matters herein stated aro true." The bond and mortgage were, a few days after their execution, assigned by F. to S. and G., and by S. and G., about a year thereafter, assigned to plaintiff, who relying upon the representatious contained in the certificate, purchased and paid for said bond and mortgage $4,000. Held, in an action to foreclose the mortgage, that B. was estopped by the certificate from setting up the defense of usury in the inception of the mortgage against plaintiff. It is well settled that where an assignee takes a chose in action by assignment, with the debtor's assent, although he merely stands by in silence, the debtor is estopped to impeach it. Wilson's Executor v. McLaren, 19 Wend. 562. Much more should he be estopped as against the assignee for value, by the explicit written declaration that he has no defense or set-off to the debt assigned, and the principle on which the doctrine stands extends even to the defense of usury. Smyth v. Munroe, post; Payne v. Burnham, 62 N. Y. 69. The person by whom the doctrine is invoked must not, however, be a stranger to the transaction. In this case the certificate is to be taken as if directed to whom it might concern, and plaintiff is entitled to the benefit of it. There is authority for this result. See Howe v. Cole, 51 N. H. 287; Holbrook v. N. J. Zinc Co., 57 N. Y. 616; Ashton's Appeal, 73 Penn. St. 153; 2 White & Tud. Lead. Cas. Eq. 1673. The certificate is not by its terms limited to S. and G., but is addressed to any person who thereafter occupies to the mortgage the relation of assignee. Even though the certificate would not avail S. and G. by reason of their knowledge of its falsity, plaintiff may avail himself of it. He is protected by the same principle which a bona fide purchaser for value and without notice necessarily invokes, although the title comes to him from a person in whose hands it is affected with notice (Story's Eq. Jur., §§ 409, 410) and through which one who buys a negotiable chose in action is protected against the claim of the true owner, when the latter has, by his affirmative act, conferred apparent title upon another. Moore v. Metropolitan Nat. Bk., 55 N. Y. 41; McNeil v. Tenth Nat. Bk., 46 id. 325. The certificate, though bearing the same date, has a greater effect than if the same language was embraced in the mortgage, no fraud being practiced in obtaining it. If the statement was in the mortgage it would fall with the contract, because of the statute which would annul the instrument. Otherwise where it is separate. See Clark v. Sisson, 22 N. Y. 312; Mechanics' Bank v. Townsend, 29 Barb. 569. In Wilcox v. Howell, 44 N. Y. 398, the defense was not usury but fraud, and both mortgage and certificate were obtained by it. Judgment reversed. Weyh v. Boylan. Opinion by Danforth, J. [Decided May 31, 1881.] CERTIFICATE OF NO DEFENSE, ACCOMPANYING MORTGAGE ASSIGNED TO SUPERINTENDENT OF INSURANCE DEPARTMENT - USURY — MARRIED WOMAN. - In this case M. and his wife executed a bond and mortgage, and concurrent therewith, an instrument consenting to the assignment of the same to the superintendent of the insurance department of this State. They also executed a certificate to the effect that to the bond and mortgage there was no legal or equitable defense. This bond and mortgage was assigned and received in the ordinary routine of business of the insurance department, and it was the practice then to require a certificate of the same tenor and effect in all transactions of the same character. This bond and mortgage were taken by the department for the protection of the policy-holders of an insurance company, under the provisions of the statute. Held, that the superintendent of the insurance department was entitled to avail himself of the benefit of the certificate to estop M. and his wife from setting up the defense of usury, npon a foreclosure of the mortgage. See L'Amoreux v. Vischer, 2 N. Y. 278; Mason v. Anthony, 3 Keyes, 609; Payne v. Burnham, 62 N. Y. 69. See, also, Malloney v. Horan, 49 id. 111; Wilcox v. Howell, 44 id. 399. The wife of M. could not set up that she had no knowledge of the purpose of the certificate. It would not be safe or in accordance with any sound principle to hold that a married woman is exonerated from the statements she has made, by reason of her ignorance. The superintendent, as trustee for the benefit of the policy-holders in the insurance company, may avail himself of the estoppel. It is his duty to convert the securities into money and distribute them to the cestuis que trust. Ruggles v. Chapman, 59 N. Y. 163; S. C., 64 id. 557; In re Att'y-Gen. v. M. L. Ins. Co., 13 Hun, 115; S. C., 74 N. Y. 617. Judgment affirmed. Smyth v. Munroe. Opinion by Miller, J. [Decided March 1, 1881.] EVIDENCE-IMPEACHING WITNESS- INQUIRY AS TO REPUTATION