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lum, 4 id. 1; Yeatman v. Crandall, 11 id. 220; Rooney 5. Brown, 21 id. 51. In Missouri: Lockwood v. St. Louis, 24 Mo. 20; St. Louis Public Schools v. St. Louis, 26 id. 468; Sheehan v. Good Samaritan Hospital, 50 id. 155; S.C., 11 Am. Rep. 412. In Ohio: Armstrong v. Athens Co., 10 Ohio, 235; Cincinnati College v. State, supra; North. Ind. R. Co. v. Connelly, 10 Ohio St. 159; Kendrick v. Farquhar, 8 Ohio, 189; Hilv. Higdon, supra; Matheny v. Golden, 5 Ohio St. 361; Gerke v. Purcell, 25 id. 229; Humphries v. Little Sisters, 29 id. 201; Cleveland Library Association v. Pelton, 36 id. 253. And see generally as to cemeteries, Price v. Methodist Ch., 4 Ohio, 515; Hullman v. Honcomp, 5 Ohio St. 237 ; 12 Moak Eng. Rep. 665; 2 Wait Act. & Def. 127, 133; 1 Am. & Eng. Corp. Cas. 267, 512; 2 Bish. Cr. L., SS 1188, 1190. The sole exception to the cases sustaining such assessment as not within an exemption from taxation, is indeed an exception (Hale v. Kenosha, 29 Wis. 599 ; Dalrymple v. Milwaukee, 53 id. 178) is found in Wisconsin.

3. It is provided that the association may hold “not exceeding one hundred acres of land, which shall be exempt from execution * if used exclusively for burial purposes, and in no wise with a view to profit." Rev. Stats., $ 3571. It does not appear how much land this association has, but let it be assumed for the present that the quantity is less than one hundred acres.

We agree that this exemption is to be taken in its most comprehensive sense, and hence there cannot be a sale of such lauds under any legal process whatever. In view of this it has been thought that Louisville v. Nevin, supra; S. C., 19 Am. Rep. 78, is an authority for holding that the exemption defeats this assessment. That was an action to enforce an assessment on a lot in Jefferson street, Louisville, for regrading and reparing the sidewalk along the front of the lot. The judge delivering the opinion stated the fact to be that “the lot was conveyed to the city in 1834, to be held in trust for the use of the Roman Catholio congregation in Louisville as a burying ground, and has been filled with graves for more than twenty years, and has never been used since 1834 for any other purpose thau a graveyard; and it is submitted that no revenue is derived from it, aud that the Rt. Rev. Bishop MoClosky, who now holds the title as trustee, has no funds in his hands belonging to the trust with which to pay the assessment." The Legislature had not granted authority to remove the bodies, nor had the city assumed to exercise such authority, and the court held that there was no authority to enforce the assessment in that suit.

Aud see Vatter of Mayor, 11 Johns. 77, and Albany Street, 11 Wend. 150. But here, for aught that appears in the record, the association has funds to pay the assessment, and indeed for aught that appears it has lands not occupied by graves exceeding one hundred acros in quantity. It does not appear that the association is without the means to pay the assessment, and certainly we could not assume that it will remain without funds. Although the association is not strictly one for mere profit, nevertheless it is empowered by the statute to do, at its own expense, not only the very work for which it is here in part assessed, but it may improve and ornament its grounds in such way as to its officers may seem proper.

While the cemetery lands, assuming them to be within the limitation, cannot be sold on any legal process, we think the city may nevertheless be able to collect the assessment, if indeed occasion should arise for resorting to further proceedings in this case; for the statute plainly authorizes proceedings, both at law and in equity (Rev. Stats., ss 2286, 2287), and payment, if not voluntarily made, could doubtless be secured by the appointment of a receiver, by sequestration, or by such other ap

