risdiction of the Federal courts in these cases whenever the question is distinctly presented to the same tribunal for determination. For, if the process of inter-state extradition is Federal process, and if the governor of the demanded State, in issuing his warrant of surrender, is a mere Federal agent (which the Supreme Court of the United States hold he is not), no jurisdiction can exist in the State courts to superintend his action by habeas corpus. On the other hand, if he is acting as the political representative of a sovereign State in the discharge of a duty imposed upon such State by the compact known as the Constitution of the United States, no principle exists upon which the courts of another sovereignty, to-wit: those of the United States, can superintend his action. Moreover, the assertion of such a power of superindence is destructive of the dignity, the rights and independence of the States, and must be regarded, upon every sound principle of constitutional interpretation, as merely a part to that process of disintegration and leveling which is going on the Federal tribunals, irresponsible of the people, by which the States of the Union must in time lose their sovereign character and sink to the mere grade of municipal corporations. S&S The care incumbent upon a court or judge proceeding by habeas corpus, in a case where a person is arrested charged with having ommitted a crime in another State, and held to await a requisition from the governor of such other State, to see that the act charged against him is a crime by the law of such other State, within the meaning of the Federal Constitution, is not necessary where the case arises after the governor of the demanded State has issued his warrant of surrender; for in such a case the governor of the demanding State has certified in his requisition that the act charged is a crime by the law of such State, and the better opinion is that such certificate is conclusive evidence of the fact.14 But confusion exists among the decisions upon this question. It is held that the papers charging the crime upon which the extradition is demanded, if returned to the habeas corpus, will be scrutinized, with the view of determining whether in fact they charge a crime which authorizes extradition. The affidavit must allege that the crime was committed within the limits of the State demanding the extradition.16 While the governor of the demanded State is conceded to be the only proper judge of the authenticity of the affidavit or indictment on which the demand is made, yet if the affidavit does not in substance exhibit a case within the Constitution and Act of Congress, the prisoner will be discharged on habeas corpus.18 Other courts have settled upon the conclusion that if the evidence upon which the governor issued his warrant of surrender accompanies the same, the court or judge on habeas corpus will scrutinize it to see that the warrant has been is

14 State v. Buzine, 4 Harr. (Del.) 572, 576; Re Clark, 9 Wend. 212; Johnston v. Riley, 13 Ga. 97; Robinson v. Flanders, 29 Ind. 10. So held, where in addition to the governor's certificate there was an indictment charging an offence of a highly immoral character. Matter of Fetter, 23 N. J. L., 311, 320.

15 People v. Brady, 56 N. Y. 182; Ex parte Pfitzer, 28 Ind. 450.

16 Matter of Hayward, 1 Sandf, (S. C.) 701; Matter of Fetter, 23 N. J. L. 311, 320. But in such a case if the defect in the affidavit is helped out by other affidavits, or by other evidence adduced upon the hearing of the habeas corpus, the prisoner will be remanded. Matter of Fetter, supra.

17 Re Manchester, 5 Cal. 237. See also Re Clark, 9 Wend. 212.

18 Hartman v. Aveline, 63 Ind. 344; Re Manchester, 5 Cal. 237.

sued in a case allowed by the Constitution and Act of Congress, and if it has not been will, discharge the prisoner,19 But if such evidence does not accompany the warrant, it will be presumed in support of the action of the governor, that his warrant has been issued in a case allowed by the Constitution and the statute: in other words, his warrant will be prima facie evidence that there was a proper affidavit or indictment.20 St. Louis, Mo. SEYMOUR D. THOMPSON.

19 Ex parte Pfitzer, 28 Ind. 450.

20 Nichols v. Cornelius, 7 Ind. 611; Robinson v. Flanders, 29 Ind. 10; People v. Donohue, 84 N. Y. 438.

MANDAMUS—INJUNCTION AGAINST

JUDGMENTS.

STATE EX REL PHELAN v. ENGLEMANN.