FOR TRUTH NOT CONFINED TO TIME AT WHICH WITNESS GIVES TESTIMONY. -A witness called to impeach E., a witness for the opposing side, whose testimony had been taken upon a commission, testified that he had known E. intimately fifteen or eighteen years, and was then asked what his reputation was for truth and veracity. This question was objected to on the ground that it was directed to the reputation of E. at the time of the trial, and not to his reputation at the time the commission was executed, about eighteen months before. Held, that the objection was not tenable, general reputation is not usually the growth of a day or month but results in most cases from a course of conduct for a period of time. Proof that the reputation of a witness is now bad might justify the jury, in the absence of contradicting evidence, in inferring, within reasonable limits as to time, that it was bad before the day of the trial. The trial judge may control the range of inquiry, and it is for the jury to determine the weight of the evidence. Judgment affirmed. Dolner v. Ward. Opinion by Andrews, J. [Decided March 22, 1881.] PRACTICE- - WHAT AFFIDAVIT TO PROCURE ORDER OF PUBLICATION MUST SHOW-OLD CODE, § 135. — An affidavit upon which an order of publication under section 135 of the Code of Procedure was granted, stated that "the defendant has not resided within the State of New York since March, 1877, and deponent is informed and believes that defendant is now a resident of San Francisco, California." There was no other allegation to show that defendant could not be found in the State. Held, that the affidavit was insufficient in not showing that the defendant could not, after due diligence, be found within the State. If evidence upon which, in such a case, an order of publication is granted, has a legal tendency to show that diligence has been employed and that defendant could not be found, the jurisdiction will be sustained, though such evidence is slight. Staples v. Fairchild, 3 N. Y. 46. But an affidavit merely showing non-residence, without proof as to where defendant actually was at the time, is not enough. In Belmont v. Cornen, 82 N. Y. 256, the affidavit contained allegations tending to show that an effort had been made to find defendant in the State, and that he was not there, hence it confers jurisdiction to pass upon the proof. In Howe Machine Co. v. Pettibone, a certificate of the sheriff set forth that he had used due diligence to find defendant, but from the best information he could obtain he learned that he had left the State. The precise point considered has never been presented to this court, and the authorities on this subject in the Supreme Court, which are numerous, are quite conflicting. Order reversed. Carleton v. Carleton. Opinion by Miller, J. [Decided May 13, 1881.] STATUTE OF LIMITATION IN ACTION FOR FALSE IMPRISONMENT IMPRISONMENT UNDER WARRANT SET ASIDE ORDER SETTING ASIDE REVERSED - NEW WARRANT ORDERED BUT NOT ACTED ON. In an action for false imprisonment it appeared that plaintiff D. was arrested under the Stillwell act, in proceedings instituted by defendant, by a warrant from the Superior Court of New York, on the 15th of November, 1876, and detained subject thereto until Feb. 3, 1877, when the Superior Court dismissed and vacated the warrant, exonerated D.'s bail, and discharged from custody and set him at liberty. Thereafter defendant, by certiorari removed the proceedings into the Supreme Court, and at a General Term on October 15, 1877, the determination of the Superior Court was reversed and an order entered to that effect. This order was, Jan. 7, 1878, made the order of the Superior Court, which court directed that D. be "required to appear under the original warrant and proceedings," and that his bail produce him Jan. 15, for further proceedings according to law. At that date defendant appeared voluntarily in the Superior Court. That court made an order directing "that a commitment be issued to the sheriff directing that he rearrest D.," etc. D. was not rearrested. The order of the court was affirmed at its General Term, and upon appeal by D. to the Court of Appeals reversed. Held, thas the right of action for false imprisonment accrued Feb. 3, 1877, and the statute began to run at that time. The continuance of the proceedings did not continue the arrest, and the order of the Superior Court directing a rearrest not acted upon did not operate to revive the former warrant, as the order was contrary to law and invalid. The bonds did not remain for they had been discharged and were void. Authorities cited: Caldwell v. Colgate, 7 Barb. 253; Homan v. Brinkerhoff, 1 Den. 184; Coleman v. Bean, 3 Keyes, 97; Dusenbury v. Keiley, 57 How. 274; Wood v. Dwight, 7 Johns. Ch. 295; People v. Bowe, 81 N. Y. 45; Wame v. Constant, 4 Johns. 