It

not be sustained. It imposes a tax of two per cent on gross receipts, or in lieu of that, five dollars per mile for the number of miles of railroad over which the business is done, thus impliedly taxing those only who do express business over a railroad, and thereby excepting from its operation business no part of which is done over railroads. This is in no sense a tax on property, or on polls or estates. does not regard the capital invested, the expenses incurred, or the losses sustained. And if by any process of reasoning it could be held a tax on property, the tax imposed is not proportional and reasonable. It is based not on valuation, but on business; not on the amount of capital invested, but on the capacity for business of the managers or owners; not on net profits, but on gross receipts. The gross receipts of one company may be small, and the net profits large; while of another, the gross receipts may be large and the profits small; or there may be none at all. It makes no allowance for the skill, experience, business tact, or enterprise of the owners or managers, but all these which enter into the gross receipts are thus made to pay a share of the taxes. The tax assessed bears no such proportion to the whole sum to be raised as the property of the tax payer bears to the whole taxable property; and it is open to the further objection, that it is double taxation for not only is the property employed in the business taxed, but its capacity to earn money, as evidenced by the gross earnings, is also taxed. It is the same in principle as if all the horses or oxen in the State were taxed, and then the owners were required to pay a percentage of their gross earnings. There is no provision for deducting the amount of the tax assessed on the capital; and herein is another element of inequality. It is not imposed in proportion to the whole amount to be raised by assessment on all the property in the State. It is a fixed assessment laid on a certain class of persons regardless of the amount called for from other property, or the percentage assessed on the valuation of other property. It is the same in all cases, whether the property invested or the profits received are large or small. The amount raised is limited only by the success of the persons engaged in the business, without reference to the amount required by the State. If in any case a tax of this character could be levied on business, even then this statute could not be sustained. It is not a tax on all business alike, but one particular kind is singled out from all the others without regard to whether it is advantageous or injurious to the community, and made to bear the whole burden placed on business." In State v. Phila., etc., Co., 45 Md. 361; S. C., 24 Am. Rep. 511, it was held that a tax on gross receipts of a corporation in lieu of all other taxes is not a direct tax on property, forbidden by the Constitution. In American Union Express Co. v. City of St. Joseph, 66 Mo. 675; S. C., 27 Am. Rep. 382, it was held that a tax on gross receipts of an express company is valid under the constitutional provision for uniformity. To same effect, City of New Orleans v. Kaufman, 29 La. 283; S. C., 29 Am. Rep. 328.

THIRTY-THIRD AMERICAN REPORTS.

THIS volume contains the cases of general interest THIS volume general interest in 46 Connecticut, 91 Illinois, 67 Indiana, 51 Iowa, 23 Kansas, 31 Louisiana Annual, 49, 50 Maryland, 39 Michigan, 25 Minnesota, 69 Missouri, 14 Nevada, 77 New York, 82 North Carolina, 7 Oregon, 89 Pennsylvania State, 48 Wisconsin. Among the more important notes are those on contract to "satisfaction;" compelling prisoner to expose his person for identification; measure of damages for coal mined on another's land by mistake; evidence of pecuniary standing of defendant in slander; complaints of injured party to surgeon; insurance of stock of goods; constructive fraud as between physician and patient; surety-evidence of judgment against principal; trade-mark in name of publication. Among the most noticeable decisions are the following:

ACTION. Under a statute of New York, giving a right of action for wrongfully or negligently causing the death of any person, an action may be maintained for negligently causing the death of a citizen of New York on the high seas, on a vessel hailing from and registered in a New York port, and employed by the owners at the time in their own busiMcDonald v. Mallory, 77 N. Y. 546; p. 664. AGENCY. An insurance agent, who is also employed by the owner of property to watch it, may bind the company by a policy of insurance thereon. Northrup v. Germania Fire Ins. Co., 48 Wis. 420; p. 815.

ness.

CARRIER. A railroad company is not excused from receiving and transporting cattle by reason of a statute prohibiting such transportation, which is unconstitutional, although not so declared at the time of such refusal. Chicago and Alton Railroad Co. v. Erickson, 91 Ill. 613; p. 70.

A railway ticket marked, "good on passenger trains only," does not imply that all the passenger trains of the railroad company issuing it will stop at the station designated on it, nor impose on the company any obligation to stop there contrary to its rules. Ohio and Mississippi Railway Company v. Swarthout, 67 Ind. 567; p. 104.