Supreme Court of Missouri, June 26, 1885.

1. MANDAMUS. Does not Lie to Compel Issue of Execution on Judgment which has been Enjoined.Where a judgment rendered at law, has been enjoined in an equitable proceeding on the ground of fraud or mistake, mandamus to compel the clerk of the former court to issue an execution upon such judgment, is not the proper remedy. An appeal from the decree in the equitable proceeding furnishes an adequate remedy, and mandamus does not lie where there is such other remedy; and this, although such appeal may involve inconvenient delay, or operate oppressively, or the injunction was erroneously granted, if the court granting it had jurisdiction in the premises.

2. EQUITY-Jurisdiction to Enjoin Judgments at Law. Where a judgment is obtained or entered as law through fraud, accident or mistake, equity has jurisdiction to enjoin its enforcement. It is immaterial that the judgment so enjoined has been pronounced or affirmed by the Supreme Court. The jurisdiction extends to all judgments alike, without regard to the grade or character of the courts rendering them.

3. CASE STATED.-Where plaintiffs had obtained a judgment at law from which the defendant had taken an appeal to the Supreme Court where it was reversed, for error in giving instructions for the plaintiff, but afterwards on rehearing, affirmed, and the defendant subsequently applied to the circuit court for an injunction against the enforcement of such affirmed judgment, alleging that such re-hearing and affirmance were procured by the fraudulent conduct of the adverse party, and were the result of a mistake of the trial judge in that case in endorsing certain instructions as having been given for the defendant, when in fact they had not been given for him, but for his adversary, by reason of which endorsement, the defendant was held to have waived the error made in giving such instructions, it was held, that such injunction was rightfully granted.

Walker & Walker, and J. B. Dennis for the relator, Louis Houck, R. H. Whitelaw, and Smith & Kraushoff for the respondent.

SHERWOOD, J., delivered the opinion of the

court:

"This is an original proceeding in this court having for its object the issuance of a peremptory writ of mandamus, to compel respondent, who is

the clerk of the Common Pleas Court of Cape Girardeau to issue execution on a judgment formerly obtained in that court by Alex. J. P. Garesche against the president, directors and faculty of St. Vincent's College, afterwards affirmed in this court (76 Mo. 332) and which judgment, prior to such affirmance, had been issued by Garesche to relator.

After such affirmance, the defendants in that cause, by petition, in the nature of a bill in equity, filed in the Cape Girardeau circuit court, charging fraud on the part of Garesche in procuring on rehearing an affirmance of the judgment, which at first had been reversed, obtained on final hearing in the circuit court, a decree granting a new trial, the cause, in accordance with the opinion of this court as first delivered, and perpetually enjoining and restraining relator and Engleman, who were parties defendant in the circuit court, from issuing execution on the judgment of the Common Pleas Court. From this decree relator has appealed, and his appeal is now pending in this court.

These, in brief, are the facts presented in this case upon which relator, denying the sufficiency of respondent's return, but admitting by his motion, the truth of its recitals, asks that a peremptory writ issue.

1. Mandamus is not the proper remedy in this case. It is among the fundamentals of the law relating to the issuance of such a writ, that it will not be awarded but as an extraordinary remedy, only issuing where the law in the ordinary methods of its procedure is powerless to grant relief. It results from the principle that relief will not be granted an aggrieved party in this unusual way, when he may attain the same result by invoking another adequate legal remedy. In all such cases the courts uniformly refuse to exercise their extraordinary jurisdiction in behalf of a party who, in such a situation, seeks it. To rule otherwise than this, would be to allow a writ of mandamus to usurp the function of an appeal or writ of error. "Indeed, the influence in such cases would, if tolerated, speedilyjabsorb the entire time of appellate tribunals in revising and superintending the proceedings of inferior courts, and the embarrassment and delay of litigation would soon become insupportable, were the jurisdiction of mandamus sustained in cases properly falling within the appellate powers of the higher courts. High Extr. Leg. Rem., §§ 15, 177, 180 and cases cited; Blecker v. St. Louis, etc., 30 Mo. 111; Potter v. Todd, 73 Mo. 101; Williams v. Judge, etc., 27 Mo. 225; State v. Howard Co. Ct., 39 Mo. 375; State v. McAuliff, 48 Mo. 112; Mansfield v. Fuller, 50 Mo 338; State of Missouri ex rel. etc. v. Lubke, decided last term.