32; Doyle v. Russell, 30 Barb. 305. Judgment affirmed. Dusenbury v. Keiley. Opinion by Finch, J. [Decided May 31, 1881.] UNITED STATES SUPREME COURT AB- constitute a quorum for the transaction of business; EQUITABLE ACTION - TO CHARGE CORPORATION WITH LIEN FOR PROPERTY OF INFANTS INVESTED THEREIN BY GUARDIAN WHEN SUCH LIEN NOT ALLOWABLE PARTNERSHIP- INFANT'S ESTATE IN FIRM CONSTITUTIONAL LAW- VALIDITY OF SPECIAL ACT BY STATE LEGISLATURE AFFECTING NONRESIDENT INFANT'S ESTATE INFANTS - ACT OF GUARDIAN RATIFICATION.- Previous to 1843 A. and B., brothers, carried on, under the firm name of A. & B., manufacturing business in Rhode Island. That year A. died, leaving a widow, C. and D., his two sons, and two daughters. The partnership property was then estimated worth $100,000. B. continued to carry on the business in the same name for the benefit of himself and his brother's estate, the widow, who had taken letters of administration on that estate, allowing the estate to remain in the firm. About 1856 B. took into partnership with him his son E. and his nephews C. and D., and during that year died, leaving a widow, his son and four grandchildren, F., G., and two others, all infants under fourteen years of age, children of a deceased daughter, who lived in New York with their father. At the death of B. the business of the firm was largely extended, and its property was estimated worth $3,000,000. C. D. & E. continued to carry on the business under the old firm name, the estate of B. remaining in the business. To this the father of the infants who carried on business in New York in connection with that of the firm, consented, as did also their property guardian in Rhode Island, the widow of B. and the administratrix of his estate. At that time the business was highly prosperous. No change in the business took place until 1865, except that E. sold his interest to C. & D. In 1865 it was proposed to transfer the business to a corporation organized under a charter previously granted by the Legislature of Rhode Island, and upon the joint petition of the father of the infants and their property guardian the Legislature passed a resolution authorizing the guårdian to convey the minors' interest in the business to the corporation and receive in return stock in the corporation of a value equal to such interest, which was done. From the appraisement made of the property of the business at that time it appeared to have been largely increased in value since 1856. After this transfer the guardian CONFLICT OF LAW-GRANT BY CONGRESS OF LAND TO STATE IN TRUST-LIMIT OF POWER OF STATE LEGISLATURE. In 1864 the United States granted to the State of California the Yosemite Valley and the Mariposa Big Tree Grove, "with the stipulation, nevertheless, that the State shall accept this grant upon the express condition that the premises shall be held for public use, resort, and recreation, and shall be inaliena-presented her accounts to the probate court as adminble for all time; the premises to be managed by the governor of the State and eight other commissioners, to be appointed by the executive of California, who shall receive no compensation for their services." 13 Stat. 325, chap. 184. In 1866 the State of California, by an act of the Legislature, accepted this grant "upon the conditions, reservations and stipulations contained in the act of Congress." Held, that while the State of California could not commit the management of the property granted to any other board than the one provided in the act of Congress, or control the executive in the exercise of his authority, a State statute providing that the term of office of a commissioner should be four years would be valid. So would one providing a corporate name in which the commissioners might sue and be sued; that they might make rules not inconsistent with the Constitution of the United States or of California, or of the act making the grant, or any law of Congress or the Legislature; that they should hold their first meeting at such time and place as should be designated by the governor; that a majority should istratrix and guardian, and the account was passed and she discharged and a new guardian appointed for the infants. The infant F., a daughter, became of age in 1866, and G. in 1868. F. married in 1869. G. acquiesced in the conduct of the business, drew money from the profits, asked for information as to his rights, which was furnished him up to 1873, when the corporation became insolvent and made an assignment for creditors. Annual accounts were rendered to F. until 1873. At the time of the transfer to the corporation the business was profitable, and continued for some years to be so. In 1875 F. and G. brought action to establish a lien on the property of the corporation assigned for creditors to