1 Pac. Coast L. J. 250. PER CURIAM.-1. The employment of art and devices, without violence, by which the moral power of a female is so corrupted that she will offer no resistance, is not sufficient to constitute rape. 2. The testimony of medical experts, in a trial for rape, as to the effect of indecent liberties upon the mind of the female, is inadmissible; all such practices are to be classed under the head of solicitation, and distinguish the crime of seduction from that of rape. 3. Among other matters, the court below charged the jury: "If from all the evidence, you are satisfied that on or about the time alleged, the defendant by manipulalion, art or device, or by other means, so bewildered or overpowered the mind and will of this girl as to render her at the time unconscious of the nature of the act of carnal intercourse, or powerless to resist it, and under those circumstances he had carnal intercourse with her, he is guilty of rape.' "Held, error. Such language conveys the notion distinctly that seduction may be rape; that the employment of any art or device by which the moral nature of a female is corrupted, so that she is no longer able to resist the temptation to yield to sexual desire, will render sufficient less proof of resistance than would otherwise be necessary; that consent thus obtained is no consent. The proposition entirely overthrows the established law in respect to the offense with which the defendant is charged. Judgment reversed.

SUBSCRIPTION TO STOCK OF CORPORATION-FRAUD. -Vreeland v. N. J. Stone Co. New Jersey Court of Chancery, 2 Stew. (Eq.), 188, VAN FLEET, V. C.—1. Contracts to take stock in a corporation stand upon the same footing as all other conventional obligations. If induced by fraud, they create no obligation, and the injured party has a right to have them abrogated. The rule is universal, whatever fraud creates justice will destroy. For the general rule no authorities are necessary, but the following cases are cited to give instances of its application to the class of contracts under consideration: Central R. R. Co. of Venezuela v. Kisch, L. R., 2 H. L. 99; Smith's Case, L. R. 2 Ch. Ap. 604; Kent v. Land and Brick-making Co., L. R. 4 Eq. Cas. 588; Ross v. Estates Investment Co., L. R. 3 Eq. Cas. 122; s. C., on appeal, L. R. 3 Ch. Ap. 682; Smith v. Reese River Co., L. R. 2 Eq. Cas. 264. The subjection of contracts of this kind to the rule above stated is thus plainly expressed by Lord Romilly, in the case first mentioned: "Contracts of this description between an individual and a company, so far as misrepresentation or suppression of the truth is concerned, are to be treated like the contracts between any two individuals. If one man makes a false statement which misleads another, the way in which that is to be treated affords the example for the way in which a contract is to be treated where a company makes a false statement which misleads an individual." And it has also been held, that if a pe: son is induced, without fraud, to enter into a contract of this description by a promise, on behalf of the corporation, that it will aid him in a specified mode, to pay his subscription, and the promise is not kept, his contract will not be enforced. Burrows v. Smith, 10 N. Y. 550; Ang. & Ames on Corp., § 531. 2. An oral contract of subscription will not be cnforced under a charter requiring that such contracts shall be made in writing. Pitts. & Con. R. R. v. Clarke, 5 Casey, 146; Pitts. & S. R. R. v. Gazzam, 8 Casey, 340 3. Where a fraud is committed in the name of a corporation, by persons having the right to speak for it, for their personal benefit, they will be made to answer personally for the injury inflicted by their fraud.

GUARDIAN'S BOND-"INSTRUMENT FOR THE PAYMENT OF MONEY ONLY "-PRACTICE.-Carrington v. Bell. Supreme Court of Wisconsin, 6 N. W. Rep. 59. Opinion by COLE, J.—A guardian's bond is not an “in