And the principle announced in respect to refusing the writ of mandamus is not affected, nor the case changed because the appropriate remedy may involve inconvenient delay, or operate harshly

or oppressively on the party complaining, or by reason of the fact that the judgment of the subordinate court is plainly erroneous, if the question passed upon by such court was properly within its jurisdictional powers. High Extr. Leg. Rem., § 189; Ex parte Perry, 102 U. S. 183.

2. But it is insisted that the Circuit Court of Cape Girardeau county had no jurisdiction in the premises, and that to correct the assumption on the part of that court of an unwarrantetl jurisdiction, a peremptory writ should issue. The doctrine is a familiar one that equity will interfere when a judgment is obtained or entered at law, through fraud, accident or mistake, and by all appropriate remedies will protect the rights and interests of the party who would otherwise be injuriously affected thereby.

This equitable interference manifests and enforces itself in an almost infinite variety of ways. One of the most common methods of procedure is by enjoining the inequitable judgment; another by setting it aside. 3 Pom. Eq. Jur., § 1364; 2 Ib., §§ 836, 871; 1 Sto. Eq. Jur., § 252a; 2 Ib., § 876a; 2 Dan. Chy. Pr., 1624.

But a court of equity in granting injunctive relief, does not act upon the courts whose judgments it enjoins, nor claim any supervisory power over such courts or their proceedings. Its writ of injunction is not even addressed to those courts. It neither assumes any superiority over those courts nor denies their jurisdiction. It grants its restraining orders, which are directed only to the parties, on the sole ground that from certain equitable circumstances, of which the court of equity has cognizance, it is against conscience that the party inhibited should be allowed to force his claim or judgment. 2 Sto. Eq. Jur., §§ 875, 1571.

The action of a court of equity in such circumstances, is very succinctly stated in the case of Wingate v. Haywood, 40 N. H. 437.

Where it is remarked by the court that "if the judgment of a court of common law, having general jurisdiction, be rendered by accident or mistake, or through fraud, or any fact exists which proves it to be against conscience to execute the judgment, of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law but was prevented by frand, accident or mistake, unmixed with any fault or negligence of himself or his agents, a court of equity may interfere by injunction to restrain the adverse party from availing himself of such a judgment. Fraud will vitiate a judgment, and a court of equity may declare it a nullity. Equity has so great an abhorrence of fraud that it will set aside its own decrees if founded thereon." And, "Where the judgment has been procured by artifice or concealment on the part of the plaintiff, and the court where the fraud has been perpetrated is not able to afford adequate relief, there a court of equity will take hold of the party who has committed the fraud, and will prevent his using the judgment to the

Mr. Kerr says: In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest court of judicature in the realm, but in all cases alike, it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be shown to have been obtained by manifest. fraud." Kerr on F. & M., 294.

In Boulton v. Scott, 2 Green, Chy. 231, it is declared that the jurisdiction of a court of equity to set aside a judgment for fraud extends to all courts, the grade or character of the court making no difference.

In the case of Wilson v. Montgomery, 14 Smedes and Marshall, 205, the court say that where a judgment is obtained in the lower court by a false return and affirmed in the Supreme Court, the affirmance in the Supreme Court will not make any difference in the result. And further that: any other rule would destroy all confidence in judicial proceedings."

