Y. 1878, 
 United States v. Tilden, 18 Alb. L. J. 416. 
 
 A corporation formed under the laws of 
 Illinois had its general office at Chicago, 
 where its president resided. It had a 
 branch office in New York for the transac- 
 tion of business there, which was in charge 
 of the vice-president, who was also secre- 
 tary of the corporation. There was an as- 
 sistant-secretary in Chicago, who was a co- 
 ordinate officer with the secretary and not 
 under his control. By a by-law of the 
 company the secretary was required to 
 keep safely all documents and papers of the 
 company, which should come into his 
 hands, and to truly keep the books and 
 accounts of the company, &c. By a rule 
 of the company, books of stock, transfers, 
 &c., which were kept in New York in 
 charge of the secretary, when no longer in 
 use, were sent to the general office of the 
 company at Chicago, and were in the 
 charge of the officers there. Held, that 
 after such books were sent by the secretary 
 in New York to Chicago, they were no 
 longer in the custody of that officer, and 
 he could not be required to produce them 
 
 by a subpcea duces tecum under New York 
 Code of Civil Procedure, § 868. lb. 
 
 Either^ house of Congress, in the dis- 
 charge of the powers and duties devolved 
 upon it by the constitution, and as neces- 
 sarily incident thereto, has the undoubted 
 right to require the personal attendance, 
 as a witness before its committees, of any 
 citizen, to be paid for his attendance or 
 not, according to its will and pleasure. 
 1878, Lilley ». United States, 14 Ct. of 
 CI. 539; % Reporter, 233. 
 
 An act of Indiana provides that " an ex- 
 pert in any art, science, trade, profession, 
 or mystery, may be compelled to appear 
 and testify to an opinion as such expert in 
 relation to any matter, whenever such 
 opinion is material evidence, relevant to 
 any issue on trial before a court or jury, 
 without payment or tender of compensa- 
 tion, other than the per diem and mileage 
 allowed by law to witnesses, under the 
 same rules and regulations that he can be 
 compelled to appear and testify to his 
 knowledge of facts relevant to the same 
 issue." Ind. Laws 1879 (March 15), 245, 
 ch. 123. 
 
 Competency. In the trial of civil ac- 
 tions in Florida, " married women shall not 
 be excluded as witnesses in cases wherein 
 their husbands are parties and allowed to 
 testify." Fla. Laws 1879 (March 7), 65, 
 ch. 3124. 
 
 Who shall be deemed incompetent wit- 
 nesses, defined anew. Ind. Laws 1879 
 (March 18), 245, § 128. 
 
 Credibility of witnesses — including ex- 
 perts — is for the jury ; who are not bound 
 to follow the largest number. Supreme Ct, 
 1878, Spring Co. «. Edgar, 99 U. S. 645. 
 
 As compared with the opinion of an in- 
 telligent acquaintance of the person in 
 question, the opinion of an average expert, 
 founded upon the testimony in the cause, 
 as to sanity or unsoundness of mind, is 
 veiy untrustworthy evidence. Often the 
 opinion is honestly formed and expressed 
 to suit some pet theory that has no founda- 
 tion in fact or experience, and sometimes 
 it occurs that an overweening desire to 
 place a rival practitioner in an unfavorable 
 
 Witness. Before committee of Congress not 
 entitled to fees, p. 102. Testimony of detectives, 
 pp. 173, 173. Rights of accomplice received as 
 state's evidence, pp. 9, 10, Corroboration of ac- 
 complice, p. 11. Taking testimony for committee, 
 
 28 
 
 p. 94. State laws as to witnesses do not control 
 in Federal courts, p. 132. Testimony as to "ac- 
 quaintance," p. 146. Harris's hints on examin- 
 ation and cross-examination, p. 225. Testimony as 
 to insanity, p. 224. 
 
434 
 
 WI'tNESS. 
 
 light before a jury and the local public, 
 leads the expert to an expression of an 
 opinion that is not the result of observa- 
 tion and experience, and does not corre- 
 spond with the deduction that should be 
 made from the facts. Frequently the ex- 
 pert is called from a distance to express an 
 opinion after a momentary examination, 
 or an opinion based upon a hypothetical 
 case imperfectly stated. Such an opinion 
 is not entitled to as much weight as that 
 of an intelligent non-professional person 
 who had for many years been an intimate 
 associate of the person in reference to 
 ■whose mind he is called to speak. Ct. of 
 Appeals, 1878, Brown v. Commonwealth, 
 14 Busli (Ky.), 398. 
 
 The knowledge and experience of medi- 
 cal experts are of great value in questions 
 of insanity, and where evidence has been 
 given of their observation, experience, and 
 skill, sufficient to enable them to form in- 
 telligent opinions, and they have testified 
 to these opinions, it was error for the court 
 to charge the jury: "We question very 
 much whether you will realize much, if 
 any, valuable aid from them, in coming 
 to a correct conclusion as regards the re- 
 sponsibility for crime by this prisoner." 
 Supreme Ct. 1878, Pannel v. Common- 
 wealth, 86 Pa. St. 260. 
 
 Robertson and Bonner were separately 
 indicted for the same burglary. Robertson 
 being first placed on trial, Bonner became 
 the principal witness against him, and tes- 
 tified to declarations made to him by the 
 prisoner, whict fully inculpated the latter. 
 The theory of the defence was that Bon- 
 ner, in order to exonerate himself, falsely 
 testified to inculpate Robertson. The wit- 
 ness testified that Robertson confided to 
 him, immediately after the burglary, the 
 place where the stolen property was con- 
 cealed, and that he, without the prisoner's 
 knowledge, removed a portion of it to an- 
 other place ; and that when he was taxed 
 with the crime, he told these facts to his 
 accusers. The prisoner applied for a con- 
 tinuance, to obtain the testimony of an ab- 
 sent witness. This witness would testify 
 to the same general facts as Bonner; but 
 the defence expected to make it clear, from 
 Bonner's own story and the additional tes- 
 timony, that Bonner's conduct was con- 
 trived for the purpose of sharing the pro- 
 ceeds of the property in question, or of 
 
 throwing a charge of burglary on the de- 
 fendant if there were occasion. The judge 
 below denied the continuance upon the 
 view that, as Bonner did not dispute the 
 facts which it was proposed to prove by 
 the absent witness, there was no need of 
 calling that witness. The question of 
 Bonner's credibility could be argued on 
 the facts as he had delineated them. Held, 
 that, under the peculiar circumstances 
 of the case, the absent testimony should be 
 deemed material. True, Bonner did not 
 deny what was expected to be proved, still 
 he stood in the attitude of a parlieeps crim- 
 inis trying to throw the burden of the 
 crime upon the prisoner by turning state's 
 evidence; and whatever might be said of 
 his testimony and admissions, they should 
 not be held binding upon the prisoner, if 
 it were in his power to show the same facts 
 or to contradict him, by evidence coming 
 from a source not tainted with suspicion or 
 corruption. Ct. of Appeals, 1879, Robert- 
 son V. State, 6 Tex. App. 669. 
 
 Cross-examination. One who, beingon 
 trial for a crime, avails himself of a statu- 
 tory permission to testify in his own be- 
 half, subjects himself to the rules of fair 
 cross-examination applicable to other wit- 
 nesses, but does not devest himself of his 
 rights as a party. The right of his coun- 
 sel to speak for him and to take objections 
 in his behalf is not suspended while he is 
 in the witness box; and the cross-examin- 
 ation should in general be limited to mat- 
 ters purtenant to the issue, or such as may 
 be proved by other witnesses. Thus where, 
 on trial for forgery, after the accused had 
 testified in his own behalf, he was asked 
 on cross-examination, " How many times 
 have you been an-estedV " his counsel ob- 
 jected on the ground that the question was 
 not competent to affect his credibility, and 
 that he was privileged fi'om answering it. 
 Held, that the objection should have beeu 
 sustained. The witness was not compellable 
 to answer, and although, when a mere wit- 
 ness is under cross-examination, the counsel 
 for a party is not heard to object that he is 
 privileged from answering, but that is a 
 matter wholly between the witness and the 
 court, yet when the witness is also a party, 
 the court should not refuse to hear his coun- 
 sel. Ct. of Appeals, 1878, People v. Brown, 
 72 N. Y. 571. 
 
WITNESS. 
 
 435 
 
 KinoT Secisions on Witness. 
 
 That child is too young to be punished 
 for perjury does not prevent sweaiing and 
 examination: 61 Ga. 35. To decide on 
 the competency of a little child offered as 
 a w. is for the judge: 6 Tex. App. 398; 
 his decision is not reviewable: 63 Ind. 531. 
 A bigamous marriage of a man does not 
 render the woman incompetent against 
 him: 61 Ga. 305. Husband can tes- 
 tify against wife to attack made upon 
 him by her and others ; this is no breach 
 of marital confidence: 38 Mich. 117. In- 
 dicted adulterer not competent in behalf of 
 paramour: 4 Tex App. 57. Court steno- 
 grapher's certified copy of his notes held 
 competent evidence of what testimony was 
 given by a w. on a former trial: 69 Me. 
 400. One may testify to his own age; 
 thus one sued for goods sold may prove in- 
 fancy: 126 Mass. 234. The evidence to 
 corroborate an accomplice must be such as 
 tends to connect accused with the crime ; 
 if it does not, it is incompetent: 127 Mass 
 424. A convict who has served out his 
 term is restored to competency: 14 W. 
 Va. 851. One charged with having for- 
 feited interest in deceased wife's estate by 
 abandoning her cannot testify to her con- 
 versation in his lifetime showing that he 
 did not abandon her: 65 Ind. 474. Mem- 
 bers of corporation are not forbidden to 
 testify in action by corporation against ex- 
 ecutor, &c.: 39 Mich. 521. A law ena- 
 bling parties to testify does not affect the 
 rule that a witnessed instrument must be 
 proved by the subscribing w. : 7 Baxt. 
 {Tenn.) 524. TV. may testify that he 
 lost a receipt given him by the decedent 
 bat he cannot state its contents. 11 S. C. 
 549. 
 
