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which, like ours, would refuse to reciprocate its acts of comity in that respect. The right of one government to demand and receive from another the custody of an offender who has sought asylum upon its soil, depends upon the existence of treaty stipulations between them, and in all cases is derived from, and is measured and restricted by the provisions, express and implied, of the treaty.

The fugitive Hawes, by becoming an inhabitant of the Dominion of Canada, placed himself under the protection of British laws, and we could demand his surrender only in virtue of our treaty with that government, and we held him in custody for the purposes contemplated by that treaty, and for no other. He was surrendered to the authorities of Kentucky to be tried upon three several indictments for forgery. The Canadian authorities were of opinion that the evidences of his criminality were sufficient to justify his commitment for trial on said three charges. One of the charges the Commonwealth voluntarily abandoned. He was tried upon the remaining two, and found not guilty in each case by the jury, and now stands acquitted of the crimes for which he was extradited.

It is true he was in court, and in the actual custody of the officers of the law when it was demanded that he should be compelled to plead to the indictment for embezzlement. But the specific purposes for which the protection of the British laws had been withdrawn from him had been fully accomplished, and he claimed that, in view of that fact, the period of his extradition had been determined; that his further detention was not only unauthorized, but in violation of the stipulations of the treaty under which he was surrendered, and that the Commonwealth could not take advantage of the custody in which he was then wrongfully held, to try and punish him for a nonextraditable effense.

To all this, it was answered that " an offender against the justice of his country can acquire no rights by defrauding that justice." That "between him and the justice he has offended, no rights accrue to the offender by flight. He remains at all times, and everywhere liable to be called to answer to the law for his violation thereof, provided he comes within the reach of its arm.” Such

them without disregarding the good faith of the government, and violating the “ supreme law?" The legal right of a judicial tribunal to exercise jurisdiction in a given case must, from the nature of things, be open to question at some stage of the proceeding, and we find it difficult to conceive of a person charged with crime being so situated as not to be permitted to challenge the power of the court assuming the right to try and punish him.

The doctrine of the cases of Caldwell and Lawrence has been sanctioned by several prominent British offlcials and lawyers, and has seemingly been acted upon by some of the Canadian courts; and in one instance (that of Heilbronn) by an English court. We say seemingly, for the reason that in Great Britian treaties are regarded as international compacts, with which in general the courts have no concern. They are to be carried into effect by the executive, and the proceedings in the courts are subject to executive control to the extent necessary to enable it to prevent a breach of treaty stipulation in cases of this kind. Hence, when a party charged with crime claims immunity from trial on account of the provisions of the treaty under which he has been extradited, he must apply to the executive to interfere, through the law officers of the crown, to stay the action of the court; otherwise it will not, at his instance, stop to inquire as to the form of his arrest, nor as to the means by which he was taken into custody. But a different rule prevails with is, because our government is differently organized. Neither the federal nor state executive could interfere to prevent or suspend the trial of lawes. Neither the Commonwealth's attorney nor the court was to any extent whatever subject to the direction or control either of the President of the United States or the Governor of this Commonwealth. But the treaty under which the alleged immunity was asserted being part of the supreme law, the court had the power, and it was its duty, if the claim was well founded, to secure to him its full benefit.

The question we have under consideration has not been passed on by the Supreme Court of the United States, and it therefore so far remains an open one, that we feel free to decide it in accordance with the results of our own investigations and reflections.

is the doctrine of the cases of Caldwell & Law- Mr. William Beach Lawrence, in the 14th vol

66 All

rence, 8th and 13th Blatchford Reports, and of the ume of the Albany Law Journal p. 96, on the aucase of Lagrave, 59 N. Y. 110. And if the cases thority of numerous European writers, says: of Caldwell and Lawrence could be freed from the the right which a power asking an extradition can complications arising out of the residence of the possibly derive from the surrender, must be what prisoners within the territorial limits or the British is expressed in the treaty, and all rules of intercrown, and the fact that we received them from pretation require the treaty to be strictly construed; the authorities of the British government in virtue and, consequently, when the treaty prescribes the of, and pursuant to, treaty stipulations, it would be offenses for which extradition can be made, and the sound doctrine and indisputable law.