CONSTITUTIONAL LAW.- Under the Pennsylvania Bill of Rights, the jury, in a criminal case, have the power, and consequently the right, to render a verdict contrary to the instructions of the court upon the law. Kane v. Commonwealth, 89 Penn. St. 522; p. 787.

CONTRACT. Where one fails fully to perform a contract for labor, for any reason except voluntary abandonment, and the labor rendered is valuable, he may recover the value of the labor performed less any damages sustained by the other party for the breach. Steeples v. Newton, 7 Or. 110; p. 705.

A contract for a portrait to be "satisfactory" to the customer gives him the option of refusing it at his pleasure. Gibson v. Cranage, 39 Mich. 49; p. 351.

A woman and her husband, in consideration of the satisfaction of a demand of $600 against the

husband, and the payment to them of $275, absolutely assigned to A. and B. a policy in favor of the defendant on her husband's life; A. paid the subsequent premiums until maturity, when the amount due was $1,477.73; the insurers refused to pay it without the defendant's receipt on the back of the policy; the defendant refused to sign her name without receiving $477.73 when the policy was collected; accordingly A. executed a written agreement to pay her that sum on the payment of the policy; she signed her name, and A. and B. received the full amount; in an action against them on the agreement, held, that it was unconscionable, and not enforceable beyond an amount fairly due for her service and inconvenience in writing her name. Kelly v. Caplice, 23 Kans. 474; p. 179.

CRIMINAL LAW.- In a criminal case on a question of personal identity, a witness testified that the defendant had certain tattoo marks on his person. The court compelled the defendant, against his objection, to exhibit his person to the jury. Held, no State v. Ah Chuey, 14 Nev. 79; p. 530.

error.

On an indictment for forgery, the prisoner is bound by his consent to be tried by less than twelve jurors. State v. Kaufman, 51 Iowa, 578; p. 148.

It is no defense to an indictment for escape that the jail was unhealthful and filthy. State v. Davis, 14 Nev. 439; p. 563.

If one finds lost property, and knows the owner, or there are marks on the property by which he can ascertain the owner, and he converts the property to his own use, intending at the time of finding so to convert it, he is guilty of larceny, but not so if that intention is not formed until afterward. Clifford, 14 Nev. 72; p. 526.

State v.

A offered a $5 bill to pay forty cents ferriage, received and kept the $4.60 in change, but refused to deliver the $5 bill. Held, larceny. State v. Anderson, 25 Minn. 66; p. 455.

On a prosecution for selling intoxicating liquor to a minor, it is a good defense to show that the seller reasonably believed him of age. Faulks v. People, 39 Mich. 200; p. 374.

DAMAGES. In a civil action for damages by assault, evidence of the defendant's wealth is improper, unless it is a case for exemplary damages. Morgan v. Durfee, 69 Mo. 469; p. 508.

In an action of damages for mining and carrying away coal, the measure of damages is the value of the coal when first severed from the bed, allowing nothing for the expense of digging; and if the trespass was not unintentional, exemplary damages may be added. Franklin Coal Co. v. McMillan, 49 Md. 549; p. 280.

In trover for coal dug and carried away from the land of another, the measure of damages is the value of the coal at the mouth of the pit or shaft, less the cost of carriage from the bed thither, but allowing nothing for digging, separating, breaking or other acts necessary to render it marketable. McLean County Coal Co. v. Lennon, 91 Ill. 561; p. 64.

DEED.-The rule that a conveyance to husband and wife constitutes them tenants by the entirety, the survivor taking the whole estate, is not changed

by the abolition of joint tenancies, nor by the acts enabling married women to acquire and hold property separate from their husbands. Marburg v. Cole, 49 Md. 402; p. 266.

FISHERY. - In the absence of notice against trespass, no action will lie for taking fish from a small lake nearly surrounded by the plaintiff's land. Marsh v. Colby, 39 Mich. 626; p. 439.

FRAUD.-A. was seventy years old, very wealthy, infirm, and confined to the house, but of sound mind and judgment. F. was his physician and confidential friend. A. executed a contract with F., by which, in consideration of one dollar and F.'s services in securing certain stock for A., A. agreed to transfer a certain interest in the stock to F. F. received thereby about $50,000. A. having died, his executors brought suit to set aside the transaction. Held, that F. was at liberty to show that the transaction was a gift; that a physician is not prohibited from receiving a gift from his patient by reason of the mere relation; and that the burden of proof of fairness is not on the defendant. Audenreid's Appeal, 89 Penn. 114; p. 731.