 That answer will criminate is no excuse 
 if the statute has barred any prosecution : 
 56 Ala. 156. The communication is privi- 
 leged if made in professional consultation ; 
 that no fee was paid "is not material: 33 
 Ark. 771. Physician is not privileged at 
 common law; nor by statute except as to 
 information necessary to enable him to 
 prescribe: 39 Mich. 606. The New Jer- 
 sey courts will not allow a person to be 
 an'ested whilst he is voluntarily leaving 
 the State to testify: 31 N. J. Eq. 211. 
 Accused becoming w. does not waive 
 his privilege as to communication be- 
 
 tween himself and attorney: 34 Ohio St. 
 91. 
 
 One who calls the adverse party to testify 
 vouches for him as aw.; and cannot im- 
 peach him except as he might another w. : 
 60 Ga. 583. One knowing the person and 
 neighborhood may testify that the reputa- 
 tion of a w. is good, although he never 
 heard it discussed; a reputation never 
 questioned is good: 68 Mo. 22. Credibility 
 of accused testifying in his own behalf: 69 
 Mo. 197. Testimony to impeach may be 
 excluded if evidently founded upon per- 
 sonal knowledge, not on general reputation: 
 33 Ohio St. 422. No objection to w. re- 
 freshing his memory by a memorandum 
 because it is written in characters which 
 he only can decipher: 11 S. C. 197, 262. 
 Impeaching w. should be asked what is 
 the reputation of the w. under question in 
 his Neighborhood ; not whether he himself 
 would believe him under oath : 5 Tex. App. 
 273. Accused who becorhes a witness in his 
 own behalf under L. 1877, 356, submits 
 himself to cross-examination and impeach- 
 ment like other w.: Id. 392: 67 Mo. 380. 
 Woman suing for her own seduction, and 
 examined in her own behalf, may be cross- 
 examined as to particular acts of unchas- 
 tity: 6 Baxt. {Term.) 24. Proper cross- 
 examination of expert testifying to hand 
 writing: 51 Tex. 469. 
 
 Testimony that guano, as applied by w. 
 to his lands, was not of any benefit to the 
 crop, is not objectionable as involving a 
 mere opinion or inference: 57 Ala. 566. 
 Expert miller may give an opinion, founded 
 upon odor, &c. that parcel of wheat found 
 upon accused was taken from a mass be- 
 longing to prosecutor: 58 Ala. 393. Sur- 
 geon, expert in gunshot wounds, may give 
 opinion how deceased was shot; otherwise 
 of a soldier not a professional expert: 61 
 Ala. 89. Chemists officially appointed for 
 analysis of fertilizers cannot testify " tests 
 of this guano made in different parts of the 
 State by the department, &c. have been 
 satisf actoi-y ; " this is hearsay: 61 Ga. 475. 
 A w. may state whether a person whom he 
 saw was intoxicated; this is matter of fact: 
 90 III. 61; 47 loioa, 16; 68 Me. 279. Ex- 
 perienced carpenter may give opinion on 
 cost of lumber in a house: 68 Mo. 416. 
 Experts may testify to value of machinery: 
 49 Tex. 260. Opinion is not competent as 
 
436 
 
 WOOD. 
 
 to which party in a contract for building 
 ought to furnish the foundation : 44 Wis. 
 126. 
 WOOD. A Treatise on the Legal Rem- 
 
 Woman. Women not to accompany troops as 
 laundresses, p. 29. Business capacity of, in Cali- 
 fornia, p. 66. Has not a constitutional right to 
 practise law, p. 92. Questions of negligeHcel)y, p. 
 101. Married woman, p. 293. May be county re- 
 corder in Iowa, p. 325. 
 
 Wreck. Bemoval of sunken vessels authorized, 
 p. 318. 
 
 Writing. Treasury transcripts, when evidence, 
 p. 11. Minor decisions on accounts, p. 12. Effect 
 of alterations in written instruments, of raising 
 amount of note, fraudulently inserting drawer's 
 name in bill, cancelling alterations, &c., p. 20; 
 interlineations in deeds and other cases, p. 21. 
 Checks, p. 35. Bills and notes, p. 46. Bonds, p. 50. 
 Chattel mortgage, p. 77. Secretary's indorsement 
 of memorandum of claimant's letter filed in departs 
 ment, p. 94. Copyright property in writings, p. 
 113 ; it is not subject to execution, p. 117. Deed, 
 p. 144; recording deed, and register's index, p. 144. 
 Insurance applications and policies, pp. 249, 253. 
 Interpretation of constitutions, p. 260. Judgvient, 
 p. 261. Libel, p. 272. Mortgage, p. 303. Inspec- 
 tion of writings by magnifying glass, p. 421. Will, 
 p. 431. 
 
 Wrong. Admiralty jurisdiction over marine 
 torts, p. 14. Adulteration of food, pp. 14, 15. Lia- 
 bility for injuries to animals, p. 22 ; or by them, 
 pp. 22, 23. Officer of army of occupation not liable 
 to local courts for military acts, p. 27. Assault, p. 
 29. Negligence by carriers and its consequences, 
 pp. 67. 76. Recovery for causing intoxication, p. 
 88. Violation of civil rights laws, p. 90. Liability 
 for collision, pp. 100, 101. Action for conspiracy of 
 
 edies o£ Mandamus and Prohibition, Hab- 
 eas Corpus, Certiorari, and Quo Warranto. 
 By Horace G. Wood. Albany: W. C. 
 Little & Co. 
 
 workmen to coerce employer, p. 103. Judge not 
 liable in damages for excessive sentence, p. 130. 
 Damages for wrongs, p. 140; for causing death, p. 
 142. Druggist not liable for injudicious prescrip- 
 tion, p. 179. Neglect to keep elevator hatch-way 
 closed, pp. 195, 319. Setting spring gun for tres- 
 passers unlawful, p. 229. Thawing one's neighbor's 
 ice, p. 239. Negligence bj' innkeeper, p. 243. 
 False imprisonment, p. 210. Malicious prosecution, 
 p. 290. Between master and 8er%'ant, p. 295 ; by 
 municipal officers, p. 311. Negligence in discharg- 
 ing fireworks, p. 318; in dropping hammer from 
 upper floor of building, p. 319. Nuisance, p. 322. 
 Midwife not liable for injudicious treatment of in- 
 fant's sore eyes, p. 340. Misconduct affecting rail- 
 roadsjp. 357. Strikesbyemployees, p. 362. Wrong- 
 ful ejection of passenger, p. 368. Liability for 
 negligent management of railroad, pp. 370-381, 
 385; of street railroads, pp. 381, 384, 386. Defec- 
 tive condition of real property, p. 387. Chastise- 
 ment of public-school pupil, p. 394. Seduction, p. 
 396. Slander, p. 399. Wrongful management of 
 steamboats, p. 403 ; of telegraphs, p. 411. Trespass, 
 p. 418. 
 
 Year. How to count the 29th day of Februarv, 
 in leap-vear, p. 270. New Year's Day a public holi- 
 day in Kentucky, p. 321. 
 
 Youth. Protective societies for children, p. 78. 
 Age of discretion, p. 79. New laws for protection 
 of children, pp. 79, 80. Fraudulent transfer, by 
 guardian's agent, of ward's shares of telegraph 
 stock, p. 119. Infancy, generally, p. 242. Relation 
 of guardian and ward, p. ^5; of parent and child, 
 p. 327. 
 
TABLE OF CASES. 
 
 Abbotsford, The, 24, 402. 
 
 Adams v. State, 9, 146. 
 
 Adkinson v. State, 149. 
 
 Adolph V. Central Park, &c. K. 
 R. Co., 382. 
 
 Ah Chong, Re, 83. 
 
 Ah Yem. £ap., 166. 
 
 AketJ. State, 136. 
 
 Alexander ». Horner, 47. 
 
 Ailing 0. Boston & Albany E. E. 
 Co., 367. 
 
 Alvord 1). Smith, 46. 
 
 American & Foreign Chnrch 
 Union v. Yount, 120. 
 
 American Cotton Tie Co. v. Mc- 
 Cready, 335. 
 
 American Express Co. v. Smith, 
 207. 
 
 American Steamship Co.D.Toung, 
 396. 
 
 Ammons, Eaj>.. 209. 
 
 Amoskeag Manuf. Co. v. Train- 
 er, 416. 
 
 Antlet'. State, 339, 340. 
 
 Appeal Tax Court*. Gill, 408. 
 V. Patterson, 405. 
 ». Pullman Palace Car Co., 
 406. 
 
 Armstrong v. Beadle, 142, 402. 
 
 Arnold D.'McKellar, 164. 
 
 Arthur ». Craig, 327. 
 V. MoUer, 167. 
 
 Ascherman v. Phillip Best Brew- 
 ing Co., 113, 2.39. 
 
