Page images
PDF
EPUB

made in the indorsement, when the alleged payment is controverted, is upon the holder of the note, in a case where he claims that the running of the statute of limitations was suspended by the alleged payment. 3. All alterations, erasures or mutilations of paper upon which a liability is sought to be established against those who were originally bound, must be explained by the holder, when the fact of mutilation, erasures or alteration is raised in the pleading and established by the proof. 4. A mere memorandum made by a party on a note, or obligation, in his possession, can not, when the fact it purports to establish is denied, be admitted as testimony sufficient to create or continue the liability. Opinion by PRYOR, J. Afirmed.-Frazer's adm'r v. Frazer.

WHEN COMPENSATION SHOULD NOT BE ALLOWED FOR IMPROVEMENTS MADE BY A PARTY IN POSSES. SION.–1. When a party obtained the title and possesston of land, by fraudulent representations, he should be treated as having entered, with full knowledge that his entry was without right, should be charged with rents, and should not be allowed for ameliorations or improvements made by him, 2. Miller exchanged a tract of land, situated in Missouri, with Mosely for land in Kentucky, the latter never having seen the land in Missouri, and relying upon the representations of Miller as to its quality and value. Mosely removed from Kentucky to Missouri to settle upon the land obtained in the exchange, and ascertained on his arrival there that the land was almost worthless, and that an unconscionable advantage had been taken of him by fraudulent representations, in regard to its quality and value. On a recission at the suit of Mosely, Miller is charged with rents, and is not allowed anything for meliorations and permanent improvements made by him. Opinion by PRYOR. J. Reversed.-Miller v. Mosely.

POWER OF EQUITY TO ORDER SALE OF CHATTELS OWNED IN COMMON.-1. A lease for years is not real but personal estate. Sec. 13, ch. 21, General Statutes. 2. There is no statute authorizing the courts to sell chattels, because they are indivisible between the owners, but in courts of equity such power is inherent and independent of statute, 3. When the chancellor undertakes to supply a remedy, because the law has given none, he should give one commensurate with the exigencies of the case. 4, When the chancellor finds a party with a legal right, but without a remedy to enforce it, he should furnish an adequate remedy. 7. Indivisible chattels, real or personal, may be sold and the proceeds divided among those entitled. When a chattel, whether real or personal, is owned by tenants in common, and is indivisible in kind, ihe chancellor may, on the petition of a part of the owners against the others, decree a sale and division of the proceeds. The sale of a chattel real, in this case, is affirmed. Opinion by COFER, J.-Prather v. Davis.

thorized and empowered him to sell and convey "all said real estate to the purchaser or purchasers thereof, if necessary for the purpose of distributing” it “among the devisees and legatees aforesaid.” Held, 1. That this was a devise in fee, to each of the devisees by name, of an undivided estate in land, in the propor. tions specified, and not a bequest of the proceeds of said land. 2. That the power of sale vested in the executor was a naked power only, not a power coupled with an interest in the land, and could only be exercised, if necessary, for the purpose of making distri. bution among the devisees. 3. Each of said devisees holds his share as a tenant in common with the others, and is entitled to all the rights of such tenancy, subject only to the power of sale. 4. The power of sale was not absolute. It could only be exercised, if necessary, for the purposes of distributing the estate. Its excrcise must be limited to the purposes for which it was granted. 5. A devisee may sell and convey his undi: vided share as real estate before distribution, but the purchaser takes the same, subject to this powerof sale, the same as his grantı r, if its exercise becomes necessary. 6. The devisees or their grantees, have each the right to hold his share in severalty, if the same can be set-off without manifest injury to the others; but if distribution can not be made in land, and it becomes necessary to sell to make a proper division, then the executoris authorized to sell the whole, notwithstand. ing a prior conveyance of an undivided interest by one of the devisees. 7. By proceedings in partition the widow bad her half assigned to her in land. Held, that the power of sale was not thereby defeated as to the other half, if the necessity existed for a sale, to make distribution among the other devisees. 8. The defendant acquired title to an undivided share by purchase of a devisee, the plaintiffs afterwards purchased and received a deed for the whole, including defendant's share, from the executor. The plaintiffs can not maintain their title to the share of defendant, unless the necessity existed for a sale of the whole, and a court of equity will not enjoin proceedings in partition to have such share set-off in land, unless it appears that such share can not be set-off without manifest injury to the interests of his co-tenants. Opinion by JOHNSON, J.; DAY, C. J., and Scott, J., dissenting.– Hoyt v. Day.