particular testimony to be required, the suffiBut did Caldwell or Lawrence come within the ciency of which must be certified to the executive reach of the arms of our laws? They were sur- authority of the extraditing country, the state rerendered to us by a foreign sovereign, to be tried ceiving the fugitive has no jurisdiction whatever for specified crimes, and were forcibly brought for over him, except for the specified crime to which the purposes of those trials within the jurisdiction the testimony applies.” This is the philosophy of of our courts, and the point in issue was not the rule prevailing in France. The French Miniswhether the prisoners had secured immunity by ter of Justice, in his circular of April 15, 1841, flight, but whether the court could proceeed to try said: “ The extradition declares the offense which


leads to it, and this offense alone ought to be in

NOTES OF RECENT DECISIONS. quired into.” The rule, as stated by the German author, Heffter, is that the individual whose ex

MUNICIPAL CORPORATIONS - CONTRACTOR - NEG. tradition has been granted can not be prosecuted LIGENCE.- City of Erie v. Caulkins. Supreme Court nor tried for any crime except that for which the of Pennsylvania, 35 Leg. Int. 179. Opinion by GORDON, extradition has been obtained. To act in any J.-A city contractor for building a sewer, is liable for other way, and to cause him to be tried for other

the negligence of his employees by which damage ac. crimes or misdemeanors, would be to violate the

crues to a citizen. The action does not lie against the

city. mutual principle of asylum, and the silent clause contained by implication in every extradition.”

CONTRACTOR-AGREEMENT WITH LOT-OWNERAnd when President Tyler expressed the opinion

RECOVERY.-City of Philadelphia 0. Devine. Su.

preme Court of Pennsylvania, 35 Leg. Int. 171. Opinthat the treaty of 1842 could not be used to secure

ion PER CURIAM.--A paving contractor, on obtaining the trial and punishment of persons charged with

the name of a lot owner to secure him the contract treason, libels, desertion from military service, and with the city, agreed to the price for which he would, other like offenses, and when the British Parlia- do the work. Held, that he could not recover a higher ment and the American Congress assumed to pro- price. vide that the persons extradited by their respective FORECLOSURE-PARTIES -Cragan 0. Minor. Sugovernments should be surrrendered, “to be tried preme Court of California, 1 Pac. Coast L. J. 148. for the crime of which such person shall be so ac

Opinion PER CURIAM.–1. Persons claiming title adcused,” this dominant principle of modern extra

versely to the mortgagor are not proper parties to a

foreclosure suit, as they have no interest in the sub. dition was both recognized and acted upon.

ject matter of the action. 2. All persons beneficially This construction of the tenth article of the treaty interested, either in the estate mortgaged, or the de. is consistent with its language and provisions, and mand secured, are proper parties. is not only in harmony with the opinions and mod- EASEMENT RIGHT OF WAY VISIBLE TO VEN-, ern practice of the most enlightened nations of


RESTRICTION OF, TO SPECIAL Europe, and just and proper in its application, but USE EXISTING AT THE TIME OF THE PURCHASE necessary to render it absolutely certain that the - RAILROAD SIDING LICENSE. – Carty o. Shields, treaty can not be converted into an instrument by Supreme Court of Pennsylvania, 5 W. N. 211. which to obtain the custody and secure the punish

An existing right of way can not be enlarged or altered ment of political offenders.

by uses not contemplated by the parties at the time of

its creation. A was the owner of two lots fronting Hawes placed himself under the guardianship of

upon a railroad, the larger of which he used as a coal the British laws, by becoming an inhabitant of yard. Under a license from the railroad company, he Canada. We took him from the protection of those connected their tracks with the coal yard by a siding laws under a special agreement, and for certain passing across a portion of the smaller lot. Over this pamed and designated purposes. To continue him siding he carried on the traffic of a coal dealer. He in custody after the accomplishment of those pur

soon after sold the small lot to B, without any terms as poses, and with the object of extending the crimi

to ways or incumbrances. After the sale to B, A es

tablished a lime business on his lot in addition to the nal jurisdiction of our courts beyond the terms of

coal business, and used the siding for the passage of the special agreement, would be a plain violation

cars employed in both these trades. B threatened to tear of the faith of the transaction, and a manifest dis

up the siding. A filed a bill in equity to restrain him regard of the conditions of the extradition.

