a field separated from the cows, so that a bona fide purchaser or mortgagee without notice would have been protected. Was the plaintiff such mortgagee? He took the mortgage to secure an indebtedness incurred many months before and not yet due, and without any new consideration. The mortgage, though requested, was purely voluntary, and gave the mortgagee no greater right or interest in the calves than the mortgagor possessed. Bowman v. Van Kuren, 29 Wis. 209; Body v. Jeusen, 33 id. 409; Buy v. Coddington, 5 Johns. Ch. 54; S. C., 9 Am. Dec. 268; Atkinson v. Brooks, 26 Vt. 569; S. C., 62 Am. Dec. 592. To constitute a bona fide purchaser or mortgagee there must not only be an absence of notice, but also a payment of or fixed liability for the consideration. Nantz v. McPherson, 7 T. B. Mon. 597; S. C., 18 Am. Dec. 216; Cummings v. Coleman, 7 Rich. Eq. 509; S. C., 62 Am. Dec. 402; Wynn v. Carter, 20 Wis. 107. The judgment of the Circuit Court is affirmed. CRIMINAL LAW-RAPE-EVIDENCE. MARYLAND COURT OF APPEALS. FEBRUARY 6, 1885. SHARTZER V. STATE.* On a trial for rape the prosecutrix cannot be asked whether she had previously had connection with a person other than the prisoner. Evidence in regard to the general character of the prosecutrix for truth and veracity, or for chastity, is admissible, but not proof of specific acts, which tend to show that she is an immoral person. APPEAL from the Circuit Court for Allegany County The appellant was tried and convicted in the court below on an indictment for committing rape. The case is further stated in the opinion of this court. William Walsh, for appellant. Charles B. Roberts, attorney-general, for apppellee. ROBINSON, J. The appellant was tried for cominitting a rape, and the main question on this appeal is whether the prosecutrix could be asked whether she had previously had connection with another person other than the prisoner. The decisions on this question, it must be admitted, have not been uniform either in England or in this country. Plausible reasons have been assigned and adjudged cases are to be found, both for and against the admissibility of such evidence, and some courts have gone so far as to allow the prisoner to prove specific acts on the part of the prosecutrix. At the argument I had, I must confess, some difficulty in regard to the matter, but upon further consideration we are all of opinion that the objection to the question was properly sustained by the court. The accusation, it is true, necessarily involves the question of consent or no consent on the part of the prosecutrix, but the mere fact that she may have had connection with another person does not tend to prove that she gave consent to the prisoner. And this is the real question at issue before the jury. Besides, if the question can be asked as to one person, it may be asked as to another, and thus the whole history of the prosecutrix's life might be gone into, and this too without notice to her. Instead of the one issue we should have a number of collateral issues, involving an inquiry into matters as to which the prosecutrix might be wholly unprepared. In Rex v. Hodgson, Eng. Crown cases, 1 Russ. & Ry. 211, the prisoner was tried for committing a rape, and *S. C., 63 Maryland Reports, 149. his counsel proposed to ask the prosecutrix "whether she had not before had connection with other persons? and whether she had not before had connection with a particular person named?" The objection to the question was sustained by Mr. Baron Wood, before whom the case was tried, and the prisoner having been found guilty, the question was reserved for the consideration of the judges. It was first heard before eight judges, but Mansfield, C. J., MacDonald, C. B., Grose, J., and Lawrence, J., being then absent, it was postponed for further consideration to the Hilary Term, when all the judges being present, it was again heard, and they were all of opinion that the question was inadmissible. Here was then a deliberate decision of the twelve judges in England. In the subsequent case however of Regina v. Robins, 2 Moody & Robinson, 512, the prosecutrix having on cross-examination denied that she had had connection with other than the prisoner, Coleridge, J., after consulting Erskine, J., decided that it was competent for the prisoner to prove the prosecutrix had had connection with the persons named for the purpose of contradicting her. In the still later case of The Queen v. Holmes & Furness, L. R., 1 Crown Cas. Res. 334, the prosecutrix having on cross-examination denied that she had had connection with one Robert Sharp, the counsel for the prisoner offered to prove by Sharp that he had had connection with her, but the prosecution objected to the question, and the court refused to admit the evidence. The prisoners were found guilty, and the question was reserved for the decision of the court for Crown Cases