be observed, and to govern themselves accordingly. Wright v. R. Co., 4 Allen, 290; Lane v. Atlantic Mills, 111 Mass. 140. On the other hand, where the duties enjoined are due to the municipality or to the public at large, and not as composed of individuals, a different rule is intended to apply. This is well illustrated by the cases of Kirby v. Boylston Market, 14 Gray, 252, and Flynn v. Canton Co., 40 Md. 323, in which it was held that the owners of land abutting on streets were liable to the city alone for the breach of ordinances requiring such owners to keep sidewalks clear of snow and ice, and in good repair, and that they were not liable in damages to persons injured by their neglect to perform the duties enjoined by such ordinances This proceeds upon the ground that it is the sole duty of the city to keep the streets in good repair, and clear of snow and ice. The work done, and fines or taxes collected, in such cases, to the extent thereof, are to be considered as so far in aid of the city in the discharge of its duty. See also Taylor v. Railroad Co., supra; Heeney v. Sprague, 11 R. I. 456. And so also generally of ordinances or statutes relating specially to duties due strictly to the corporation or State.

The analogy between statutes and the ordinances of cities is of course not to be extended beyond the proper limits of municipal jurisdiction. But in matters properly of local cognizance it is necessary and eminently proper that such powers should be committed to the municipality, to be exercised through ordinances which shall be subordinate to and consistent with the general laws, or in proper cases be authorized to take their place. Cooley Const. Lim. *199. An ordinance which a municipal corporation is authorized to make, is as binding on all persons within the corporate limits as any statute or other laws of the Commonwealth, and all persons interested are bound to take notice of their existence. Heland v. Lowell, 3 Allen, 408; Vandine's case, 6 Pick. 190; Gilmore v. Holt, 4 id. 264; Johnson v. Simonton, 43 Cal. 249.

As respects the ordinance in question, it was, as we have seen, authorized by the charter, was within the proper sphere of municipal legislation, and not inconsistent with or in contravention of general laws, and though local in its application, it was obligatory upon persons within the limits of the city; and there is no reason why it should not be held to impose a legal duty, such that a civil action for damages might be maintained for a breach thereof, as in the case of like statutory duties. Hayes v. R. Co., supra; Mason v. Shawneetown, 77 Ill. 537; Flynn v. Canton Co., 40 Md. 323; Jackson v. Shawl, 29 Cal. 267. Some courts however deny the application of the rule in case of city ordinances, and insist that it is applicable solely to laws enacted by the Legislature. Heeney v. Sprague, 11 R. I. 456: Vandyke v. Harbeson, 1 Disney (Ohio), 534; Philadelphia & R. R. Co. v. Ervin, 89 Peun. St. 75. These were cases arising out of a failure to comply with ordinances similar in character to the one considered in Flynn v. Canton Co., and might have been disposed of on the same ground, and were rightly determined without necessarily involving the question we are considering.

A different view is also suggested in Chambers v. Ohio Trust Co., 1 Disney, 336; and in Knupfle v. Knickerbocker Ice Co., 84 N. Y. 491, it was held by a divided court that the result of the decisions in New York is that a breach of a municipal ordinance is evidence of negligence merely, to be considered with other facts in the case. But we do not regard the case of much value as an authority. The rule is to be regarded as a common-law rule, and it would hardly be consistent or reasonable to hold that it might be applicable to an act of the Legislature, and inapplicable where the Legislature, instead of itself enacting a law should, in a proper case, expressly authorize a munici

pal corporation to make the same law for the local jurisidiction. Suppose, for instance, that the Legislature had itself expresly enacted the substance of the ordinance in question in the charter, instead of authorizing the city council to enact it; could it be said that in the former case an injured party would be entitled to indemnity, and in the latter not? In this class of cases therefore proof of a breach of the ordinance will make a case of negligence; but of course the plaintiff must make it appear, as the court properly charged the jury in this case, that the injury complained of resulted from the alleged neglect of the duty thereby imposed; and so defendant may show, as matter of defense, that the accident occurred without his fault, or that the observance of the ordinance was immaterial as respects the plaintiff; as for instance, in the case of the omission to ring the bell of an engine, of the approach of which the plaintiff otherwise had notice.