from so doing. Held, that A was properly restricted He is not entitled to personal immunity in con- by the decree of the court below to such use of the sequence of his flight. We may yet try him under

siding as existed at the time of he sale to B, to wit: each and all of the indictments for embezzlement,

the carrying on of the coal bu: iseng. PER CURIAM. and for uttering forged paper, if he comes volun

“Presumably the license of the railroad company to

connect with their tracks was for the purposes of the tarily within the jurisdiction of our laws, or if we

coal business, in which the plaintiff was then engaged. can reach him through the extradition clause of

What the defendant saw when he purchased the federal constitution, or through the comity of the lot was merely a siding used by the vendor in his a foreign government. But we had no right to add coal business. Hence, in the absence of terms, it is to, or enlarge the conditions and lawful conse

not to be presumed that he accepted bis deed bur.

dened with a larger use or incumbrance than that of quences of his extradition, nor to extend our special

wbich his observation gave him notice.” and limited right to hold him in custody to answer the three charges of forgery, for the purpose of trying him for offenses other than those for which DIGEST OF DECISIONS OF SUPREME he was extradited.

COURT OF THE UNITED STATES. We conclude that the court below correctly re

October Term, 1877. fused to try Hawes for any of the offenses for which

ATTORNEY AND CLIENT-LIEN-CHAMPERTY-TRUShe stood indicted, except for the three charges of

TEE,-Complainant brings her bill in chancery to have forgery mentioned in the warrant of extradition, defendant removed from his place, as trustee in a deed and that it properly discharged him from custody. made to secure to her the payment of a bond for

The order appealed from is approved and $38,000, which is in defendant's possession, and which affirmed.

she prays may be delivered to her. Defendant asserts a lien on the bond for $5,000 for legal services for com

plainant. Held, 1. That while in cases wherein the GEORGE TAYLOR BIGELOW, formerly Chief Justice trustee has a discretionary power over the rights of of the Supreme Court of Massachusetts, died on the the cestui qui trust, and has duties to discharge which 12th ult., at his residence in Boston, at the age of 67. necessarily bring him into personal intercourse with


tary operations. 11. Governments de facto of two kinds considered: (1.) such as exists after the regularly constituted authorities have been expelled by it from their seats of power and the public offices, and its own functionaries have been established in their places, so as to represent in fact the sovereignty of the nation. (2.) Such as exists when a portion of the inhabitants of a country have separated themselves from the parent state, and established an independent government.Williams v. Bruffy, adm'r. In error to the Supreme Court of Appeals of the State of Virginia. Opinion bv Mr. Justice FIELD. Judgment reversed. Reported in full, 1 Rep. 481.


the latter, a state of mutual ill-will or hostile feeling may justify a court in removing a trustee, it is not sufficient cause, when no such intercourse is required, and the duties are merely formal and ministerial, and no neglect of duty or misconduct is established against the trustee. 2. A contract to pay a specific sum of money to a lawyer, for his services in a suit concerning real estate, out of the proceeds of said land when sold by the client, if recovered, is not champertous, because be neither pays costs nor accepts the land, or any part of it, as his compensation. 3. Nor is it void under the statute of frauds because not in writing, for it may be performed within the year. 4. The land being recovered in the action in which the attorney was employed, and sold by the owner for $58,000, for which a bond was taken and left with the attorney, he has a lien on the bond for his fee, by express contract, and by reason of the lien which the law gives as attorney on the papers left in his bands for any balence due him for services. 5. Where, under the circumstances mentioned, the client brings a bill in chancery to remove the attorney from his position as trustee in a deed to secure the purchase money and for a delivery of the bond, it is the duty of the court to decide on the existence and amount of the lien set up by the attorney in his answer, and to decree the delivery of the bond in payment of the amount of the lien, if one be found to exist. 6. Though the defendant, by neglecting to file a cross bill, can have no decree for affirmative relief; it is proper that the court should establish the conditions on which the delivery of the bond to plainant, according to the prayer of the bill, should be made, and require it to be done on that condition, being complied with. McPherson v. Cox.-Appeal from the Supreme Court of the District of Columbia. Opinion by Mr. Justice MILLER; Mr. Chief Justice WAITE dissenting. Judgment reversed. REBELLIOX CONSTITUTIONAL LAW

