to citizens of another State than that in which suit is brought, an absolute right to remove their cases into the Federal court upon compliance with the terms of the act of 1789.

"2d. The statute of Wisconsin is an obstruction to this right, is repugnant to the constitution of the United States and the laws in pursuance thereof, and is illegal and void.

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3d. The agreement of the insurance company derives no support from an unconstitutional statute, and is void, as it would be had no such statute been passed."

The opinion of a court must always be read in connection with the facts upon which it is based. Thus, the second conclusion above recited, that the statute of Wisconsin is repugnant to the constitution of the United States and is illegal and void, must be understood as spoken of the provision of the statute under review, to wit, that portion thereof requiring a stipulation not to transfer causes to the courts of the United States. The decision was upon that portion of the statute only, and other portions thereof, when they are presented, must be judged of upon their merits.

We have not decided that the State of Wisconsin had not the power to impose terms and conditions as preliminary to the right of an insurance company to appoint agents, keep offices, and issue policies in that State. On the contrary, the case of Paul v. Virginia, 8 Wall. 168, where it is held that such conditions may be imposed, was cited with approval in Home Insurance Co. v. Morse. That case arose upon a statute of Virginia, providing that no foreign imsurance company should transact business within that State until it had taken out a license and made a deposit with the State treasurer of bonds varying in amount from $30,000 to $50,000, according to the amount of its capital. This court sustained the power of the legislature to impose such conditions, and sustained the judgment of the State court convicting Paul upon an indictment for violating the State law in issuing policies without having first complied with the conditions required.

Ducat v. Chicago, 10 Wall. 410, decided that the statute of the State of Illinois requiring a license to *be taken out by foreign insurance companies, for which $6 each should be paid, and the filing of an appointment of an attorney with power to accept service of process, was a legal condition; and a requirement that when such company was located in the city of Chicago, it should also pay to the treasurer of that city $2 upon the $100 upon the amount of all premiums received, was held to be legal.

In The La Fayette Ins. Co. v. French, 18 How. 494, the court say "a corporation created by Indiana can transact business in Ohio only with the consent, express or implied, of the latter State. 13 Pet. 519. This consent may be accompanied by such conditions as Ohio may think fit to impose; and these conditions must be deemed valid and effectual by other States and by this court, provided they are not repugnant to the constitution or laws of the United States, or inconsistent with those rules of public law which secure the jurisdiction and authority of each State from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defense."

Neither did the case of The Home Insurance Company, supra, undertake to decide what are the powers

of the State of Wisconsin, in revoking a license previously granted to an insurance company, for what causes or upon what grounds its action in that respect may be based. No such question arose upon the facts or was argued by counsel or referred to in the opinion of the court.

The case now before us does present that point, and with distinctness.

The complainant alleges that a license had been granted to the Continental Insurance Company upon its executing an agreement that it would not remove any suit against it from the tribunal of the State to the Federal courts; that in the case of Drake it did, on the 10th day of March, 1875, transfer his suit from the Winnebago Circuit of the State to the Circuit Court of the United States; that Drake thereupon demanded that the defendant, who is Secretary of State of Wisconsin, should revoke and aunul its license in accordance with the provisions of the act of 1872; that it is insisted that he has power to do so summarily, without notice or trial; that the complainant is fearful that he will do so, and that it will be done simply and only for the reason that the complainant transferred to the Federal court the case of Drake, as above set forth.

The cases of Bank of Augusta v. Earle, Ducat v. Chicago, Paul v. Virginia, and La Fayette Ins. Co. v. French, establish the principle that a State may impose upon a foreign corporation as a condition of coming into or doing business within its territory any terms, conditions and restrictions it may think proper that are not repugnant to the constitution or laws of the United States. The point is elaborated at great length by Chief Justice Taney in the case first named, and by Mr. Justice Field in the case last named.