Reserved, consisting of Kelly, C. B., Byles, J., Pigott, B., Lush, J., and Hannen, J. The prosecutrix had denied having intercourse or connection with Sharp, and the precise question before the court was whether the defense had the right to prove by Sharp that he had had connection with her. But the judges in delivering their opinions review all the decisions in regard to the admissibility of evidence on a trial for rape, and expressly affirm the ruling of the twelve judges in Rex v. Hodgson, and overrule the decision of Coleridge, J., in Reg. v. Robins. In referring to Rex v. Hodgson, Kelly, C. B., says: "That case was heard first before eight of the judges, and afterward before the whole number. It was an actual decision that the prosecutrix on a charge of rape was not bound to answer such a question as that here put." This decision was made in 1871, and the law in regard to the question ought to be considered as settled in England. In this country the decisions are somewhat conflicting. In some States the courts have held that not only may the prosecutrix be asked in regard to having had previous connection with other persons, but that evidence is admissible for the purpose of proving such intercourse as bearing on the question of consent. Titus v. State, 7 Baxt. (Tenn.) 132; People v. Benson, 6 Cal. 221; State v. Reed, 39 Vt. 417; State v. Johnson, 28 id. 512. The weight of authorities is however, we think, against this view. State v. Knapp, 45 N. H. 148; Comm. v. Regan, 105 Mass. 593; State v. Turner, 1 Houst. C. C. (Del.) 76; Richie v. State, 58 Ind. 355; State v. Vadnais, 21 Minn. 382; McCombs v. State, 8 Ohio St. 643: Pleasant v. State, 15 Ark. 624. After a full examination of all the cases, and the principles on which they are based, we are of opinion that the prosecutrix could not be asked the question whether she had previously had connection with another person. The objection to the evidence offered in the second bill of exception was also properly sustained. The State proved by Dr. Keller that on the day after the alleged offense he examined the prosecutrix, a girl not quite thirteen years of age, and found the hymen ruptured, and her private parts slightly swollen and iu- | flamed, and sensitive to the touch, and further said, that in his opinion the hymen might have been destroyed by natural causes, and the inflammation might have been produced by causes other than coition. The prisoner then offered to prove by one Lipscomb that his brother, more than a year prior to the date of the alleged offense, had connection with the prosecutrix in his, witness', presence. This evidence, if offered to prove a specific act, was clearly inadmissible, and if offered to contradict or rebut the evidence of Dr. Keller, it was equally inadmissible. Dr. Keller testified he found the hymen ruptured, but expressed no opinion as to the time when it was ruptured. Besides, the prisoner in his own testimony admitted he had connection with the prosecutrix on the day charged in the indictment, but said it was with her consent. With this admission, the evidence of Dr. Keller was wholly immaterial. The evidence offered in the third and fourth bills of exception was irrelevant, and in no manner pertinent to the issue. Evidence in regard to the general character of the prosecutrix for truth and veracity, or for chastity, was admissible, but not proof of specific acts which tend to show that she was an immoral person. Rulings affirmed and cause remanded. CRIMINAL LAW-ABORTION-DYING DECLARA- PENNSYLVANIA SUPREME COURT, OCTOBER 5, 1885. - RAILING V. COMMONWEALTH. On the trial of an indictment charging the administration of ject? That inquiry involves the necessity of an examination of our criminal statute against abortion. It consists of two sections, the 87th and 88th, of the Crim. Code of 1860. The 87th provides that if any person shall unlawfully administer any drug or substance to a pregnant woman, or use any instrument with intent to procure her miscarriage, and she or the child shall die in consequence of such act, such person shall be guilty of felony, and shall be sentenced to pay a fine not exceeding $500, and to undergo imprisonment at labor not exceeding seven years. The 88th section provides that if any person, with intent to procure the miscarriage of any woman, shall unfawfully administer to her any drug or substance, or use any instrument or other means with like intent, he shall be guilty of felony, and be sentenced to pay a fine not exceeding $500, and undergo an imprisonment at labor not exceeding three years. In the last case the offense is complete without the death of the woman or child. In both cases the grade of the offense is the same felony. In both the acts done by the prisoner are the same. In the first, if those acts are followed by the death of the mother or child as a consequence, that is, in the relation of effect to