not preclude the plaintiff in this suit from asserting the unconstitutionality of the act upon which the previous action proceeded. Id. 90-103. The distinction is thus stated by Mr. Justice FIELD in Cromwell v. County of Sac. 94 U. S. 352, 353: "It should be borne in mind that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action, between the same parties, upon a different claim or cause of action. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. *** But when the second action, between the same parties, is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment, rendered upon one cause of action, to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.' This same distinction is illustrated in Outram v. Morewood, 3 East, 346, which is a leading case of high authority upon this subject; in Gardner v. Buckbee, 3 Cow. 120; in Betts v. Starr, 5 Conn. 550; and in the Duchess of Kingston's Case. See, also, Packet Co. v. Sickles, 24 How. 342; Davis v. Brown, 94 U. S. 423. The docrine, as we have stated it, is consistent with our own cases. Long v. Long, 5 Watts, 102; Kilheffer v. Herr, 17 Serg. & R. 319; Smith v. Elliott, 9 Pa. St. 345.

But from the year 1880 to 1887, inclusive, the city has from year to year formally rendered their claims and demanded payment of taxes from the company under the provisions of the act of 1872; which demands, as they were made, were met by prompt and full payment. These demands were for the whole, and not for any portion, of the taxes supposed to be due and owing for these years, respectively, and were paid and receipted for in full. Whether the act of 1872 was in conformity with the constitution or not was matter of law, not of fact. The city chose to treat it as a valid enactment, and to collect the tax it imposed, and, having done so, we are

of opinion she must be taken to have waived or relinquished her right to receive more. She cannot in this manner repudiate the authority under which she assumed to act, to the prejudice of the company's rights. The company accepted the results of the litigation, which the city originated, and paid the taxes annually, at the rate demanded, and in accordance with the judgment of this court. Relying upon the annual adjustment of these taxes, the company, from time to time, declared dividends, and distributed their surplus earnings among the stockholders; and upon these dividends, presumably larger by reason of the reduced burden of taxation, the city has from year to year received the tax at the rate demanded. Non constat that the stockholders then are the stockholders now, or were stockholders when this suit was brought, The city could not split up her claims in this way to the prejudice of the company, and we are of opinion that in so doing she must be held to have waived and relinquished her right to receive beyond the amounts from year to year demanded. It is plain that if the parties had treated the act of 1872 as unconstitutional, and the taxes had been paid and received pursuant to the original charters, a subsequent adjudication that it was a valid enactment would not entitle the company to receive back the excess; and this is but the converse of the proposition now advanced by the city. It is said to be a poor rule that will not work both ways. The city cannot occupy inconsistent positions. Having chosen to treat the act of 1872 as constitutional, and proceeded against and treated with the company accordingly, she will not now be permitted to rip up the annual settlements made under it, to the prejudice of others' rights. As to the taxes for the year 1888 and for the years subsequent to that, the city is entitled to them, under the provisions of the acts of 1858 and 1859.

The judgment is therefore reversed, and judgment is now entered on the case stated in favor of the plaintiff and against the defendant, for $1512 and costs.

JACKSON

v.

STATE.

(Georgia Supreme Court, March 26, 1892.)

Running Train on Sunday-Indictment-Evidence.--On the trial of an indictment, under section 4578 of the Code, against the officer of a railroad company having in charge the transportation department thereof, which alleges that a freight train was run on Sunday, and specifies a particular day of a particular month in a given year, evidence is admissible that the train was run on a Sunday corresponding to any day of any month within two years preceding the finding of the bill of indictment; and proof of guilt on any Sunday to which the evidence applies will warrant a conviction, though there be no evidence touching the particular Sunday designated by the letter of the indictment.

Same-Justification-Burden of Proof.-If there was any legal excuse or justification for running the train on Sunday, the burden of proving the same was on the accused.

Same-Construction of Statute.-If the act of February 28, 1874 (Code, § 4578), is to be construed as allowing freight trains not carrying live-stock to be run in any case after 8 o'clock on Sunday morning, such running is lawful only when the given train has been actually started on or before the previous Saturday night. A freight train not started on its schedule until 12.50 A.M. of Sunday morning cannot be lawfully run either before or after 8 o'clock of that day.

ERROR from Pierce superior court.

J. C. Nichols and S. T. Kingsberry, for plaintiff in error. W. G. Brantley, Sol.-Gen., for the state.

Case stated.