strument for the payment of money only," within the meaning of section 24, ch. 125, R. S.; and, in an action on such bond, it is not enough to set it out in hoe verba and allege that a certain sum is due thereon, but a breach must be distinctly assigned. "This action is brought upon a bond executed upon the 4th of May, 1857, by the defendant, Bell, as guardian and principal [and the other defendants as sureties] upon his being licensed to sell the real estate of minors. The complaint sets out the bond in hæc verba and alleges that there is now due the plaintiff, from the defendant, the sum of three thousand dollars, the penalty of the bond. But no breach of the bond is alleged or shown, and we therefore think the complaint is clearly defective. It is, however, said in support of the sufficiency of the complaint, that the instrument counted on is for the payment of money only, within the meaning of the last clause of sec. 24, ch. 125, R. S. and that it was sufficient merely to give a copy of the bond and state the amount due thereon to the plaintiff. We have never supposed that this provision applied to cases of this kind. On the contrary, in actions brought on official bonds, this court has held that a breach of the bond must be clearly assigned or shown. Supvrs. of Town of Franklin v. Kirby, 25 Wis. 498; Wolf County Treasurer v. Stoddard, id. 503; Supvrs. Iowa Co. v. Vivian, 31 id. 217; Gerber v. Ackley, 32 id. 233. s. c., 37 id. 43; Cairns v. O'Bleners, 40 id. 469; Supvs. Wash Co. v. Semler, 41 id. 374; and we see no ground for a distinction between those cases and this. It is very true this is an obligation to pay money upon the happening of an event, but the money only becomes payable when such event has happened. It is not an unconditional promise to pay any sum."

FOREIGN ATTACHMENT STATE COMITY — APPOINTMENT OF RECEIVER IN ANOTHER STATE RECOGNIZED AS AGAINST ATTACHING CREDITOR WHO IS A CITIZEN OF THE SAME STATE.-Bagley v. The Atlantic, Miss. & Ohio R. R. Supreme Court of Pennsylvania, 5 W. N. 263. Opinion by AGNEW, C. J.— In pursuance of the comity established between the different states, the courts of this state will recognize the appointment of a receiver in another state, unless his claims come in conflict with the rights of our own citizens. B and R, citizens and residents of Virginia, by process of foreign attachment issued in Pennsylvania, attached certain property of a railroad company located and doing business in Virginia. Shortly prior to this attachment, the railroad, by decree of a Virginis court, had passed into the hands of receivers, who claimed the fund attached as against the attaching creditors. Held, that the receivers were entitled to the fund, and that the equitable transfer to them of their debt in Virginia was binding upon B and R in Pennsylvania. It is true that the plaintiffs below have a right to sue in this state, just as one of our own citizens might, as we held in Morgan v. Neville, 24 P. F. Smith, 52. But while suit for the debt may be maintained, it is not a legal consequence that the extra-territorial act of an appointment of a receiver in Virginja must be rejected as a defense against these plaintiffs. Such an act, like an assignment by operation of extraterritorial law, rests upon the doctrine of comity, to which our state courts lend their aid when not in eonflict with the rights of our own citizens. But this comity should not be exercised where the Virginia court would not itself justify its enforcement. Now, it is clear that as to these plaintiffs, who were citizens of Virginia, the appointment of a receiver was not extra-territorial, but was an act binding on them which the Virginia court would enforce as to them, had their action been brought in Virginia. Then, certainly, they have no right, after the appointment of a receiver by a court within their own state, binding on

them there, to attempt to avoid its effect by escaping from its jurisdiction and coming here to ask us to infringe the comity we owe to the acts of their own courts within their jurisdiction. Instead of comity, this would be unfriendliness; for they ask us to aid them in a violation of their own law. Our own citizens would be protected against the extra-territorial act in a proper case, because they are not bound by it; and our assistance given to the extra-territorial act resting only in comity, would not be given at the expense of injustice to them. The case does not fall within the first clause, 2d section of the 4th article of the Constitution of the United States, that "the citiizens of each state shall be entitled to all privileges and immunities of citizens of the several states." As to a citizen of Virginia, the appointment of a receiver in Virginia, binding on him there, is not set aside by this clause of the Constitution. The equitable transfer of the debt there is binding on him here.

CONTRACT OF GUARANTY-HOW ASSIGNABLE.Contracts of guaranty are not assignable at common law, but were assignable in equity, and a contract of guaranty, placed upon a negotiable note, is now assignable as an incident of the note itself. 12 Wend. 425; 17 Ill. 459. Opinion by PERKINS, J.-Cole et al. v. Merchants' Bank et al.