a cause, a difference results in one of the penalties imposed. The possible fine is the same, but the possible imprisonment is longer, seven years instead of three. The facts which constitute the crime are precisely the same in both cases, to-wit, the administering the drug or using the instrument with intent to procure a miscarriage. It follows that the death is no part of the facts which go to make up or constitute the crime. It is complete with the death or without it. The death therefore considered in and of itself, is not a constituent element of the offence. It may bappen or it may not. If it does not happen a certain possibility of penalty follows. If it does happen, the same character of penalty results, but with a larger possibility, not a certainty, in one of the items. This seems to be a precise expression of the difference between the cases a drug with intent to procure a miscarriage, whereby provided for in the two sections. This being so, the death resulted, the dying declarations of the deceased are not competent evidence against the defendant. question recurs, is the difference between the two of such a character as to change the application of the ERROR to the Court of Quarter Sessions of Cum-rule of law relating to the admissibility of dying decla berland county. F. E. Beltzhoover and S. Hepburn, for plaintiff in error. John T. Stuart and H. S. Stuart, for defendant in error. GREEN, J. The principal question in this case is that which relates to the admissibility of the dying declarations of Annie Foust. The defendant was charged with administering to her a drug with intent to procure a miscarriage, and it was also charged that her death resulted as a consequence. There were four counts in the indictment, and all of them charged the death of the woman as the result of the defendant's unlawful act. It is entirely unquestioned that dying declarations are admissible only in homicide cases as a rule, and that the death of the deceased must be the subject of the charge, and the circumstances of the death the subject of the declaration. 1 Greenl. Ev. 156 (13th ed.); Whart. Cr. Ev. 276; Whart. Cr. Law, 669, et seq. rations. Of course they are not admissible if death does not result as a consequence from the unlawful acts. Therefore if the woman should subsequently die from some entirely different and independent cause, her dying declaration in relation to a prior miscarriage would be clearly incompetent. In case she does die in consequence of the unlawful acts, the crime charged and tried is not homicide in any of its forms, but the felony of administering a drug or using an instrument with intent to produce a miscarriage. In its facts and in its essence, it is the same crime that is charged and tried if no death results. The death, when it occurs, is an incident, the sole purpose of which is to determine whether the imprisonment of the defendant may be longer than when death does not occur. The facts which constitute the crime may not be proved by any declarations of the woman, when death does not follow, or when it follows from some other cause. Why then should the very same facts be proved by such declarations when death does result? Not because it is a homicide case, and the It is equally unquestioned that there is no grade of rule as to dying declarations admits them in such homicide involved in this case, the offense charged cases, because it is not a case of homicide in any being the one commonly known as abortion. It is ar- point of view. Not because the death is the subject of gued however with much force, that the death of the the charge, for the charge is the attempted or accomwoman, when it occurs, is a necessary ingredient of plished miscarriage by means of a drug or instrument. the offense under our statute, and therefore brings the That crime is as fully completed without the death as case within the rule above stated. It is claimed that with it. The death therefore is not an essential inthe death is, in part at least, the subject of the charge.gredient of it. Its function under the statute, when In one sense this is true. But the question is, is it so it occurs, as a consequence, is not to determine the in the real sense of the rule which controls the sub- | factum, or the character, or the grade of the crime, but which the declarations are receivable as testimony. It is not received upon any other ground than that of necessity in order to prevent murder going unpunished. What is said in the books about the situation of the declarant, he being virtually under the most solemn sanction to speak the truth, is far from pre the character of the penalty to be endured by the Believing this to be the true ground upon which to place the admissibility of dying declarations, it will be seen at once that they are incompetent, except in case of actual homicide, where the killing is the very substance and