BOOK NOTICE.

AMERICAN CRIMINAL REPORTS. A series designed to

contain the latest and most important criminal cases determined in the Federal and State Courts in the United States, as well as selected cases important to American lawyers from the English, Irish, Scotch and Canadian Law Reports, with notes and references. By John G. HAWLEY, late prosecuting attorney at Detroit. Vol. I. Chicago: Callaghan & Co. 1878.

The series of contemporary leading cases on criminal law, interrupted by the death of Mr. Green, has been resumed by Mr. Hawley. The present volume contains 720 pages, with a good index, and the table of cases shows that over 175 cases are reported within its covers. They are selected with care, many of them being fully annotated, and arranged according to subjects, instead of chronologically, or according to states. The present volume must certainly be a sine qua non to the criminal practitioner, and, from the great number of convictions reversed on account of errors, we would recommend it to every nisi prius judge who is called upon to preside over criminal trials. The volume is printed on good paper, and is well bound.

Reg.v. Prince, 2 Cr. Cas., Res. 154, the first case in the volume, is one which,at the time of its decision, provoked considerable discussion. The prisoner was convicted of taking an unmarried female, under the age of fourteen, out of the possession, and against the will of her father.

ABSTRACT OF DECISIONS OF SUPREME

COURT COMMISSION OF OHIO.
December Term, 1877.-Filed December 19, 1877.
HON. LUTHER DAY, Chief Justice.

JOSIAH SCOTT,
D. T. WRIGHT,

Justices.
W.W. JOHNSON,

T. Q. ASHBURN, DEVISE-POWER OF SALE-PARTITION.-A testator, whose estate consisted of a single tract of land occupied as a homestead, and some personal property, devised and bequeathed to his wife one-half of all his real and personal estate, and the other half to his brothers and sisters, and the children of a deceased sister, naming each, and specifying the proportion or share of each. He appointed an executor, and au

[ocr errors]
[ocr errors]

The conviction was had under a statute making such a taking punishable by fine and imprisonment. It was admitted that the prisoner did take the girl; that she was under sixteen, and that he bona fide believed, and had reasonable ground for believing, that she was over sixteen. The jury found that she looked much above that age, and that she told the prisoner that she was so. It was held, however, by the court of criminal appeal, that this afforded no defense, and that the prisoner was rightfully convicted. Fifteen judges, among them the Chief Justice of the Queen's Bench and the Chief Baron of the Exchequer, sustained this ruling, while one (Brett, J.) dissented. Among the American cases on this subject here reported, are Osborn v. The State, 62 Ind. 526, where it was held tbat a statute against abduction “for the purpose of prostitution” would not sustain an abduction for the purpose of sexual intercourse; and Lyons 0. The State, Ib.52, where the court beld that a statute against the abduction of females “of previous chaste character” meant of actual personal virtue in distinction from good reputation, and that the defendant might show in bar of the prosecution a single illicit connection on the part of the woman.