PLEADING-CONDITION PRECEDENT ALLEGATION AND DENIAL—Iowa CODE.-A plaintiff having alleged general performance by him of his obligations under a contract, a denial by the other party in his answer of “ each and every allegation in the petition," will not, under the Iowa Code (which regulates pleading and practice in the Federal courts in that State), put in issue a condition precedeut, without performing which the plaintiff would have had no right of action. In Mayes v. Turley, 60 Iowa, 407, the plaintiff averred in his petition that he was the duly appointed, qualified, and acting administrator of the estate, etc. The defendants' answer said they denied each and every allegation in said petition contained. It was held by the court that the jury should have been mstructed that the denial being insufficient, they could not take notice of it, and they should therefore consider admitted that the plaintiff was duly appointed and qualified administrator. So in Stier v. City of Oskaloosa, 41 Iowa, 354, it was held that a bare denial, in the answer of the averment to the petition, that the defendant was a corporation, does not put that fact in issue. To the same effect are the following cases: Coates v. Galoua & C. U. R. Co., 18 Iowa, 277; Blackshire v. Iowa Homestead Co., 39 id. 624; Gates v. Carpenter, 43 id. 152. No distinction can be drawn between the application of the rule to the cases mentioned in section 27 16 and that specified in section 2715; and upon such a question we feel bound to adopt the construction of the State Code which has been established by the decisions of the Supreme Court of Iowa. Halferty v. Wilmering. Opinion by Matthews, J. [Decided Jan. 5, 1885.]


STATE.- (1) This court cannot pass upon the conformity of

law with the requirements of the Constitution of the State in which it was enacted. Class legislation, discriminating against some and favoring others, is prohibited by the fourteenth amendment to the Constitution of the United States; but legislation which, in carrying out a public purpose, is limited in its application, if withiu the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. (3) Neither the fourteenth amendment, nor any other amendment to the Constitution of the United States, was designed to interfere with the power of a State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, or good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity. Barbier v. Connolly. Opinion by Field, J. [Decided Oct., 1884.]

REMOVAL OF CAUSE-AVERMENT OF CITIZENSHIPTRUSTEE INDISPENSABLE PARTY. - Two citizens of West Virginia conveyed to a trustee certain real property in that State to secure the payment of notes executed by them to a Missouri corporation, which was subsequently dissolved, and its assets placed in the bands of a citizen of the latter State. Upon default in the payment of the notes the trustee, under author

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ity given by the deed, advertised the property for sale. MICHIGAN SUPREME COURT ABSTRACT.
The grantors thereupon instituted a suit in equity in
one of the courts of West Virginia to enjoin the sale,

PARTNERSHIP-POWER OF PARTNER TO DISSOLVEmaking the trustee, the Missouri corporation, and the

FUTURE LIABILITY-NOTICE OF DISSOLUTION.- Every person who held its assets defendants. Upon the joint partner has au indefeasible right to dissolve the partpetition of that corporation and the defendant holding nership, even when the partners have covenanted that its assets the cause was removed to the Circuit Court

the partnership shall last for a fixed period, as to all of the United States, and was there finally determined.

future contracts, by publishing his own volition to Held, that since the trustee was an indispensable party

that effect; and after such publication the other his citizenship was material in determining the juris

members of the tirm have no capacity to bind him by diotion of the Circuit Court; and as that was not

any contract, although they may have a right to damaverred, and did not otherwise affirmatively appear to

ages against him for his breach of the agreement. The be such as gave the right of removal, the decree must power given by one partner to another to make joint be reversed and the cause remanded to the State court.

contracts for them both is not only a revocable power, As the trustee and the complainants are on opposite

but a man can do no act to divest himself of the capacsides of the real controversy in relation to the sale of

ity to revoke it. Skinner v. Dayton, 19 Johns. 513, the property, and since it does not appear affirmatively

538. To the same effect are Mason v. Connell, 1 Whart. that the Circuit Court had jurisdiction by reason of

381, and Slemmer's Appeal, 58 Penn. St. 155. All that the citizenship of the parties, the decree must be re

can be required in any case is that such notice of disversed, with directions--upless such jurisdiction upon

solution be given as is likely to make the fact generally the return of the cause shall be made to appear-to re

known locally; and when that is done, the party givmaud the suit to the State court. Coal Co. v. Blatch

ing the notice has performed his duty, and any one ford, 11 Wall. 172; Gardner v. Brown, 21 id. 36; Ribon

contemplating for the first time to open dealiugg with v. Railroad Co., 16 id. 446; Knapp v. Railroad, 20 id.

the partnership must at his peril ascertain the facts. 117; Grace v. American Ing. Co., 109 U. S. 278; Mans

That publication in a newspaper is sufficient is not disfield, C. & L. M. Ry. Co. v. Swan, 111 id. 381, 382;

puted by the defense, provided it appears ou its face American Bible Soc. v. Price, 110 id. 61; Barney v. La

to be authoritative. Ketoham v. Clark, 6 Johus. 144; tham, 103 id. 205; Blake v. McKim, id. 336. Thayer v.