A ruling analagous to this was made in Georgia, where, owing to the fact that the certificate of the trial judge to the bill of exceptions was dismissed in the Supreme Court, and the judgment, in consequence of such dismissal, affirmed, it was held that equity as administered by one of the Circuit Courts of the State, would enjoin the collection of the judgment thus affirmed. Kohn v. Lovett, 43 Ga., 179.

I have cited the authorities on the question of fraud, &c., and of the jurisdiction which courts of equity take in such cases, taken when claim issues into judgment, and into the affirmance of the judgment by the highest appellate court, merely to show that the Circuit Court, in the present instance, which, generally speaking, is the only tribunal which is possessor of original chancery powers in this State, had the power to take cognizance of the matters stated in the petition for equitable relief filed in the Circuit Court by the president and directors of St. Vincent's College.

Of the sufficiency of that petition I do not purpose to speak, nor of the nature and propriety of the decree rendered thereon, for if the jurisdiction of the Circuit Court be conceded, such jurisdiction, however erroneously exercised that jurisdiction may be, cannot be questioned or controlled by mandamus. High. Ex. Leg. Rem. § 189.

Nor can the Circuit Court by entertaining jurisdiction in this instance, and proceeding to a final decree be regarded as wanting in proper respect for the judgment of this court. Its action in this regard only goes so far as this: That due unconscionable advantage has been gained in the original action by the plaintiff, which a court of equity will not permit his assignee to retain, and which advantage no powers but the flexible powers of a court of equity are able to wrest from his hands.

The peremptory writ will, therefore, be denied. All concur.

1. APPEAL. [Lies Not.]-From Order Refusing to Vacate Order of Distribution.-An order refusing to set aside and vacate a former order of distribution and settlement of the final account of an executor, is not appealable, under subdivision 3 of section 963 of the Code of Civil Procedure. [Citing Blum v. Brownstone Bros., 50 Cal. 293; Estate of Callahan, 60 Cal. 232; Estate of Dean, 62 Cal. 613.] Estate of Lutz, S. C. Cal., Sept. 24, 1885; 7 W. C. Repr. 507.

2. BANKS AND BANKING. [Checks.]—Circumstances Whereby the Payee who by his Neglect does not Become Holder of a Check is Held not Liable for its Loss.-The rule that the holder of a check must present it within a reasonable time does not apply to a case where a check was drawn and left with a third party to be delivered to the payee when he had performed certain conditions which he had promised to perform by a certain date, and his neglect to fulfil bis agreement, does not cast any liability on him for a loss of the check. [The facts were that B applied to D & Co. for a loan, offering as security land which was incumbered, but informed them that the incumbrance could be removed. Later one of the firm of D & Co. visited B, and took a check for the amount, but finding the incumbrance unsatisfied agreed that B should execute notes, and he then delivered the check to C to be delivered to B when the incumbrance was removed, which B agreed to remove by July 5th. B neglected his agreement, and the bank on which the check was drawn failed on the 15th day of July. In considering the liability of B on the check the court says: "If appellee (B) had procured the satisfaction of the mortgage and received the check on July 5th it could have been collected from the bank before it closed. The holder or payee of a bank check must present it to the drawee within a reasonable time, and if he fails to do this and the bank on which it is drawn in the meantime becomes insolvent the drawer is released from liability, at least pro tanto, and the loss must fall on the holder. The delay under the circumstances of this case from the 5th to the 15th of July would be such a delay as would throw the loss on the holder of the check. But in this case the check was never delivered to appellee (B); he never had possession of it and never owned it, while by procuring the satisfaction of the mortgage, as he agreed, the check would have come into his hands and been his, yet his neglect in that regard did not bring about the failure of the bank, nor was such suspension the natural or probable consequences of appellee's conduct, and he cannot therefore be held liable for the loss or any part of it."] Security Co. . Ball, S. C. of Ind., June 13, 1885.

becomes the property of the bank, and the depositor has no longer any claim on that money. His claim is on the bank for a like amount of money. When the bank becomes insolvent its general depositors must be paid pro rata. Where a depositor was clerk of a court and had a deposit in bank in his own name, with the word "clerk" added, he is no more than a general depositor, and the addition of the word "clerk', does not change his status in that respect. McLain v. Wallace, S. C. of Ind., April 23, 1885.