The correlative power to revoke or recall a permission is a necessary consequence of the main power. A mere license by a State is always revocable. Rector v. Philadelphia, 24 How. 300; People v. Roper, 55 N. Y. 629; People v. Commissioners, 47 id. 50. The power to revoke can only be restrained, if at all, by an explicit contract upon good consideration to that effect. Humphrey v. Pegues, 16 Wall. 244; Tomlinson v. Jessup, 15 id. 454.

A license to a foreign corporation to enter a State does not involve a permanent right to remain. Full power and control over its territories, its citizens and its business (subject to the laws and constitution of the United States) belong to the State.

If the State has the power to do an act, its intention or the reason by which it is influenced in doing it cannot be inquired into. Thus the pleading before us alleges that the permission of the Continental Insurance Company to transact its business in Wisconsin is about to be revoked for the reason that it removed the case of Drake from the State to the Federal courts.

If the act of an individual is within the terms of the law, whatever may be the reason which governs him, or whatever may be the result, it cannot be impeached. The acts of a State are subject to still less inquiry, either as to the act itself or as to the reason for it. The State of Wisconsin (except so far as its connection with the constitution and laws of the United States alters its position) is a sovereign State, possessing all the powers of the most absolute government in the world.

The argument that the revocation in question is

made for an unconstitutional reason cannot be sustained. The suggestion confounds an act with an emotion or a mental proceeding, which is the subject of inquiry in determining the validity of a statute. An unconstitutional reason or intention is an impractical suggestion which cannot be applied to the affairs of life. If the act done by the State is legal, is not in violation of the constitution or laws of the United States, it is quite out of the power of any court to inquire what was the intention of those who enacted the law.

In all the cases where the litigation of a State has been declared void, such legislation has been based upon an act or a fact which was itself illegal. Thus, in Crandall v. Nevada, a tax was imposed and collected upon passengers in railroad and stage companies. 6 Wall. 35.

In Almy v. State of California, a stamp duty was imposed by the legislature upon bills of lading for gold or silver transported from that State to any port or place out of the State. 24 How. 169.

In Brown v. The State of Maryland, a license, at an expense of $50, was required before an importer of goods could sell the same by the bale, package or barrel. 12 Wheat. 419.

In Henderson v. Mayor of New York, the statute required the master to give a bond of $300 for each passenger, conditioned that he should not become a public charge within four years, or to pay the sum of $1.50. 92 U. S. R. 265.

In the Passengers' Case, the requirement was of a like character. 7 How. 572.

In all these cases it was the act or fact complained of that was the subject of judicial inquiry, and upon the act was the judgment pronounced.

The statute of Wisconsin declares that if a foreign insurance company shall remove any case from its State court into the Federal courts, contrary to the provisions of the act of 1870, it shall be the duty of the Secretary of State immediately to cancel its license to do business within the State. If the State has the power to cancel the license, it has the power to judge of the cases in which the cancellation shall be made. It has the power to determine for what causes, and in what manner, the revocation shall be made.

It is said that we thus indirectly sanction what we condemn when presented directly, to wit, that we enable the State of Wisconsin to enforce an agreement to abstain from the Federal courts. This is an "inexact statement." The effect of our decision in this respect is that the State may compel the foreign company to abstain from the Federal courts or to cease to do business in the State. It gives the company the option. This is justifiable, because the complainant has no constitutional right to do business in that State; that State has authority at any time to declare that it shall not transact business there. This is the whole point of the case, and without reference to the injustice, the prejudice, or the wrong that is alleged to exist, must determine the question. No right of the complainant under the laws or constitution of the United States, by its exclusion from the State, is infringed, and this is what the State now accomplishes. There is nothing, therefore, that will justify the interference of this court. The decree of the court below awarding a perpetual injunction is reversed, and the cause is remanded that a decree be entered dismissing the bill for want of equity.

Bradley, Swayne and Miller, JJ., dissented.

FINANCIAL LAW.

