either party may remove said suit into the Circuit Court of the United States for the proper district; and when, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, may remove said suit to the Circuit Court of the United States for the proper district." 18 Stat., pt. 3, 470.

We had occasion to consider the meaning of the first clause of this section in Removal Cases, 100 U. S. 468. Disregarding as immaterial the mere form of the pleadings, and placing the parties on opposite sides of the real matter in dispute, according to the facts, we found that the only controversy there was between citizens of Ohio and Pennsylvania on one side, and certain corporations created under the laws of Iowa on the other. And we held that if, in arranging the parties upon the respective sides of the real matter in dispute, all those on one side are citizens of different States from those on the other, the suit is removable, under the first clause of the second section of the act of 1875-those upon the side seeking a removal uniting in the petition therefor. Whether that suit was not also removable under the second clause of that section we reserved for consideration until it became necessary to construe that part of the statute. The present case imposes that duty upon us.

We may remark that with the policy of the act of 1875 we have nothing to do. Our duty is to give effect to the will of the law-making power when expressed within the limits of the Constitution.

We are of opinion that the intention of Congress, by the clause under consideration, was not only to preserve some of the substantial features or principles of the act of 1866, but to make radical changes in the law regulating the removal of causes from State courts. One difference between that act and the second clause of the second section of the act of 1875 is, that whereas the former accorded the right of removal to the defendants who were citizens of a State other than that one in which the suit was brought,—if between them and the plaintiff or plaintiffs there was, in the suit, a controversy finally determinable as between them, without the presence of their co-defendants, or any of them, citizens of the same State with plaintiffs, - the latter gave such right to any one or more of the plaintiffs or the defendants actually interested in such separate controversy. Both acts alike recognize the fact that a suit might, consistently with the rules of pleading, embrace several distinct controversies, But while the act of 1866, in express terms, authorized the removal only of the separable controversy between the plaintiff and the defendant or defendants seeking such removal, leaving the remainder of the suit, at the election of the plaintiff, in the State court, the act of 1875 provided, in that class of cases, for the removal of the entire suit.

were so far connected by their circumstances as to make all who sue, or are sued, proper, though not indispensable parties. Rather than split up such a suit between courts of different jurisdictions, Congress determined that the removal of the separable controversy to which the judicial power of the United States was, by the Constitution, expressly extended, should operate to transfer the whole suit to the Federal court.

If the clause of the act of 1875, under consideration, is not to be thus construed, it is difficult to perceive what purpose there was in dropping those portions of the act of 1866 which, ex industria, limited the removal, in the class of cases therein provided for, to that controversy in the suit, which is distinctively between citizens of different States, and of which there could be a final determination without the presence of the other defendants as parties in the cause.

It remains only to inquire how far this construction of the act of 1875 controls the decision of the case now before us. The complaint, beyond question, discloses more than one controversy in the suit. There is a controversy between the plaintiffs and the Winona & St. Peter Land Company, to the full determination of which the other defendants are not, in any legal sense, indispensable parties, although, as stockholders in the company, they may have an interest in its ultimate disposition. Against the latter, as a corporation, a decree is asked requiring it to convey to the plaintiffs an undivided two-ninths of one-thirty-seventh of certain lands, and to account for the proceeds of the lands by it sold subsequently to the conveyance from the railroad company.

But the suit as distinctly presents another and entirely separate controversy, as to the right of the plaintiffs to a decree against the individual defendants for such sum as shall be found, upon an accounting, to be due from them upon sales prior to the conveyance from the railroad company. With that controversy the land company, as a corporation, has no necessary connection. It can be fully determined as between the parties actually interested in it without the presence of that company as a party in the cause. Had the present suit sought no other relief than such a decree, it could not be pretended that the corporation would have been a necessary or indispensable party to that issue. Such a controversy does not cease to be one wholly between the plaintiffs and those defendants because the former, for their own convenience, choose to embody in their complaint a distinct controversy between themselves and the land company. When the petition for removal was presented, there was in the suit, as framed by plaintiffs, a controversy wholly between citizens of different States, that is, between the plaintiffs, citizens respectively of Minnesota and Indiana, and the individual defendants, citizens of New York, Wisconsin and Massachusetts. And since the presence of the land company is not essential to its full determination, the defendants, citizens of New

the express words of the statute, to have the suit removed to the Federal court.