The order denying a new trial is

Affirmed.

[See 30 Alb. L. J. 310; 40 Am. Rep. 457.-ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

COSTS EXTRA ALLOWANCE CODE, § 3253. — The plaintiffs brought the action as tax payers, and alleged in their complaint that the contract was made in violation of the village charter; that the company had not performed it in certain respects, and was fraudulently colluding with the water commissioners to have the latter accept the work. The complaint prayed judgment declaring the contract void, and enjoining the water commissioners from taking any further steps to carry it out, and for the repayment to the village of any money paid thereon. The plaintiff failed in the action, and judgment was rendered in favor of the Holly company, establishing the validity of the contract, and adjudging, as is inferred, that the company had performed the contract on its part. The General Term reversed the order of the Special Term granting an extra allowance, on the ground that the value of the contract to the Holly company, that is to say, the profits the company would have made if the contract had been performed on both sides, or in other words, the difference between the contract price and the value of the labor and machinery done and furnished by the company under the contract was, the only basis for an extra allowance, and that as no proof was given upon this point no allowance could be made. We are of opinion that the court erred in this conclusion. The Code (§ 3253) authorizes an extra allowance in certain cases, "not exceeding five per cent upon the sum recovered or claimed, or the value of the subject-matter involved." There was no sum recovered or claimed so as to bring the case within the first clause of the section. But a pecuniary right was directly involved in the action, and the value of that right was, we think, the basis for an allowance under the last clause. It is immaterial that the form of the action and the relief sought would not authorize a money judgment in favor of either party. The plaintiffs sought to avoid a contract providing for the payment to the Holly company for machinery furnished, etc., and to prevent the water commissioners from accepting performance under the terms of the contract, and thereby imposing upon the village an obligation to pay the contract price. The only interest the plaintiffs had, or which they asserted, was to relieve the village from the obligation of the contract. The village was made a party defendant, so that a judgment setting aside the contract would have been conclusive in favor of the village as to its liability of the Holly company. On the other hand, the judgment

actually rendered was conclusive in favor of the Holly company as to the validity of the contract, and its right to demand and receive the $31,000 agreed to be paid. If the Holly company upon completing its contract had sued for the consideration, and had recovered, there can be no doubt that an allowance, if granted, would be computed on the whole recovery, and not merely on the profits, or the excess of the contract price over the cost of the work and machinery. It would have been no answer that the company on non-payment might have removed the machinery

and limited its loss thereon to the difference between its actual and contract value. So if the Holly company had been defeated in an action on the contract, the whole claim would have been the basis of computation for an allowance to the defendant. The real question litigated was whether the Holly company was entitled to enforce the contract of payment made by the water commissioners, and its right having been established, the contract price for the purpose of computing the allowance was, we think, the subject-matter involved, and not the mere profits on the contract. See Ogdensburgh, etc., R. Co. v. V. & C. R. Co., 63 N. Y. 176; Atlantic Dock Co. v. Libby, 45 id. 499; Conaughty v. Saratoga County Bank, 92 id. 401. Mingay v. Holly Manuf. Co. Opinion by Andrews, J. [Decided June 9, 1885.]

UNITED STATES SUPREME COURT ABSTRACT.*

MUNICIPAL BONDS-CONSTITUTION OF MISSISSIPPI ISSUE OF BONDS BY CITY TO AID RAILROAD-ULTRA VIRES-ACT OF LEGISLATURE.-The Constitution of Mississippi, adopted December 1, 1869, provided as follows (art. 12, § 14): "The Legislature shall not authorize any county, city, or town to become a stockholder in, or to lend its credit to any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a special election, or regular election, to be held therein, shall assent thereto." A city in that State subscribed for stock in a railroad corporation, after what was called a "special election" was held, but neither the election nor the subscription was authorized by any act of the Legislature. Afterward the Legislature passed an act providing "that all subscriptions to the capital stock of the" corporation, made by any county, city, or town in this State, which were not made in violation of the Constitution of this State, are hereby legalized, ratified, and confirmed." Thereafter the city issued bonds to pay for its subscription. In a suit against the city, by a bona fide holder of coupons cut from the bonds, to recover their amount, held, (1) the intention of the Legislature to confirm and ratify the subscription could not be ascertained with certainty from the language of the act; (2) the bonds were void for want of power to issue them, notwithstanding any recitals on their face, or any acts in pais, claimed to operate by way of estopel. State v. Stoll, 17 Wall. 425. Hayes v. Mayor, etc., of Holly Springs. Opinion by Blatchford, J.