GUARANTY.—A guaranty of collection cannot be enforced until legal proceedings to collect have been instituted and proved ineffectual, although the principal may have been insolvent. Bosman v. Akeley, 30 Mich. 710; p. 447.

INSANITY. A lunatic may be sued at law and judgment may proceed against him upon a debt contracted while he was of sound mind, and equity will not intefere. Stigers v. Brent, 50 Md. 214; p. 317.

INSURANCE.— Where a policy of fire insurance provides that no action shall be sustainable thereon until an award fixing the amount of claim, nor unless commenced within twelve months next after the loss shall occur, the action must be brought within twelve months from the occurrence of the fire, and the time does not continue until twelve months after the award. Johnson v. Humboldt Ins. Co., 91 Ill. 92; P. 47.

A policy insured "household furniture, useful and ornamental, including sewing machine, provisions and family wearing apparel, all contained in" a certain dwelling-house. The insured sustained damage to his personal apparel, part of the insured, while wearing it away from the insured premises. Held, that the policy covered the loss. Longueville v. Western Assurance Co., 51 Iowa, 553; p. 146.

UDGMENT.— An action by the owner of goods against a carrier, for damages for failure to transport such goods, is barred by a previous judgment in favor of the carrier against the owner for the eight of such goods. Dunham v. Bower, 77 N. Y. 76; p. 570.

MANDAMUS. A mandamus will not issue to compel a canvassing board to canvass election returns and declare the result, where the returns to the board show that there were 2,947 votes cast, and there were in fact only 800 legal voters in the county. State ex rel. Mitchell v. Stevens, 23 Kans. 456; p. 175.

vorce replaces the parties in the state in which they were before the divorce, without regard to a subsequent marriage and the birth of children; an agreement between the parties to the contrary is of no effect; and where the divorce was granted by the court of another State, it will be presumed that the annulling of the decree by the same court is regular | and valid. Comstock v. Adams, 23 Kans. 513; p.

191.

Where alimony in a wife's suit for divorce has been fixed by the court and duly paid by the husband, the husband is not liable for subsequently furnished necessaries. Crittenden v. Schermerhorn, 39 Mich. 661; p. 440.

A decree of divorce gave the custody of the infant child of the parties to the father, subject to the mother's right of access in a specified manner. Held, that the father might appoint a testamentary guardian, but this could not cut off the mother's right of access, to be regulated by the court. Hill v. Hill, 49 Md. 450; p. 271.

Where a decree of divorce awards the custody of a minor child to the mother, the father is not further bound for the support and maintenance of the child. Husband v. Husband, 67 Ind. 583; p. 107.

MECHANICS' LIEN.- Where a building is erected | on a wife's land at the sole request of her husband, a mechanics' lien will not attach to the wife's estate in the land, although she knew of and did not object to the erection while it was in progress. Flannery v. Rohrmayer, 46 Conn. 558; p. 36.

MUNICIPAL CORPORATION.-If a municipal corporation, in improving its streets, accumulates surface water and turns it in new and destructive currents upon the lands of adjoining owners, it is liable in damages. O'Brien v. City of St. Paul, 25 Minn.

333; p. 470.

A municipal corporation, intrusted with the care of streets, in discharging that duty, and without negligence, increased the natural flow of surface water discharging into a certain mill-race, whereby the mill-owners sustained injury. Held, that no action was maintainable therefor. Mayor, etc., of Cumberland v. Willison, 50 Md. 138; p. 304.

A ruinous wall on private property in a city, dangerously near a public street, fell and killed a child in a building one foot outside the limits of the street. The city authorities knew of the condition of the wall, were authorized by the charter to declare and abate nuisances, and there was a city ordinance declaring dangerous buildings and structu es nuisances. Held, that the city was liable in damages for the death. Kiley v. City of Kansas, 69 Mo. 102; p. 491.

A municipal corporation is not liable for injurie caused by the fall of a public market building, caused by a cyclone. Flori v. City of St. Louis, 69 Mo. 341; p. 504.

NATIONAL BANK.- A National bank, receiving a special deposit for safe-keeping without reward, is liable only for gross negligence; the burden of proof is on the plaintiff; and gross negligence is not the omission of that care which every attentive and diligent person takes of his own goods, but the omis

sion of that care which the most inattentive takes. First National Bank of Allentown v. Rex, 89 Penn. St. 308; p. 767.