 Ashendon v. London, Brighton, 
 &c. Ry. Co., 75. 
 
 Atchison, &c. R. E. Co. i). San- 
 ders, 165. 
 V. State, 156. 
 17. Yates, 148. 
 
 Atlanta v. Wilson, 310. 
 
 Atlanta, &c. E. E. Co. v. Webb, 
 377. 
 
 Atlas Nat. Bank «. Savery, 37. 
 
 Avery v. Springport, 53. 
 
 Ayress. Western E. E. Corp., 74, 
 76. 
 
 B. 
 
 Bailey v. Bensley, 344, 345. 
 Baker v. Pendergast, 319. 
 
 V. Portland, 82. 
 
 V. Selden, 115. 
 
 V. State, 196. 
 Balbo V. People, 419. 
 
 Baldwin v. C, E. I., & P. E. Co., 
 
 373. 
 Baltimore v. Eeitz, 402. 
 Bamberg v. South Carolina E. R. 
 
 Co., 70, 71. 
 Bancroft v. Cambridge, 198. 
 Bandalow v. People, 166, 167. 
 Bank of Cadiz v. Slemmons, 255. 
 Bank of California v. Western 
 
 Union Tel. Co., 412. 
 Barbado v. Occidental Grove, 120, 
 
 251. 
 Barber, JJe, 192. 
 Barkow v. Sanger, 78, 147. 
 Barnes v. Chipp, 15. 
 Barnet v. National Bank, 39. 
 Barnett v. Leonard, 2. 
 Barr v. Moore, 141, 161. 
 Barret v. Failing, 178. 
 fiarringer v. Delaware, &c. Canal 
 
 Co., 373. 
 Barrow v. Hunton, 84. 87. 
 Bartlett v. Kittery, 227. 
 Bass V. State, 149. 
 Baxendale «. Bennett, 20. 
 Bayard v. Kling, 105. 
 Baylis v. Lafayette, &c. R. E. 
 
 Co., 160. 
 Bavlor v. Delaware E. E. Co., 
 
 375. 
 Beardslev v. American Home 
 Missionary Soc, 431. 
 «. Littell,132." 
 Beck V. Phoenix Ins. Co., 170. 
 Beecher v. Pettee, 202. 
 Beer Co. t>. Massachusetts, 118, 
 
 276. 
 Beisenthal, Be, 247. 
 Bell V. St. Louis, &c. E. E. Co., 
 
 364. 
 Belun V. Western Union Tel. Co., 
 
 411. 
 Benedict v. Westover, 171. 
 Bennett v. Maryland Fire Ins. 
 
 Co., 132. 
 Benton v. Nicoll, 145. 
 Berdeaux v. Davis, 170. 
 Berry v. People, 9. 
 Bertholf v. O'Reilly, 89. 
 Bertonneau v. Directors of City 
 
 Schools, 93. 
 Bessex v. Chicago, &c. Ey. Co., 
 
 377. 
 Bewick v. Fletcher, 212. 
 Bickley v. Keenan, 169. 
 Birkbeck v. Ackroyd, 235. 
 Black V. Smith, 262. 
 Blackwell ». Dibrell, 5. 
 Blaistell v. Hight, 166. 
 
 Blake v. United States, 26. 
 
 V. Watson, 358. 
 Blakelv». Frazier, 163. 
 Blasdell v. State, 339. 
 Block V. Commissioners, 51. 
 Blumantle v. Fitchburg E. Bi 
 
 Co., 367. 
 Board of Education v. Fonda, 325. 
 Board of Trade v. People, 156. 
 Bonnell v. State, 211. 
 Booth V. Boston, &c. E. E. Co., 
 
 296, 377. 
 Borgwald v. Fleming, 152. 
 Boston V. State, 200". 
 Bosworth V. Trowbridge, 164. 
 Bouldin v. Lockheart, 128, 150. 
 Bowditch V. Boston, 311. 
 Bowen v. Sullivan, 211. 
 
 V. United States, 90, 390. 
 Bowler v. Huston, 261. 
 Bowman v. Lewis, 93. 
 
 V. Long, 161. 
 Boxford Religious Society v. Har- 
 
 riman, 77. 
 Boyd V. Graham, 319. 
 t>. State, 277. 
 V. United States, 152. 
 Boyer r. Barr, 141. 
 Bradley v. Andrews, 319. 
 Brady v. Atlantic Works, 331, 
 
 334. 
 Brahmstadt v. McWhirter, 247. 
 Brauer v. The Southern Home, 9. 
 Brennan v. Fair Haven, &c. R. 
 
 R. Co., 383. 
 Brewster v. Burnett, 53. 
 Bridges v. St. Louis, &c. E. E. 
 
 Co., 373. 
 Brinkman v. Jones, 147. 
 Brisco D. State, 157. 
 Briscoe v. Reynolds, 162. 
 Brock V. The "John M. Walsh, 14, 
 
 430. 
 Brockwav v. Innes, 160. 
 Brodie v' McCabe, 307. 
 
 V. Watkins, 141. 397. 
 Brooke Academy v. George, 107. 
 Brooklyn v. Insurance Co., 52. 
 Brooklyn City, &c. R. R. Co. V. 
 Nat. Bank of the Republic, 48. 
 Brotherton v. People, 200. 
 Brown v. Adams Express Co., 
 74, 75, 208. 
 V. C. R. & P. R. Co., 368. 
 V. Commonwealth, 136, 245, 
 
 434. 
 «. Swineford, 141. 
 V. Thompson, 214. 
 Brownell v. People, 396. 
 
438 
 
 TABLE OP CASES. 
 
 Buck V. Seymour, 358. 
 Bucksport 1). Gushing, 165. 
 Burch V. Haidwicke, 150, 312. 
 Burke v. United States, 41. 
 Burmeister, Matter ofj 165, 169. 
 Burr V. American Spiral Spring 
 
 Butt Co., 110. 
 Burt V. Panjaud, 419. 
 Bushnell v. Chautauqua County 
 
 Nat. Bank, 37. 
 
 Cagney v. Hannibal & St. Joseph 
 
 K. K. Co., 297. 
 Cairo, &c. R. R. Co. ti. People, 
 153. 
 V. Peoples, 141. 
 Calhoun v. Paducah & Memphis 
 
 E. R. Co., 358. 
 Calloway v. Laydon, 166. 
 
 V. State, 155. r 
 
 Camden Horse Car R. R. Co. v. 
 
 Citizens' Cbach Co., 382. 
 Camp V. Wood, 387. 
 Campau v. Langley, 22. 
 Campbell v. Gilbert, 154. 
 
 V. James, 331, 334. 
 Capeheart v. Seabord, &c. R. E. 
 
 Co., 74, 75. 
 Caro V. Metropolitan Elevated Ry . 
 
 Co., 361. 
 Carpenter v. Boulden, 162. 
 Carroll v. St. John's Society, 121. 
 Cartelou v. Doe, 234. 
 Casey v. Adams, 131. 
 Castner's Appeal, 150. 
 Cave V. Crafts, 153. 
 Chamberlain v. Cleveland, 147. 
 Charter Oak Bank v. Reed, 168. 
 Chase v. Lord, 6, 151. 
 Chicago, &c. R. R. Co. v. Hale, 74. 
 
 V. United States, 108. 
 Chicago & Alton R. R. Co. v. 
 Erickson, 365. 
 V. Kellam, 381. 
 V. Piatt, 375. 
 Chicago & Iowa E. R. Co. v. Rus- 
 sell, 374, 378. 
 Chicago, Milwaukee, &c. E. E. 
 
 Co. V. Hall, 361. 
 Chicago Packing Co. v. Chicago, 
 167, 168, 309. 
 V. Tilton, 119. 
 Chicago West Division Ev. Co. 
 
 V. Mills, 384. 
 Chrisman v. Carney, 211. 
 Chrislern, Matter o'f. 317. 
 Churchill v. Holt, 195. 
 Citizens' Security, &c. Co. v. 
 
 Uhler, 64. 
 City o£ Hartford, The, 100. 
 Citv of Panama, The, v. Phelps, 
 
 175. 
 Clark V. Board of Examiners, 190. 
 V. Chicago, Burlington, &c. 
 
 E R. Co., 373. 
 V Hayward, 22. 
 V. Robinson, 184, 185, 187, 
 192. 
 Clarke, Aa-/)., 194, 225. 
 Clay County v, Simonsen, 9. 
 Colib V. Globe Mat. Life Ins. Co., 
 
 87. 
 Colbath V. State, 260. 
 Cole, £e, 32, 107. 
 
 Coleman v. Tennessee, 26. 
 
 V. Waters, 262. 
 Collins V. Uniied States, 159. 
 Colorado & Cent. E. E. Co. v. 
 
 Ogden, 163. 
 Comcrford v. Thompson, 341. 
 Commercial League Assoc, v. Peo- 
 ple, 159, 251. 
 Commonwealth v. Avery, 148, 
 156, 192. 
 «. Barry, 267. 
 ■». Chase, 1 50. 
 ». Cohen, 174. 
 
 V. Columbia Conduit Co., 170. 
 V. Dejardin, 240. 
 V. Hill, 196, 197. 
 V. Hoke, 275. 
 II. Levy, 275. 
 V. Munson, 2-32. 
 V. Sego, 201. ( 
 
 V. Weller, 107, 276. 
 Comstock V. Hier, 48. 
 Connecticut Gen. Life Ins. Co. v. 
 
 McCurdy, 249. 
 Connecticut Mut. Life Ins. Co. </. 
 Ellis, 420. 
 V, Groom, 169. 
 Connecticut Eiver E. E. Co. v. 
 