LIABILITY OF NATIONAL BANK FOR SPECIAL DEPOSIT. - INDORSEMENT OF FORM NOTE BY SURVIVING PARTNER.-NOTES GIVEN IN VIOLATION OF PROHIBITORY LIQUOR LAW: PRESUMPTION OF GOOD FAITH NOTE DATED AND PAYABLE IN ANOTHER STATE.

IN

N the case of Chattahoochee National Bank v. Schley, decided February 20, 1877, by the Supreme Court of Georgia, the question of the liability of a national bank for the loss of special deposits received for safekeeping, the court held that a national bank that habitually receives special deposits for safe-keeping, as matter of accommodation, is bound by the act of its cashier in receiving on special deposit a package of stocks and bonds. The bank, though acting without reward, becomes a bailee, and is responsible for gross negligence. 62 Penn. 47; Code, §§ 2104, 2105. It held also that if a person withdraw from a bank a special deposit, in pursuance of authority conferred upon him by the depositor, the bank is discharged, though the authority be unknown at the time to the corporation, or to the officer representing it in the transaction. It held further that written authority, signed by the depositor, on the certificate of deposit in these terms: "Will pay above dividends or coupons to (naming a particular person) for my account," will not justify the bank in parting with possession of the bonds themselves and the certificates of stock described in the certificate of deposit, though possession be yielded to the person thus named.

-In Johnson v. Bailzheimer, lately decided by the Supreme Court of Illinois, a promissory note executed to Lazarus Silverman & Co., was assigned by an indorsement on the back, "Lazarus Silverman, successor to Lazarus Silverman & Co." The court held that, while at law, a moiety, or any other portion of a promissory note, cannot be assigned so as to enable the assignee to bring an action in his own name for his distinct interest, yet the law is equally well settled that the sole survivor of a firm may assign a promissory note payable to the late firm, by indorsement, so as to vest the legal title in the assignee as effectually as if the note had been made payable to him. The legal effect is the same as would have been the indorsement of the firm itself.

-The case of Glass v. Alt, recently decided by the Supreme Court of Kansas, also involved the validity of a note given for liquors. The court held that where intoxicating liquor is sold in violation of the law of Kansas, and a promissory note given by the vendee to the vendor for the amount agreed to be paid for such liquor, the collection of such note cannot be enforced by the vendor against the vendee under the laws of Kansas. And it would make no difference that the vendor sold the liquor on a month's credit, and that the note was not given until the end of such month, and was then given on an extension of the time for payment till another mouth, nor would it make any difference that the note, which was made in Kansas, was dated at Kansas City, in Missouri, and made payable at a bank in Kansas City.

kept a liquor store in Detroit, and indorsed to Goldsmith. The defendant gave evidence that the consideration of the note was a sale of liquors in violation of the prohibitory liquor law. Plaintiff below gave evidence showing that he purchased the note in good faith and without knowledge of this fact. Defendant below gave evidence showing that plaintiff resided in Detroit and knew what the business of Cook & Co. was, and made no inquiry as to the consideration of the note. The court held that the judge was justified in refusing the instruction prayed; that parties putting their negotiable paper in circulation cannot rely upon the business of the payees as constituting a prima facie defense to it in the hands of third persons; that notice will not be implied on such slender grounds.

RECENT BANKRUPTCY DECISIONS.

COMPOSITION.