HANDWRITING-TESTIMONY BY COMPARISON.-In this state, the English rule that a witness, whether an expert or otherwise, will not be permitted to testify as to the genuineness of handwriting by comparison merely, unless the basis of comparison is admitted to be genuine, has been adopted and followed. In such cases the writing from which the comparison is made can not be proven to be genuine by evidence aliunde, but its genuineness must be conceded. Opinion by BIDDLE, J.-Jones v. The State.

MINORS-NECESSARIES.-The erection of a house on a minor's land is not a necessary. A minor is not liable on his note for money, though he expended the money for necessaries. The indebtedness must be created directly. But if money is furnished a minor which he uses to purchase, and the creditor shows that the money was applied to the purchase of such necessaries, the minor is liable, and so is he for money loaned to pay a debt incurred for necessaries. 1 Salk. 297; 7. N. H. 368: 5 Esp. 28. A minor is also liable for necessaries furnished his wife, Opinion by BIDDLE, J.-Price et al. v. Sanders et al.

PROMISSORY NOTE HOW TRANSFERRED.-One who agrees to transfer a promissory note to another, with qualification, must make the transfer in a mode that will vest the legal title in the party to whom the transfer is to be made, viz., by indorsement; and by agreeing to transfer a promissory note which requires the party's indorsement to pass the legal title, he impliedly agrees to indorse it. If he claims that he was to transfer the note otherwise the burden is on him to show it. Opinion by WORDEN, J.-Wade v. Gappinger et al.

that he can maintain whatever title he has against all the world. If his possession is naked and without color of title, it is notice only to the extent of his actual visible possession; if his possession is under conveyance to him in fee simple, that is the extent of the notice; and so of any intermediate title, although the purchaser against his right may have no knowledge of his title except his possession. Actual notice that one has possession of land, is equivalent to notice by record. Opinion by BIDDLE, J.-J. M. & I. R. R. Co. v. Oyler.

INTEREST ON THE PAST DUE PRINCIPAL of a written contract is to be allowed at the rate, not above ten per cent., which the contract bore. Such has been the professional and popular construction in this state, which the legislature has countenanced by not changing, and by allowing interest on past due installments of interest at the rate borne by the contract. The statute permitting the collection of interest upon judgments at the rate borne by the contract has, in like manner, been practically and correctly construed as embracing decrees. Opinion by GRAVES, J.-Warner v. Juif.

VOLUNTARY Held, 1.

GARNISHMENT DISCONTINUANCE APPEARANCE EFFECT OF JUDGMENT. A garnishee proceeding is discontinued by a failure of the plaintiff to appear on the return of a summons to show cause why judgment should not be entered against the garnishees on their disclosure. 2. A judgment against the garnishees on their voluntary appearance to a second summons issued after such dis-continuance, does not bar a recovery against him by an. assignee of the claim, who, though taking after the original garnishee process was served, was ignorant of the subsequent proceedings. As against the plaintiffs in garnishment the garnishees may have bound them-. selves by their voluntary appearance, but the assignee's rights could not be changed by anything that took place after the non-suit. Opinion by COOLEY, J.Johnson v. Dexter.

TRUST FUND-APPLICATION BY DEPOSITARY TO TRUSTEE'S DEBT.-Where a bank receives from a trustee or agent, and by his orders credits to his account a fund really belonging to the beneficiary or principal, the mere fact of the bank officers being ignorant of such ownership, and their formal transfer on the bank books of the fund to satisfy a debt due the bank by the depositor, can not bar a recovery by the real owner. There might be room for other considerations if it appeared that the trustee or agent actually participated in and assented to the appropriation by the bank, the latter being without reasonable notice of the true owner's rights; but mere want of knowledgeof the true ownership is not sufficient. Pennell v.. Deffell, 23 E. L. & E. 460; Van Alle v. Am. Nat. Bk.,. 52 N. Y. 1; Butler v. Sprague, 66 N. Y. 392; Atlantic Bank v. Merchants' Bank, 10 Gray, 532; Skinner v. Merchants' Bank, 4 Allen, 290; Broderick v. Waltham Savings Bank, 109 Mass. 149; Cook v. Tullis, 18 Wall. 332; Clark v. Iselin, 21 Wall. 360; Merrill v. Bank of Norfolk, 19 Pick. 32. Opinion by GRAVES, J.-Burtnett v. First Nat. Bk. of Corunna.