 Franklin Co., 198. 
 Conner v. State, 155. 
 Constitution, The, 14. 
 Constitutional Amendments, Mat- 
 ter of, 186. 
 Conway v. Illinois Central E. E. 
 
 Co., 375. 
 Cook V. Pennsylvania, 102. 
 Cotrill 1). Chicago, &c. E. E. Co., 
 
 378. 
 Cotton V. Wolf, 225. 
 Council Bluffs v. Stewart, 308. 
 Cowardin v. Universal Life Ins. 
 
 Co., 121. 
 Cowart V. Cowart, 213. 
 Craig V. Smith, 25. 
 Cra-wford v. Williams, 23. 
 Cregin v. Brooklyn Cross Town 
 
 E. E. Co., 6. 
 Crosbv V. Maine Central E. E. 
 
 Co., 367. 
 Crow V. Beardsley, 148, 158. 
 Crowhurst u. Burial Board, 22. 
 Cumberland County v. Pennell, 
 
 129. 
 Cummings v. Merchants' Nat. 
 Bank, 407. 
 V. Spaunhorst, 123. 
 Cunningham, Re, 131. 
 
 B. International E. E. Co., 
 361. 
 
 D. 
 
 Dahlberg v. St. Louis Mut. Fire, 
 
 &c. Ins. Co., 249. 
 Daly V. Byrne, 272. 
 
 V. National Life Ins. Co., 7, 
 156. 
 Damon's Appeal, 247. 
 Dane r. McArthur, 96, 161. 
 Daniel v. State, 168. 
 Dart V. Woodhouse, 118. 
 Davenport v. Caldwell, 234. 
 David V. American Soc. for the 
 Prevention, &c., 243. 
 V. Porter, 169. 
 Davie v, Briggs, 133. 
 
 Daviess County ». Huidekoper, 
 
 61, 52. 
 Davis V. American Soc. P. C. A., 
 29. 
 V. Ney, 224. 
 D. Stevens, 39. 
 Dawes v. Eodier, 167. 
 Dawkins v. State, 146. 
 Day V, Connecticut, &c. Life Ins. 
 
 Co., 250. 
 Dean v. De Wolf, 160. 
 De Camp v. Dobbins, 77, 148 
 De Celis s. United States, 25, 200. 
 De Graff v. New York Central, 
 
 &c. E. E. Co., 376. 
 De Groat v. People, 158, 168, 239. 
 Delaware, &c. Canal Co. v. Car- 
 rol, 301. 
 Denver v. Clements, 144, 352, 169. 
 Denver, &c. Ry. Co. v. Wood- 
 ward, 154. 
 Devereux u. Buckley, 71. 
 Dickinson v. PougHkeepsie, 153, 
 
 309. 
 Dicks V, Brooks, 116. 
 Dickson v. United States, 431. 
 Dietrich v. Madison Relief Assoc, 
 
 253. 
 Dillard v. L. & N. E. E. Co., 74, 
 
 364. 
 Dinsmore v. Louisviile, &c. Ey. 
 
 Co., 206, 355. 
 Dittman v. Repp, 323. 
 Dixon V. Barnum, 44. 
 Dobbin v. Eichmond, &c. E. E. 
 
 Co., 36-3. 
 Dodge V. Williams, 77, 27L 
 Dolan V. Delaware & Hudson Ca- 
 nal Co., 379. 
 Donohugh v. Library Co., 408. 
 Douglass V. Boyntoii, 420. 
 
 V. Knickerbocker Life Ins. 
 
 Co., 251. 
 V. United States, 426. 
 Dow V. Johnson, 28. 
 Dowling i: Allen, 298. 
 Downer v. Howard, 5. 
 Draper v. Wattles, 4. 
 Driscoll v. United States, 109. 
 Ducker v. State, 267. 
 Dimham v. Averill, 431. 
 Dunn V. Kyle, 40, 122. 
 Durvee, He, 44. 
 Dusli V. Fitzhugh, 319. 
 Dver V. Erie Ev. Co., 228, 320, 
 "379. 
 
 E. 
 
 Eagle V. Beard, 128. 
 
 Eagle Packet Co v. Defries, 403. 
 
 Eason i-. State, 420. 
 
 East Tcnn. Universitv «. Knox- 
 
 ville, 306, 307. 
 Easton, £xp., 13, 14. 
 Eaton, &c Co. r. Avery, 143. 
 Egbert v. Lippmann, 4. 
 Eggleston v. Columbia Turnpike 
 
 'Eoad, 228. 
 Eisenlord r. Snvder, 234. 
 Elcox V. Hill, 243. 
 Eldridge v. Hill, 34. 
 Elizabeth i'. Pavement Co., 4. 
 Elk Point ?'. Vaughn, 154. 
 Elmnre v. Fitzpatrick, 22. 
 English V. State, 193. 
 Euloe V. Eeikc, 14S. 
 
TABLE OF CASES. 
 
 439 
 
 Erwin ti. United States, 41, 94. 
 Esterbrook Steel Pen Co. v. 
 
 Ahern, 6. 
 Evans v. Memphis & Charlestown 
 R. E. Co., 366. 
 V. State, 158, 162. 
 Evanston v. Guun, 202. 
 Everett v. Smitli, 105. 
 
 F. 
 
 Fairbanks v. Jacobus, 335, 417. 
 Fairfax v. New York Central, &c. 
 
 R. R. Co., 368. 
 Fairlie v. Boosie, 116. 
 Farmers', &c. Bank e. Erie Ey. 
 
 Co., 113. " 
 Farquhar v. Fidelity Ins., &c. Co., 
 
 46. 
 Farrell v. Oldtown, 227. 
 Ferris v. Quirabv, 212, 213. 
 
 V. Thaw, 124. 
 Filley V. Child, 335, 417. 
 Findley ». SatterHeld, 86. 
 Firemen's Ins. Co. v. Heming- 
 way, 253. 
 First' National Bank ». Gilford, 
 120, 124. 
 V. Pierson, 37. 
 V. Staiifier, 39. 
 Fisher v. Tifft, 43. 
 Fishkill Savings Inst. v. Bost- 
 
 wick, 122. 
 Fitch V. Bover, 21. 
 V. easier, 243. 
 Fitzgerald v. Altman, 87. 
 Flint, &c. R. R. Co. v. Borden, 
 
 158. 
 Ford V. Surget, 425. 
 Foreman ». Bigelow, 119. 
 Forgev v. First Nat. Bank, 154. 
 Forteiiberry v. State, 396. 
 Fosdick 0. Car Co., 359. 
 
 V. Schall, 359. 
 Foster, Kxp., 154. 
 V. Metts, 70. 
 V. Water Co., 25. 
 Foulke ji. Bond, 18. 
 Four Packages o. United States, 
 
 181. 
 Francis u. St. Lonis Transfer Co., 
 
 371. 
 Francois, Sxp., 93. 
 Frank v. Chemical Nat. Bank, 35. 
 Frankhauser «. Ellett, 78. 
 Franklia Fire Ins. Co. v. Martin, 
 
 250. 
 Frasert). Charleston, 308. 
 
 V, Davie, 170. 
 Frazier v. Cooper. 365. 
 
 I'. Crowell, 146. 
 Freeman v. Lynch, 212, 213. 
 Frostburg Building Assoc, v. 
 
 Lowdermilk. 120. 
 Fry V. State, .354. 
 Fuller V. People, 239, 402. 
 
 V. Scribner, 154. 
 Fusz V. Spaunhorst, 122, 123. 
 
 G. 
 
 Gale, Matter of, 32. 
 
 Galveston County v. Gorham, 406. 
 
 Gaston v. Drake, 193. 
 
 Gau^sen v. United States, 51. 
 Geisreiter v. Seviei', 42. 
 Georgia R. R., &c.Co. v. McDade, 
 
 362. 
 German Am. Bank v. Third Nat. 
 
 Bank, 35. 
 Gibbs V. United States, 325. 
 Gibson V. Cranage, 111. 
 Gifford V. Helms, 42. 
 Gill «. Cacy, 169. 
 Gillespie v. Nabors, 158. 
 
 V. Palmer, 105. 
 Gilmore v. Burch, 145. 
 Girardey v. Moore, 84. 
 Glascock V. Chicago, &c. R. R. 
 
 Co., 71, 141. 
 Glenny i>. Langdon, 42. 
 Glue Co. V. Upton, 164. 
 Goodnough v. Warren, 144. 
 Goodrum v. State, 29, 147, 148. 
 Gorham v. Gross, 387. 
 Goshen v. Kern, 148. 
 Gourdin v. Shrewsbury, 161. 
 Grand Rapids, &c. R. R. Co. v. 
 Boyd, 371. 
 
 V. Huntley, 370. 
 Grant v. National Bank, 148. 
 Gray v. Obear, 244. 
 Green v. City of Bridgeton, The, 
 93, 403. 
 
 V. Tavlor, 168. 
 
 V. State, 93. 
 Greenfield v. People, 420. 
 Griffin v. State, 196, 197. 
 Griggs B. State, 267. 
 Grissom v. State, 419. 
 Grover v. Morris, 158. 
 Grundeis ». Hartwell, 155. 
 Guetig V. State, 419. 
 Gundy v. State, 154. 
 Guy V. Baltimore, 102. 
 