It may be suggested that if the complaint has united causes of action, which under the settled rules of pleading need not or should not have been united in onc suit, the removal ought not to carry into the Federal court any controversy except that which is wholly between citizens of different States, leaving for the determination of the State court the controversy between the plaintiffs and the land company. We have endeav ored to show that the land company was not an indispensable party to the controversy between the plaintiffs and the defendants, citizens of New York, Wisconsin and Massachusetts. Whether those defendants and the land company were not proper parties to the suit we do not now decide. We are not advised that any

think the creditor had a right to consider it as a payment made by Worthley. This view, in our judgment, harmonizes with the spirit and intent of the statute, while the adoption of the construction claimed by the defendant would operate as a fraud upon the plaintiff, and be in conflict with the theory of the law pertaining to the defenses of actions from lapse of time.

This case is clearly distinguishable from Bailey v. Corliss, 51 Vt. 366. There the payment relied upon was a voluntary one. The defendant acted as the agent of the party making it, and informed the creditor at the time he handed him the money, whose it was, and what disposition he was requested to make of it; so that there was nothing in the conduct of the defendant that had a tendency to mislead the creditor, or to induce the belief that he intended to assume any new responsibility, or to waive any legal right.

The judgment is reversed and cause remanded

GREEN V. STATE OF ALABAMA.

A statute of Alabama provides thus "where the commission of an offense commenced here is consummated without the boundaries of this State, the offender is liable to punishment therefor, and the jurisdiction in such case is in the county in which the offense was committed." Held, that the statute is constitutional, and one committing an assault with intent to kill in Alabama, from which the assaulted person dies in Georgia, may be convicted of murder in Alabama.

The admission of dying declarations is not hearsay, and is not in contravention of the constitutional right of the accused to be confronted by the witnesses against him. NDICTMENT for murder. Sufficient facts appear the opinion.

INDE

SOMERVILLE, J. The principal question involved in this case is that of sovereign jurisdiction in the matter of homicide, where the fatal shot or blow occurs in one State, and death in another.

The appellant, Green, being under indictment, was convicted of the murder of Ephraim Thompson, and sentenced to the penitentiary for life. The evidence showed that the act of shooting, which caused the death, took place in Colbert county, Alabama, where the indictment was found and the trial occurred. Thompson died within a year and a day, in the State of Georgia.

It was formerly doubted, at common law, where a blow was inflicted in one county, and death by reason of the injury ensued in another, whether the offense could be prosecuted in either county. 1 East's P. C., 361; 1 Hale's P. C., 426. The better opinion seems to have been, however, that the jurisdiction attached in the venue where the blow was inflicted. Id. This difficulty, as noted by Mr. Starkie, was sought to be avoided by the legal device of carrying the dead body back into the county where the blow was struck; and the jury might there, he adds, inquire both of the stroke and death. 1 Stark., Cr. Pl. (2d ed.), 3, 4, and note.

It was to quiet doubts and obviate this difficulty, that the statutes of 2 and 3 Edw., VI, ch. 21, and the later one of 2 Geo., 2-21, were enacted by the British Parliament.

The example has been followed by some fourteen or fifteen States of the American Union, and by our own State, among others. These statutes, though different in phraseology, are similar in substance and purpose. Their mauifest desigu seems to be to prevent a defeat

of justice in administering the law of felonious homicide and other crimes, by rendering the jurisdiction certain.

The Alabama statute, as comprised in section 4634 of the Code (1876), reads as follows:

When the commission of an offense, commenced here, is consummated without the boundaries of this State, the offender is liable to punishment therefor, and the jurisdiction in such case, unless otherwise provided by law, is in the county in which the offense was committed." The validity of the statute is assailed, as being beyond the scope of legitimate legislative power.

It may be conceded that the laws of no nation can operate beyond its own territorial domain or jurisdiction, being local in their nature, and coextensive only with the limits of the State by which they are enacted. As said by Story, J., in the case of The Apollos, 9 Wheat. 362, "they must always be restricted, in construction, to places and persons upon whom the legislature have authority and jurisdiction." It is a safe principle, perhaps, to be asserted, that a crime committed in a foreign country, and in violation of the laws thereof, cannot by mere legislative fiction or construction, be constituted an offense in another country.

This reasoning does not apply, however, to a case where a crime is perpetrated partly in one State or country and partly in another, "provided," as suggested by Mr. Bishop, "that what is done in the country which takes jurisdiction, is a substantial act of wrong, and not merely some incidental thing, innocent in itself alone." This principle must be subject, perhaps, to reasonable limitation. 1 Bish. Cr. Law, sec. 116.

We can find no case where statutes of this character, when subjected to judicial interpretation, have been declared unconstitutional, especially where the question arose in a case of homicide, on an indictment in the jurisdiction where the fatal blow was given.