State v. Williams, 75 N. C., is a novel case. The defendants were indicted for assault and battery, in having tied a rope around the prosecutrix's body, and suspended her from a wall. It appeared that the parties were members of a society called “Good Samaritans," and that this was part of the ceremony of expulsion. The court held that the defendants were liable. There is something like a touch of irony in the opinion of Bynum, J.: “If the act of tying this woman would have been a battery, had the parties concerned not been members of the society of 'Good Samaritans,' it is not the less a battery because they were all members of that humane institution." In Com. v. Collberg, 119 Mass. 351, it was held no defense to a charge of assault and battery that the defendant and prosecutor fought by mutual agreement, in the presence of from fifty to one hundred persons, until one of them declared himself satisfied, and that the injuries received by the prosecutor were given in such fight; the court citing Matthew v. Ollerton, Comb. 218; Boulter v. Clark, Bull (N. P.) 16; Stout v. Wren, 1 Hawks, (N. C.) 420; Bell v. Hansley, 3 Jones (N. C.) 131; Adams V. Waggoner, 33 Ind. 531; Logan v. Austin, 1 Stew, (Ala.) 476; Regina v. Lewis, 1 C. & K. 419; Rex v. Perkins, 4 C. & P. Chapman v. State, 14 Ohio St. 437, and State v. Beck, 1 Hill (8. C.) 363, are, however, authorIties to the contrary.

It appears, from Delaney v. State, 41 Tex. 601, that a prisoner who burns a hole in his cell, in order to make his escape, is not guilty of arson though, it seems, that if he intended to escape in the confusion attendent on the burning, he would be. The case of People v. Wilson, 64 Ill, 195, covers nearly fifty pages. Here, the proprietor and editor of a Chicago newspaper, were brought up and fined for contempt of the Supreme Court. The opinion of the judges and the editor's note to this case contain an exhaustive review of the question of constructive contempt. In Waterman o. People, 67 III. 91, a letter of introduction directed “to any railroad superintendent," bespeaking courtesies toward the bearer, was held not a subject of forgery. State v. Henderson, 47 Ind., holds that betting upon the result of an election is not gaming; an election not being a game. Two cases, Doehring v. State, 49 Ind. 66 (a policeman's club), and Berry v. Com. 10 Bush (Ky.), 273, (a knife), hold that what is or is not a dangerous weapon is a question of fact and not of law.

Among the decisions on questions of criminal procedure is the case of State v. Madigan, 48 Ind. 416, where the court holds that the power of entering a nolle prosequi belongs to the circuit attorney and not

to the court. The reporter's note to this case is peculiarly happy. He cites but one authority—a story told of Lord Chief Justice Holt. The Chief Justice haying committed one of a brotherhood of swindlers, who called themselves prophets, named John Atkins, to take his trial for seditious language, another of them pamed Lacy called at the Chief Justice's house, in Bedford Row, and desired to see him. Servant-'My Lord is unwell to-day, and can not see company." Lacy-(In a solemn tone.) “Acquaint your master that I must see him, for I bring a message to him from the Lord God." The Chief Justice having ordered Lacy in and demanded his business, was thus addressed: “I come to you a prophet from the Lord God, who has sent me to thee and would have thee grant a nolle prosequi for John Atkins, his servant, whom thou has sent to prisou.Holt, C. J.-" Thou art a false prophet and a lying knave. If the Lord God had sent thee, it would have been to the attorneygeneral; for he knows that it belongeth not to the Chief Justice to grant a nolle prosequi; but I, as Chief Justice can grant a warrant to commit thee to bear him company." Tbis was immediately done, and both prophets were convicted and punished.

State v. Smith, 75 N. C. 580, may serve as a check upon the invectives of prosecuting attorneys,for here the judgment was reversed on account of two passages in the prosecuting attorney's speech, viz.: “The defendant was such a scoundrel that he was compelled to move his trial from one county to a county where he was not known;" and; “ The bold and brazen-faced rascal had the impudence to write me a note yesterday, begging me not to prosecute him, and threatening me if I did, he would get the legislature to impeach me.” “The court,” it is said, “is the prisoner's constituted shield against all vituperation and abuse," which, if true, is a fact which many judges either have never known or have entirely forgotten. In Indiana, however, this safeguard would seem to be carried rather too far. In Ferguson v. State, 49 Ind. 33, a murder case, it was adjudged error, for which the verdict should be set aside, for the court to allow counsel for the prosecution, in addressing the jury, to comment on the frequency of that crime in the community, ascribing it to the lax administration of the law, and to urge them to make an example of the prisoner.