S. C., 5 Am. Dec. 197; Graves v. Merry, 6 Cow. 701; S. Life Association of America. Opinion by Harlan, J.

C., 16 Am. Dec. 471; National Bank v. Norton, 1 Hill, [Decided Jan. 5, 1885.]

572; Nott v. Douming, 6 La. 680; S. C., 26 Am. Deo.

491 : Watkinson v. Bank of Pennsylvania, 4Whart. 482: CONTRACT-CARRYING MAIL-ASSIGNMENT OF CLAIM

S. C., 34 Am. Dec. 521; Rose v. Coffield, 53 Md. 18; S. AGAINST GOVERNMENT-Rev. Stats., $$ 3477, 3737.

C., 36 Am. Rep. 389. But in this case it is said the noThe St. Paul & Duluth Railroad Company, upon suc

tice did not appear to be authoritative; it appeared as ceeding through a foreclosure of mortgage to the Lake

a local editorial item, and such items are often base. Superior & Mississippi River Railroad Company,did not less, and may in any particular case have no better thereby acquire any claim the latter might have had

foundation than rumor, or even suspicion. They do as to such reduction of compensation for carrying the

not bear upon their face the verity which a notice United States mail as was made by the postal depart- signed by the party would import. One who derives ment either before or after the succession of title; the knowledge of the fact from publio uotoriety is sufficontract with the United States government having ciently notified (Bernard v. Torrance, 5 Gill & J. 383; been made by the Lake Superior & Mississippi River

Halliday v. McDougal, 20 Weud. 81), and probably in Railroad Company, and there being no descriptive

many small communities a fact would sooner be made words in the instrument of mortgage transferring the

notorious by a notice in the local column of the county rights of the latter company under that contract to the or village paper than in any other way. In a large city mortgagees. In Erwiu v. U. S., 97 U. S. 392, it was

it might be otherwise. But all that can be required in held that an assigament by operation of law to an as

any case is that such notice be given as is likely to siguee in bankruptcy was not within the prohibition

make the fact generally known locally. Vernon v. of the statute; aud in Goodman v. Niblack, 102 U. S.

Manhattan Co., 22 Wend. 183, 193; Lovejoy v.Spafford, 556, a voluntary assignment by an insolvent debtor, for

93 U. S. 430. Solomon v.Hollander. Opinion by Cooley,

C. J. the benefit of creditors, was held valid to pass the title to a claim against the United States. But in our opin

[Decided Nov. 19, 1884.] ion the present case is not within the principle of these MUNICIPAL CORPORATION--HORSE FRIGHTENED BY exceptions, but falls within the purview of the prohi. BOULDER IN STREET--STATUTORY LIABILITY.--A city bition. It is a voluntary transfer by way of mortgage is not liable under the statute for damages caused by for the security of a debt, and finally completed and the running away of a horse frightened by a large made absolute by a judicial sale. If the statute does boulder which has been taken from the bed of a street not apply to such cases, it would be difficult to draw

and left for four or five days on one side thereof uutil a line of exclusion which leaves any place for the ope- it could be removed by a private party, to whom it ration of the prohibition. So the transfer, by the same had been given for building purposes.

The statutory proceeding, of the contract itself, so as to entitle the remedy is confined to cases where the want of repair assignee to perform the service and claim the compen- is the immediate cause of the injury; and allowing sation stipulated for, is forbidden by section 3737, Rev. things which are no part of a bighway to stand in it Stat. That section is as follows:

“ Sec. 3737. No con- temporarily, cannot be treated as putting out of totract or order, or any interest therein, sball be trans

pair, which must relate to the way itself, and not to ferred by the party to whom such contract or order is things disconnected from it. This construction of the given to any other party, and any such transfer shall statute is the natural and correct one. The statuto cause the annulment of the contract or order trans- does not seem to be aimed at indirect and remote misferred, so far as the United States are concerned." chiefs, but to those which follow from direct injury The explicit provisions of this statute do not require caused by the want of repair. A similar question bas any comment. No explanation could make it plainer. come up in Massachusetts several times as to the law St. Paul, etc., R. Co. v. United States.