In Commonwealth v. Parker, 2 Pick. 549, the question was raised as to the repugnancy of a similar statute of Massachusetts to the constitution. Chief Justice Parker, discussing the power of the legislature to enact such a law, says: "Surely, an act of the legislature which removes all doubt as to place of trial, by designating the county in which the death happened, is, in no respect, a violation of the spirit, or even the letter of the constitution."

The sovereign rights of States to enact jurisdictional laws of this kind, though often questioned, has been uniformly sustained, and notably in the recent case of Hunter v. State, 40 N. J. Law, 495. Here the mortal blow was given within the jurisdiction of New Jersey, and the death of the victim occurred in Pennsylvania. It was held that the courts of the former State had cognizance of the crime by force of a statute not unlike our own. So in the States of Michigan and Missouri. Tyler v. State, 8 Mich. 321; Stevenson v. State, 10 Mo. 503.

If, then, we consider the fatal shooting of the deceased by the appellant as the commencement, merely, of the crime of murder charged in the indictment, and that the death of the injured party was the consummation of the offense in Georgia, the statute conferring jurisdiction on the Circuit Court of Colbert county, the alleged venue was valid and not obnoxious to legal objection.

We need not rest the decision of the question, however, on this particular construction of the statute.

Our view is, that the crime of murder consists in the infliction of a fatal wound, coupled with the requisite contemporaneous intent or design, which legally renders it felonious.

The subsequent death of the injured party is a result or sequence, rather than a constituent elemental part of the crime. This principle is correct, we think, at

least, so far as affects the question as to jurisdiction. As asserted by Patterson, J., Rex v. Hargrove, 5 C. & P., 170, "the giving of the blow which caused the death constitutes the felony."

In Riley v. State, 9 Hump. 646, this question was learnedly discussed by the Supreme Court of Tennessee. It was here held, that the offense was committed at the place of the blow, though the death occurred elsewhere. The Tennessee statute required all criminal cases to be tried "in the county in which the offense may have been committed." Green, J., said: "That (the blow) alone is the act of the party. He committed this act, and the death is only a consequence. Therefore, when the legislature enacts that the party shall be tried in the county where the offense may have been committed, they intended where the active agency of the perpetrator was employed."

In the case of State v. Carter, 3 Dutch. 499, it was held by the Supreme Court of New Jersey, that an indictment charging a felonious assault and battery in New York, and that the injured party came into the State of New Jersey and there died from its effects, charged no crime against the latter State, but against the for

mer.

The Supreme Court of California, in the case of People v. Gill, 6 Cal. 637, decided that the crime of murder is committed at the time when the fatal blow is struck. There, the statute had been changed between the time of the offense and the death of the victim, and provided that upon trials for crimes committed previous to the new enactment, the offender should be tried and punished under the laws in force at the time of the commission of the crime.

These views are in harmony with the conclusions reached by the most approved text-writers on criminal jurisprudence. 1 Bish. Cr. Law, §§ 112-116.

We conclude, then, that the crime charged against the prisoner was, irrespective of the statute, one against the peace and dignity of the State of Alabama, and properly within the jurisdiction of the courts of this Commonwealth.

The appellant, by his counsel, further objects, that dying declarations of Ephraim Thompson, as testified by Lucius Thompson, are inadmissible. It is urged that they are hearsay evidence, and their admission to the jury is repugnant to that clause of section 7, of the Declaration of Rights, which gives the accused the right, when on trial, to be "confronted by the witnesses against him." Const. (1875), art. I, § 7. It is not insisted that these declarations are otherwise objectionable as not coming within the usual rule. They were uttered under a clear conviction of impending death, and had reference only to circumstances immediately attending the crime, and relating to the identity of the perpetrator. 1 Greenl. Ev., 156; 1 Whart. Cr. Law, §§ 670-71; Waller v. State, 52 Ala.

192.

This is the first time the question raised has been presented for the decision of this court. For more than half a century dying declarations have been regarded as legal and admissible evidence, and the constitutionality of such testimony has gone unchallenged by the bar, and unquestioned by the judiciary of this State.

The fallacy of the objection consists in the supposition that the deceased person whose dying declarations are proved, is the witness in the case. The witness by whom the accused has a right to be confronted, is the one who testified to the truth of such declarations. Lucius Thompson, not the deceased, is the witness in the case.