[Decided March 30, 1885.]

SUPREME COURT-JURISDICTION-REVIEW OF JUDGMENT OF HIGHEST COURT IN A STATE.-In order to

give the Supreme Court jurisdiction to review a judgment of the highest court in a State, it must appear that there has been a decision by such State court of one or more of the questions specified in section 709 of the Revised Statutes, and in the way there mentioned. It is what has been actually decided by the State court *Appearing in 5 Sup. Ct. Rep.

that is to be considered, not what might have been considered; and there must appear affirmatively upon the record, not only the question, but the decision. Detroit City Railway Co. v. Guthard. Opinion by Waite, C. J.

[Decided March 30, 1885.]

MANDAMUS-COMPELLING COURT TO DECIDE CASE.It is an elementary rule that a writ of mandamus may be used to require an inferior court to decide a matter within its jurisdiction and pending before it for judicial determination, but not to control the decision. Ex parte Flippin, 94 U. S. 350; Ex parte Railway Co., 101 id. 720; Ex parte Burtis, 103 id. 238. Here a judgment has been rendered and entered of record by the Circuit Court in a suit within its jurisdiction. The judgment is the act of the court. It is recorded ordinarly by the clerk as the ministerial officer of the court, but his recording is in legal effect the act of the court, and subject to its judicial control. The clerk records the judgments of the court, but does not thereby render

the judgments. If there is error in the judgment as rendered, it cannot be corrected by mandamus, but resort must be had to a writ of error or an appeal. Ex parte Loring, 94 U. S. 418; Ex parte Perry, 102 id. 183. Matter of Morgan. Opinion by Waite, C. J. [Decided April 6, 1885.]

D., a

BANKRUPTCY -STATUTE OF LIMITATIONS. creditor of a bankrupt, holding two securities therefor, after being cited in a proceeding commenced against him by the assignee in bankruptcy, by petition, to obtain the delivery of the two securities, as being unlawfully in his possession, delivered up one of them to the assignee in July, 1871. In November, 1872, the assignee sued D. to recover the other security, and in 1877 it was decided in that suit that D. was entitled to hold it. There being a deficiency on the debt, and the assignee having collected the security delivered to him, D. in 1879, sued the assignee to have its proceeds applied on the debt. Held, that the right of action accrued to D. in July, 1871, and was barred by the twoyears' limitation prescribed in section 2 of the Bankruptcy Act of March 2, 1867 (14 St. 518), and section 5057 of the Revised Statutes. Doe v. Hyde, Assignee, etc. Opinion by Blatchford, J. [Decided April 13, 1885.]

MANDAMUS-FUNDS IN COURT-AWARD OF.-A writ of mandamus cannot be had to compel an inferior court to pay over to the petitioner funds in such court involved in pending litigation, until the cause is desuch funds are to be disposed of. Hughes, Petitioner. termined, so that it may be known affirmatively how [Decided April 6, 1885.] Opinion by Waite, C. J.