HOSTILE LEGISLATION SEIZURE OF PROPERTY OF LOYAL CITIZENS-GOVERNMENTS DE FACTO.-1. The Confederate States was an illegal confederation within the prohibition of the constitution against the making of any treaty, alliance, or confederation by one state with another; and its enactments, therefore, were void. 2. Whatever efficacy an enactment of the Confederate States had in any state, must be attributed to the sanction given it by the stato. 3. Any enactment, from whatever source originating, to which a state gives the force of law, is a statute of the state, within the meaning of the clause of the amendatory judiciary act of 1867, relating to the jurisdiction of the Supreme Court of the United States. 4. A statute of an insurrectionary state sequestrating debts owing by its citizens to citizens of loyal states, impairs the obligations of the contracts, and is void. 5. Such an enactment denies the constitutional privileges of citizens of the loyal states. 6. The constitutional provision which prohibits a state from passing a law impairing the obligation of a contract, equally prohibits from enforcing as a law an enactment of that character, from whatever source originating. 7. The concession of belligerent rights to the Confederate States sanctioned no hostile legislation against the citizens of other states. 8. The seizure in insurrectionary territory of tangible property of lawabiding citizens in the hands of trustees or bailees, may be set up as a defense to actions against such trustees or bailees; but debts due such citizens not being tangible, can not be the subject of a seizure which shall operate as payment of such debts. 9. All the enactments of an insurrectionary goverment must fall, unless the insurgents shall establish an independent power; then the acts shall have the operation and effect of those of an independent power with sovereign authority, as from the rising of the insurgents. 10. The government of the Confederate States was a government de facto to the extent only requisite to its mili

SOME RECENT FOREIGN DECISIONS. PARTNERSHIP-ARBITRATION CLAUSE - DISSOLUTION-MOTION FOR A RECEIVER-STAY OF PROCEEDINGS-FOREIGN TRIBUNAL.-Law v. Garrett, English Court of Appeal, 26 W. R. 426. When partners have agreed to refer disputes to a foreign tribunal, the court will not allow proceedings to go on in an action in respect of the same matters, nor appoint a receiver during the liquidation of the partnership affairs, unless it is shown that the rights of the parties cannot be sufficiently protected by the foreign tribunal.

WILL-CONSTRUCTION GIFT TO ISSUE OF SUCH CHILDREN AS MIGHT BE THEN DEAD LEAVING ISSUE -ISSUE DYING IN LIFETIME OF PARENT.--Re Haskett Smith's Trusts. English High Court of Justice, Chy. Div., 26 W. R. 418. A devised real estate to trustees upon trust for W for life, and after his death to sell the same and divide the proceeds amongst such of the testator's children as might be living at the decease of W and the issue of such of his cbildren as might be then dead leaving issue. A question was raised whether issue who died in the lifetime of their parent took under the aforesaid trust. Held, that the issue of the children took without regard to their surviving their parent. The dictum of Vice-Chancellor Kindersley in Lamphier v. Buck, 13 W. R. 765, 2 Dr. & Sm. 499, disapproved.

SPECIFIC PERFORMANCE-STATUTE OF FRAUDS MATERIAL TERMS – GROUND-RENT DAMAGES. Wesley v. Walker, English High Court of Justice, Chy. Div., 26 W. R. 368. The defendant being the owner of a piece of building land, which he held under restrictions as to the kind of buildings to be erected thereon, signed a receipt for £5 embodying an agreement for a lease for ninety-nine years. The receipt stated that a rent of £20 should be payable quarterly, and that ground-rent should commence from a fixed date, but did not stale when the lease should commence. In giving judgment for specific performance: Held, (1) that the expression “ground-reut” in the agreement did not import any stipulation that the land should be built upon, and, therefore, did not imply the execution of a future building lease; (2) that the lease was to commence from the time when the ground-rent began to be payable; and (3) that the damages payable in respect to the breach of the agreement were a sum equivalent to the rent payable during the time that the plaintiff was kept out of possession.