the extent of their original interest in the firm. The bill charged fraud and concealment on the part of those managing plaintiffs' interests in the transformations through which they went. This was denied, and the laches and acquiescence of plaintiffs set up. There was no evidence to sustain the charge of fraud. Held, that the action could not be maintained. (1) The parties benificially quent dealings, and not to the creditors of the old partnership; and that it is the duty of the executors, if they wish to prevent any dealings with the stock, to come at once to this court for the appointment of a receiver; otherwise they in fact sanction the commission of a fraud, by leading the subsequent creditors to believe that they are dealing with a person who is liable out of his stock in trade to discharge their debts." 4 Jurist (N. S.), 446. These remarks of the Master of the Rolls have respect to the rights of creditors. As between the surviving partners themselves and the representatives of the deceased partner, the lien of the latter will extend to after-acquired property resulting from the employment of the partnership stock, so as to entitle them, at their option, either to demand a share of the profits, or interest on the value of the decedent's share at the time of his death; unless the transactions between them have been such as to indicate a sale of the deceased partner's share to the survivors. A sale, however, can hardly be inferred where no steps have been taken to ascertain the value of the share. (2) The authority given by the Legislature to the guardian of the infants to transfer their property to the corporation was a complete justification of her acts on that behalf. With regard to the general legislative power of a State to act upon persons and property within the limits of its own territory there can be no doubt. Mr. Justice Story lays down three fundamental rules on the subject of private international law; the first of which is, "that every nation possesses an exclusive sovereignty and jurisdiction within its own territory." And he adds, "The direct consequence of this rule is, that the laws of every State affect and bind directly all property, whether real or personal, within its territory, and all persons who are resident within it, whether naturalborn subjects or aliens, and also all contracts made and acts done within it." The second rule declares that no State or nation can, by its laws, directly affect or bind property out of its own territory, or persons not resident therein. The third is, that whatever force and obligation the laws of one country have in another depend solely upon the laws of the latter, that is, upon the comity exercised by it. Story's Confl. L., §§ 18-23. One of the ordinary rules of comity exercised by some European States is, to acknowledge the authority and power of foreign guardians, that is, interested ir this case were formerly the personal representatives of A and B., namely, the two widows of said A. and B., the administratrixes respectively of their estates. The ultimate bereficiaries could only reach the property through them. If they abused their trust they would be liable to their respective cestui que trusts. They had the power, if they saw fit, unless restrained by their beneficiaries, to allow the estates of their deceased intestates to be continued in the business of the partnership; and if it was continued by their allowance and consent, the property became liable to the partnership debts subsequently incurred as well as to prior debts; but with this qualification, that the property which remained unchanged was still subject to the partnership lien in preference to afterincurred debts; whilst new property which, in the course of business, took the place of the old, was not subject to said lien in preference to such debts. This seems to be the result of the cases, though they are apparently somewhat in conflict. A cursory reading of the opinion in Skipp v. Harwood (1747), 2 Swanst. 537, and Lord Hardwicke's opinion in the same case on appeal; West v. Skipp, 1 Ves., Sr., 239, and the opinions in Stocken v. Dawson, 9 Beavan, 239, and same case on appeal, 17 L. J. (Ch.) 282, would lead to the conclusion that the executor's lien in such cases attaches to the whole property, as well that newly acquired as that which remains of what was in existence at the testator's or intestate's decease. But this is inconsistent with the decisions in Nerot v. Burnand, 4 Russ. 247, and Payne v. Hornby, 25 Beavan, 280; S. C., 4 Jur. (N. S.) 446, which hold that where the business is carried on with the consent of the out-going partner or the representative of the deceased partner, debts incurred during that period have a preference over the partnership lien upon all newly-acquired property. A comparison