EVIDENCE-TESTIMONY OF AGENT AS BINDING PRINCIPAL LETTER OF CASHIER.- (1) The declarations made by an officer or agent of a corporation in response to timely inquiries properly addressed to him, and relating to matters under his charge, in respect to which he is authorized in the usual course of business to give information, may be given in evidence against the corporation. The rule upon this subject has been thus laid down by this court: "Whatever an agent does or says, in reference to the business in which he is at the time employed and within the scope of his authority, is done or said by the principal, and may be proved as if the evidence applied personally to the principal." American Fur Co. v. United States, 2 Pet. 358. It is because the declaration of an agent is a verbal act and part of the res gesta that it is admissible, and whenever what he did is admitted in evidence, then it is competent to prove what he said about the act while he was doing it. Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 336; Cliquot's

Champagne, 3 Wall. 114; Cooley v. Norton, 4 Cush. 93; Hannay v. Stewart, 6 Watts, 487; Garth v. Howard, 8 Bing. 451; Bank of Monroe v. Field, 2 Hill, 445; McGenness v. Adriatic Mills, 116 Mass. 177; Morse v. Connecticut River R. Co., 6 Gray, 450; Abb. Tr. Ev. 44 As cashier, McClure had charge of all the money, securities, and valuable papers of the bank. Wild v. Bank of Passamaquoddy, 3 Mason, 505; Franklin Bank v. Steward, 37 Me. 519. It was his duty to surrender securities pledged for the loans of the bank upon payment of the loans. Fleckner v. United States Bank, 8 Wheat. 360. And although he might not be authorized to dispose of the securities of the bank without the order of the directors, yet it was within the scope of his general authority as cashier to receive offers for their purchase, and to state whether or not the bank owned securities which a customer wanted to buy. This naturally fell within his duty as the executive officer of the bank and the custodian of its assets. His statement to a person who was in treaty to purchase, that the bank was not the owner of a certain security in his manual possession as cashier, was clearly within the line of his duty, and was therefore binding on the bank. (2) A letter written upon the paper of a bank, and by the person showing to be its cashier, and appearing with reasonable certainty to refer to the business of the bank and to the matter in controversy, is admissible in evidence when there is nothing in the case to show that any other letters passed between the writer and the person to whom such letter was addressed. First Nat. Bank, etc., v. Stewart. Opinion by Woods, J.

[Decided March 30, 1885.]

CONSTITUTIONAL LAW-LAW IMPAIRING OBLIGATION OF CONTRACTS- TAXATION OF RAILROAD COMPANYEXEMPTION-SUCCESSOR IN INTEREST.--(1) A railroad company, having obtained its charter under a general law, which the Constitution of the State granting it declares to be subject to legislative alteration and amendment, and its certificate of incorporation being the conveyance to it by the name it has chosen, as a purchaser at a judicial sale and recorded as required, does not thereby succeed to the exemption from taxation accorded to the company to which it has succeeded by such purchase, so as to put it beyond the legislative power to subject its property to taxation thereafter without impairing the obligation of contracts. * * * The property to be exempt is the property of that company and of no other, and while it continues to be the property of that company, and no longer. And the exemption is to cease when the profits of that particular company have reached the limit designated, and that limit is measured by a ratable proportion fixed with reference to the capital to be subscribed to form that company and no other. And there are no words of assignability attached, either expressly or by any implication, to this immunity. The reasons for considering such an exemption to be a privilege pertaining to the corporation, and not inhering in the property and passing to an assignee, were fully stated by Mr. Justice Field in delivering the opinion of the court in the case of Morgan v. Louisiana, 93 U. S. 217, and have been uniformly applied to similar cases subsequently. Wilson v. Gaines, 103 U. S. 417; Louisville & N. R. Co. v. Palmes, 109 id. 244; Memphis & L. R. R. Co. v. Railroad Com'rs, 112 id. 609; St. Louis, I. M. & S. R. Co. v. Railroad Com'rs, 113 id. 465. And the circumstances of the case distinguish it from that of Humphrey v. Pegues, 16 Wall. 244. (2) An exemption from taxation upon certain conditions granted by charter to a certain corporation specifically named, does not necessarily accrue to a new corporation which, under another name,

succeeds to the old corporation as purchaser. It can in no sense be regarded as the identical corporate body, of which it became the successor, merely discharged by a process of insolvency from further liability for past debts, which is the view pressed upon us in argument by counsel for plaintiff in error. The language of the statutes expressly contradicts this assumption. The old corporation in terms is dissolved. The purchasers are as explicitly declared to become a corporation, and its corporate powers are conferred by reference to those which had belonged to their predeThe language of the law, the reason involved in its provisions, and the precedents of cases heretofore decided by this court, foreclose further controversy on this point. Shields v. Ohio, 95 U. S. 319; Railroad Co. v. Maine, 96 id. 499; Railroad Co. v. Georgia, 98 id. 359; Louisville & N. R. Co. v. Palmes, 109 id. 244. Chespeake, etc., Railroad Co. v. Miller. Opinion by Matthews, J.

cessors.