 H. 
 
 Hackett v. Ottawa, 52. 
 Hahn v. United States, 402. 
 Hall V. Pennsvlvania R. R Co., 
 75, 365. 
 
 V. State, 158. 
 Halsey v. Gaines, 325. 
 Halsted v. State, 135. 
 Ham V. Smith, 193. 
 
 V. State, 210. 
 Hamilton v. Kingsbury, 161. 
 
 V. Smith, 291. 
 Hamley v. Life Assoc, 250. 
 Hancock v. Rand, 244. 
 Harris v. McGovern, 274. 
 
 V. Uebelhoer, 101. 
 Harrisburg v. Hope Fire Co., 
 
 77. 
 Harrison v. Collins, 295. 
 
 V. Lamar, 154. 
 Hart V. Smith, 167. 
 Hartman v. Aveline, 209. 
 Haskell v. Jones, 336. 
 Hathaway, Matter of, 166. 
 Havens, Matter of, 42. 
 Hay V. Star Fire Ins. Co., 165, 
 
 168. 
 Hayden v. C. W. Cochrane, The 
 168. 
 
 V. Dutcher, 182. 
 HajTiie v. Robertson, 163. 
 Healy v. Joliet & Chicago R. E. 
 Co., 163. 
 
 Helphenstine v. Vincennes Nat. 
 
 Bank, 271. 
 Henderson v. Slate, 152, 167. 
 Hermance, Matter of, 162. 
 Herrman v. Adriatic Fire Ins. Co., 
 
 166, 171. 
 Hezekiah Baldwin, The, 398. 
 Hestonville v. Philadelphia, 167. 
 Hestonville Ry. Co. v. Connell, 
 
 320. 
 Heygood v. State, 169. 
 Heysham v. Dettre, 212. 
 Hicks 1). Empire Fire Ins. Co., 
 
 250. 
 Higgins V. Kusterer, 238. 
 
 ». McCabe, 340. 
 
 V. Murray, 392. 
 Highlands Chemical, &c. Co. V. 
 
 Matthews, 169. 
 Hildebum v. United States, 25. 
 Hill V. Managers of Metropolitan 
 Asylum District, 324. 
 
 V. Miller, 344. 
 Hilliard u. State, 339. 
 Ho Ah Kow V. ^unan, 81. 
 Holcomb V, Gamby, 163. 
 Holden r. Stranahan, 159. 
 Hole II. Bradbury, 117. 
 Holliday v. Wingfield, 147. 
 Holly V. Atlanta Street R. B., 
 
 383. 
 Honnett v. Honnett, 232. 
 Hoover ». Palmer, 159. 
 
 V. State, 93. 
 Horner v. State, 168, 322. 
 Hosmer v. Wallace, 149. 
 Hough V. Railway Co., 372, 377. 
 House V. Talbot, 4. 
 Houston, &c. R. R. Co. v. Dun- 
 ham, 361. 
 
 V. Miller, 242. 
 
 V. Oram, 374, 376. 
 Howenstein v. Barnes, 46. 
 Hoyle V. Hitchman, 15. 
 Hubbell i: McCourt, 147. 
 Huddell, Re, 48. 
 Hudson V. State, 231. 
 Hudspeth v. Herston, 419. 
 Huff V. Ford, 296. 
 Hulett V. St. Louis, &c. Ey. Co., 
 
 378. 
 Hume V. New York, 311. 
 Hunt's Appeal, 233. 
 Hunt V. Hunt, 178. 
 
 V. People. 199. 
 
 V. State, 260. 
 Hunter v. Truckee Lodge, 402. 
 Hurst V. C, R. I., & P. E. Co., 
 
 373. 
 Hurt V. Hollingsworth, 131. 
 Hutchings, £xp., 117. 
 
 I. 
 
 Indianapolis v. Indianapolis Gaa- 
 
 Light, &c. Co., 309. 
 Indianapolis, Bloomington, &c. 
 
 Ey. Co. V. Toy, 375. 
 Indianapolis & St. Louis E. E. 
 
 Co. V. People, 362. 
 International, &c. R. R. Co. v. 
 
 Doyle, 374, 376. 
 Irvin e. Nashville, &c. R. R. Co., 
 
 328. 
 Irwin ». Mobile, 108. 
 Ivey V. State, 151. 
 
440 
 
 TABLE OF CASES. 
 
 J. 
 
 J. H. Starin, The, 14. 
 
 Jackson, Matter of, 106, 167, 341. 
 
 Jarosco v. State, 155. 
 
 Jewitt V. Dringer, 77. 
 
 John Farron, The, 398. 
 
 Johnson v. Brown, 273. 
 
 V. C, R. I., & P. R. Co., 361. 
 
 V. Donaldson, 115, 118. 
 
 V. Humboldt Ins. Co., 165. 
 
 V. National Bank of Glovers- 
 ville, 38. 
 
 ». Richmond, &o. R. R. Co., 
 376. 
 
 V. State, 20. 
 Johnston v. CharlottesTille Nat. 
 
 Bank, 38. 
 Jones V. Caldwell, 192. 
 
 V. Granite Mills, 297. 
 
 V. Gray, 168. 
 
 V. Jones, 233. 
 
 V. Lloyd, 158. 
 
 V. Mial, 110. 
 Jordan v. Eve, 154. 
 Josslyn V. McCabe, 213. 
 
 K. 
 
 Kaltenbach v. Mackenzie, 3. 
 Kane v. Commonwealth, 151, 193. 
 Kansas Central Ry. Co. v. Fitz- 
 
 simmons, 362. 
 Kase V, Greenough, 380. 
 Kasson v. Brocker, 153. 
 Keeler v. Keeler, 213. 
 Keeley v. Sanders, 152. 
 Keith V. Clark, 400. 
 
 V. Granite Mills, 297. 
 Keller u. Corpus Christi, 311. 
 Kelly V. Byles, 116. 
 Kennedj' v. New York, 227. 
 Keokuk v. Dressell, 167, 168, 309. 
 Keokuk Northern Line Packet 
 
 Co. V. True, 403. 
 Ketchum, Me, 42. 
 
 V. Buckley, 426. 
 Keteltas v. Keteltas, 164. 
 Kihlberg v. United States, 28. 
 Kiley v. Kansas City, 323. 
 Killea v. Faxon, 29S. 
 King ». Greenway, 149, 171. 
 Kingsley v. Brooklyn, 309. 
 Kinney, i2e, 93. 
 Kinsley v. Lake Shore, &c. R. R. 
 
 Co., 367, 369. 
 Kirkland v. Brune, 157. 
 Klauber v. BiggerstafE, 151, 163. 
 Knowlton t). Congress, &c. Spring 
 
 Co., 109. 
 Knoxville Nat. Banks. Clark, 20. 
 Krauser v. Ruchel, 160. 
 Kumler v. Junction R. R. Co., 
 
 374. 
 Kuykendall v. Harker, 191. 
 
 L. 
 
 Lake Shore, &c. R. R. Co. v. Hart, 
 
 378. 
 Lake Shore, &c. Ry. Co. v. Knit- 
 
 tal, 378. 
 La Mothe Manuf. Co. ». National 
 
 Tube Works Co., 132. 
 Lange v. Benedict, 131. 
 
 Langford v. United States, 106, 
 
 134. 
 Languille v. State, 406. 
 Lanier v. Macon, 167. 
 Lanigan v. New York Gas Light 
 
 Co., 215. 
 La Pointe, Town of, u. O'Mallej', 
 
 191, 324. 
 Latham v. Latham, 151, 152. 
 
 V. Sumner, 392. 
 Lavender ». State, 158. 
 Law V. People, 108, 159, 307. 
 Lawrence v. State, 193. 
 Lee V. Barkhampstead, 169. 
 
 V. Kaufman, 182. 
 Lehigh Valley Coal Co. v. Jones, 
 
 300, 301. 
 Lehigh Valley R. R. Co. ». McFar- 
 
 lan, 161. 
 Lehman v. Robinson, 154. 
 Leland, Matter of, 266. 
 Leonard v. Nye, 42. 
 
 V. State, 196, 197. 
 Lilley v. United States, 102, 433. 
 Linuehan v. Sampson, 23. 
 Little Rock v. Barton, 149, 309. 
 
 V. National Bank, 52. 
 Lloyd V. Dinsmore, 6. 
 Logan V. State, 339, 401. 
 Lombard v. C, R. 1., & P. R. Co., 
 
 377. 
 Long V, Ryan, 152. 
 Lord Advocate v. Lord Blantyre, 
 
 19. 
 Low V. Wayne County Sav. Bank, 
 
 86. 
 Lozo V. Sutherland, 165. 
 Lucas V. Campbell, 392. 
 
 V. Cooke, 117. 
 Lumley v. Caswell. 299. 
 Lj'nch V. Commonwealth, 155. 
 
 V. McNally, 23. 
 Lyons v. Munson, 52. 
 
 M. 
 