of the cases will show that the rule laid down by Lords Hardwicke and Cottenham in West v. Skipp and Stocken v. Dawson, was applied by them to cases in which the property of the retiring or deceased partner was used in the business against the will, or without the consent of the persons entitled thereto. The law is laid down with much accuracy in the last edition of Lindley on Partnership, 700-702, where it is said: "Whilst the partnership lasts, the lien attaches to everything that can be considered partnership property, and is not therefore lost by the substitution of new stock for old. Further, on the death or bank-guardians of minors and others appointed under the ruptcy of a partner, his lien continues in favor of his representatives or assignees, and does not terminate until his share has been ascertained and provided for by the other partners. But after the partnership is dissolved, the lien is confined to what was partnership property at the time of the dissolution, and does not extend to what may have been subsequently acquired by the persons who continue to carry on the business." Sir John Romilly, in giving judgment in Payne v. Hornby, cited above, after admitting that by a mortgage of his stock in trade a man might bind after-acquired property (as to which see Holroyd v. Marshall, 10 H. L. Cas. 191), said: “But on the death of a partuer the case is altogether different. There is, as Lord Eldon very accurately expresses it, 'a quasi lien; there is, in point of fact, only a right to the specific property. The executors of the deceased partner are joint tenants with the surviving partners, and accordingly they are entitled to require the surviving partners to do one of two things- either to wind up the partnership business at once, or to fix the value of the testator's property and secure payment of the amount. * * * If the executors do not apply for a receiver, but simply file a bill for the winding up of the partnership, I apprehend that the new stock which has been acquired during the time that the business has been carried on by the surviving partner belongs, in the first place, to the creditors who have been created by such subse laws of their domicile in other States. But this rule of comity does not prevail to the same extent in England and the United States. In regard to real estate it is entirely disallowed; and is rarely admitted in regard to personal property. Justice Story, speaking of a decision which favored the ex-territorial power of a guardian in reference to personal property, says: "It has certainly not received any sanction in America in the States acting under the jurisprudence of the common law. The rights and powers of guardians are considered as strictly local; and not as entitling them to exercise any authority over the person or personal property of their wards in other States, upon the same general reasoning and policy which have circumscribed the rights and authorities of executors and administrators." Story's Confl. L., §§ 499, 504, 504 a. ; and see Whart. Confl. L., §§ 259-268, 2d ed.; 3 Burge's Colon. and For. L., 1,011. And some of those foreign jurists who contend most strongly for the general application of the ward's lex domicilii, admit that when it comes to the alienation of foreign assets, an exception is to be made in favor of the jurisdiction within which the property is situate, for the reason that this concerns the ward's property, and not his person. Whart., §§ 267, 268. But whilst the English and American law require a guardianship where the property is situated, it is conceded that in the due exercise of comity preference would ordinarily be given to the 516 THE ALBANY LAW JOURNAL person already clothed with the authority of guardian in the minor's own country. Phillimore, vol. IV, 381; Whart., § 266. In this case it does not appear that the minors had any other guardian in New York than their natural guardian, who applied for the appointment of the widow of B. as guardian of their estate in Rhode Island. As the question is one of power and not of comity, there can be no doubt that the Legislature of Rhode Island, where the property was situate, had power, first, to pass laws for the appointment of guardians of the property of non-resident infants situate in that State; and secondly, it had power to prescribe the manner in which such guardians shall perform their duties as regards the care, management, investment and disposal of such property; and that this power is as full and complete as where the minors are domiciled in the State. The question of the power of a Legislature, when not restrained by a specific constitutional provision, to pass special laws, has been much mooted in the courts of this country. Laws of this character, for the purpose of healing defects, giving