OF FACTS PROPERLY PLEADED- FORCE OF DECREE.

A confession of facts properly pleaded dispenses with proof of those facts, and is as effective for the purposes of the suit as if the facts were proved; and a decree pro confesso regards the statements of the bill as confessed. By the early practice of the civil law, failure to appear at the day to which the cause was adjourned was deemed a confession of the action; but in later times this rule was changed, so that the plaintiff, notwithstanding the contumacy of the defendant,only obtained judgment in accordance with the truth of the case as established by an ex parte examination. Keller Proced. Rom.,§ 69. The original practice of the English court of chancery was in accordance with the later Roman law. Hawkins v. Crook, 2 P. Wms. 556. But for at least two centuries past, bills have been taken pro confesso for contumacy. Id. Chief Baron Gilbert says: "Where a man appears by his clerk in court, and after lies in prison, and is brought up three times to court by habeas corpus, and has the bill read to him, and refuses to answer, such public refusal in court does amount to the confession of the whole bill. Secondly. When a person appears and departs without answering, and the whole process of the court has been awarded against him after his appearance and departure, to the sequestration; there also the bill is taken pro confesso, because it is presumed to be true when he has appeared, and departs in despite of the court, and withstands all its process without answering." Forum Rom. 36. Lord Hardwicke likened a decree pro confesso to a judgment by nil dicit at common law, and to judgment for plaintiff on demurrer to the defendant's plea. Davis v. Davis, 2 Atk. 21. It was said in Hawkins v. Crook, qua supra, and quoted in 2 Eq. Cas. Abr. 179, that "the method in equity of taking a bill pro confesso is consonant to the rule and practice of the courts at law, where if the defendant makes default by nil dicit, judgment is immediately given in debt, or in all cases where the thing demanded is certain; but where the matter sued for consists in damages, a judgment interlocutory is given; after which a writ of inquiry goes to ascertain the damages, and then the judgment follows." The strict analogy of this proceeding in actions of law to a general decree pro confesso in equity in favor of the complainant, with a reference to a master to take a necessary account, or to assess unliquidated damages, is obvious and striking. A carefully prepared history of the practice and effect of taking bills pro confesso is given in Williams v. Corwin, Hopk. Ch. 471, by Hoffman, master, in a report made to Chancellor Sanford, of New York, in which the conclusion come to (and adopted by the chancellor), as to the effect of taking a