NEGLIGENCE. A company, organized to supply the inhabitants of a city with water, contracted with the municipal authorities to supply their hydrants, but failing to do so, the fire department were unable to extinguish a fire in the city. Held, that the company were not liable in damages to the owner of the property destroyed. Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24; p. 1.

NEGOTIABLE INSTRUMENTS.- A negotiable note for ten dollars was executed with a blank preceding the amount. Afterward the words "one hundred and " were fraudulently inserted before the word "ten." There was nothing in the note to excite suspicion, and it was subsequently transferred to an innocent person. Held, that he could not recover. Knoxville National Bank v. Clarke, 51 Iowa, 264; p. 129.

A provision in a note for an attorney's fee in case of proceedings to collect is void. Bullock v. Taylor, 39 Mich. 137; p. 356.

A waiver of protest by the indorsers of a promissory note includes a waiver.of demand. Harvey v. Nelson, 31 La. 434; p. 222.

NUISANCE. In an action of nuisance against several acting independently in polluting a stream by the discharge of sewerage from the premises of each, each is liable only to the extent of the separate injury committed by him. Chipman v. Palmer, 77 N. Y. 51; p. 566.

An injunction will issue to restrain the operation of steam machinery which jars and shakes the complainant's house so as to render it unsafe or unfit for habitation. Dittman v. Repp, 50 Md. 516; p. 325.

OFFICE AND OFFICER.— A county treasurer is liable for the public money lost by the failure of a bank in which he deposited it, although the county provided no safe place for such deposit. Lowery v. Polk County, 51 Iowa, 50; p. 114.

RELIGIOUS SOCIETY. - The pastor of a religious society got judgment against the trustees for his salary, and a levy was made on the church communion service. Held, invalid. Lord v. Hardie, 82 N. C. 241; p. 683.

REPLEVIN.- Where several own cereal grain of the same kind and value, mingled together by their consent, or by reason of circumstances reasonably to be foreseen, each may maintain replevin for his just proportion. Piazzek v. White, 23 Kans. 621; p.

211.

SLANDER AND LIBEL.-In an action of slander the pecuniary standing of the defendant may be shown to indicate the influence of his speech, but not in itself to enhance damages, Brown v. Barnes, 39 Mich. 211; p. 375.

STATUTORY CONSTRUCTION.- Under a statute prohibiting the disclosure by a physician of information acquired in professional attendance and necessary to enable him to prescribe, in an action for damages for a personal injury by defendant's violence, a physician is not precluded from divulging the plaintiff's admission to him that the injury ex

isted before the defendant's act, unless it affirmatively appeared that the disclosure was necessary to enable him to prescribe. Campau v. North, 39 Mich. 606; p. 433.

SURETY. A judgment against the principal obligor in an official bond, showing upon its face that it was recovered for a breach of the conditions, is prima facie evidence of the plaintiff's right to recover against the sureties, and of the amount of such recovery, although they had no notice of the action. Stephens v. Shafer, 48 Wis. 54; p. 793.

TRADE-MARK.— The complainant had for some twenty years published an almanac entitled "J. Gruber's Hagerstown Town and County Almanack,' which had been established and long published by his ancestor. The defendant, in 1879, issued an almanac, with the same emblems, devices, marks, representations, and general exterior appearance, and entitled, "T. G. Robertson's Hagerstown Almanac. Held, that the defendant's publication would be enjoined. Robertson v. Berry, 50 Md. 591; p. 328.

TRESPASS.-In an action of trespass against two or more acting independently, and producing a result injurious to the plaintiff, one cannot be held for the acts of the others. Blaisdell v. Stephens, 14 Nev. 17; p. 523.

USURY.- Where a husband, as agent for loaning his wife's money, takes a commission for himself beyond the rate of legal interest, without his wife's knowledge or consent, the loan is not vitiated for usury. Brigham v. Myers, 51 Iowa, 397; p. 140. WITNESS. The conviction of one of felony in another State does not disqualify him as a witness in this. National Trust Co. v. Gleason, 77 N. Y. 400; p. 632.

We have no space for further citations, but there is not an unimportant case in the volume.

DRINKS, DRINKERS, DRINKING.

DURING the dry and thirsty days of last sum

mer, we meditated awhile on these subjects, and now, in the cool, damp days of March, we return to them. The "public" says that these drinks are adapted to all times and every season; cooling in summer, warming in winter, drying in wet and wetting in dry weather.