4. BOUNDARIES. [Division Fence-Estoppel.]-No Estoppel where Agreement is that Fence is Provisional.-Adjoining owners of land, who erect a division fence along their supposed boundary line, under an agreement that, upon the discovery of the true boundary, the fence shall be changed so as to comply therewith, acquire no rights as against each other, by reason of the erection of such fence, either by prescription or estoppel, until the true boundary has been determined. [In the opinion by Belcher, Chief Com., it is said: "Counsel for appellant cite in support of their views: Sneed v. Osborne, 25 Cal. 626; Columbet v. Pacheco, 48 Cal. 397; Moyle v. Connelly, 50 Cal. 295; Biggins v. Champlia, 59 Cal. 113; Cooper v. Vierra, 50 Cal. 282; and Johnson v. Brown, 63 Cal. 39; but none of these cases are in point here. They hold, as was said in Johnson v. Brown, that 'where owners of adjacent parcels of land have occupied, adversely to each other for more than five years,their respective tracts by a division line, which each has recognized and acquiesced in as the true line during all of that time, either is estopped from afterward questioning it as the true line.' But here, as the court finds, "The line of said fences was never settled and agreed upon by defendant and plaintiff or his grantors, as the true and correct boundary line of their respective tracts of land.' It is not necessary to notice the other points."] Quinn v. Windmiller, S. C. Cal., Sept. 24, 1885; 7 W. C. Repr. 518.

5. CONSTITUTIONAL LAW. [Taxation Railway Companies.]-Occupation Tax upon Sleeping Car Companies, when not ̧¡Uniform.—A statute which imposes a tax upon the occupation of owning and running sleeping cars by other persons or associations than railway companies, but which exempts railway companies from the payment of such a tax, is contrary to a constitutional provision that "all occupation taxes shall be equal and uniform upon the same class of subjects," it is hence void. Pullman Palace Car Co. v. State, S. C. Tex., Austin Term, 1885; 1 Tex. Ct. Repr. 321.

CREDITOR'S BILL. [Fraudulent Conveyance.]— Cannot Subject Profits of Business of Fraudulent Donee. For the purpose of defrauding his creditors a debtor gave his stock of goods and his business to his wife, who had been empowered by a decree in equity to trade as a feme sole. Held, that while the creditors could pursue the goods and subject them in the wife's hands, they could not subject the profits of the business made by her while conducting it. [In the opinion of the court by Bowden, J., the question is thus reasoned. "The gift of a mere business which the debtor will not continue, and which the creditor cannot compel him to continue, is not fraudulent. It is no more than a determination not to work any longer for the benefit of creditors. What was the business which Morel gave his wife? Was property liable to be seized for debt, part of that which

was given? There is no such complaint. Had he acquired a good will? Though valuable, it could not be taken for debt. The reputation of the house for good work would probably induce customers to continue their patronage; but that could afford no reason why the debtor should not quit work, if he wishes to do so, or why one who succeeds to its benefits should be made to pay for his debts. If it had been alleged and shown that the appellant was in fraudulent collusion with her husband, permitting her name to be used to cover his business, then it would be clear that the profits should be considered his and liable to his debts. But, it being conceded by the assailant that the wife carried on the business and made the money, it cannot be subjected by his creditors on the ground that he made up his mind that he would not work for them any more, and turned the business over to his wife, legally capable of carrying it on; there being no pretense that she has any property, or the proceeds of any property, that he ever had any interest in. If she owes him for services, she must be pursued as a stranger would be; she can be held as garnishee to account to the creditor of her husband for all she owes; but the fact that she has her husband in her service does not give him any interest in the profits. There is neither allegation nor evidence what, if anything, she owes him on that account."] Morel v. Haller, Ky. Superior Ct., June 3, 1885; 7 Ky. Law Repr. 122.