bill pro confesso, was that "when the allegations of a bill are distinct and positive, and the bill is taken as confessed, such allegations are taken as true, without proofs," and a decree will be made accordingly; but "where the allegations of a bill are indefinite, or the demand of the complainant is in its nature uncertain, the certainty requisite to a proper decree must be afforded by proofs. The bill, when confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty; but in respect to matters not alleged with due certainty, or subjects which from their nature and the course of the court require an examination of details, the obligation to furnish proofs rests on the complainant." We may properly say therefore that to take a bill pro confesso is to order it to stand as if its statements were confessed to be true; and that a decree pro confesso is a decree based on such statements, assumed to be true (1 Smith Ch. Pr. 153), and such a decree is as binding and conclusive as any decree rendered in the most solemn manner. "It cannot be impeached collaterally, but only upon a bill of review, or [a bill] to set it aside for fraud." 1 Daniell Ch. Pr. (1st ed.) 606; Ogilvie v. Herne, 13 Ves. 563. In the English practice, it is true, as it existed at the time of the adoption of our present rules (in 1842), the defendant, after a decree pro confesso and a reference for an account, was entitled to appear before the master and to have notice of and take part in the proceedings, provided he obtained an order of the court for that purpose, which would be granted on terms. 2 Daniell Ch. Pr. (1st ed.) 804; id. (2d ed. by Perkins) 1358; Heyn v. Heyn, Jac. 49. The former practice in the court of chancery of New York was substantially the same. 1 Hoff. Ch. Pr. 520; 1 Barb. Ch. Pr. 479. In New Jersey, except in plain cases of decree for foreclosure of a mortgage (where no reference is required), the matter is left to the discretion of the court. Sometimes notice is ordered to be given to the defendant to attend before the master, and sometimes not; as it is also in the chancellor's discretion to order a bill to be taken pro confesso for a default, or to order the complainant to take proofs to sustain the allegations of the bill. Nixon's Digest, "Art. Chancery," § 21; Gen. Ord. in Chancery, XIV, 3-7; Brundage v. Goodfellow, 8 N. J. Eq. 513. As we have seen, by our eighteenth rule in equity, it is provided that if the defendant make default in not filing his plea, demurrer, or auswer in proper time, the plaintiff may, as one alternative, enter an order as of course that the bill be taken pro confesso, "and thereupon the cause shall be proceeded in ex parte." The old rules, adopted in 1822, did not contain this ex parte clause; they simply declared that if the defendant failed to appear and file his answer within three months after appearance day, the plaintiff might take the bill for confessed, and that the matter thereof should be decreed accordingly; the decree to be absolute unless cause should be shown at the next term. See Equity Rules VI, and X, of 1882, Wheat. vii., and Pendleton v. Evans, 4 Wash. C. C. 366; O'Hara v. MacConnell, 93 U. S. 150. Under these rules the Eng lish practice was left to govern the subsequent course of proceeding, by which, as we have seen, the defendant might have an order to permit him to appear before the master and be entitled to notice. Whether under the present rules a different practice was intended to be introduced, is a question which it is not necessary to decide in this case. Thomson v. Wooster. Opinion by Bradley, J.

[Decided March 30, 1885.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

MUNICIPAL CORPORATION-MISAPPROPRIATION OF FUNDS-ULTRA VIRES.-An ordinance making an ap*Appearing in 23 Federal Reporter.

propriation of the funds of a city, derived from taxation, for purposes wholly beyond the purview of municipal government, is a wrongful appropriation of the funds held in trust for the tax payers and people to pay the alimony and legitimate expenses of the city, and is in short ultra vires, illegal, null and void. See acts La. 1882, No. 20, pp. 20, 21. §§ 7, 8; 1 Dill. Corp., § 52 et set.; Hood v. Lynn, 1 Allen, 103; Tash v. Adams, 10 Cush. 252; Claflin v. Hopkinton, 4 Gray, 502; Murphy v.Jacksonville, 18 Fla. 318; Grant Co. v. Bradford, 72 Ind. 455; Henderson v. Covington, 14 Bush, 312; Cornell v. Guilford, 1 Den. 510; Hodges v. Buffalo, 2 id. 110; Halstead v. Mayor, etc., of New York, 3 N.Y. 433; New London v. Brainard, 22 Conn. 552. The principle that a municipal corporation can have no other power than those derived from constitutional or legislative grants, expressly or by necessary implication, is well settled in Louisiana, and is settled for the city of New Orleans, in Guillotte v. New Orleans, 12 La. Ann. 432. The illegality and nullity of the ordinance being clear, the question remaining for decision is as to the jurisdiction and propriety of an injunction in this particular case. "In this country the right of property holders or taxable inhabitants to resort to equity to restrain municipal corporations and their officers from transcending their lawful powers or violating their legal duties, in any mode which will injuriously affect the tax payers-such as making an unauthorized appropriation of the corporate funds, or an illegal disposition of the corporate property, or levying and collecting void and illegal taxes and assessments upon real property under circumstances presently to be explained-has been affirmed or recognized in numerous cases in many of the States. It is the prevailing doctrine on this subject." Dill. Mun. Corp., § 731. In New London v. Brainard, 22 Conn. 552, which was a case of injunction to restrain appropriation to celebrate the Fourth of July, the Supreme Court of Connecticut, in holding that a citizen and taxpayer is entitled to an injunction to restrain an illegal appropriation of the money of the city, said in substance that it is so, because the city corporation holds its moneys for the corporators, to be expended for legitimate corporate purposes; and a misappropriation of these funds is an injury to the tax payer, for which no other remedy is so effectual or appropriate. See Dill.. § 732 et seq., for the many cases sustaining this doctrine. And in Crampton v. Zabriskie, 101 U. S. 609, the Supreme Court of the United States seem to indorse fully the position of Dillon. Cir. Ct. Ed. La. The Liberly Bell. Opinion by Pardee, J. [Decided June 4, 1885.]