Proceedings in relation to: right of creditors. — A creditor who has an attachment issued within four months before the commencement of proceedings in bankruptcy cannot vote at a composition meeting. An order referring a proposition of compromise to a register should require him to report whether the resolution of composition is duly passed at the first meeting whether it has been confirmed by the required signatures, and whether the terms of the composition are for the best interests of all concerned. No second meeting of creditors, as such, is necessary to be held to confirm the resolution of composition. At the hearing for the ratification of the resolution, objections can be presented as to the due passing of the resolution, as to the confirmatory signatures, and as to what is for the best interests of all concerned. None but unsecured creditors can object to a ratification of a resolution. A resolution cannot be defeated on the mere ground that by the defeat some peculiar benefit may accrue to the objecting creditor. The debtor is not required to appear at the hearing for a ratification, or submit any statements. The statute does not contemplate that the confirmatory signatures must necessarily be attached at the first meeting. The confirmatory signatures must be attached at or before the hearing for a ratification. The meeting for the purpose of adding to, or varying the original proposition, is one to follow the confirmation and recording thereof. An advance in the percentage is demonstrative of the fact that the original proposition is not for the best interest of all concerned. Creditors must prove their claims in order to vote on a resolution of composition. In involuntary proceedings, the petitioning creditors, on whose motion an order to show cause has been issued, need not prove their debts anew. If there is a concealment of assets, or a failure to name all of the creditors, this does not necessarily render the proceedings void, but the question is for the determination of the court. U. S. Dist. Ct., E. D. Missouri. In re Scott, Collins & Co., 15 Nat. Bankr. Reg. 73.

CREDITOR.

What claim may be proved: accommodation indorsement by corporation. — A creditor offered, for proof against the estate of the W. & L. M. Co., five notes signed by the firm of R. & Co., and indorsed by the bankrupt company by their treasurer, and duly protested for non-payment. The corporation was a manufacturing company, organized under the general law of Massachusetts, and consisted of four persons, who had

formerly composed a firm. There was evidence tending to show that the notes were indorsed by the corporation for the accommodation of the firm; that all the members of the company were aware of the course of dealing with that firm, and one of them objected or advised against it because he thought it unsafe; that there was a by-law of the company forbidding any officer or member from using the name of the corporation for any other than the legitimate business of the corporation. There was evidence that the petitioners bought the notes of the promisors for value, before they were due, but at a considerable discount; that statements were made at the same time by the promisors, though not, perhaps, with reference to these particular notes; that the parties had close business relations with each other. Held, that the circumstances were not such as to put the creditor on his inquiry where he bought the notes; that he was a bona fide holder for value and was as such entitled to prove them as a debt against the corporation. U. S. Dist. Ct., Dist. Mass., Feb. 23, 1877. Re Wood & Light Mowing Machine Co.; Ex parte Estabrook.

DISCHARGE.

Of member of partnership: effect of.-If a member of a firm obtains his discharge in bankruptcy, he is released from liability for his joint as well as his separate debts. The partners of the bankrupt are bound by the discharge, as well as the joint creditors. A joint creditor may prove against the separate estate of the bankrupt, and may vote for assignee, examine the debtor, and object to his discharge. He cannot compete with the separate creditors in the distribution of separate assets, but will receive dividends from any joint assets which the assignee may obtain, and from any surplus of the separate assets after the separate debts are paid. The bankruptcy of one partner, ipso facto, dissolves the partnership, and the assignee is tenant in common with the solvent partner in the joint stock. A court of equity may give either the solvent partners or the assignee the settlement of the joint affairs. It is not necessary that the firm should be declared bankrupt, in order to vest the bankrupt's share of the joint estate in his assignee. The assignee may recover at law or in equity, as the nature of the case requires from a solvent partner, what is due from him by the articles of copartnership. The assignee has the rights belonging to the whole body of creditors, or to the whole of any one class of creditors. U. S. Dist. Ct., Dist. Mass. Wilkins v. Davis, 15 Nat. Bankr. Reg. 60.

PLEADING.

1. Involuntary bankruptcy: words "insolvent," etc., in petition. The words "being insolvent or in contemplation of bankruptcy," in a petition, are not sufficient to show the condition of respondents at the time of the alleged fraudulent preference. U. S. Dist. Ct., Dist. Colorado, Jan., 1877. In re Hannibel et al.