MASTER AND SERVANT - JOINT USER BY Two RAILWAY COMPANIES OF STATION PROPERTY OF ONE- ACTION FOR DAMAGES THROUGH Loss OF LIFE UNDER LORD CAMPBELL'S ACT (9 & 10 Vict. c. 93)-NEGLIGENCE OF FELLOW-SERVANT.-Swainson v. North Eastern R. R., English Court of Appeal, 26 W. R. 413. The plaintiff's brought their action against the defendants for damages for the death of their husband and father, through ibe negligence of an enginedriver in their employ. The accident happened to the deceased in the course of his duty as signal-man in regulating the traffic into and out of the L station on out of the operation of the road since the date of the mortgage. Opinion by SOULE, J. Smith v. Eastern R. R. Co.

to the lines of the defendant company. The L station was the property of the Great Northern Railway Company, who engaged and paid the deceased; but they allowed the defendants to use it on making payment to them. Held, that there was no common employment of the deceased and the defendants' enginedriver, which would have prevented the former from maintaining an action for negligence and consequential injury against the defendants; and that, therefore, the plaintiffs were entitled to recover in an action for loss by his death under Lord Campbell's Act.





October Term, 1877.


December Term, 1877.-Filed April 16, 1878.
Hon. WILLIAM WHITE, Chief Justice.


Associate Justices. John W. OKEY, A LESSOR MAY MAINTAIN AN ACTION for Rent against his lessee, on an express covenant to pay rent during the term contained in a lease for nine years and renewable forever, though the rent accrued after the lessee had assigned all his interest in the leasehold estate and after the lessor had accepted rent from the assignee of the term. The case of Worthington v. Hewes, 19 Ohio St. 66, explained and limited. Judgment reversed. Opinion by McILVAINE, J :- Taylor v. De Bus.

NEGLIGENCETURN-TABLE-CONTRIBUTORY NEGLIGENCE.-The plaintiff was employed by the defendant to operate a turn-table by means of a crank that was stationary upon and revolved with the turn-table; and a track was laid in such proximity to the turntable that while an engine was on the turn-table, being turned by the plaintiff, it was struck by an engine passing upon the track, causing the crank to strike the plaintiff by a reversed motion, inflicting the injury complained of. Held, 1, that whether the defendant was guilty of negligence in the construction and use of the track and turn-table; and, 2, whether the plaintiff was chargeable with contributory negligence were questions properly left to the jury. Judgment aftirmed. Opinion by GILMORE, J.-Lake Shore & Nich. South, R. R. v. Fitzpatrick.

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Hon. HORACE GRAY, Chief Justice.


Associate Justices.
Oris P. LORD,

AUGUSTUS L. SOULE, PROMISSORY NOTE- COLLATERAL SECURITY-NoTICE.-A memorandum on a note “ $25,000, Framingham & Lowell R:ilroad Bonds as collateral,” can not be construed as notice to the plaintiff of an agreement between the principal and sureties that he would pledge the bonds named as security for the note, nor as annexing to the absolute promise contained in the note, the condition precedent that the plaintiff should receive the bonds named as security. Opinion by SOULE, J.- Fitchburg Sav. Bank v. Rice.

PROMISSORY NOTE - INDORSEMENT BEFORE DELIVERY-- EXTENSION OF TIME. 1. Where a party puts his name on the back of a note before it is delive ered to the payee, he must be considered as an original promisor, and parol evidence is not admissible to show that this was not his real contract. Union Bank v. Willis, 8 Met. 504; Brown v. Butler, 99 Mass. 179; Way v. Buiterworth, 108 Mass. 509. 2. Evidence of an extension of time by delay and of "negligence and laches," there being no valid contract to extend the time of payment, is not admissible in such a case. Ilunt v. Bridgham, 2 Pick. 581; Hiorne v. Bodwell, Gray, 157; Wilson v. Foot, 11 Met. 285; Agricultural Bank v. Bishop, 6 Gray, 317. Opinion by SOULE, J.Allen v. Broren.