Opinion by i relating to injuries from things which did not obstruct Matthews, J.

passage, and it was held that where the damage was [Decided Jan, 5, 1885.]

consequential, not on the effect of a want of repair,

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but upon fright caused to a horse which ran away aud to plaintiff in the absence of an express agreement to
damaged the vehicle or persons he was drawing, or that effect. It was sufficient for him within a reason-
other analogous cases, it did not come within the rule, able time to notify plaintiff in substance that it did
and the municipality was not liable. Cook v. Mon- not work satisfactorily, and that he declined to accept
tague, 115 Mass. 571; Bemis v. Arlington, 114 id. 507 ; it. Gibsou v. Vail, 53 Vt. 476; Doane v. Dunham,
Cook v. Charlestown, 98 id. 80; Kingsbury v. Dedham, supra ; Starr v. Torry, 22 N. J. L. 190; Smalley v. Hen.
13 Allen, 186; Keith v. Easton, 2 id. 552. The road drickson, 29 id. 371; Lucy v. Mouflet, 5 Hurl. & N.
itself was not out of repair. It was in good order and 229; Grimoldby v. Wells, L. R., 10 C. P. 391 ; 12 Eng.
passable. If the stone had any thing to do with the Rep. 451; 2 Benj. Sales (4th Am. ed. Corbin's), $$ 978,
action of the horse and damage to the buggy, it was by 1348; Leake Cont. 409, 827. McCormick, etc., Co. v.
frightening the animal, and not by hurting or imped- Chesbrown. Opinion by Berry, J. (See 33 Am. Rep.
ing him. But if it is admitted, and the court below 351; 25 Eng. Rep. 569.]
allowed the jury so to assume, that a city is liable for [Decided Dec. 22, 1884.)
leaving or allowing in its streets that which is danger-
ous by reason of its tendency to frighten the passing

MORTGAGE FUTURE ADVANCES INSOLVENCY teams, the question arises how far this record presents PREFERENCE-FRAUD.-(1) A mortgage may properly such a case.

It will not do to apply any far-fetched be made to secure future advances. Madigan v. Mead, and uureasonable rule in such cases. It was held in 31 Minn. 94; Brown v. Kiefer, 71 N.Y. 610; Ackerthe case of Macomber v. Nichols, 34 Mich. 212, that a

mau v. Hunsicker, 85 id. 43; Boswell v. Goodwin, 31 steam engine which, according to every-day experience Conn. 74; Jones v. Guaranty & Indemnity Co., 101 U. is always a cause of terror to horses unused to meet- S. 622 ; Jones Ch. Mortg., $$ 94-97. It follows that a ing it in a highway, was nevertheless not, in law or in mortgage is not fraudulent per se, or as a matter of fact, an unlawful article to propel or draw there. And law, as respects the mortgagor's creditors, because a similar rule was applied in Gilbert v. Flint & P. M. given in whole or in part to secure such advances. (2) Ry. Co., 51 Mich. 488; S. C., 47 Am. Rep. 592. It is Our insolvent law (ch. 148, L. 1881) does not have the customary in all towns to allow ditches to be dug and effect to render mortgages fraudulent or void as rebuilding materials of all kinds and colors to be piled spects the mortgagor's creditors, on the ground that up and kept for considerable periods in the body of the they are preferential, except in proceedings under it. street. In many, if not in most places, the right to do Outside of such proceedings the preferences are not this can only be had by license from the corporation, per se, or as a matter of law objectionable. Smith v. and it cannot be claimed that such a license can be Deidrick, 30 Minn. fil. (3) The fact that a mortgage is granted to do a wrong or create a nuisance. Such given to secure a larger sum than is actually due from stones as that described are often used for building the mortgagor to the inortgagee, or that its condition purposes, and left in the street like other building ma

failed to describe the real character of the indebtedterials, and sometimes broken up for use or sawed for