ING EMPLOYEES TO LEAVE SERVICE-CONTEMPT-CONSPIRACY TO DO UNLAWFUL ACT-LIABILITY OF ALL FOR ACTS OF INDIVIDUAL CONSPIRATOR.—(1) Where employees of a railroad company that is in the hands of a receiver appointed by the court, are dissatisfied with the wages paid by the receiver, they may abandon the employment, and by persuasion or argument induce other employees to do the same; but if they resort to threats or violence to induce the others to leave, or accomplish their purpose, without actual violence, by overawing the others by preconcerted demonstrations of force, and thus prevent the receiver from operating the road, they are guilty of a contempt of court, and may be punished for their unlawful acts. (2) Where a party of men combine with intent to do an unlawful thing, and in the prosecution of that unlawful intent one of the party goes a step beyond the balance of the party, and does acts which the balance do not themselves perform, are all responsible for what the one does. It is essential however that there should be a concert of action-an agreement to do some unlawful

ASSIGNMENT FOR CREDITORS - PREFERENCES STRICTLY CONSTRUED.-Deeds of preferences are to be construed strictly. They are in conflict with that prime and favorite maxim of chancery courts that "equality is equity." When they fail to make conveyance of property to creditors intended to be preferred over others, it is neither the duty nor disposition of the courts to supply by construction phrases necessary to effect their purposes. If express and appropriate language is wanting in them for such purpose, then the grant fails and falls. Authority is not wanting for the propositions of law thus announced. See Smith v. Post, 3 Thomp. & C. 647; Prince v. Shepard, 9 Pick. 184; Greene v. Morse, 4 Barb. 244, 345; Tate v. Liggatt, 2 Leigh, 106. In the case of Prince v. Shepard Chief Justice Parker said: "We also consider this deed as capable of being construed as a several conveyance to each of the grantees in proportion to his debt." The learned judge was commenting on a deed in which the Princes had, by deed of assignment, secured a debt which was bona fide, and had also secured a debt to one Hodges, which was fictitious and fraudulent, as in the case at bar. The chief justice continued: "The attaching officer had a right to attach,as belonging to the debtors,so much of the property as was fraudulently assigned to Hodges, that being still, in regard to the creditors, left in the Princes," etc. As showing that in the event of a grant in favor of a fraudulent and fictitious claim being embodied in a deed it is no grant at all, the property pretended to be conveyed remaining in the grantor as absolutely as if no deed had been made, see Prince v. Shepard, supra; Shipe v. Repass, 28 Gratt. 729; Boynton v. McNeal, 31 id. 462; Cox v. Wilder, 2 Dill. 45. Cir. Ct. E. D. Va. Market Nat. Bank v. Hofheimer. Opinion by Hughes, J. [Decided Dec., 1884.]