7. CRIMINAL PROCEDURE. [Trial by Jury]. Defendant cannot Waive his Right to Trial by Jury Unless Expressly Authorized by Statute. § 13 of the Bill of Rights in the State constitution provides "that in all criminal prosecutions the accused shall have the right to a public trial by an impartial jury in the the county in which the offense shall have been committed," etc. The defendant's right to such trial is his personal and constitutional right, which he cannot be deprived of. He cannot waive such right unless such waiving is expressly authorized by statute. Wartner v. State, S. C. Ind., May 12, 1885.

8. DEBTOR AND CREDITOR. [Compromise]. Setting Aside in Equity for Fraud.-1. In an action by a creditor to set aside, on the ground of fraud, a compromise made by a debtor, after his assignment, and accepted by the creditor, and to recover the full amount of the debt, it must be proved that defendant or his attorneys had actual knowledge as to what would remain of the debtor's assets, after paying the preferred creditors and the amount of the compromise. 2. To be entitled to have set aside the compromise of a debt which the creditor has accepted, such creditor must show himself to have been, at the time of the compromise, without knowledge of the fact that the debtor was financially able to make a larger payment. 3. In arranging a compromise between them, the debtor and creditor have the right to use each his own skill, foresight, and knowledge, and the debtor is not bound to give to the creditor, at the time, the full benefit of what he knows of his own affairs. 4. A compromise having been entered into between a debtor and creditor after a judgment upon the debt recovered, and while a writ of error from such judgment was pending, before such compromise can be set aside in favor of the creditor, the amount received by such compromise must be returned with interest, and the debtor be

restored as far as may be in position to prosecute his writ of error. Graham v. Meyer, N. Y. Ct. App., April 14, 1885; 1 N. E. Repr. 143.

9. DURESS. [Per Minas.] What Threats amount to. To constitute duress by a threat of imprisonment for a supposed crime, there must be a threat importing an illegal or wrongful imprisonment, or a resort to a criminal prosecution for an improper purpose or wrongful motive, accompanied with such circumstance as would indicate a prompt or immediate execution of the threat. [In the opinion of the court it is said by Watts, J.: "To constitute duress by a threat of imprisonment for a supposed violation of the criminal law, it must be a threat importing an illegal or wrongful imprisonment, or else a resort to the criminal prosecution for an improper purpose or wrongful motive. The fear of imprisonment which amounts to duress, is that of an illegal imprisonment, or imprisonment under snch circumstances as if carried into execution would amount to duress by force. Davis v. Luster, 64 Mo. 43; State v. Davis, 79 N. C. 603; Whitfield v. Longfellow, 13 Mo. 146; Eddy v. Herrin, 17 Mo. 338; Harmon v. Harmon, 61 Mo. 229: 2 Greenl. Ev., §§ 301-2; Parsons on Contracts, 393; Alexander v. Pierce, 10 N. H. 497; Landa v. Obert, 45 Texas, 548. It seems, also, to be well settled that for threats of imprisonment to constitute duress, that they must be accompanied with such circumstances as would indicate a prompt or immediate execution of the threats. Bane v. Detrich, 52 Ill. 21; Lester v. U. M. Co., 1 Hun. (N. Y.) 288; Plant v. Gueen, Woods (C. C.) 372. As was remarked by Mr. Justice Agnew in Miller y. Miller, 68 Penn. St. 493, "The constraint which takes away free agency and destroys the power of withholding assent to a contract, must be one which is imminent, and without immediate means of prevention; and be such as would operate on the mind of a person of a reasonable firmness of purpose. * *Nor is there a duress per minas in equity, which does not exist at law.' And as was said in Harmon v. Harmon, supra, "There must be imprisonment, or a fear of it, sufficient to overcome the will of a man of ordinary firmness and constancy.' The rule to be deduced from the great weight of authority is, that mere threats of a criminal prosecution is not sufficient, but there must be a reasonable ground for creating an apprehension in the mind of a man of ordinary courage and firmness, that the threat will be carried into execution, and it must also appear that the threats operated directly upon the mind of the party, so as to overcome his will."] Landa v. Obert, S. C. Tex., Austin Term, 1885; 1 Tex. Ct. Repr. 346.