DEMAND.

DAYS OF GRACE - PRESENTMENT When days of grace are not allowed upon a negotiable promissory note (as in Alabama in some cases), the day of maturity is the only proper day for presentment and demand in order to charge indorsers. Opinion by MCFARLAND, J.-Garland v. West.

FEME COVERT-PRIVY EXAMINATION.-A certificate by a commissioner appointed under sec. 2077 of the code, of the privy examination of a married wowoman as to her deed, which omits the words "and having been examined," is fatally defective, and the deed is void. Citing Henderson v. Rice. 1 Cold. 225; Peyton v. Peacock, 1 Hum. 140. Opinion by FREEMAN, J.-Ellett v. Richardson.

RES JUDICATA-PARTIES AND PRIVIES.-If all the parties in being, having an interest in the subjectmatter of the bill, are made parties, a decree construing a will, will be binding upon after born children who may be entitled as remaindermen; and powers exercised under such construction by the executor, in good faith, will be upheld, especially in favor of innocent purchasers. Acc. Freeman v. Freeman, Heisk. 306. Opinion by DEADERICK, C. J.-Parker v. Peters.

HUSBAND AND WIFE - MARITAL RIGHTS-WIFE'S EQUITY-WITNESS.-1. Personal property of the wife, in possession of herself and her husband, such as household furniture, becomes in law the property of the husband and subject to his debts, nothing else appearing to show a separate property in the wife. Acc. Wade v. Cantrell, 1 Head, 346. 2. If a chose in action be the separate property of the wife, and she take and retain possession of it or its proceeds, with her husband's assent, her equity in it is as strong as if the husband had held it under a parol agreement to keep and invest it solely for her. 3. Semble, that a wife is a competent witness in her own behalf, though her husband be a necessary party to the same case with her. Opinion by MCFARLAND, J.-Cox v. Scott.

claimed to be set out in the statement to be recorded with the city or town clerk, if the initials only of the christian name of such owner are given, it is sufficient. Patrick v. Smith, 120 Mass. 510. Opinion by SOULE, J.-Getchell v. Moran.

ACTION FOR FALSE REPRESENTATIONS - DISCHARGE IN BANKRUPTCY. In an action of tort founded on false representations by the defendant as to the amount and character of his property, by which the plaintiff was induced to sell him certain merchandize and perform for him certain labor, the defendant having pleaded a discharge in bankruptcy, the plaintiff demurred. Held, that the demurrer was good, the action being excepted, by U. S. Rev. Stats., § 5117, from the operation of the discharge. Morse v. Hutchins, 102 Mass. 439. Opinion by SOULE, J.-Turner v. Atwood.

BREACH OF WARRANTY PERSONAL PROPERTYREAL ESTATE.-In suits to recover the price of personal property sold, it is well settled that a partial want or failure of the consideration, or a breach of the warranty of title or quality, may be shown in defense, in reduction of damages. But when the consideration consists of real estate conveyed by deed with covenants of title, the grantee, in the absence of fraud, can not show in defense of an action for the consideration a breach of the covenants of the deed, but he is remitted to his action upon the covenants. 2 Kent Com. 433, and cases cited. Opinion by MORTON, J.-Bowley v. Holway.

WHERE AN ATTORNEY IS RETAINED FOR A PARTIC. ULAR CASE and does work, and is discharged without fault on his part, the only measure of damages is the price agreed to be paid. The nature of the engagement exempts the case from the rule by which the contract price, in ordinary cases of service, is made merely prima facie evidence. Affirmed. Opinion by HAYDEN, J.-McElhinney v. Klein.