subject of the criminal accusation on trial. This we hold to be the true sense in which to interpret the rule that such declarations are only admissible where the death is the subject of the charge. All the text books and a host of judicial decisions assert that the rule of admissibility is confined to cases of homicide. Thus this court, in Brown v. Commonwealth, 23 P. F. S. 327, state the rule,quoting from Wharton's Am. Crim. Law, 669, in these words: "The dying declarations of a person who expects to die, respecting the circumstances under which he received a mortal wound, are constantly admitted in criminal prosecutions where the death is the subject of criminal inquiry, though the prosecution be for manslaughter, though the accused was not present when they were made, and had no opportunity for crossexamination, and against or in favor of the party charged with the death." A. far better reason in support of the rule, as it seems to us is, that dying declarations are admitted from the necessity of the case, and in order that murderers may not go unpunished. Such a reason only can justify their admission in cases involving the life of the accused. While ordinarily the precautions against illegitimate testimony increase with the danger menacing the accused, in this one exceptional case of homicide they are relaxed, and the rule which excludes mere declarations in all other cases is removed. In Wharton's Crim. Ev. 278, the rule is thus stated: "Dying declarations are admitted from the necessity of the case to identify the prisoner and the deceased, to establish the circumstances of the res gestæ, and to show the transactions from which the death results." In Greenl. Ev., vol. 1 (13th ed.), 156, the writer says: "These or the like considerations, have been regarded as counter-balancing the force of the general principle above stated, leaving this exception to stand only upon the ground of the public necessity of preserving the lives of the community by bringing man-slayers to justice. For it often happens that there is no third person present to be an eye witness to the fact; and the usual witness in other cases of felony, namely, the party injured, is himself destroyed." In the foot note two to the above section, the opinion of Judge Redfield is quoted in the following words: "But it was from a misapprehension of the true grounds upon There is a vast number of cases in which, where the prisoner is tried for a crime other than homicide, the dying declarations of the person upon whom the crime was perpetrated are inadmissible though they relate to the circumstances of the crime. Thus in Rex v. Lloyd, 4 Carr. & P. 233, it was held that on an indictment for robbery the declaration in articulo mortis of the party robbed is not admissible in evidence. Bolland, B., said: "I think that declarations in articulo mortis are not admissible in evidence to make out a charge of robbery; nor indeed any other charge except those in which the death of the deceased person by whom the declaration was made is the subject of the inquiry." A citation of this class of cases is not necessary as they are quite familiar and are not at all disputed. It only remains to consider the course of authority upon the very question now before us. It has never heretofore been before this court. But in England and several of the States it has been considered and determined, and the weight of authority seems to be quite decidedly against the admissibility of the evidence. Thus in Rex v. Hutchinson, 2 B. & C. 608, note A, the prisoner was indicted for administering savin to a woman pregnant but not quick with child, with intent to procure abortion. The woman was dead, and for the prosecution evidence of her dying declaration upon the subject was tendered. The court rejected the evidence, observing that although the declaration might relate to the cause of the death, still such declarations were admissible in those cases alone where the death of the party was the subject of the inquiry. In Reg. v. Hind, 8 Cox C. C. 300, the defendant was indicted for using instruments upon a woman with intent to produce an abortion in consequence of which she died. It was held that her dying declarations in relation to the offense were inadmissible. The same course was followed in the State of New York in the case of the People v. Davis, 56 N. Y. 95, where the statute is quite similar to our own, the penalty being increased when the woman dies in consequence of the unlawful acts. It was held that the dying declarations of the woman were incompetent on the general ground that the death was not the subject of the charge. In the case of the State v. Harper, 35 Ohio St. 78, the same doctrine was held under a statute almost identical with ours. The chief justice said: "That was an indictment for unlawfully using an instrument with the intent of producing an abortion, and not an indictment for homicide. State v. Barker, 28 Ohio St. 583; People v. Davis. 