How opposite is this tender regard for the pris. oner to the conduct of the old English judges in criminal trials. Take, for example, the trial of Sir Walter Raleigh, an account of which the editor has appended to the report of this last case. Chief Justice Popham had decided that, although the charge was high treason, it was sufficiently supported by the uncorroborated evidence of a single witness; that there was no occasion for the witness to be produced in court or sworn, and that a written confession by him accusing himself and implicating the prisoner was enough to satisfy all the requirements of the common and statute law upon the subject. Raleigh urged that Lord Cobham, his sole accuser, should be confronted with him. Popham, C. J.—“This thing can not he granted, for then a number of treasons should flourish." Ral. eigh—"The common trial in England is by jury and witnesses.” Popham, C. J.-" If three conspire a treason, and they all confess it, here is never a witness, and yet they are condemned." Raleigh-"I know not how to conceive the law.” Popham, C. J.-“Nay, we do not conceive the law, but we know the law." The prosecuting attorney, Lord Coke, was even more vehement. While he was detailing the charge to the jury, which he knew he could not establish, he was interrupted by the prisoner. Raleigh-"You tell me news I never heard of.Coke, Atlorney-General-“Oh, Sir, do I? I will prove you the notoriest traitor that ever held up his head at the bar of any court.” Raleigh-“Your words can not condemn me; my inno

cency is my defense. Prove one of these things where doubt about that, and yet, according to the argument with you have charged me, and I will confess the of the prisoner's counsel, there is no evidence of inwhole instrument, and that I am the horriblest traitor tent.

The prisoner had some intent when he that ever lived, and worthy to be crucified with a pursued the woman. There is no evidence tending to thousand thousand torments.” Coke" Nay, I would show that his intent was to kill her or rob her, so tbat prove all; thou art a monster; thou hast an English the intent must have been to have sexual intercourse, face but a Spanish heart.” Raleigh—Let me answer and the jury, considering that he was a negro," (Is for myself." Coke—“Thou shalt not." Raleigh-It the presumption of virtue in the Caucasian a presumpconcerneth my life.” Coke—“ Ob, do I touch you!” tio juris et de jure?) “and considering the hasty The attorney-general's invective and abuse became at flight of the woman, and the prisoner stopping and length too much for even the Bench, and one of the running into the woods when he got in sight of the commissioners, the Earl of Salisbury, rebuked him, house, and the instinct of nature, as between male and saying: “Be not so impatient, good Mr. Attorney, female, and the repugnance of a white woman to the give him leave to speak.” Coke, then, the reporter re- embraces of a negro, had some evidence to find that lates, sat down in a chafe, and would speak no more the intent was to commit a rape." It is a matter of until the commissioners had entreated him. After some satisfaction that two of the judges, Rodman and much ado he went on, and made a long repetition of Bynum, J. J., were unable to concur in either the rea. all the evidence, again addressing the prisoner: soning or conclusions of the Chief Justice. * Thou art the most vile and execrable traitor that ever lived. I want words to express thy viperous treason.

NOTES.
Perhaps the most remarkable cases in this volume are
State v. Biddle, 54 N. H. 379, and State v. Neely, 74 N.
C. 425, the first on account of the amount of learning