ness or liability intended to be secured, does not necuse. It does not seem reasonable to hold that such essarily render the mortgage fraudulent as respects things can be allowed to await the convenience of a the mortgagor's creditors. The question still is, was person who wishes to use them near by, and yet not to

it made with intent to hinder, delay or defraud the await removal somewhere else. If this stone had been mortgagor's creditors ? Minor v. Sheehan, 30 Mimn. hauled to the place it occupied in order to be used for 419, and cases cited; Jones Ch. Mortg., $ 96. Berry v. building purposes, and left there for a considerable O'Counor. Opinion by Berry, J. time, no one would think of regarding it as an action- [Decided Dec. 22, 1884. ] able grievance. The use of streets for such purposes is JUDGMENT-ENTRY ON ORDER OF JUDGE AFTER EXtoo common to justify the owners of horses to assume PIRATION OF TERM-IRREGULAR.– Where the judge of it will not be allowed, and they should be prepared to

a municipal court, upon the expiration of his term of guard against their animals' freaks and fears of such | office, vacated and ceased to occupy the same, but ordinary appearances. The stone, as is not disputed, thereafter reduced to writing and filed a decision and was lawfully put there in the first place, in the course order for judgment in a case previously tried and subof street repairs. If it was the duty of the city to see mitted, held, that such decisiou and order were unau. that it was not left there indefinitely, it was equally thorized, and a judgment entered thereon may be set its right to sell or give it away, and having done so, it aside on motion. It is not enough that he had arrived could take no steps to interfere unless, at the worst, at a conclusion before his term expired; it was necesthe purchaser or donee delayed so long as to make it sary that his decision be reduced to writing and filed; unreasonable to wait longer for him. It could not be until then it was subject to revision, and could not be responsible for any delay which was not unreasonable. considered as determining the case. Kissam v. HamAgnew v. Corunna. Opinion by Campbell, J.

ilton, 20 How. Pr. 376; Ayrault v. Sackett, 17 id. 461; [Decided Jan, 7, 1885. ]

Putnam v. Crombie, 34 Barb. 232. Iu Carli v. Rhener, 27 Mion. 292, the judge filed his decision in writing the

same hour, but after his successor qualified, and in igMINNESOTA SUPREME COURT ABSTRACT.

norance of the latter fact, and while he was still in

possession of the office and performing its duties. He CONTRACT

had uot yet surrendered or vacated it. And he was TO SATISFACTION ACCEPTANCE. The defense shows that in August, 1880, the plaintiff

held to be an officer de facto, and his acts valid. That

case is clearly distinguishable from this, and the same agreed to furnish the defendant "a cord-biuder" in

remark applies to the case of State v. Brown, 12 Minn. 1881, "guaranteed to work satisfactorily.” The agree. 545 (Gil. 448). We think the motion to set aside the ment was executory, and hence when the cord-binder judgment was the proper remedy, and should be was furnished defendant had the right before finally granted. Grant v. Vandercook, 57 Barb. 175. Cain v. accepting it to make a trial of it, reasonable as respects Libby. Opinion by Vanderburgh, J. both time and manner, and a right to reject it if it did not work satisfactorily, that is to say, satisfactorily to [Decided Dec. 2, 1884.] him. 2 Add. Cont. 942; Apson Cont. 285; Poll. Cont. CONSTITUTIONAL LAW 466; Doane v. Dunham, 65 111. 512; Leake Cont. 284. LAGES-DELEGATION OF LEGISLATIVE POWERS.--ChapIn case upon reasonable trial it did not work satisfac- ter 73, General Laws, 1883, provides for the incorporatorily, it was not necessary for defendant to return it tion of villages upon petition to the judge of the Dig