TRUSTEE PROCESS-ATTACHMENT OF MORTGAGED PROPERTY.-A mortgage of the Eastern Railroad Company, drawn in conformity to the statute, purported to convey, in addition to the real estate and chattels of the corporation, “all the rights, priviliges, franchises, tolls, revenues, incorres, leases, contracts and choses in action now belonging to said corporation; so all the like property and estaie real and personal, rights, privileges, franchises, tolls, revenues, incomes, leases, contracts and choses in action which may be hy said corporation bereafter acquired,” upon the condition, among other things, “that util default in the payment of the principal or interest of said mortgage certificates of indebtedness, or in the performance of the other obligations of said corporation secured by said mortgage, said corporation may remain in the actual management, use and control of the mortgaged premises and property;" and a further condition provided that, upon default in such payment or performance, the trustees might enter and take possession. Hell, that so long as the corporation remains in the use, management and control of the property, the income of the road remains so far the property of the corporation as to be liable to attachment by trustee process founded on claims arising

PROCEEDINGS IN BANKRUPTCY do not ipso facto divest the state court of its jurisdiction. 2. The sureties on an appeal bond, given before bankruptey proceedings were begun, are not discharged by the discharge of the principal debtor. Fisse v. Einstein, athimed. Affirmed. Opinion by BAKEWELL, J.-Field v.Zalle.

BUILDING CONTRACT--COVENANT-WAIVER.-1. A covenant in a building contract, ihat the builder is to keep the building free from mechanics' liens, and so deliver it to the owner when completed, is not broken by the creation of such a lien, if it be due to the de. fault of the owner, and if, when compelled to discharge it, he is indebted to the builder on account of the contract, in a suun greater than is necessary to pay off the lien. 2. The objection that two causes of action are improperly joined in one count, is waived, if not made in the trial court. 3. The owner of a house is not bound to leave it vacant, after the builder ha-clone his work, merely because he claims that the work was insufliciently done. If he takes possession, he is not, thereby, precluded from any defence arising from the insufficient character of the work that he may have to a suit by the builder for his pay. Remanded and reversed. Opinion by BAKEWELL, J. Ederly v. Curtis.

INVALID MORTGAGE-MARRIED WOMAN_“ HEAD OF A FAMILY.”-1. Where a mortgage of personal property, insufficiently executed, has been given to secure a bona fide debt of the mortgagor, and a transfer under the mortgage of the actual possession of the goods takes place before any creditor has acquired rights to the property, the invalidity of the chattel mortgage is immaterial. 2. Though the contract of a married woman may, by proper proceedings, be made a charge upon her separate estate, it is not, on that ac. count, a lien upon it. 3. A married woman living with her child, and abandoned by her husband, is the "head of a family” within the meaning of the execution law. Affirmed. Opinion by BAKEWELL, J.-Nash v. Norment.

INSURANCE POLICY-CANCELLATION-POWER OF AGENT AFTER DELIVERY.-Where a policy of insurance reserves no power of cancellation, it can not be cancelled at the option of the company, and evidence that the agent of the insuring company gave noticethat the policy was cancelled, and requested its return, does not show a cancellation where it does not appear that the insured assented, or that the person to whom the notice was given, was the agent of the insured. 2. An agency to procure insurance is ended when the insurance is procuied and the policy delivered to the principal; and the agent employed to procure the insurance has no power, after the policy is delivered to his principal, to consent to a cancellation. Allirmed. Opinion by LEWIS, P. J., Hayden J., not sitting. -Rothschild v American Cent. Ins. Co.