56 N. Y. 96. The death was not the subject of the charge and was alleged only as a consequence of the illegal act charged, which latter was the only subject of investigation. Did the court err in rejecting the dying declaration in proof of the charge? We think not. The general rule is that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declaration. Rex v. Mead, 2 B. & C. 605; 1 Greenl. Ev. 156; Rex v. Lloyd, 4 C. & P. 233." On the other hand the Supreme Court of Indiana has held that such declarations were admissible in an indictment under a similar statute. Montgomery v. State, reported in 3 Crim. Law Mag. 523. In State v. Dickinson, 41 Wis. 299, the declarations were admitted, but by the statute of that State the offense is expressly made manslaughter where the woman dies, and the case was therefore one of homicide and within the rule. The case in Indiana appears to be the only one in a court of last resort in which the declarations have been held admissible. After a careful examination of the opinion in that case, and also of two other cases decided by Courts of Quarter Sessions in our own State, we feel constrained to say that we think the better, and the safer rule is to limit the admissibility of dying declarations to cases of homicide only. We are therefore of opinion that the learned court below was in error in receiving the declarations of Annie Foust in this case and for that reason the judgment must be reversed. The second assignment is not sustained. The third, fourth and fifth become immaterial, in consequence of our decision rejecting the declarations. The sixth and seventh assignments are to some extent justified by the language of the charge, but we do not feel disposed to reverse on them. The eighth assignment is not sustained, and the ninth does not set out any specific words of the charge, and does not appear to be justified by its general substance. The judgment is reversed and the record is remanded to the court below for further proceedings together with this opinion setting forth the causes of reversal. NEW YORK COURT OF APPEALS ABSTRACT. --- CONSTITUTIONAL LAW-EMINENT DOMAIN-TITLE OF ACT OF LEGISLATURE-CORPORATE LIABILITY-GUARANTY TO PROPERTY OWNERS COMMISSIONERS TO ASSESS DAMAGES ACTION BY A MAJORITY NOTICE-DEPARTMENT OF PUBLIC PARKS-JURISDICTION -MUNICIPAL CONSENT-MAINTAINING PUBLIC PARKS OUTSIDE OF CORPORATE LIMITS.-The usual test as to whether a bill is in conflict with the provision of the Constitution requiring that a private or local bill shall embrace but one subject, which shall be expressed in the title, is the inquiry whether the title was so framed as to be deceptive or misleading, and consummated the evil at which the constitutional prohibition was aimed. Where no such evil lurks in the title, and the provisions criticised may be easily and reasonably grouped within the scope and range of the general subject expressed, it cannot be held to be in conflict with such provision. The corporate liability of a municipality is a sufficient guaranty to private parties that due compensation will made for their property taken for public purposes. An act of the Legislature authorizing private property to be taken for public use provided for the appointment of three commissioners to estimate and appraise the damages, and provided further that the action and agreement of two of the commissioners should be as valid and effectual as if they had all concurred. Held, that the act was not in conflict with the constitutional provision that in such cases the damages shall be fixed by a commission of not less than three persons, it appearing from the connection that it was not intended to give to two members the right to exclude the voice or vote of the third. The Legislature has power to prescribe the kind of notice to be given to property owners whose property is taken for public purposes, and a notice by publication will be deemed sufficient. There is no constitutional objection to a provision that such notices shall be published in the newspapers of a city in an adjoining county, instead of in papers published in the county where the property to be taken is located. The act in question extends the jurisdiction of the department of public parks of New York city over the new territory proposed to be taken in Westchester county, and by the terms of the charter of New York city the department of public parks have power to appoint policemen for all the city parks. Held, that the act was not in conflict with the provisions of the Constitution which preserves to counties, cities, towns and villages the right to elect or appoint their own local officers; that even if there is no power to grant them authority within the limits of Westchester county that that provision might give way to the right and duty of the authorities of that county