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trict Court; that upon a hearing of such .petition the them, its jurisdiction under the Constitution being
court may proceed to hear proof for or against the in- purely judicial. Cascs may be found where it has
corporation, aud take such evidence as it shall deem beeu held that powers similar to those conferred by
necessary; and that if the court after such hearing is this act were properly delegated to certain so-called
satisfied “ that the lands embraced in such petition, or courts, but we think it will be found in almost every
any part thereof, ought to be included in said proposed instance that these courts were not exclusively judi-
village, and that the interests of the inhabitants will cial, but also quasi municipal bodies invested with
be promoted thereby, it shall make an order declaring certain powers of local legislation. Such are the
that sucb territory, the boundaries of which shall be County Courts in some States, which take the place of
therein set forth by metes and bounds, and which our boards of county commissioners in the municipal
may be diminished or enlarged by such court from the government of the county. As bearing upon the
boundaries specified in the application, as justice may question here considered, see City of Galesburg v.
require, shall be an incorporated village. Held, that Hawkinson, 75 Ill. 152; Shumway v. Bennett, 29 Mich.
this act is unconstitutional, for the reason that it as- 451. State v. Simon. Opinion by Mitchell, J.
sumes to delegate legislative powers to the District [Decided Dec. 18, 1884.]
Court, a tribunal uot authorized under the Coustitu-
tion to exercise such powers. The granting of all
charters of incorporation involves the exercise of leg-

islative functions. The proposition (says Dillon)
which lies at the foundation of the laws of corpora- CONSPIRACY TO ROB-MURDER-ALL GUILTY.-It
tions of the country is that they all, publio or private,

several are associated together to commit a robbery, exist and can exist only by virtue of express legisla- and one of them, while all are engaged in the common tive enactment creating or authorizing the creation of

design, intentionally kills the person they are attemptthe corporate body. All municipal corporations are

ing to rob, in furtherance of the common purpose, all mere auxiliaries to the State government in the busi.

are equally guilty, though the others bad not previously ness of municipal rule. The act of deciding when and

cousented to the killing, where such killing was done under what circumstances the public interests require in the execution of the common purpose, and was a the creation of these auxiliaries or aids to the State

natural and probable result of the attempt to rob. goverument is one of the highest and most important

People v. Vasquez, 49 Cal. 560; State v. Shelledy, 8 legislative powers and duties. By sectiou 1, article 4,

Iowa, 477 ; United States v. Ross, 1 Gall. 624; People the Constitution of the State, the legislative depart

v. Pool, 27 Cal. 572; State v. Nash, Iowa, 347; Stipp ment of the government is made to cons st of a Senate

v. State, 11 Ind. 62; 1 Bish. Crim. Law (7th ed.), S 636; and House of Representatives. In them all legisla

2 Whart. Crim. Law (7th ed.), $ 998. So if those inside tive power is exclusively vested. One of the settled

the house while attempting to consummate the robmaxims of constitutional law is that legislative powers

bery, and in furtherance of such conspiracy purposely cannot be delegated. Where the Constitution has lo

kill the person they are attempting to rob, while he is cated the law-making power it must remaiu. The de

resisting such attempt, and such killing is the natural partment to whose judgment and wisdom it has been

and probable consequence of the common purpose, the intrusted cannot abdicate this power and relieve itself

person outside, who is aiding and assisting, is equally of the responsibility by choosing other agencies upon

guilty as the one striking the fatal blow, though he did whom it shall be devolved. Cooley Const. Law, 139.

not previous to such attempt agree to or assent to such As said by this court in State v. Young, 29 Minn, 551;

killing. Sup. Ct. Ohio, Jan., 1884. Stephens v. State. S. C., 9 N. W. Rep. 737, it is a principle not questioned

Opinion by Johnson, C. J. [42 Ohio St. 150; See 28 that except when authorized by the Constitution, as in

Eng. Rep. 64.] respect to municipal corporations, the Legislature cannot delegate legislative power. The power of local LARCENY--RECENT POSSESSION-INTENT.-The relegislation commonly bestowed on municipal corpora

cent possession by the defendant of the stolen proptions does not trench upon the maxim, since this is au

erty, his conduct at the pawnbroker's shop, the nature thorized, impliedly at least, by the Constitution itself;

of the account given by him of the manner in which he and the maxim itself is to be understood in the light had acquired it, the conflict between his statement and of an immemorial practice which has always recog- his evidence in that regard, constituted sufficient nized the policy and propriety of vesting in such cor

proof that the defendaut stole the watch. State v. porations these powers. As before remarked, munici- Hogard, 12 Miun. 293 (Gil. 191); 2 Russ. Cr. 337, 338 ; pal corporations are created for this purpose, as aid to

Knickerbocker v. People, 43 N. Y. 177; Com. v. Mothe State government in the business of municipal rule.