SPECIAL TAXATION-DEPRECIATION IN VALUE OF Party's PROPERTY XO DEFENCE.-1. Where a contract was made by the city for grading and paving a streets and the work of grading consisted in raising the street in front of defendant's lot, so as to depreciate its value from $6,000, which it was before, to $4,000: leld, in a suit on a special tax-bill against the property for macadamizing, guttering and paving this street under the contract with the city, that the fact that the grading of the street depreciated the value of defendant's lot, is no defence against the special tax-bill for the paving and guttering work. The entire work injured the lot, and was all done under one contract; but the tax-bill could issue only for the guttering and paving; and as this part of the work was a benetil, there is nothing in such a recovery against the theory that special taxes are imposed only in view of a special benefit. 2. The grading was done, under the law, at the expense of the city; and whether defendant bad or had not, a remedy against the city for the damage done by change of grade, does not affect the question of liability on the tax-bill. Affirmed. Opinion by BIKEWELL, J.-Lohrum v. Eyermann.

Where the trustee in a deed of trust given to secure a debt, went within the confederate lines during the war, the circuit court had power to substitute the sheriff in place of the trustee, in order to make the sale. No formal acceptance by the trustee is necessary in such deeds of trust. As to the notice of sale, it is a matter of contract between the parties, and they may make what arrangements they please about, or may dispense with it altogether. Opinion by Hough, J.-Martin v. Paxson.

CONSTITUTIONAL LAW-PROSECUTING ATTORNEYELECTION.--The act of March 9th, 1872 (and the fourth section thereof) abolishing the the offices of circuit and county attorneys is constitutional. A special election, held in December, 1874, in case of a tie vole between candidates for county attorney at the general election, must be decided by the governor under section 33 of the act of 1872, and an election held upon the sheriff's proclamation, under section 45 of the election law, was void. Opinion by HOUGH, J.-State ex rel. Speck v. Geiger.

FOREIGN JUDGMENTS -- CERTIFICATION.–The certification of a judgment of another state not made strictly in accordance with the provisions of the act of congress, nor with those of 1 Wag., Sec. 51, 598, will not authorize a recovery on the judgment in our courts. Where the judgment appears to have been rendered in “Cattaraugus county in the fourth judicial department in the state of New York,” and a judge certities, and a clerk certifies, it must appear that Cattaraugus county is in the fourth judicial department, and that the judge who certities is judge of the court out of which the record comes, and of which the certifying clerk is clerk, or the record can not be used as evidence. Opinion by SHERWOOD, C. J.-Boston v. Steel.

FOREIGN STATUTES--STATE LAW.-The general assembly of the state of Arkansas, by an act, approved February 13, 1869, empowered the probate and circuit courts of that stite to remove the disability of non-ige from citizens of that state, and a probate court acting under the statute, removed the said disability in the case of the plaintiil, "ils far as to authorize him to demand, sue for and receive all moneys belonging to him in the state of Missouri in the hands of his curator or any other person, and to execute releases therefor in the same manner as if he was of full age". Demurrer to petition by plaintitl'. First, that petition shows plaintiff to be under age, and not competent to appear by attorney. Second, that the petition shows defendant lawfully possessed of the money as curator, and that the act of the Arkansas legislature, and the order of the probite court possess no valiility in this state. Demurrer sustained on both grounds, and the judy. ment afirmed. 38 Mo. 415; Story Con. L., $$ 5:39, 103. Opinion by SHERWOOD, C. J.-State to the use of Galbreath v. Bence et al.

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A MOTION FOR A NEW TRIAL is no part of the record proper, and although contained in the transcript, and referred to in the bill of exceptions, will not be noticed in the supreme court. Opinion by HOUGII, J.-Pacific R. R. v. Abel. (Attorneys and clerks would do well to notice this rule.-Rep.]

FORCIBLE ENTRY AND DETAINER-PRACTICE.-In actions of forcible entry and detainer, the justice acquires no jurisdiction unless the complaint is verified by affidavit. Opinion by SHERWOOD, C. J.-- Fletcher V. Kyte.




January Term, 1878.

D. VI VALENTINE, Associate Justices.

J. BREWER, DAMAGES TO STOCK-NOTICE.-Under the special statute of 1874 imposing liability on railroad companies for stock killed, a demand made upon the general superintendent is sufficient. Opinion by BIEHWER, J. Allirmed. All the justices concurring.-C. B. I. P. R. R. Co. v. Ingram.

INJUNCTION TO PREVENT TRESPASS.- An injunction will lie at the instance of a land owner to restrain

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