2. Petition of corporation: verification of, by agent. — A corporation may verify its petition by the oath of its agent, whether its residence be in the district or elsewhere. Section 36, as amended, in so far as it requires petitioners, if residents of the district, to verify the petition in person, is not applicable to corporations. An agent appointed to make affidavit to a petition on behalf of a corporation need not be an officer thereof. The authority of an agent to make oath for a corporation should be set out in the affidavit or

otherwise established, and it is not sufficient to state it by way of recital in the affidavit. Ib.

3. Amendment: supplemental affidavit.- Where an affidavit to a petition is insufficient, the court may allow a supplemental affidavit to be filed by way of amendment. So, also, if the depositions as to indebtedness and acts of bankruptcy are insufficient, the court has power to allow supplement proofs to be filed, and such relief will be granted in a proper case. Ib.

NOTES OF RECENT DECISIONS. Constitutional law: wharfage fees: to what extent State may impose.-The constitution and laws of the United States prohibit the levying of taxes upon the commerce of the country, in the way of duties upon exports and imports and imposts upon vessels engaged in commerce. Whatever may be regarded as taxes of this character or may abridge the free use of the Mississippi, is unconstitutional. But a city is not prevented from charging a reasonable compensation for the use of wharves erected by it for the convenience of commerce. A municipal ordinance, which provides for wharfage fees which are not excessive, cannot be regarded as a regulation affecting prejudicially the interests of commerce or freedom of the river upon which the wharves are constructed. Such wharfage fees are not to be regarded as a tax; they are levied as a compensation for the use of the wharves. Sup. Ct., Iowa, December Term, 1876. City of Keokuk v. K. N. L. P. Co. (Cent. Law Journal).

Constitutional law: provision fining elected or appointed officer for failing to qualify. - The provision of a statute of North Carolina, prescribing a penalty of $25 against any person who is duly elected or appointed town constable and who refuses to qualify, etc., held, not in conflict with article 1, section 17, of the constitution of that State. Sup. Ct., North Carolina, Jan., 1877. London v. Headon.

Constitutional law: law exempting property from taxation for a consideration, unconstitutional.- Under a provision of an act passed by the legislature of Tennessee, wherein the mode and manner for the taxation of railroads are provided for, railroads are authorized to pay one and one-half per cent on their gross earnings, and all of the property of such companies as accept the conditions of said provision are exempted from taxation, according to the value of the company's property, equal and uniform with other taxation of property throughout the State. Held, that the provision was unconstitutional, because, in effect, for a consideration, it contracts not to tax railroad companies at all. Sup. Ct., Tennessee, Feb. 3, 1877. Ellis v. N. & R. R. R. Co.

Contract: illegal contract will not vitiate legal one if separable from it: fraudulent conveyance.-Where two contracts are made at the same time, and relate to the same subject-matter, the one legal and the other illegal, the latter will not vitiate the former if they are separate and distinct. Thus if a note, fair upon its face, be given for loaned money, and underneath, on the same paper and at the same time, is written the further agreement that the maker will in addition to the interest pay whatever tax the payee may be required to pay on the note, held, that this agreement did not vitiate the note. A conveyance made for the benefit of a creditor, which is fraudulent by construction of law, may stand as security for the real indebtedness. Not so, however, if it be fraudulent in

fact. Sup. Ct., Tennessee, Feb. 3, 1877. Howard v. Woodfolk.

Criminal practice: no appeal from verdict and judgment of "not guilty."-In a criminal prosecution where the defendant has pleaded "not guilty" to the charge, and where the case is submitted to a jury and a verdict is rendered, and the court enters judgment that the defendant be discharged and go hence without day, held, that such verdict and judgment are conclusive, and that this court cannot on an appeal set aside or reverse the verdict or judgment. Sup. Ct., Kansas, Jan. 4, 1877. State v. Crosby.