Gorty, 114 Mass. 299; Ingalls v. State, 48 Wis. 647. The Cooley Const. Law, 140. Had the Legislature, by the

fact that the larceny was committed within the house act in question, fixed and specified all the conditions during the night; that the defendant was not an inand facts upon which the incorporation of certain ter

mate of the house, and up to the hour of the closing of ritory should depend, we do not question their right

the house for the night was not in it, render possible po to refer to some tribunal or body the question of as

other conclusion from the premise that he committed certaining and determining the existence of these

the larceny than that he also entered the house. The facts and conditions. Neither do we decide that they

felonious intent with which the entrance was effected might not delegate certain legislative powers regard

was properly inferred from the fact of the larceny ing the organization and incorporation of villages to

committed. Roscoe Crim. Ev. 369; 2 Archb. Crim. some appropriate municipal body which might consti

Pr. & Pl. (Pomeroy's ed.) 1107. Sup. Ct. Minn., Dec., tutionally exercise local legislative powers. The dele

1884. State v. Johnson. Opinion by Dickinson, J. [21 gation of certain powers of local legislation to munioi.

N. W. Rep. 843. See 30 Alb. L. J. 318.-ED.) pal bodies, for reasons already suggested, is permissible. Boards of county commissioners are already, un

INDICTMENT-REFERRING TO THIRD PERSON AS UNder certain limitatious, invested with somewhat simi.

KNOWN-BRIBERY-EVIDENCE.-At common law, in lar powers in the orgauization and change of bounda

cases where an indictment referred to third parties as ries of towns and school districts. But the present act

persons to the grand jury unknown, if upon the trial it assumes to delegate these legislative powers to the Dis.

was made to appear that the grand jury did know the trict Court, a tribunal uot authorized to exercise

names of the persons referred to, the accused would

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have to be acquitted on the ground of a variance be- feiture. See Titus v. Glens Falls Ins. Co., 81 N. Y.
tween the allegations of the indictment and the proofs. 410; Insurance Co. v. Norton, 96 U. S. 234; Webster
But it was not necessary for the State to prove the v. Phænix Ius. Co., 36 Wis. 67; Northwestern Mut.
truth of the allegations beyond a reasonable doubt. Ins. Co. v. Germania Ivs. Co., 40 id. 453; Cannon v.
Upon the contrary, quite a different rule is to be ap- Home Ins. Co., 53 id. 585. It is claimed however by
plied, and the burden is on the defendant to show that defendant that a different rule is established by this
the grand jury at the particular time of finding the in- court in Fitch patrick v. Hawkeye Ins. Co., 53 Iowa,
dictment kuew the names of the parties described as 335. It is held in that case that the insurer did not
unknown. Com. v. Gallagher, 126 Mass. 54; Com. v. waive the forfeiture of the policy by requiring proofs
Hill, 11 Cush. 137; Com. v. Tompson, 2 id. 551; Rex of loss after being orally informed of the fact which
v. Bush, Russ. & R. Cr. Cas. 372; Whart. Crim. Ev., s created the forfeiture. The ground on which the hold
97. The doctrine contended for by plaintiff in error ing is put is that as the policy itself provided that the
can be found in Stone v. State, 30 Ind. 115; but WŁar- information should be communicated by the proofs of
ton, in his work on Precedents of Indictments and loss, and as the oral information was not full, the in-
Pleas, vol. 1, p. 18, refers to this decision as pushing surer had the right to demand that full information be
the doctrine to a questionable extreme; and such communicated to it in the manner provided in the con-
is evidently the case. Under the allegations of the in- tract before it determined the question of its liability;
dictment, and the circumstances of the case as shown and as the proofs were demanded to enable it to deter-
by the testimony, it was held competent for the State mine that question, it did not waive the forfeiture by
to prove other acts of bribery than those alleged in the demanding them. The distinction between the two
indictment, for the purpose of corroborating the prin cases is very apparent. Sup. Ct. Iowa, Dec., 1884.
cipal witness upon material facts involved in the origi- Hollis v. State Ins. Co. Opinion by Reed, J. (21 N.
nal contract of bribery, and also for the purpose of W. Rep. 774.]
showing the system, plan and design of the parties in-
volved in the transaction alleged in the indictment.