SIMMONS, J.-The indictment alleged that the defendant, "on the 3d day of March, Anno Domini eighteen hundred and eighty-nine, was the officer of a railroad company, to wit, the Savannah, Florida & Western Railway Company, having in charge the department of transportation of the railroad of said railroad company; and, being such officer, a freight train in the state and county aforesaid (Pierce), on the date aforesaid, was run and did run on the railroad of said railroad company on the Sabbath day, known as Sunday, contrary to the laws of said state," etc. This indictment was found at the March term, 1889. Upon the trial there was no evidence as to the commission of the offence on the day of the month set out in the indictment, but the testimony showed that on a Sunday, and within two years prior to the finding of the indictment, to wit, on the 17th of Febru

ary, 1889, a freight train was run on said railroad. To this testimony the defendant objected, on the grounds that the date charged in the indictment was the 3d of March, and that the admission of such testimony was a surprise to the defendant. The objection was overruled, and the defendant then asked for "leave to withdraw the case from the jury," and for time to get witnesses to prove the circumstances under which the train was run on the 17th of February, his counsel stating to the court that the master of transportation and the train despatcher had looked up the exact circumstances connected with the running of the train on the 3d of March; that this train was run in accordance with the law; that they did not know as to this other train, because they had not been advised as to this charge, and therefore had not examined the records. This motion also was overruled, and both these rulings are assigned as error. It is further complained that the court erred in charging as follows: "If you should believe from the evidence that in the county of Pierce, upon the day named in this bill of indictment, or upon any Sunday within two years next before the finding of this bill of indictment, the Savannah, Florida & Western Railway Company caused a train to be run over its railroad by its employés, it would be your duty to convict the defendant, unless it should appear from the evidence that such freight train was run in direct violation of the orders and rules of the defendant, the superintendent of transportation of this railroad;" the said charge being contrary to law, and objectionable, because the time laid in the indictment was Sunday, the 3d day of March, 1889. 1. There was no error in the instruction above set out, nor in the overruling of the defendant's motions, upon the grounds stated. As a general rule, a different day from the one laid in the indictment may be proved, provided it be within the period prescribed by the statute of limitations. To this rule there are certain exceptions, and it was insisted for the defendant that the present case is within the exceptions, because time is of the essence of the offence, and because the precise date is necessary to ascertain and determine with precision the offence charged or the matter alleged in excuse or justification. But, while it is true that time is of the essence of this offence, it is so only to the extent that the act must be on Sunday. When it is shown that the act was on Sunday, the day of the month is not essential in order to make out the offence. This point is well settled. In Whart. Crim. Ev. § 106, it is said: "The proof of any Sunday, before the finding of the bill and within the statute of limitations, is sufficient; and, if this, proof be made, a variance as to the day of the month is immaterial."

Proof of dif ferent day

from one laid

in indictment.

See, also, Bish. Crim. Proc. § 399; Ringgold, Law of Sunday, 187; Har. Sunday Laws, § 298. And to the same effect see State v. Brunker, 46 Conn. 327; Com. v. Harrison, 11 Gray, 308; and Frazier v. State, 5 Mo. 536. It was not controverted that the defendant was superintendent of the railroad for two years preceding the indictment as well as on the date named therein.

Burden of

proof.

2. Another ground of the motion for a new trial is that the court charged thus: "If you should find that such train was so run on such Sunday, you will be Justificationauthorized to infer that such freight train was run In violation of the law, unless it should appear from the evidence that it was loaded with live-stock, or that it was delayed beyond its schedule time and simply run to the point of destination;" this instruction being objected to upon the ground that it deprived the defendant of the presumption of innocence which the law continues in favor of the accused until it is overcome by competent testimony, the allegations in the indictment or the testimony adduced on the trial not being sufficient in law to authorize his conviction. The court did not err in overruling this ground of the motion. The state is not required, in order to make out a prima facie case, to negative such matter of justification as, under the exceptions and provisos of the statute, the accused is permitted to set up. The statute itself declares that it shall only be necessary to show "the simple fact of the train being run." Code, § 4578. If there was any legal excuse or justification, the burden of proving the same was on the accused.

Construction of statute.

3. It is further alleged that a new trial ought to have been granted because it appeared at the hearing of the motion by affidavits, to which were attached copies of the schedules of the railroad company, and of the reports made by the freight-train conductors as required by rule, that the schedule time for arrival of the freight train of the 17th of February was before 8 o'clock on Sunday morning, but it was delayed on the way by an unavoidable accident and other necessary causes; which facts the defendant could and would have shown if he had been allowed the time asked for on the trial, after the witness for the state was permitted to testify as to the running of a freight train on that day. So far as these affidavits are intended to show that the time asked for should have been allowed, it is unnecessary to discuss them, for we have already ruled that the court did not err on that ground. But, even if the matter of these affidavits had been proved at the trial, it could not have operated to justify the defendant, for it appears from the affidavits themselves that this train was not started on its schedule