TRUST DEED-TENDER.-1. A tender to discharge the lien of a mortgage must be a tender of the whole amount of the mortgage debt, not merely the amount due at the time of the tender. 2. Where a deed of trust provided that the principal note should become due if the interest was not paid, and the trustee foreclosed for non-payment of interest, and, in a proceeding to set aside the foreclosure, the court found that, before the foreclosure, the debtor had duly tendered the amount due and all costs, and entered a decree that the foreclosure should be set aside on payment within a certain time of the interest notes due and all expenses: Held, in a proceeding in ejectment by the purchaser at the foreclosure sale, that the decree setting aside the foreclosure was conditional; and that, as its terms had not been complied with, the finding of the court and the decree were no defense in the ejectment suit. Though that suit was between the same parties, and the decree in the former proceeding estopped the plaintiff in ejectment to deny that defendant had tendered the amount actually due at the time of the sale and all costs, yet that tender having been a tender of the amount then due merely because it cured the default caused by non-payment of interest, and having been subsequently withdrawn by neglect to comply with the terms of the decree, the right to redeem is gone, and the conditional decree operates as a

confirmation of the foreclosure and has the same effect as a dismissal of the bill to redeem. Affirmed. Opinion by BAKEWELL, J.-Cupples v. Galligan et al.

BILL OF LADING DELIVERY - INDORSEMENT INNOCENT PURCHASER.-1. The person who first gets a bill of lading out of a set of three, gets the property it represents, and need do nothing more to secure his title. It is a symbolical delivery, and has the effect of an actual delivery of the property, neither less nor more. 2. An indorsement of the bill of lading is not necessary to the symbolical delivery; the transfer, when intended to operate as a direct delivery of the goods, will do. Where the bill of lading is delivered indorsed to the order of the factors of the consignors accompanied with the drafts of the consignors upon their factors for the proceeds, this is a complete delivery of the goods, divests the title of the consignors, and vests it in the person to whom the bill of lading is delivered. 3. And it is not necessary, to pass title as against a subsequent innocent purchaser of the goods for value, that any advance or acceptance should have been expressly made upon the particular consignment. 4. A corporation of distillers had an agreement with a bank, that the bank should make advances for the business of the corporation, and that the whisky manufactured by the distillery corporation should be shipped on bills of lading to be delivered to the bank, together with drafts drawn by the corporation on their factors at St. Louis, where the whisky was to be sold. In accordance with this agreement, the bank advanced moneys which were expended in purchasing revenue stamps for a lot of whisky. The morning after this whiskey was shipped, the authorized secretary of the corporation delivered to the bank bills of lading for the whisky, and drafts on their factors for the proceeds. The president of the corporation, without the knowledge of the secretary or the bank, got one of the sets of bills of lading- the third bill of the set being in the hands of the carrier-and accompanied the whisky to St. Louis, where he sold and delivered onehalf of the lot to C on the morning of his arrival, and about the hour that the bill of lading was delivered to the bank. On the next day he sold and delivered to C one-fourth more of the consignment, received the proceeds and absconded. C did not receive any bill of lading; the goods were delivered by the clerk of the boat on the written order of the absconding president, indorsed on the third bill of the set retained by the carrier. Held, in an action by the bank against C, the innocent purchaser, that the title had passed to the bank by the delivery of the bill of lading, and that the bank was entitled to recover. Reversed and remanded. Opinion by BAKEWELL, J.-Skilling v. Ballman et al.

QUERIES AND ANSWERS.

[In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's department-i. e., we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecutively during the year, and correspondents are requested to bear this in mind when sending answers.]

QUERIES.

35. LAND LAW - PATENTS.-Under provisions of Federal statutes, a guardian of a minor heir of a deceased soldier made an entry for certain lands in the name of and for the benefit of said minor heir. ubsequent to said entry, and prior to trial, proof

being made for said land, said minor heir died-and subsequent to said death said guardian made final proof, reciting the death of said minor heir. 1st. In the name of whom should the patent to said land issue-should it be in the name of said minor direct, as though living; or should it be "to the heirs " of said minor (naming the minor)? 2d. What is the legal effect of the patent in name of a dead person? The Hon. Commissioner General Land Office thinks said patent should issue to the minor direct, and not to heirs as heirs of said minor. This inquiry is made in good faith, and not through levity, and if there is any old dead statute permitting patents to issue as indicated, we want to know it prior to our induction into office as H. C. G L. O. in 1880. "KANSAS."