to preserve the peace within its limits without any harm to the general scope of the act. When a city, by the action of its representatives and officers, has assented to the acquirement of additional land for park purposes, and come into court and asked for the appointment of commissioners to proceed and perfect title thereto, it cannot be said that the municipality is being compelled to incur the expense of the undertaking against its will. A city may acquire and maintain property outside of its corporate limits when it plainly appears that the purpose for which it is acquired is primarily the benefit, use and convenience of the city, and the thing to be done is within the ordinary range of municipal action. In the Matter of the Mayor, etc., to acquire Public Parks, etc. Opinion by Finch, J. [Decided Oct. 6, 1885.] * * HABEAS CORPUS-JURISDICTION OPEN TO INQUIRY -CODE CIT. PROC., §§ 2033-4, 2039.-On habeas corpus the question of jurisdiction is always open to inquiry. The relator, a member of the National Guard, S. N. Y., was imprisoned by virtue of a military warrant issued by the president of a regimental court-martial, and applied for his discharge on habeas corpus. The return of defendants alleged inter alia, that the relator was a duly enlisted member * and though a minor at the time of his enlistment, the same was legal and proper by reason of the consent of his father thereto. The relator traversed the return by alleging the invalidity of his enlistment (being a minor) and for want of his father's consent thereto, and denied the jurisdiction of the court. Upon the hearing the trial judge declined to hear any evidence on the legality of the relator's enlistment, on the ground that the determination of the court-martial was conclusive, and remanded the relator. Held error; that under the provisions of the Code of Civil Procedure, §§ 2033, 2034, 2039, it was the duty of the court to inquire as to the competency of the tribunal under whose judg ment relator was held, and relator had a right to traverse the return and show a want of jurisdiction in fact. It was held by this court in the case of People, ex rel. Tweed, v. Liscomb, 60 N. Y. 559, that the provision in the Revised Statutes forbidding an inquiry into the "legality and justice of any process, decree or execution upon a hearing under habeas corpus" proceedings does not take from the court or officer having jurisdiction of the writ the power; or relieve from the duty of determining whether the judgment or process emanated from a court of competent jurisdiction, and whether the court had power to give the judgment or issue the process. "It is an elementary principle rec ognized in all the cases, that to give binding effect to a judgment of any court, whether of general or limited jurisdiction, it is essential that the court should have jurisdiction of the person as well as the subjectmatter, and that the want of jurisdiction over either may always be set up against a judgment when sought to be enforced or any benefit is claimed under it." Ferguson v. Crawford, 70 N. Y. 257. The questions arising in this case are governed by the rule favoring the widest latitude of examination, as the judgment assailed was rendered by a court of limited jurisdiction; and its authority, not only over the person of the relator, but also of the subject-matter, is assailed. Courts-martial and delinquency courts are tribunals of special and limited powers, having jurisdiction only of offenses against military discipline committed by persons belonging to the particular branch of the military organization for which such courts are organized. §§ 101-104, 123, ch. 299, L. 1883; Smith v. Shaw, 12 Johns. 257; Wilson v. MacKenzie, 7 Hill, 95; Mills v. Martin, 19 Johns. 7. It has been sometimes claimed, and is indeed supported by the authority of cases in some of the sister States and in England, that the recital of jurisdictional facts in the judgments of courts of general jurisdiction furnishes conclusive evidence of their existence, and precludes any inquiry into their existence when collaterally brought in question; but the weight of authority in this State seems to be against the proposition and to the effect that such recitals are prima facie evidence only of the facts recited. Ferguson v. Crawford, supra; Bloom v. Burdick, 1 Hill, 130; People v. Cassels, 5 id. 164. With reference to courts of limited and inferior jurisdiction however, whether the record recites the jurisdictional facts or not, it has uniformly been held that their judgments are open to impeachment by extrinsic evidence showing want of jurisdiction whenever they are sought to be used by way of defense or as a justification to persons seeking to enforce them. Adams v. S. & W. R. Co., 10 N. Y. 328; Smith v. Shaw, 12 Johns. 