 McCarthy v. Lavasche, 124. 
 MoCarty v. State, 260. 
 McCausland's Estate, 150. 
 McDonald v. Mallory, 142. 
 McGafBn v. Cohoes, 161. 
 McGrade v. German Sav. Inst., 
 
 171. 
 McGregor v. State, 150. 
 McKean, Exp., 209. 
 McKee v. Grand Rapids, &c. Ey. 
 
 Co., 170. 
 McKeever v. United States, 134, 
 
 331, 335. 
 McKenna v. St. Louis, 312. 
 McKnight v. United States, 94. 
 McLaughlin v. Child, 154. 
 McMillan v. Union Press-brick 
 
 Works, 298. 
 McNair v. People, 239. 
 McReynolds v. State, 151. 
 McWilliams v. Rodgers, 154. 
 Machine Co. v. Gage, 102. 
 Macon v. Huff, 312. 
 Macon County v. Shores, 52, 108. 
 Magee Furnace Co. v. Le Baron, 
 
 417. 
 Maginn.!). Lawrence, 149. 
 Maitland v. Martin, 345. 
 Maner, Re, 322. 
 Manhattan Medicine Co. v. Wood, 
 
 6. 
 
 Manning v. Hayden, 32. 
 Mapstrick v. Ramge, 103. 
 Mareau «. Vanatta, 24. 
 Marine Bank v. Fiske, 392. 
 Marsh v. Steele, 106. 
 V. Warren, 114. 
 Martin v. Funk, ^24. 
 
 ». State. 149, 168, 309. 
 Maslin v. Baltimore, &c. R. R. 
 
 Co., 74, 366. 
 Mason ». United States, 29. 
 Mather v. American Express Co., 
 
 75. 
 Matson v. Farm Buildings Ins. 
 
 Co., 250. 
 Mattingly v. Wuike, 159. 
 Mauke v. People, 419. 
 Maxwell v. Moreheart, 392. 
 Maver v. Cahalin, 402. 
 Mellen v. United States, 31, 94. 
 Memphis, &c. R. R. Co. ». Oope- 
 
 land, 381. 
 Merchants' Despatch, &c. Co. v, 
 
 Comforth, 74. 
 Merriam v. United States, 108. 
 Metropolitan City Ry. Co. v. Chi- 
 cago, &c. Ry. Co., 197, 381. 
 Mexico Southern Bank v. Reed, 
 
 84. 
 Meyer v. Construction Co., 84, 85. 
 
 V. Lindell Ry. Co., .383. 
 Michigan Central R. E. Co. v. 
 
 Austin, 375. 
 Miller v. Burlington & Missouri 
 R. E. Co., 363. 
 V. Miller, 158. 
 1). St. Louis R. R. Co., 383. 
 Milliken i). Pratt, 110. 
 Mills V. The Mary E. Perew, 3. 
 Mitchell V. Butler, 39. 
 
 V. Walker, 39. 
 Mobile & Montgomery Ry. Co. o. 
 
 Smith, 373. 
 Mobile Life Ins. Co. v. Walker, 
 
 152. 
 Mohr V. Manierre, 246. 
 Monroe County v. Teller, 168. 
 Montcjo V. Owen, 132. 
 Montgomery v. Reed, 154, 169. 
 Moody V. Aiken, 212. 
 Moore v. Centrsj E. R. of Iowa, 
 378. 
 1). State, 233. 
 Morford r. Peck, 159. 
 Morgan v. Durfee, 397. 
 
 V. United States, 161. 
 Morrison v. United States, 25,147. 
 Morrissey v. Eastern R. R. Co., 
 
 362. 
 Morrow v. Wood, 151. 
 Mount Pleasant v. Beckwith, 305. 
 Mowery f. Salisbury, 22. 
 Muirhead i: United States,151. 
 Mulchey ii. Methodist Religious 
 
 Societ}-, 299. 
 Muller V. McKesson, 23. 
 Murphv «■ People, 157. 
 Myer »". Whitaker, 238. 
 Mynard v. Syracuse, &c. R. R. 
 Co., 75. 
 
 N. 
 
 Nagle V. Allegheny Valley R. R- 
 
 Co., 79. 
 National Bank v. Case, 39. 
 I'. Graham, 37. 
 
TABLE OF CASES. 
 
 441 
 
 National Bank v. Matthews, 38. 
 
 National Pemberton Bank v. Por- 
 ter, 37. 
 
 National Trust Co. v. Gleason, 
 303. 
 
 National Union Bank v. Dodge, 
 85. 
 
 Neafie, The, 398. 
 
 Nelson e. State, 293. 
 
 V. Sun Mutual Ins. Co., 166. 
 
 New Orleans i'. Morris, 162, 306. 
 
 New York 0. New England Trans- 
 fer Co., 155. 
 
 New York Central, &c. R. E. Co., 
 Matter of, 360. 
 
 New York Iron Mine v. Negaunee 
 Bank, 122. 
 
 Newcomb v. Wood, 130, 132. 
 
 Newell V. Nichols, 142. 
 
 Newton v. Commissioners, 166. 
 
 Niblack v. Goodman, 150. 
 
 Nichols, Matter of, 42. 
 
 Nickerson v. Bridgeport Hydrau- 
 lic Co., 25. 
 V. Tirrell, 430. 
 
 Noe V. Noe, 2. 
 
 Noll V. Smith, 392. 
 
 North 1). Phillips, 120. 
 
 North Carolma E. E. Co. a. Wil- 
 son, 124. 
 
 Norton v. London & North West- 
 ern Ry. Co., 4. 
 
 Noyes, Matter of, 209. 
 
 o. 
 
 Oatffi V. National Bank, 38, 47. 
 Oconto Co. u. Jerrard, 145. 
 O'Hara v. Powell, 191. 
 Ohio, &c. Ry. Co. v. Swarthout, 
 
 366. 
 Ohio & Mississippi Ey. Co. v. 
 
 Hatton, 363. 
 Oldham v. Mclver, 233. 
 Oliphant ». Salem Flouring Mills, 
 
 335. 
 Opinion of the Justices, 88, 106, 
 
 108, 163, 187, 188, 189, 190. 
 Orleans v. Piatt, 52. 
 Orvis V. Powell, 133. 
 Osbom V. Michigan Air-Line S.S. 
 
 Co., 84. 
 Otis V. Janesville, 228, 320. 
 
 Pacific R. R. Co. of Mo. v. Ketch- 
 urn, 84. 
 
 Packet Co. v. St. Louis, 101. 
 
 Pannell v. Commonwealth, 136. 
 
 Paris & Danville R. R. Co. v. 
 Henderson, 358. 
 
 Parke v. Roser, 36. 
 
 Parker v. Portland Publishing 
 Co., 195. 
 V. State, 419. 
 
 Parrott, Re, 83. 
 
 Patterson v. Kentucky, 400. 
 V. State, 149. 
 
 Patton V. Stephens, 306. 
 
 Pearson v. Portland, 94. 
 
 Peck V. Miller, 160. 
 
 Peebles v. Davie County, 191. 
 
 Pelton V. Commercial Nat. Bank, 
 408. 
 
 Pendleton v. Jones, 109. 
 Pennock w.. Fuller, 167. 
 Pennsylvania v. Lynch, 298. 
 Pennsylvania Coal Co. v. Sander- 
 son, 391. 
 Pennsylvania R. R. Co. v. Miller, 
 73, 364. 
 
 V. White, 372. 
 People V. Babcock, 292. 
 
 V. Baker, 178. 
 
 V. Board of Police, 150, 154. 
 
 V. Brown, 434. 
 
 V. Buffalo, 311. 
 
 1). Collins, 173. 
 
 V. Cook, 230. 
 
 V. Commissioner of Taxes, 
 408. 
 
 V. Finley, 335, 136. 
 
 V. Fire Commissioners, 149. 
 
 1). Kellv, 102, 150, 308, 309, 
 3lS, 423. 
 
 V. Lilly, 397. 
 
 V. Mutual Gas-light Co., 165. 
 
 V. Oldtown, 150. 
 
 V. Rochester, &c. E. E. Co. 
 167. 
 
 V. Schroeder, 165. 
 
 V, Special Sessions, 160. 
 
 ». Sponsler, 152, 159. 
 
 V. Stephens, 94. 
 
 V. Wheeler, 186. 
 
 V. Winslow, 211. 
 
 V. Wintermute, 96. 
 
 V. Wood, 171. 
 
 V. Van Delser, 166. 
 
 V. Wall, 106. 
 
 V. Weaver, 407. 
 People's Bank v. Manufacturers' 
 
 Nat. Bank, 38. 
 Perkins v. Fayette, 227. 
 
 V. Nashua Card, &c. Co., 334. 
 
 V. State, 165. 
 Ferris v. Hexamer, 115. 
 Perry County v. Selma, &c. E. E. 
 
 Co., 167. 
 Peshtigo, The, 101. 
 Pettigrew v. United- States, 199. 
 Pfeaff V. Jones, 152. 
 Phelps V. McDonald, 41, 42. 
 
 V. People, 268, 419. 
 Philadelphia, &c. R. R. Co. v. 
 
 Wireman, 72. 
 Phcenix Ins. Co. v. Tucker, 249. 
 Pier V. Heinrichshoffen, 340. 
 Pittsburgh, &c. E. E. Co. o. 
 
 Lewis, 373. 
 Pittsburgh, &c. Ey. Co. v. Brown, 
 370. 
 
 V. Hallowell, 365. 
 
 V. Nuzum, 363. 
 Planters' Ins. Co. v. Meyers, 249. 
 Plumley v. Birge, 320. 
 Pocket 1). State, 201. 
 Poeppers v. Missouri, Kansas, 
 
 &c. Ry. Co., 370. 
 PoJinsky v. People, 168. 
 Pollock B. Eastern R. E. Co., 378. 
 