36. SHERIFF-TERM OF OFFICE.-The old constitution provides that the sheriff can hold office for four years in eight; the new constitution provides that the sheriff can hold office four years out of six. Now if a sheriff holds his office four years under the old constitution, and the new one provides as above, can the sheriff be elected and hold his office, if contested? "MISSOURI."

ANSWER. No. 31.

(6 Cent. L. J. 439.)

Section 14 of the garnishment act of the present R. S. of Illinois, is not repealed by the act of the same state, in force July 1st, 1877, for the exemption of personal property. The latter refers only to exemptions "from execution, writ of attachment, and distress for rent." The former has reference to exemptions "from garnishments"; and a garnishment proceeding is not in the nature of an execution, a writ of attachment or distress for rent. Moreover, the $25 exemption under the garnishment act is not included in or covered by any provision of the act in force July 1st, 1877, above referred to; but is a separate and additional right conferred upon the debtor. A defendant, coming within the purview of the two acts would be entitled to the benefit of each. Fanning v. 1st Nat. Bank of Jacksonville, 76 Ill. 53. J. N. S

BOOK NOTICE.

NATIONAL BANK CASES, containing all Decisions of both the Federal and State Courts relating to National Banks, with Notes and References. By ISAAC GRANT THOMPSON, Editor of the Albany Law Journal and of the American Reports. 1864-1878. Albany: John D. Parsons, Jr. 1878.

It has required a volume of over 900 pages to contain the decisions of the federal and state courts relating to national banks. The fact that the cases on this subject have already become so numerous sufficiently justifies the publisher in his undertaking, and will commend the volume before us to the profession. Mr. Thompson is well known as an editor; that his reputation in this department will not be injured by the publication of his latest work, we are, from an examination which we have made of it, very confident. His notes are accurate and full.

The value of such a work as this is readily seen. Among the subjects discussed and adjudicated in the cases here contained are the following: The taxation of natioual banks, including the law as to deductions for real estate, debts, etc.; the taxation of surplus, of circulation and of real and personal property; actions

by and against national banks; duties and liabilities of officers of national banks, including the question as to the jurisdiction of state courts of prosecutions and indictments of bank officers and agents; bonds of bank officers and the liability of sureties; the law relating to loans and discounts by national banks; the right of national banks to take mortgages on real estate, also, their right to take mortgages on personal property; the right of national banks to buy bills and notes, also, to take deposits for safe-keeping and their liability in regard thereto; usury, and actions against for penalties for exacting unlawful interest; loans and discounts; liens on stock; attachments against; purchase and sale of real estate: transfers of shares; liability of stockholders; removal of actions by and against to federal courts; embezzlement and larceny by officers and agents; liabilities as depositaries of public moneys; insolvency of; winding up; receivers of; examination of, by revenue officers; and many other subjects which have been adjudicated in either the federal or state courts. These cases are scattered through many volumes of reports or law periodicals, but are here brought together in one collection.

NOTES.

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ONE of our contributing editors writes:-It is certainly a pity that our legal quill-drivers not learn to stick to their texts, when by doing so they would avoid showing their weak points. I had taken up a postal card to order a book written by a Mr. Wells, on the subject of the separate property of married women, when my eye fell upon the preface which is sent out as an advertisement of the work, in which I found twenty-one lines from Tennyson; a eulogy on "The Celebrated Mrs. Gaines," videlicet, Myra Clark, I suppose; the opinion held by the author concerning Holy Writ; some reference to the customs of the East, which, by the way, are grossly misrepresented; the notion of the author as to the causes of the amelioration of the condition of women, which, even as great a dogmatist as Guizot could have told the writer, was a mistake; the judgment of the author upon the marital relation, and a curse on all divorce lawyers; winding up with a request to "all true men and all true patriots" to "engrave" the aforesaid lines of Tennyson on their hearts. suppose that by this recommendation to 66 engrave," the author means to advise us to get by heart. Getting twenty-one lines of poetry by heart may be a very good exercise, but it is not every body that wishes to begin a law book in that way. As I am not now in the engraving business, I concluded not to buy a book which needed to be read after a certain preparation of the mind, which I should probably not make. As a member of the legal profession, I have learned to dislike multifariousness; and more even than my admiration of "the Celebrated Mrs. Gaines," deeper than my detestation of oriental darkness, more unqualified than my horror of divorce lawyers is my respect for the memory of the boarder who requested his landlady to have the butter and the hair brought in on separate plates, so that he could mix them to suit himself.