257; Mills v. Martin, 19 id. 7; People v. Cassels, 5 Hill, 164; Greenl. Ev. 470. Opinion by Ruger, C. J. [Decided Oct. 6, 1885.] NEW YORK PRODUCE EXCHANGE-CHARTER-BY LAWS-ARBITRATION-BOARD OF MANAGERS-INJUNC TION. The by-laws of the New York Produce Exchange provide as follows: Any member of the Exchange who shall be accused of any proceeding inconsistent with just and equitable principles of trade, or of other misconduct, shall, on complaint, be summoned before the complaint committee, when, if he desires, he shall be heard in his defeuse. Should the committee be unable to conciliate the disputants, or induce them to arbitrate, the complaint may be referred to the board of managers, where both parties may again be heard. If the charge is sustained the member may be censured, suspended or expelled from the Exchange. Every person joining the Exchange is required to sign an agreement to abide by its charter and by-laws. A complaint was made by a member of the Exchange against the present plaintiff, also a member, charging him with being guilty of proceedings "inconsistent with just and equitable principles of trade," in refusing to pay freight upon certain goods destroyed by fire. The complaint was referred to the complaint committee, and they failing to effect a set tlement, it was referred to the board of managers. The plaintiff was cited to appear before the board, but he refused to appear, and sent a written protest that the complaint against him was a mere money claim which was already pending in the courts, and that therefore the complaint committee and the board of managers had no jurisdiction in the matter; and he brought this action to restrain the Exchange from proceeding further in the matter. Held, that upon the facts the remedy by injunction would not lie, as no violation of the plaintiff's rights had happened, and no injury thereto was threatened in such a sense as justified a preventive remedy. Hurst v. New York Produce Exchange. Opinion by Earl, J. [Decided Oct. 6, 1885.] FERRY-EXCLUSIVE RIGHTS-FERRY ONE WAY-CITY OF HUDSON AND VILLAGE OF ATHENS.-A legislative grant of the right to establish and operate a ferry across any water does not confer an exclusive right, so as to preclude a like grant to other parties to operate a ferry at or near the same place. Under the several acts incorporating and conferring power upon the common council of the city of Hudson, to establish and regulate ferries from said city to the western shore of the river (Athens), it is clear that the Legislature intended to place the ferries on the one side of the river, under the exclusive control of the city (Hudson), and on the other side under the exclusive control of the village (Athens). The statutes are in pari materia, and must all be considered in arriving at the legislative intention. No person can in this State establish and operate a public ferry for hire without legislative authority. Chenango Bridge Co. v. Paige, 83 N. Y. 178; S. C., 38 Am. Rep. 407. The Legislature, having jurisdiction of the whole subject, may limit a ferry franchise according to its pleasure. It may confer the right to operate a ferry across a river between two places in both directions, or it may limit the right so that the ferry can be operated from one side of the river only. A legislative grant of a ferry franchise across a river from a place on one side to a place on the other side, standing alone, unexplained, would ordinarily be construed to give the right of a ferry across the river between the two places in both directions. Common sense and public conscience would require such a construction. But to determine whether a legislative grant authorizes a ferry in both directions or only in one, all the language of the grant must be scrutinized and all legislative acts in pari materia and the uses under them and the circumstances of the particular case must be considered. An act of the Legislature merely granting the right to establish and operate a ferry across any water does not confer an exclusive right so as to deprive the Legislature of power to authorize another competing ferry at or near the same place. Whatever doubt there may have been as to this proposition at an early day has been removed and the law is now well settled. 3 Kent Com. 459, and note; Plankroad Co. v. Douglass, 9 N. Y. 444. Before a ferry franchise can be held to be exclusive there must be something in the act granting it showing that such was the legislative intention. Power v. Village of Athens. Opinion by Earl, J. [29 Alb. L. J. 333; 30 Am. Rep. 390.] [Decided Oct. 6, 1885.] ATTORNEY AND CLIENT-TRUST-CONTRACT TO FORECLOSE MORTGAGE-REVOCATION OF TRUST.-The insurance company, defendant, in October 1877, transferred to the trust company, defendant, two mortgages as security to the holders of policies in the insurance company, the latter company to collect and retain for its own use the interest upon the mortgages. The trust company, at the request of the insurance company, |