 V. Pollock, 177. 
 Poor V. Humboldt, 155. 
 Pope V. United States, 51. 
 Porter v. Merrill, 266. 
 Potter V. Gracic, 425. 
 Powder Co. v. Burkhardt, 33. 
 Powell V. Head, 117. 
 
 V. State, 150. 
 Presley v. State, 201. 
 Price V. Price, 143. 
 
 Price V. Yates, 39. 
 Pullman Palace Car Co. v. Bar- 
 ker, 371. 
 «. Taylor, 369. 
 
 Q. 
 
 Quigley ». Central Pacific R. B. 
 Co., 366. 
 V. United States, 426. 
 Quinn v. People, 54, 153. 
 
 R. 
 
 Race V. Oldridge, 155, 157. 
 Radford v. Carwile, 235. 
 Radway, Re, 150. 
 Raiford v. State, 146. 
 Railroad Co. v. FralofE, 73. 
 
 V. Rathbone, 68. 
 
 V. Trook, 199. 
 
 V. Valleley, 368. 
 Railway Co. t>. Ailing, 24. 
 
 V. Moore, 366. 
 Railway Mail Service Cases, 166. 
 Eains v. Simpson, 131. 
 Eankin v. Pitkin, 192. 
 Ratcliffe V. Anderson, 401. 
 Rathbun d. Citizens' Steamboat 
 
 Co., 72. 
 Ray V. Burbank, 166, 179. 
 
 V. Sweeney, 182. 
 EajTuond v. Clark, 358. 
 Eedd V. Henry County, 192. 
 Eeinders v. Koppelmann, 323. 
 Eemoval Cases, 85. 
 Reneau v. State, 231. 
 Reynolds, Exp., 240. 
 
 V. United States, 412, 419. 
 Ricard v. North Pennsylvania 
 
 E. E. Co., 362. 
 Richards v. Raymond, 107. 
 Eichardson v. Cooper, 299. 
 Eichmond V. Judy, 124. 
 Richmond, &c. R. E. Co. v. An- 
 derson, 372. 
 Eickenbacker v. Zimmerman, 147. 
 Riley v. State, 201. 
 Eing V. Cohoes, 227. 
 Robertson v. Berry, 416. 
 
 V. Cease, 84. 
 
 V. Corsett, 213. 
 
 V. State, 276, 293, 434. 
 Eobinson o. Wilkinson, 164. 
 Eoco V. Green, 155. 
 Eosenbach v. Dreyfuss, 118. 
 Eothrock v. Perkmson, 277. 
 Rothschild v. State, 419. 
 Ruch V. Rock Island, 144. 
 Ruggles V. People, 354. 
 Russell V. Allen, 77. 
 
 S. 
 
 St. Louis V. Johnson, 35 
 
 V. St. Louis Gas Light Co., 
 121. 
 
 St. Louis Nat. Bank v. Brinkman, 
 39. 
 
 St. Nicholas Nat. Bank v. Savery, 
 329. 
 
 St. Vincent Female Orphan Asy- 
 lum V. Troy, 147. 
 
 Salzenstein v. Mavis, 102. 
 
442 
 
 TABLE OF CASES. 
 
 Sandys «. Small, 15. 
 Sanger ». Dunn, 'Hi, 
 Sansbury v. State, 163, 167. 
 Saunders v. I'eople, 172, 173. 
 Savannah, &g. E. li. Co. v. 
 
 Shearer, 166. 
 Savary v. Germania Bunk, 113. 
 Savings Bank v. Ward, 32. 
 Sawyer v. State Board of Health, 
 
 226. 
 Sayles v. Kiolimond, &c. R. R. 
 
 Co., 335. 
 Sayres t'. Commonwealth, 245. 
 Scanlan s. Crawshaw, 166. 
 School Dlst. No. 29 v. Perkins, 
 
 147. 
 Schroeder t>. C, K. I., & P. E. 
 
 Co., 420. 
 Schuberth ». Shaw, 114. 
 Schuman v. Peddicord, 247. 
 Schutz V. Military Road Co., 340. 
 Schuyler County v. Thomas, 108. 
 Scofield V. State Nat. Bank, 160. 
 Scribner i: Stoddart, 117. 
 Scripps V. Foster, 272, 273. 
 
 V. Eeillv, 273. 
 Searcy v. Short, 157. 
 Seligman v. Charlottesville Nat. 
 
 Bank, 38. 
 Sharp D. State, 158. 
 Sharpe v. Orme, 21. 
 Shaw V. Merchants' Nat. Bank, 
 
 47, 164. 
 Shea V. Knox & Ky. R. E. Co., 
 
 122. 
 Sheldon v. Keokuk N. L. P. Co., 
 
 86. 
 Shepard v. Whetstone, 21. 
 Shindelbeck v. Moon, 266. 
 Shinn v. State, 168, 391. 
 Short V. Baltimore City Ey. Co., 
 382. 
 V. State, 421. 
 Shorten v. Woodrow. 248. 
 Shrewsburv v. United States, 28. 
 Shurtleff ii'. Stevens, 273. 
 Sicard v. Buffalo, &c. Ry. Co., 
 
 41. 
 Siebold, £xp., 194. 
 Sigler V. State, 390. 
 Simons v. Bryce, 147. 
 Simonton v. Loring, 387. 
 Simpson «.• State, 229. 
 Sinking-Fund Cases, 353. 
 Skinner v. Brigham, 113. 
 Sloan V. Hubbard, 148. 
 Smith I). Cross, 149. 
 V. Ehnert, 156. 
 V. Farmers', &c. Mut. Ins. 
 
 Co., 249. 
 V. Garth, 402, 
 V. Railroad Co., 131. 
 V. Rochester, 311. 
 V. St. Louis, Kansas, &c. R}'. 
 
 Co., 374. 
 V. State, 108, 199, 261, 339. 
 V. United Stales, 274. 
 Southbridge Snv. Bank v. Exeter 
 
 Machine Woi-ks, 213. 
 Southern Mut. Ins. Co. v. Kloeber, 
 
 154. 
 Spaulding v. Eosa, 110. 
 Speer ». State, 166, 167, 201. 
 Spelman «. Aldrich, 2-15. 
 Spencer, Matter of, 88. 
 Spring Co. v. Edgar, 23, 433. 
 Spring Valley Water-Works v, 
 San Francisco, 155, 163. 
 
 Stanbrough v. Stanbrough, 2. 
 Stanton v. Wilkeson, 39. 
 State V, Ah Chuey, 421. 
 V. Ah Lee, 170. 
 V. Battery, 226. 
 D. Bell, 233. 
 V. Bogardus, 138. 
 V. Bovle, 147. 
 V. Brown, 316. 
 V. Bruce, 136, 419. 
 V. Butler, 102. 
 V. Buttz, 159. 
 V. Chadbourne, 170. 
 V. Citizens' Benefit Assoc. 
 
 251. 
 «. Columbus Gas Light, &c. 
 
 Co., 215. 
 V. Curran, 152. 
 D. Danforth, 421. 
 V. Davis, 226. 
 II. Dodge Co., 107. 
 !). Doxtater, 241. 
 V. Elder, 9. 
 D. Fickling,' 146. 
 V. Gisch, 309. 
 V. Goodrich, 2-32. 
 !). Goss, 165. 
 V. Graham, 10. 
 r. Harden, 158. 
 V. Hoyt, 245, 420. 
 V. Jansen, 173. 
 V. Kinkead, 106. 
 V. Lancaster County, 105. 
 V. Lunsford, 211. 
 V. Mizner, 395. 
 s. New Haven, &c. Co., 159. 
 V. Northrup, 20. 
 D. Norton, 325. 
 1). O'Niel, 151. 
 V. Outerbridge, 231. 
 ti. Parsons, 157. 
 V. Prizer, 150. 
 V. Reed, 199. 
 V. Shaw, 148, 185. 
 V. Shelters, 146. 
 V. Sorry, 323. 
 V. Strauae, 169. 
 V. Weiners, 231. 
 V. Whaley, 234. 
 V. Wilsoii, 165. 
 t'. Withers, 326. 
 V. Worden, 168. 
 V. Yellow Jacket Silver Min. 
 Co., 152. 
 Stephani v. Catholic Bishop of 
 
 Chicago, 148. 
 Stephens, &c. Transp. Co. v. 
 Western Union Tel. Co., 411. 
 Sterett v. Denver & Rio Grande 
 
 Ey. Co., 162. 
 Stevens i: People, 419. 
 Steward v. State, 234. 
 Stewart's Appeal, 295. 
 Stewart v. Father Matthew So- 
 ciety, 401. 
 V. Maddox, 141. 
 V. Salamon, 24. 
 II. State, 170. 
 Stillson V. Hannibal, &c. E. E. 
 
 Co., 381. 
 Stokes V. State, 421. 
 Stone V. (': & N. W. E. Co., 367. 
 V. Mills, 295. 
 V. Mississippi, 277. 
 Straiider v. West Virginia, 91, 
 
 263. 
 Struthers i/. Dunkirk. &c. Ev. 
 Co., 361. 
 
 Stryker v. Cassidy, 160. 
 Stuart, Re, 67. 
 
 V. Palmer, 153, 198. 
 
 V. United States, 29. 
 Sullivan v. State, 203. 
 Supervisors v. Galbraith, 108. 
 Supervisors of Election, Re, 195. 
 Sutton V. McConnell, 164. 
 Swearinger, Re, 401- 
 Sweeney v. Baker, 272. 
 Swift, Courtney, & Co. v. United 
 
 States, 402. 
 Swoboda ii. Ward, 296. 
 