State v. Bridgman, 49 Vt. 202; Thayer v.

Thayer, 101
Mass. 111; Kramer v. Com., 87 Penn. St. 299; Rex v.

Hough, Russ. & R. Cr. Cas. 120; Rex v. Ball, id. 132;

Editor of the Albany Law Journal:
Com. v. Price, 10 Gray, 472; Reg. v. Francis, 12 Cox

The publication of legal reports, authorized and as
Crim. Cas

. 612; Regina v. Garner, 4 Fost. & F. 346; private enterprises, constitutes the only perpetual moWhart. Crim. Ev., $ 38 et seq. Sup. Ct. Neb., Nov. 18,

tion. It does not slacken, falter, or wear out. If suf1884. Guthrie v. State. Opinion by Reese, J. [21 N. W. Rep. 455.]

ficient cases are not at hand to make a volume every month, what is called “annotation” is resorted to,

viz., dozens of pages of solid names of cases which FINANCIAL LAW.

more or less cover certain of the grouud of the text.

We have railway reports, corporation reports, tele-
TION-SALE.—(1) Leaving a note at a bank for collec- graph reports, and there is no reason why - since
tion does not authorize the bank to sell it. And if the everybody who can use a pair of shears can make them

-we should not have sugar-refinery cases, horse cases, bank does sell it without authority, and satisfies the

cow cases, mad-dog cases, snake bite cases, etc.? Is payee, the parchaser cannot afterward collect it as

there no relief? Since nobody but the law booksellers against a surety of the maker. And if the purchaser enjoy this sort of thing, and in the end the people pay, has left the payee to suppose that the note was regularly taken up, the latter cannot after the maker's death, vised authorizing the reporter to abridge decisions

cannot the State interfere? Why cannot a law, be deand on being made a party to a suit upon the note

something like this: against the surety, be required to elect between affirm

“The court followed

-, and as to ing the sale and rescinding it and restoring the money which he has received in payment of it. (2) The maker the novel point proceeded as follows,” etc.": of a note that has been sold to satisfy the payee will

Why should we be compelled to pay for a million decontinue liable upon it if he consents to do so; but his

cisions to the effect that contributory negligence is a

defense to an action for ordinary negligence, or any consent will not bind bis surety. (3) Whether one

other proposition of horn-book law? who in good faith has purchased a note that has been

In old times the lawyer who was buying books was sold without authority has not a remedy against the vendor, qucere. Sup. Ct. Mich. Fuller v. Bennett.

only losing the use of his money, plus ordinary wear Opinion by Cooley, C. J. [21 N. W. Rep. 433. ]

and tear. Now he is buying the costliest class of books published, with the certainty of their being superseded by new editions not only, but by private se

ries and voluminous “reports," within a year or so. INSURANCE LAW.

I do not remember the proceeds of the late Charles FIRE-AUTHORITY OF ADJUSTER-WAIVER OF FOR- O'Conoris library, but it was a case in point. The FEITURE.—However well the duties and powers of an amount realized was probably not one-tenth of the insurance adjuster may be known in the community, disbursement made. The result is that nobody but the law makes no presumption with reference to them, the law bookseller is benefited. and they must be proven in every case where the The ALBANY LAW JOURNAL will earn the gratitude rights of the parties depend upon the question whether of lawyers not only, but of clients who in the end pay his acts were done with authority. Where there is no the lawyers, by not only calling attention to the matevidence of the authority of an adjuster to waive ter, but keeping it up, inviting suggestions, discussing proofs of loss, it is error to instruct the jury that a it, and lending its facilities to working our relief. waiver might be inferred from certain acts done by

BARRISTER. him. Where the assured asserts a claim for loss under

NEW YORK, April 23, 1885. his policy, and the insurer is informed of facts out of P.S. What is the meaning of the word “reports ?" which a forfeiture it is claimed grew, but with knowl. It has an official sound. What right has any bookedge of the circumstances, continues to treat the con- seller to get up a collection of cases by hack work and tract as binding, and induces the assured to act in that call them “reports," anyhow? The bar itself could belief, the insurer may be held to have waived the for- stop this thing by simply refusing to purchase.

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