No proposition is plainer than that this clause in the Declaration of Rights was not designed to proclaim any novel principle. It is but the repetition of an ancient and well-established principle of the common law. It was never construed in England, whence,

with our great system of common-law jurisprudence, it was derived, to exclude such evidence as was crystalized into that system, and recognized as a vital part of it, upon wise principles of policy, expediency or necessity.

The 6th article of the amendments to the Constitution of the United States is in the same language as the clause under discussion in our Declaration of Rights, and so it is, perhaps, embodied in the various Constitutions of all the American States.

We know of no case where this species of evidence has ever been held to contravene these several clauses of the various State Constitutions, or that of the Federal Government. The decisions, however, are numerous to the contrary. Campbell v. State, 11 Ga. 355; Woodside v. State, 2 How. (Miss.) 655; Anthony v. State, 1 Meigs (Tenn.) 265; Robbins v. State, 8 Ohio St. 131; State v. Nash, 7 Iowa, 347; 1 Whart. Cr. Law, § 669.

In view of the importance of this case, we have seen fit to consider the question raised somewhat at length, although the record fails to show that the charge asked by defendant was in writing, and it is not error for the court below to refuse charges requested unless they are in writing. Code (1876), § 3109; Jackson v. State, 55 Ala. 151.

We see no error in the rulings of the Circuit Court, and the case is hereby affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

MASTER AND SERVANT- FELLOW-SERVANT -FIREMAN ON LOCOMOTIVE AND TELEGRAPH OPERATOR — TIME OF RUNNING TRAINS CHANGED BY TELEGRAPH —– DUTY OF MASTER TO SERVANT-JUDICIAL NOTICE.—

The plaintiff's intestate, a locomotive fireman, in the employ of defendant upon his railroad, was killed by a collision upon such road caused by the negligence of the conductor on the colliding train, co-operating with that of a telegraph operator in defendant's employ at S., a station on such road. Defendant's trains were run by a general time-table, but the time of a train might, by the rules, be varied by a special order sent by telegraph from defendant's train-dispatcher to the conductor in charge of the train. The sending of such an order was a usual thing. The negligence in question had reference to a special order. Held, (1) that the courts may take judicial notice (Agawam Bank v. Strever, 18 N. Y. 502), that railroads are managed in the practical running of them by overlooking officers at distant places who use the telegraph to keep informed as to, and to direct the movement of trains. (2) That both the conductor and the operator were fellow-servants of intestate. The conductor was engaged in the particular work intestate was, viz., the running of trains; and the operator in a work connected therewith that of giving information of the trains, and communicating orders to those controlling them for stopping or going on. The duty of the operator was not that of the master for the negligent performance of which the master was bound. The fact that the operator sometimes did business not connected with the running of trains would not alter his character as a fellow-servant, nor would the fact that he was appointed and discharged by one superior agent of defendant, and intestate by another. It cannot be claimed that the making of a variation from a time-table is an act of the master, in doing which, he must answer for the negligence of his subordinates. All that can be required from him by the public and by passengers is, that when he makes the variation he act under it with reasonable care and diligence. Sears v. Eastern R. Co., 14 Allen, 433; Gordon v. M. & L. R. Co., 52 N. H. 596. That is to say, due care and diligence in giving notices of the change, and in running the train upon the changed time. See Rose v. Bost.

& Alb. R. Co., 58 N. Y. 217. In the case at bar minute regulations and directions in reference to charges were made by rules known to the employees, the obedience of which by employees would insure safety. In such case it is not the duty of the master, as a part of his contract with the employee, to see to it as with a personal sight, and trust that notice of a temporary and special interference with a general time-table will come to the intelligence of all those whom it is to govern in the running of approaching trains. In such case the reasonable rule is, that the master must first choose his agents with due care for their possession of skill and competency, and that then he must use the best means of communication according to prescribed general rules and regulations, derived from the best experience in such business, and if among these means are the services of a fellow servant, competent for his place, his possible carelessness is a risk of the employment that his fellows take when entering the service. It is a misconception of this case to hold that the order of the train dispatcher was a change in the rules of the road, it was in accordance with those rules. In such a case as this it is not the duty of the master to give personal notice to every operative of a train of a special deviation from an established general timetable. His duty is done when he has beforehand provided rules minute, explicit and efficient, and made them known to his servants, which, if observed and followed by all concerned, will bring such personal notice to every one entitled to it. Judgment reversed and new trial ordered. Slater v. Jewett. Opinion by Folger, C. J. Danforth and Finch, JJ., dissented. [Decided April 19, 1881.]