Gift: what constitutes: of shares of stock. - A being childless, and the owner of certain shares of stock had them transferred on the books of the company to B, who was an orphan niece of his wife, and who lived in his family, and was treated in all respects as his daughter. New certificates of the stock were taken out in the name of B. These certificates, after A's death, were found in his possession, inclosed in an envelope, which was inscribed with his own name and with the name of B. In two codicils to his will, made a few weeks afterward, A declared that he cherished toward, B the feelings of a father, and that he desired her to be so treated and regarded in the law as if she was really his child. Held, that B had a perfect legal title to the shares; that the circumstances of the case, and the solemn declaration made by A, rebutted the presumption of a resulting trust in favor of A; that this was a perfect and executed gift of the shares to B. Philadelphia Ct. of Com. Pleas, March 10, 1877. Foster v. Roberts.

Master and servant: when the relation exists: servant of contractor.-W. contracted with the defendants to sink a shaft in the defendants' colliery, defendants supplying two enginemen to work at the mouth of the shaft. The enginemen were paid by the defendants. Plaintiff was hired by W. to work at the bottom of the shaft. Plaintiff was injured through the negli gence of one of the enginemen, and sued defendants. Held (affirming the judgment of the Common Pleas Division), that the engineman was the servant of W. for the purpose of carrying out the sinking of the shaft, and not the servant of the defendants, so as to make them liable to plaintiff. English Ct. of App., Jan. 26, 1877. Rourke v. White Moss Colliery Co. (36 L. T. Rep. 49).

Mistake of law: money paid by government under.— Money paid by the United States government officers to an individual, under a mistaken view of the law, may be recovered back by the government. U. S. Ct. of Claims, March 9, 1877. McEralth v. United States.

Parties: holder of legal title to note may bring action thereon.-When one having the legal title to a promissory note sues the maker, it is no defense to urge that the equitable title is in another person. Suit is rightfully brought by the party in whom the legal title exists, and it can make no difference to a defendant who is equitably entitled to the process. Sup. Ct., Illinois, Jan., 1877. Caldwell v. Lawrence.

Rendition of fugitives from justice: sufficiency of indictment can be tried only in State where found.—The petitioner was arrested on a warrant issued by the governor of Massachusetts upon a requisition of the governor of Vermont. The indictment found in Vermont, upon which the petitioner was arrested, charged him with obtaining money by false representations. The petitioner contended that the indictment charged

no offense known to the laws of Vermont, and was insufficient to justify or warrant the surrender of the petitioner to the authorities of Vermont. Held, that the indictment substantially charging a crime against the laws of Vermont, its technical sufficiency must be determined by the courts of the State in which it was found, and not by this court upon habeas corpus. Sup. Jud. Ct., Massachusetts, March 5, 1877. In re Davis.

Salvage: seaman saved by boat not entitled to salvage on boat.-Libelant was second mate of defendant's ship. The ship was burned, and libelant and others escaped in a small boat belonging to the ship. Libelant claimed salvage on the boat. Held, that he was not entitled to salvage. 'As the boat appears to have saved him, quite as much as he the boat, that account is in equilibrio." U. S. Dist. Ct., Massachusetts, March 20. 1877. Price v. Sears.

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Slander: charging married man with being a whoremaster, actionable per se.-Where the plaintiff was a married man, and he was charged by the defendant with being a whoremaster, the words are actionable per se. Sup. Ct., Iowa, Dec., 1876. Georgia v. Kepford.

Statutory construction: "person."-The word "person," as used in the provision of the Revised Statutes of the United States prescribing penalties for the presentation of fraudulent claims against the government, does not include corporations. U. S. Dist. Ct., Dist. of Kansas, Feb., 1877. United States v. K. P. R. R. Co.

Subrogation: sheriff paying execution in his hands not subrogated to lien thereof.-A sheriff or other officer who pays an execution in his hands for collection, without an assignment at the time of the judgment on which it is founded, or of the debt, is not entitled to be subrogated to the lien of the creditor whose debt he has paid, as against other creditors having liens by judgment or otherwise. Sup. Ct. of App., Va., March, 1877. Clevinger v. Miller (Va. L. J.).