 Talbot County v. Queen Anne's 
 
 County, 12l 
 Tanner v. Louisville, &c. R. B. 
 
 Co , 380. 
 Taylor, Matter of, 93. 
 V. Stockwell, 109. 
 V. Tavlor, 2, 105. 
 V. United States, 134. 
 Telegraph Co. v. Davenport, 120. 
 Tennessee r. Davis, 86, 87. 
 Terhune v. Phillips, 200. 
 Thatcher ». Rockwell, 6. 
 Thomas v. Brownville, &c. Rv. 
 Co., 123. 
 V. West Jersey R. R. Co., 
 355. 
 Thompson v. Hermann, 296, 396. 
 
 «. Hickey, 304. 
 Thomson ti. Bank of British 
 
 North America, 35. 
 Thorpe v. New York Central, &c. 
 
 R. R. Co., 369. 
 Thurbur v. The Fannie, 398. 
 Thurman v. State, 162. 
 Tierney v. New York Central, &c. 
 
 R. R. Co., 71. 
 Timmons v. State, 149. 
 Tindal v. Drake, 160. 
 Tintsman v. National Bank, 199. 
 Titus, Petition of, 209. 
 Toledo, &c. R. R. c. Wright, 368. 
 Tonella v. State, 406. 
 Tonev ti. State, 156. 
 Toonev f. State, 162. 
 Towne v. Fiske, 212. 
 Trade Mark Cases, 415. 
 Transportation Co. r. Chicago, 
 310, 387. 
 V. Cooper, 398. 
 ti. Wheeling, 406. 
 Trigg II. State, 157. 
 Troy V. Evans, 24, 199. 
 Trustees of Schools v. People, 
 
 394. 
 Tryon v. Evening News, 273. 
 Turner, £xp., 194. 
 Tuttle V. Chicago, &c. E. R. Co., 
 
 371. 
 Tyson v. South, &c. Alabama 
 
 R. R. Co., 374. 
 
 U. 
 
 Unfried v. Heberer, 158. 
 Union Pacific R. R. Co. v. Mc- 
 Conib, 86. 
 V. United States, 153, 354. 
 Union School District v. Ster- 
 ricker, 163. 
 
TABLE OF CASES. 
 
 443 
 
 United States ». Anthony, 162. 
 
 V. Barnabo, 193. 
 
 «. Bennett, 134, 164, 341. 
 
 «. Bovren, 390. 
 
 ». Burley, 193. 
 
 ti. Central Pacific R. R. Ck)., 
 354. 
 
 «. Cliase, 180. 
 
 0. Claflin, 3S9. 
 
 t). Conant, 153, 197. 
 
 ». Feigelstock, 149. 
 
 V. Germaine, 325. 
 
 «. Gitma, 195. 
 
 V. Goldman, 193, 194. 
 
 e. Hall, 337. 
 
 ». Halloran, 7. 
 
 V. House and Lot No. 3 Abat- 
 toir Place, 152. 
 
 0. Humason, 50, 325. 
 
 «. Button, 175, 292. 
 
 e. Jones, 146. 
 
 V. Kansas R.R. Co., 153, 354. 
 
 V. Lawrence, 50, 132. 
 
 V. Lowers, 180. 
 
 t). Moore, 390. 
 
 V. Mora, 50. 
 
 V. Nelson, 346. 
 
 V. Noelke, 341. 
 
 ». Pelletreau, 340. 
 
 V. Perot, 200. 
 
 «. Perryman, 171, 240. 
 
 «. Radowitz, 12. 
 
 «. Schillinger, 158. 
 
 V. Tilden, 433. 
 
 V. Thoma, 341. 
 
 V. Thompson, 133. 
 
 V. Tracy, 50, 1.32. , 
 
 «. Union Pacific R. R. Co., 
 353, 354, 422. 
 
 V. Victoria Perez, The, 398. 
 
 V. Volz, 149. 
 
 0. Whittier, 341. 
 
 «. York Street Flax-Spinninff 
 Co., 181. 
 United States Rolling Stock Co. 
 V. Atlantic, &c. R. R. Co., 123. 
 Usher v. Hiatt, 162, 165. 
 
 Vandervelpen, Matter of, 210. 
 Tan Deusen v. Newcomer, 245. 
 Tan Doran v. Marden, 157. 
 Tan Riper v. Parsons, 157, 161, 
 
 170. ' 
 
 Van Sickle v. Gibson, 202. 
 Varble v. Bigley, 70. 
 Vicksburg v. Tobin, 101. 
 Victor Sewing Machine Co. v. 
 
 Heller, 345. 
 Viiginia, Exp., 92, 263. 
 V. Rives, 92, 263. 
 
 Voak V. Northern Cent. Ry. Co., 
 
 379. 
 VoJans V. Owen, 89. 
 Von Cotyhausen v. Nazro, 180. 
 Von Lingeu v. Davidson, 146. 
 
 w. 
 
 Wagner v. Hallack, 150. 
 
 V. Varner, 327. 
 Walker v. Clav, 78. 
 
 V. State, 201, 202. 
 Wallace v. Loomis, 118. 
 
 V. State, 316. 
 Wallis I). Bardwell, 163. 
 Walter, Matter of, 147. 
 Walther v. Merell, 224. 
 Ward 0. Atlantic & Pacific Tel. 
 Co., 411. 
 V, Commonwealth, 9. 
 V. Thompson, 89. 
 V. Tomkins, 148. 
 Warren County v. Marcy, 51. 
 Washington Toll Bridge Co. v. 
 
 .Beaufort County, 118. 
 Watson V. Watson Manuf. Co., 
 
 160. 
 Webb V. State, 136, 244. 
 Wedgwood v. Chicago, &c. Ry. 
 
 Co., 376. 
 Weeks v. New York, New Haven, 
 
 &c. R. R. Co., 73, 367. 
 Weil V. Jones, 149. 
 Weldon v. Dicks, 115, 116. 
 Wells, Exp., 87. 
 Wellshear ». Kelley, 406. 
 Welsh V. German-American Bank, 
 
 35. 
 Wertheimer v. Pennsylvania R. 
 
 R. Co., 74. 
 Wesley v. State, 157. 
 West of England, &c. Bank, Ee, 
 
 35. 
 Western Union Tel. Co. v. Meyer, 
 
 412. 
 Westlake e. Westlake, 235. 
 Weston V. New York Elevated 
 
 R. R. Co., 362. 
 Weyauwegan v. Ayling, 63. 
 Wheeler v. American Central 
 Ins. Co., 250. 
 V. Bedell, 212, 213. 
 V. Keeler, 212. 
 Whiskey Cases, 175. 
 
 (United States v. Ford), 10. 
 Whitaker v. Smith, 160. 
 White V. Baxter, 31. 
 1). Miller, 31, 142. 
 V. Washmgton School Dist.. 
 169. 
 Whiting V. New Haven, 165, 197. 
 Whittemore v. Farrington, 424. 
 
 Whittenberg v. Lloyd, 2. 
 Wiegand, Matter of, 210. 
 Wilcox V. Noize, 209. 
 Wilkes County v. Staley, 44. 
 Wilkins v. Irvine, 164. 
 Wilkinson v. Gill, 161. 
 
 V. Peru, 152. 
 Williams v. Roberts, 310. 
 
 II. State, 167, 239. 
 
 V. Tiedemann, 391. 
 
 V. Warsaw, 166. 
 
 V. Williams, 233. 
 Williamson v. McCreary, 164. 
 Willy V. Mulledv, 266. 
 Wilson V. Atlanta, 310. 
 
 V. Berg, 247. 
 
 V. Conlm, 46. 
 
 V. Gray, 163. 
 
 V. Singer Sewing Machine 
 Co., 336. 
 Wilson Packing Co. v. Hunter, 
 
 186. 
 Wilson Sewing Machine Co. v. 
 
 Moreno, 60. 
 Wilton II. Middlesex B. R. Co., 
 
 383 
 Winciiell v. Doly, 224. 
 Winchester v. United States, 131, 
 
 175. 
 Wirth V. Branson, 346. 
 Wobsev ti. Lake Shore, &c. R. R. 
 
 Co., 378. 
 Wolf V. Independent School Dist, 
 163. 
 
 V. Stix, 43. 
 Wong Yung Quj', Re, 82. 
 Woodbury Planing-Machine v. 
 
 Keith, 334. 
 Woodward, Matter of, 163. 
 
 V. Towne, 156. 
 Woollen V. Ulrich, 392. 
 Woolley II. Holt, 304. 
 Wooster v. State, 161. 
 Worcester Nat. Bank v. Cheenev, 
 
 47. 
 Work V. Corrington, 209. 
 
 V. Leathers, 398. 
 World V. State, 269. 
 Wright V. State, 9. 
 Wroten v. Armat, 37. 
 
 Yellow River Improvement Co. ti. 
 
 Arnold, 157, 161. 
 Young V. Wright, 157. 
 
 z. 
 
 Zeigler v. South & North Ala. 
 R. R. Co., 153. 
 
^ 
 
 
 KF 178 AI3 c.l 
 
 f 
 
 Author Vol. 
 
 Abbott, Ben;jamin. Vatighan 
 
 
 liie year "book of Jurisprudence €^ 
 
 
 
 
 
 
 Date 
 
 Borrower's Name 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
# 
 
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