In England, eminence at the bar is the path to the and research which is brought to the settlement or non

bench. The system has much in its favor, but there

is this drawback to it, that the admirable advocate settlement of a fact of every day observation; the sec

sometimes proves by no means an admirable judge, ond, as showing how sectional prejudice may warp the evenness of a judicial opinion. Want of space prevents

chiefly because he can not put aside the peculiar sort

of ability which bas made him what he is. This seems us from quoting from the learned opinion in tbe first

to have been the trouble with Mr. Justice Hawkins, in case. It might be read with protit and interest by the

the Penge case, which he lately tried in London. The historian, the naturalist, the novel-reader, and even the

whilom famous counsel against the Tichborne claimdistiller, who may all find here not only an entertaining sketch of the kind and nature of intoxicating liquors,

ant, no doubt, felt an itching to be once more examinbut its use and abuse in every nation under tbe sun;

ing and cross-examining, and couldn't hide the adits mode of manufacture and its effect not only upon

vocate under his ermine. It is roundly charged against

him, that he behaved like a prosecuting counsel, and men, but upon monkeys. The opinion in the second

there is, no doubt, a degree of truth in the allegation. case we would fain perpetuate, as we believe it will continue to afford amusement to the profession as long A SUBSCRIBER sends us the following, which he reas the reports of North Carolina remain extant. The ceived from a justice of the peace in an adjoining prisoner was indicted for assault with intent to com- state. It is written on a postal card, and addressed to mit rape. The prosecutrix, a white woman, having Mr. Judge W -; “Sir, i wont to ask you a ques. parted from a companion, started to go home alone tion in regard to a sivel cais before a Square Can a through the woods. She heard the prisoner-a negro justes ishue a summens on a Defendent that lives out -call out to her to stop, and saw him running after her of the ton Ship where the justes office is so he lives in about seventy yards distant. She ran, and was pur- the saim County i would like to have your advice i sued by the negro about a quarter of a mile, when, have looked the law over and find nothing to hinder coming near a dwelling-house, he turned back and ran but it is the genrel supsetion that a justes can have no off, not having during the chase caught up with her. A jurisdic out of his T. P. to convene a, action i have had majority of the court affirmed the conviction. The to aplication and decline pleas oblige if prudent yours opinion of the Chief Justice is certainly unique: “I

adress to

- J. P.” see a chicken-cock drop his wings and take after a hen; my experience and observation assure me that his A BILL has been introduced into the New Jersey purpose is sexual intercourse; no other evidence is Legislature entitled "An act to reduce the public exneeded. Whether the cock supposes that the hen is pense of the courts of the County of Passaic, by rorunning by female instinct, to increase the estimate of quiring parties in civil causes to pay for the juries in her favor and excite passion, or whether the cock in- such cases.” It is based on the theory that the public tends to carry his purpose by force and against her should not be made to pay the cost of civil actions, and will, is a question about which there may be some it is quite a legal novelty in its way. It passed, it will doubt; as, for instance, if she is a setting ben mark a decidedly“ new departure" in the history of and makes fight, not merely amorous resistance. civil jurisprudence. The bill provides that: “In all There may be evidence from experience and obser- actions brought in the Supreme Court or in the Circuit vation of the nature of the animals, and of male Court of the County of Passaic, and tried in said and female instincts, fit to be left to the jury county, either party may demand a trial by jury, and the upon all of the circumstances and surroundings party so demanding a trial by jury shall be required to of the case. Was the pursuit made with the expecta- pay in advance, or secure to be paid to the sheriff of tion that he would be gratified, voluntarily, or was it said county, the fees of the jurors, at the rate per diem made with the intent to have his will against her will fixed by law, for the number of days or parts of days and force? Upon this case of the cock and the hen, said jurors shall be entitled to receive compensation can any one seriously insist that a jury has no right to

for attendance on the courts in the hearing of said call to their assistance their own experience and ob- cause; and the cost of such jury, paid for, or secured servation of the nature of animals and of male and fe

to be paid as aforesaid, shall be taxed by the clerk male instincts. Again: I see a dog in hot pursuit of

of the court as other costs are taxed, and shall be rea rabbit; my experience and observation assure me

coverable, if judgment shall be given in favor of the that the intent of the dog is to kill the rabbit; no

party demanding the jury.s'

The Central Law Journal. in the late case of King v. Haley. The plain

tiff was injured by the discharge of a pistol in

the hands of an intoxicated person, and it was SAINT LOUIS, FEBRUARY 8, 1878.