The Solicitors' Journal observes that when the relations between railway companies and the public come to be considered in Parliament as a whole-as sooner or later they will be-it is to be hoped that the question of the powers of the companies to make by-laws

will not be overlooked. The recent case of Bentham v. Hoyle, 26 W. R. 314; L. R. 3. Q. B. D. 289, curiously illustrates the present difficulties in the matter of bylaws. It is common enough for offenders to be brought up in the police courts for being guilty of the dishonest trick of eluding payment of fare. But it is plain that in the hurry of railway traveling many persons of undoubted respectability must frequently find themselves in a railway carriage without a ticket, and such persons are in this predicament. The act of Parlialiament which applies to their case (the Railway Clauses Consolidation Act, 8 Vict. c. 20) provides the penalty of 40s. in the case of an intent to avoid payment of fare. The by-laws of the companies provide the same and a further penalty, but do not make the fraudulent intention so much an element of the offense. In numerous cases, of which Dearden v. Townsend, L. R. 1 Q. B. 10, is the best known, the meaning of such a by-law has been considered. Dicta are conflicting, but both Dearden v. Townsend and Bentham v. Hoyle seem to be express decisions that without fraud there is no punishable offense at all. By section 103 of the Railway Clauses Act, 1845, "if any person travel without having previously paid his fare and with intent to avoid payment thereof, every such person shall, for every such offense, forfeit to the company a sum not exceeding forty shillings." By sections 108 and 109, read together with 3 & 4 Vict. c. 97, ss. 8, 9, all railway companies may make by-laws for regulating traveling upon their railways, which by-laws must be submited to the Board of Trade before confirmation, before they have any force, and must not-this latter provision is, of course, in affirmance of the common law-"be repugnant to the laws of that part of the United Kingdom where the same are to have effect." "Any person," it is added, "offending against any such by-law shall forteit for every such offense any sum not exceeding five pounds, to be imposed by the company in such bylaw as a penalty for every such offense." It remains to state the by-law. It runs thus:

"Any person traveling without the special permission of some duly authorized servant of the company, in a carriage or by a train of a superior class to that for which his ticket was issued, is hereby subject to a penalty not exceeding forty shillings, and shall, in addition, be liable to pay his fare according to the class of carriage in which he is traveling from the station where the train originally started, unless he shows that he had no intention to defraud."

The facts were simply that Mr. Bentham was convicted in a penalty of 10s. unde: this bye-law for trav eling in a first-class carriage with a second-class ticket, but it was found as a fact that he had no intention to defraud, The judgment of the court (Cockburn, C. J., and Manisty, J.), was that the conviction must be quashed. The Lord Chief Justice-who happened to have been a member of the court which decided Dearden v. Townsend-said that the words, "unless he shows that he has no intention to defraud," might, in point of grammar, apply either to the whole of the by-law, or only to the latter part of it, which imposes the obligation to pay "whole fare." If they applied to the whole, the conviction was clearly bad on the construction of the by-law itself, inasmuch as absence of fraud had been found as a fact. On the other hand-as the learned judge inclined to think-the words applied to the latter part of the by-laws only, the by-law was unreasonable, chiefly on the ground that "there must be, in point of reason a mens rea to warrant charging people with offenses and convicting them on such charges, in addition to the offenses under the Act of Parliament." Mr. Justice Manisty, though not having the doubt as to the construction' thought it "beyond all doubt unreasonable."