In California a judge told a jury that to render a man an “habitual drunkard," the intoxication must be such as completely to disqualify him from attending to his business vocations. But the court held that that was laying down the rule in too stringent a manner, and that if there be a "fixed habit of drinking to excess to such a degree as to disqualify a person from attending to his business during the principal hours usually devoted to business," it is habitual intemperance. Mahone v. Mahone, 19 Cal. 627. The Iowa Supreme Court, on the other hand, was not prepared to say that if a person has a fixed habit of drinking intoxicating liquors to excess, is frequently drunk, and that such is his normal condition during the night and the time not devoted to business, his wife would not be entitled to a divorce on the ground of his “habitual drunkenness.” 22 Alb. L. J. 66. "Drunkenness is a species of insanity." Duffield v. Robeson, 2 Harr. 375. It is not correct to say that one is "in the habit of becoming intoxicated," when

he has only once been seen drunk, and only sometimes takes a drink. Calder v. Sheppard, 61 Ind. 219. Not only is the owner of a place for the unlawful sale of strong drinks considered the "keeper" thereof, but also any one who is in possession, has control, or is running the business. Schultz v. State, 32 Ohio St. 276. Boys will be boys, as old Richard, or some one else, remarks; and will be continually getting others into trouble. In proceedings against a publican for selling liquor to a minor, the jury must not "view" the boy or consider his old looks, in determining whether or not the defendant acted in good faith, believing the boy to be-not the father of a man-but a man, himself. Kiruger v. Stats, 53 Ind. 251. A reasonable and honest belief in the mind of the dramseller, that the "minor" is not a minor, but of full age, is a good defense in such an action. Robinins v. State, 63 Ind. 235. One may sell liquor to a minor, if his father or mother is to drink it. Com. v. Latinville, 120 Mass. 385. For the law does not seek to prevent a boy being a carrier of strong drink, but only forbids it being warehoused within him. See Ross v. People, 17 Hun (N. Y.), 591.

Bergen walked up to Burnham's bar, somewhere down east, accompanied by two minors, and called for drinks for the three. The boys understood the proceeding and each named his liquor, and having received it took it without winking (at least the reporter does not say they did). Bergen paid for the party. On an action against Burnham for selling liquor to minors, the court held that he had not done so; that the sale was to the man Bergen, and that the fact of the boys choosing their own drinks and receiving them action. St. Goddard v. Burnham, 124 Mass. 578. In directly from the bar-keeper, did not alter the transthe eye of the law it is a greater misdemeanor to show one's self when drunk than it is to be drunk; the sin consists in the public exhibition, not in the intoxication itself.

If one becomes "gloriously drunk," as the poet Cowper says, "with the walnuts and the wine" (to quote Tennyson), at a social party held in the house of a friend, he cannot be prosecuted for being intoxicated in a "public place." State v. Sowers, 52 Ind. 311; State v. Waggoner, id. 681. Nor would one be liable if found drunk in his own house. Reg. v. Blake, 6 Pr. Rep. (Ont.) 244. A tavern-keeper found drunk at 11:30 P. M. in his own house, after the premises have been closed for the night, cannot be punished for being found drunk on "licensed premises;" for these words must mean premises open to the public during licensed hours, or during the time when the premises are a quasi public place. Mr. Justice Miller thought that to hold one liable for being drunk in the privacy of his own chamber would produce the most singular consequences. Lester v. Torrens, L. R., 2 Q. B. D. 603.

But once upon a time, in Yorkshire, a policeman, going up stairs in a tavern, found the landlord drunk (who believed as the poet sang:

"He who goes to bed, and goes to bed sober, Falls as the leaves do, and dies in October; But he who goes to bed, and goes to bed mellow, Lives as he ought to do and dies an honest fellow,") and haled him before the magistrates, and they fined him for being "drunk in a public place." Alas for the maxim, "Domus sua quique est tutissimum refugium!" Wharton on Innkeepers, p. 81.

Doubtless an innkeeper, intoxicated on his own premises while they are open, was as much amenable to the penalty for being found drunk in a "public place" as if picked up upon the highway. Lester v. Torrens, supra.

A "public place" is any place to which the public have admission free of charge; or any place which, though not open to the public without payment, is still open to all who are willing to pay certain charges, such as railways, omnibuses, etc. Ex parte Davis, 26