held, reversing the ruling below, that the

seller of the liquor was, under the statute, CURRENT TOPICS.

liable, in damages, for the injury. A cause IN Gammon v. Knudson, 11 Western Jur.

of action, the court said, is given to any one

who may be injured, in his person or in prop651, the Supreme Court of Iowa holds that the courts of that state possess the power, in

erty or means of support, by any intoxicated the absence of any statutory enactment on the

person, jointly or severally, against such person subject, to supply records destroyed by fire

or persons who may have caused the intoxica

tion, in whole or in part, of the person who or other casualty. This jurisdiction has been announced in several States. In Keen y.

commits the injury. An action is also given Jordan, 13 Fla. 327, it is said: “The power

to any one who may in the same manner be of supplying a new record, when the original

injured “in consequence” of the intoxicahas been lost or destroyed, is one which per

tion of any one, whether habitual or othertains to courts of record of general jurisdic-wise, against the parties who may cause such

intoxication. In the one case it is for the dition, independent of legislation. It is an in

rect injury inflicted by “ an intoxicated perherent power in such courts, and has been

son," and in the other it is for such damages acted upon in this state in Rhodes v. Mosely, 6 Fla. 12, and in Pearce v. Thackeray, Jan

as may arise “in consequence ” of such in

toxication. This is the plain meaning of this uary term, 1870. In Douglas v. Yallop, 2 Burrow, 722, a new judgment roll, for a judg

section of the statute as expressed in unamment rendered thirty years previous to a mo

biguous language. The general assembly

have seen fit to enact that any one who may tion to supply the loss, was ordered to be made. In Jackson v. Smith, 1 Caines, 496,

be injured by any “intoxicated person, a new nisi prius record was allowed to be

either in his person or property or means of made upon motion and affidavit that the orig

support, may have a cause of action against inal had been lost or burnt, after six years.

the parties who may have caused the intoxicaIn White v. Lovejoy, 3 Johns. 448, a fi. fa.,

tion of the person who commits the injury; on which a levy had been made was burnt,

and there exists no rightful authority by judiand the court ordered a new fi. fa. to be sub

cial construction to deprive such party of the

right secured, which to him in many instances stituted. The power has been long and fre

may be of the utmost value. What reason is quently exercised in Alabama. McLendon v.

there why there should not be an action for Jones, 8 Ala. 298; Doswell v. Stewart, 11

the direct damage done by a drunken person, Ala. 629; Dozier v. Joyce, 8 Porter, 303; Williams v. Powell, 9 Porter, 493; Wilkinson

as well as for damages that arise in consev. Brandam, 5 Ala. 608; Lyon v. Bolling, 14

quence of such intoxication? The injury to the Ala. 753; Bishop v. Hampton, 19 Ala. 792 ;

person is most likely to be the direct act 3 Ph. on Ev. 1,066.

of the "intoxicated person." And the injury Upon the destruction of any part of a record, or of the process, plead

to the “ means of support” would generally ings or orders in a suit, the loss

arise in “ consequence of the intoxication' may

be

supplied by making up others in their stead, pro

incapacitating the party for attending to busivided the court be reasonably satisfied that

ness or causing him to waste his estate. the proposed substitute is of the same tenor. Upon that, the court where the suit is must

A CORRESPONDENT raises the question, exercise its own judgment. Harris v. Mc

Have probate courts in Missouri jurisdiction Rae's, Adm., 4 Iredell, 84.” See also Adkin

to issue writs of habeas corpus ? Prior to the son v. Keel, 25 Ala. 551; Evans v. Thomas,

adoption of the constitution of 1875 probate 2 Strange, 833; King v. Bolton, 1 Strange,

courts, wherever they were courts of record, 141.

had authority to issue writs of habeas corpus,

(sec. 2, ch. 155, Gen. Stat. 1865) as all courts THE “ civil damage » law of Illinois came of record and the judge thereof had such again before the Supreme Court of that state, authority. Was that authority repealed by the