WAREHOUSEMAN-ADVERSE CLAIMANTS OF GOODSINTERPLEADER. - A warehouseman whose lien for storage is not disputed cannot maintain a bill of interpleader to protect himself against the claim of his bailor and that of a third person who asserts an adverse title to the goods stored with him as against the bailor, but must defend himself at law. It is sufficient to refer to Crawshay v. Thornton, 2 Mylne & C. 1; Marvin v. Ellwood, 11 Paige, 365; First Nat. Bank v. Bininger, 26 N. J. Eq. 345. The hardship of the case has frequently been adverted to by the authorities; and in England a remedy has been given by statute. Com. Law Proc., Act 1860, § 12. See Attenborough v. St. Katharine's Dock Co., 3 C. P. Div. 373, 377; id. 450. As is said by Judge Story: "The party holding the property must defend himself as well as he can at law, and he is not entitled to the assistance of a court of equity, for that would be to assume the right to try merely legal titles upon a controversy between different parties where there is no privity of contract between them and the third person who calls for an interpleader.' Story Eq., § 820. Cir. Ct. S. D. N. Y. Bartlett v. The Sultan. Opinion by Wallace, J. [Decided March, 1885.]

JURISDICTION CIRCUIT COURT-ATTACHMENT FOREIGN CORPORATIONS.-Defendant corporations, organized under the laws of Maine, but having their principal place of business in Massachusetts, where a majority of their officers and directors resided, were sued in the Circuit Court for the District of Massachu setts; the writs being served by attachment of corporate property within the latter State, and by service on the corporate officers. Held, on pleas to the jurisdiction, that the court had no jurisdiction. The act of 1875 (18 St. 470), following the eleventh section of the judiciary act of 1879, provides that no civil suit shall be brought against any person in any other district than that whereof he is an inhabitant, or shall be found at the time of serving the writ. Courts of the United States cannot acquire jurisdiction by an attachment of property merely, but there must be a personal service of the writ or process upon the defendant, or a voluntary appearance. Pennoyer v. Neff, 95 U. S. 714; Ex parte Railway Co., 103 id. 794; Nazro v. Cragin, 3 Dill. 474; Parsons v. Howard, 2 Woods, 1; Anderson v. Shaffer, 10 Fed. Rep. 266; Mohr & Mohr Distilling Co. v. Insurance Co., 12 id. 474; Saddler v. Hudson, 2 Curt. 7. It is evident therefore that the court could not acquire jurisdiction simply by the attachment of the property of the defendant corporations under the provisions of the Massachusetts statute. Gen. St., ch. 105, § 28. The general rule is that a corporation cannot migrate beyond the State by whose laws it is created. Day v. India Rubber Co., 1 Blatchf. 628. But this rule has been modified, and it is now held that a corporation may be found in a foreign State, within the meaning of the Federal law, when it exercised its powers by express consent of the Legislature of such State (Railroad Co. v. Harris, 12 Wall. 65); or when it is required by a general law of the State to appoint an agent for the service of process as a condition to the transaction of business within the State (Lafayette Ins. Co. v. French, 18 How. 404; Ex parte Schollenberger, 96 U. S. 369), or when, under a general law of the State, foreign corporations are made liable to suit without the appointment of an agent for that particular purpose. Williams v. Empire Transp. Co., 14 O. G. 523; Wilson Packing Co. v. Hunter, 7 Rep. 455; St. Clair v. Cox, 106 U. S. 350; A corporation of one State cannot do business in another State without the latter's consent, expressed or implied; and that consent may be accompanied with such conditions as it may think proper to impose. St. Clair v. Cox, supra. When the State by local law provides that foreign corporations doing business in the State shall be amenable to suit, such foreign corporations thereafter carrying on business in the State are liable to suit. But clearly, by the great weight of authority, this rule has not been extended so as to permit a corporation to be sued in a foreign State because it carries on business there, in the absence of a State law authorizing such suit. The Supreme Court say, in Lafayette Ins. Co. v. French: "We limit our decision to the case of a corporation acting in a State foreign to its existence under a law of that State, which recognized its existence for the purposes of making contracts, and being sued on them through notice to its contracting agents." In Railroad Co. v. Harris the court said: It [the corporation] cannot migrate, but may exercise its authority in a foreign territory upon such conditions as may be prescribed by the law of the place. One of these conditions may be that it shall consent to be sued there. If it do business there, it will be presumed to have assented." Chief Justice Waite thus defines the rule in Railroad Co. v. Koontz, 104 U. S. 5: "It is well settled that a corporation of one State doing business in another is suable where its business is done, if the laws make provision to that effect." Perhaps the latest ex