10. ELECTION-Mistake in Ballots do not Vitiate, when.-A candidate for the office of supervisor for the first district of a county, is entitled to have counted for him ballots which, on their face, showed that he was voted for as supervisor for the second district, when it appears, from all the circumstances of the case, that such ballots were intended for him. Inglis v. Shepherd, S. C. Cal., Sept. 24, 1885; 7 W. C. Repr. 512.

11. EQUITY JURISDICTION. [Injunction — Taxation.] Jurisdiction to Enjoin Sale for Taxes which have been Paid.-Equity has jurisdiction to restrain the sheriff from proceeding to sell property seized by him for taxes already paid. [In concluding the opinion of the court, Pryor, J., says: "The inadequacy of the remedy at law, or the en

tire absence of any other remedy, is of itself sufticient grounds for asking the chancellor to interfere, and the mere fact that the tax-payer is required to apply to the county court to have his tax list corrected, will not warrant the conclusion that the chancellor is thereby deprived of all power to interfere, when the property of the citizen has been seized or is about to be sold for an illegal tax or for a tax demand that has already been satisfied. The demurrer should have been overruled and is remanded for that purpose."] Nolan v. Jackson, Ky. Ct. of App., May 28, 1885; 7 Ky. Law Repr.

119.

12. EVIDENCE. [Private Records.]-The record book of a Masonic Lodge is admissible to prove that a deed, executed by the officers of the lodge, had been adopted by the lodge. [The objection was based upon two grounds: 1. Because it was not produced by the proper authority or custodian. 2. Because it was not proven by the person shown to be the proper custodian. The court say: "It was proven that there was no secretary, and the book was produced from the lodge room by the presiding officer, the acting secretary being sick. In our opinion the evidence was properly admitted. As a general rule books of this sort, which are not required by law to be kept, are not admissible in evidence to prove facts which are susceptible of proof in the ordinary way. For instance, it was held that an Odd Fellow's minute book was not admissible to prove the act of a member. Ins. Co. v. Schneck, 94 U. S. 593; 1 Wharton Ev., § 639. But the book was produced in the present case, not to prove extraneous facts, but to show the action of the body itself; and of that fact it was the proper evidence."] Leach v. Dodson, S. C. Tex., Austin Term, 1885; 1 Tex. Ct. Repr. 330.

13. LIQUOR LAWS. [Indiana Statute.] A Statute Prohibiting sales of Intoxicating Liquor between the hours of 11 o'clock p. m. and 5 o'clock a. m. valid. A statute prohibiting the sale of intoxicating liquor between the hours of eleven o'clock p. m. and five o'clock a. m., is a valid exercise of the police power vested in the Legislature by the constitution and it is not void. [The Court says: "It is clear to our minds, both upon reason and authority, that the statute is a valid exercise of the police power vested in the Legislature. In Morris v. State, 47 Ind., 503 it was assumed, without question, that the statute restricting the sale of liquor between prescribed hours was valid and that it was within the power of the Legislature to prohibit the sale on Sunday, on election days, and on legal holidays. We have a great many cases through our reports holding statutes prohibiting sales on such days valid, and the principle is the same in those cases as in this, for the undergirding principle of all these cases is, that the legislature may regulate the retail liquor traffic." Citing Harrison v. Lockhart, 25 Ind., 112; McAlister v. Howell, 42 Ind. 15; Cooley Const. Lim. 720n; Bertholf v. O'Reilly, 74 N. Y., 509.] Hedderick v. State, S. C. of Ind. May 12, 1885.