Vol. 6.- No. 6.

new Constitution, and the Probate Court Act carry colored persons in the same cars, cabins, of 1877? Sec. 34, art. 6, Const. 1875, says etc., as whites, has been, so far as it apthat a probate court shall be established in plies to foreign and inter-state commerce, deeach county and shall have jurisdiction over clared unconstitutional by the Supreme Court all matters relating to probate business, grant- of the United States. The following extract, ing letters testamentary, appointment of from the opinion of the Chief Justice, contains guardians and trustees, the selling and leasing the pith of the decision: “It may safely be of lands by administrators, and over matters said that state legislation which seeks to imrelating to apprentices. It does not go on to pose a direct burden upon inter-state comsay " and such other business as may be pre- merce, or to interfere directly with its freedom, scribed by law," as sec. 36 does relating to does encroach upon the exclusive power of county courts. The proviso in sec. 34 further Congress. The statute now under considerasays that, "until the general assembly shall tion, in our opinion, occupies that position. provide by law for a uniform system of pro- It does not act upon the business through the bate courts, the jurisdiction of probate courts local instruments to be employed after coming heretofore established shall remain as now within the state, but directly upon the busiprovided by law." Sec. 3, schedule, says: ness as it comes into the state from without “All county and probate courts, as now organ- or goes out from within. While it purports ized, shall continue 'with their jurisdiction only to control the carrier when engaged until the general assembly shall by law conform within the state, it must necessarily influence them in their organization to the requirements his conduct to some extent in the management of this constitution.” Sec. 34, art. 6, and of his business throughout his entire voyage. sec. 3, of the schedule, of course, mean that His disposition of passengers taken up and until the legislature acted, the old probate put down within the state, or taken up within courts should remain as before, and it is to be carried without, can not but affect, in a equally clear they mean that, after the legisla- greater or less degree, those taken up withture had acted, the old jurisdiction ceased and out and brought within, and sometimes the new began. In support of this, see sec. 9, those taken up and put down without. A art. 1, Const. U.S., which says that the privilege passenger in the cabin set apart for the use of the act of habeas corpus shall not be sus- of whites without the state, must, when the pended, etc. unless in case of rebellion, etc.; boat comes within, share the accommodations meaning that in case of rebellion, etc., it could of that cabin with such colored persons as be suspended. Also sec. 10, art. 1: “No

may come on board afterwards, if the law is state shall make anything but gold and silver enforced. It was to meet just such a case coin a tender," etc., meaning, of course, that that the commercial clause in the constia state could make gold and silver a tender. tution was adopted. The river Mississippi Our attachment law, sec. 1, ch. 14, Gen. Stat., passes through or along the borders of says that no property or wages declared by ten different States, and its tributaries law exempt from execution shall be attached reach many more. The commerce upon these except in case of a non-resident defendant, waters is immense, and its regulation clearly etc. While it does not expressly say so, it a matter of national concern. If each state means that in case of non-residence, etc., such

was at liberty to regulate the conduct of carproperty could be attached. So with the con

riers while within its jurisdiction, the confusion stitutional provision as to probate jurisdiction. likely to follow could not but be productive Again, why did the convention designate the

of great inconvenience and unnecessary hardjurisdiction of probate courts if it did not ship. Each state could provide for its own intend to confine them to that jurisdiction?

passengers and regulate the transportation of See also secs. 1, 2 and 19 Probate Court Act of

its own freight, regardless of the interests of 1877. On the whole, it would seem that their

others. Nay, more, it could prescribe rules jurisdiction in habeas corpus cases has been by which the carrier must be governed within

the state in respect to passengers and property

brought from without. On one side of the The Louisiana statute requiring those en- river or its tributaries he might be required to gaged in the transportation of passengers to observe one set of the rules, and on the other

taken away:

« PreviousContinue »