Suretyship: how far surety to lease discharged by distress and release: construction of lease.- Where a distress is made for rent, and afterward abandoned, a surety upon the lease is discharged only to the extent of the value of the goods distrained. A let a house to B for one year from June 14, 1872, upon condition that if the tenant remained on the premises after the expiration of the year, the contract was to continue in force for another year, and so on from year to year until legal notice should be given for a removal. During the first year, a legal notice to quit was served upon B; he, however, remained in possession until April, 1874. In an action against B's surety upon the lease, for condition broken, held, that the tenancy was not terminated by the notice to quit, the tenant holding over the second year under the terms of the contract. Sup. Ct., Pennsylvania, Feb. 5, 1877. McNamee v. Cresson (W. N. Cas.).

Taxation: under State law, of capital employed in foreign commerce not unconstitutional.-The personal property of a resident of New York is liable to taxation under State laws, and the fact that he employs such property as a capital in the business of exporting cotton to foreign countries will not render such taxation illegal under the provisions of the Federal constitution, that Congress shall have power to regulate commerce with foreign nations and among the several States and with the Indian tribes; that no tax or duty shall be laid on articles exported from any State; and

that no State shall, without the consent of Congress, lay any imposts or duties on imports or exports. New York Sup. Ct., Gen. Term, First Dep't, March 31, 1877. People ex rel. Haneman v. Com'rs of Taxes.

COURT OF APPEALS ABSTRACT.
ASSESSMENT.

Cannot be made for a sewer constructed on private property. A street was laid down upon a city map, but the land it occupied was not acquired by the city, and it was not opened as a street, though proceedings were instituted to accomplish such an end. Held, reversing decision below, that the building of a sewer by the municipal authorities upon such unopened street was a trespass, and that no assessment could be laid to pay the expense of building such sewer. In re Rhinelander. Opinion by Earl, J. [Decided March 20, 1877.]

ATTACHMENT.

Sheriff not entitled to poundage unless a sale is made.A sheriff who has seized property by virtue of an attachment under the Code is not entitled to poundage in case of the subsequent settlement of plaintiff's claim before any sale of the property by the sheriff. And the amendment to section 243 of the Code in 1865, providing that "When a settlement shall be had the amount of his poundage shall not be estimated upon any sum greater than the amount at which said settlement is made," does not operate to give such poundage. Reversing opinion below. German Amer. Bank v. Morris Run Coal Co. Opinion by Earl, J. [Decided March 20, 1877.]

CRIMINAL LAW.

1. Felonious assault under Laws 1854, chapter 74: what necessary to constitute.-To convict of a felonious assault under the provisions of Laws 1854, chapter 74, there must be proof of the concurrence of (1) an assault; (2) the absence of any justifiable or excusable cause for the assault; (3) that the assault was with a knife, dirk, dagger or other sharp, dangerous weapon: (4) that it was made with intent to do bodily harm. Filkins, plaintiff in error, v. People. Opinion by Allen, J.

2. Striking with handle of pitchfork not felonious assault.- Plaintiff was indicted for an assault under the statute with a pitchfork. The plaintiff had in his possession certain mules upon which one Carpenter claimed a lien for keeping. Carpenter with a number of other persons went to the barn where the mules were to take forcible possession of them. Plaintiff resisted the attempt, and while doing so struck the prosecutor, who was assisting Carpenter, a couple of blows with the pitchfork which he held in his hand, but did not attempt to stab with the tines. Held, not an assault under the statute. Ib.

3. Evidence in cases of felonious assault.—Held, also, that evidence of the circumstances attending the claim of Carpenter to the mules and his attempt to take them by force was admissible, both for the purpose of justifying the assault and upon the question of intent. Ib.