NEGLIGENCE - RESPONDEAT SUPERIOR- BOARD OF EDUCATION OF NEW YORK CITY NOT LIABLE ΤΟ SCHOOL PUPIL FOR INJURY BY NEGLIGENCE OF WORKMAN ON SCHOOL HOUSE. - Under the statute of New York the board of education of the city of New York is a corporation vested with the general control of the school buildings and property in that city "for the purposes of public education." The especial care and safe-keeping of school premises in the respective wards is committed to the ward trustees, who formerly were elected by popular vote, and are now appointed by the board. These trustees are authorized to make repairs to the school buildings, subject to such general rules, regulations and limitations as the board may prescribe. The board has concurrent power to employ, under the superintendent of school buildings, workmen, and provide materials for the repair, etc., of school buildings, with the proviso that "this provision shall not be construed to compel the trustees of any ward to use or employ such workmen or materials for any purpose whatever." Workmen employed by the trustees of a ward to repair, or a janitor having care of the school building, also employed by them, negligently left the opening of a cellar uncovered, whereby plaintiff, a pupil attending the school, was injured. Held, that an action for the injury was not maintainable against the board of education. The workmen and the janitor were selected by the trustees and not by the board, and the trustees were not agents of the board, but were independent public officers. Though appointed by the board their general authority was derived not from it, but from the law. See Maximilian's case, 62 N. Y. 160. Judgment affirmed. Donovan v. Board of Education of the City of New York. Opinion by Andrews, J. [Decided April 19, 1881.]

dition as to repairs, and to superintend all work done in connection therewith. In an action for the same injury as that in the last preceding case, against the superintendent and trustees, it was not claimed that either of the defendants were personally negligent. Held, that the action would not lie. The trustees, acting within the scope of their authority, if they employed competent men and exercised reasonable supervision over the work, their whole duty was discharged. They were acting as gratuitous agents of the public, and it could not be expected that they should be personally present at all times during the progress of the work. See Hall v. Smith, 2 Bing. 156, where it is held that one acting gratuitously for the public, within his authority, is not answerable for the negligent execution of an order properly given. Also Bailey v. Mayor of New York, 3 Hill, 538. The defendants were acting as public officers, and in respect to the acts of persons necessarily employed by them the doctrine of respondeat superior does not apply. Judgment affirmed. Donovan v. McAlpin. Opinion by Andrews, J. [Decided April 19, 1881.]

PRACTICE-ORDER BY COURT STAYING PROCEEDINGS ON ITS OWN JUDGMENT NOT APPEALABLE. When an appellant will rely alone upon his appeal for a stay of all proceedings on the judgment appealed from, he must give the undertaking that the order requires. The Code, however, does not abridge the power that the Supreme Court has always had over its own judgments to correct mistakes in them; to vacate them for irregularity; to stay proceedings on them for such time as to the court seems proper. It is a discretion still resting in that court, and not to be reviewed in this court unless capriciously exercised and abused. Appeal dismissed. Granger v. Craig. Opinion per curiam.

[Decided May 3, 1881.]

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ON APPEAL TO GENERAL TERM-NEW TRIAL ON QUESTIONS OF FACT NEGOTIABLE INSTRUMENT — HOLDER FOR VALUE ACCOMMODATION NOTE. (1) Plaintiff brought action upon a note which was a renewable one. Defendant set up that he had a defense upon the former notes, and as counter-claim, payments by mistake on the former notes. The jury found a verdict for the amount of defendant's counter-claim. Upon appeal from an order denying a new trial, and a judgment for defendant, the General Term modified the judgment by striking out the counter-claim, and allowed it to stand as a simple judgment for defendant. Held, that the rule applicable to cases tried before referees, or by the court without a jury (Code, § 1338), would not apply here, so as to reverse the order of the General Term and affirm the original judgment on the ground that no errors of law were committed, and the order does not state that it was based upon any question of fact. In cases tried by a jury there is no necessity that the order of reversal should state whether it was made on questions of law or fact. In this case, if the General Term had granted a new trial, its decision would not have been reviewable here. But the case was one for a new trial, as although the evidence of a counter-claim might be shadowy, the court cannot say that under the pleadings evidence sufficient to establish a counter-claim might not be produced. But it does not follow that because the General Term erred in awarding final judgment, its order should be wholly vacated and the original judgment restored. It was a proper case for a new trial, and the order should be modified accordingly. The judgment of the jury as to the note sued upon, having been approved by the General Term, cannot be reviewed here. (2) Defendant made his accommodation notes for the benefit of S., to enable S. to engage in an undertaking. S. indorsed and diverted the notes from their intended purpose, and paid with them an antecedent debt due