relief, aid, and authority in cases beyond the force of existing law, have been frequently passed in almost every State in the Union, and have received the sanction not only of this court but of other courts of high authority. The exercise of this power has been most conspicuous in that class of cases in which the Legislature has been called upon to act as parens patriæ on behalf of lunatics, minors, and other incapacitated persons. Laws authorizing the sale of the estates of such persons have frequently been passed, and have been upheld as fairly within the legislative power. The passage of such laws is not the exercise of judicial power, although by general laws the discretion to pass upon such cases might be confided to the courts. But when it is not confided to the courts, the power exercised is of a legislative character, the Legislature [making a law for the particular case. In some modern Constitutions the exercise of this power has been prohibited to the legislative department. But where not so prohibited, and where it has never been authoritatively condemned in the jurisprudence of the State, the right to exercise it in those cases in which it has been accustomed to be exercised cannot be denied to the Legislature, amongst which the present case may be fairly reckoned. Such laws are not judgments upon any person's rights, but they confer powers upon the exercise of which judgment may afterward be given. The only cases in Rhode Island decided singe. the adoption of the Constitution of 1843, which have been cited as having a bearing on the subject are Taylor v. Place, 4 R. I. 324, and Thurston v. Thurston, 6 id. 296. The general conclusion to be derived from these cases is favorable to the view taken. In the first of these cases, the Legislature having passed a vote for opening a judgment, allowing new affidavits to be filed on the ground of accident and mistake, setting aside a verdict and granting a new trial, the court very properly held this to be an exercise of judicial power, and declared the vote to be void. But they distinguished the case from those laws passed to confer special powers upon executors, etc.; as in Watkins v. Holman, 16 Pet. 60, where an act authorizing an administratrix residing in another State to sell land in Alabama for the purpose of paying debts was held by this court to be within the legislative power and valid. In the other case cited (Thurston v. Thurston), the court held that it was beyond the power of the Court of Chancery in that particular case to decree a sale of infants' lands; that the power, if possessed by any court, was vested by statute in the probate court; but added: "If such a case should arise within the spirit, though not within the letter of such or a similar statute, a special authority to a trustee to convert the real estate of his infant, lunatic, or otherwise incapable cestui, would seem to partake, as intimated by this court in Taylor ATTORNEF-AT-LA Jackson, 1 fish. v. Place, more of a legislative than of a judicial character, and would be, having been long exercised and not prohibited by the Constitution, within the constitutional competence of the general assembly. Watkins v. Holman, 16 Pet. 25; Davis v. Johannot, 7 Metc. 388; Snowhill v. Snowhill, 2 Green's Ch. 20; Norris v. Clymer, 2 Barr, 277; Spotswood v. Pendleton, 4 Call, 514; Dorly v. Gilbert, 11 Gill & Johns. 87." This is certainly a very clear intimation of the constitutionality of the class of laws to which that now under consideration belongs. (3) The acquiescence of plaintiffs after they become of age precludes them from obtaining relief. Decree of U. S. Circ. Ct., Rhode Island, affirmed. Hoyt v. Sprague. Opinion by Bradley, J. [Decided May 9, 1881.] UNITED STATES CIRCUIT DISTRICT COURT ABSTRACT.* EQUITABLE ACTION-CONFLICT OF LAW-rights of RECEIVER UNDER STATE COURT AS AGAINST FEDERAL COURT. In a suit by the first mortgage bondholders of the Vermont Central Railroad against the mortgage trustees, for holding said trustees accounta ble for moneys alleged to have been taken by them from the trust funds in their hands in violation of their trust, the defendants pleaded that during the period of the accounting called for they had been in possession of the railroad as receivers or officers of the Court of Chancery of Franklin county, Vermont, and as such receivers, had already rendered an account to said Court of Chancery for the sums claimed in this suit, and so they could not be held chargeable therefor in any proceeding for that purpose in this court; or that if they were otherwise so chargeable, yet as the same subject-matter was previously before the State Court for adjudication, this court should dismiss the plaintiffs' bill, out of comity toward the State court. The defendants also contended that if they had ceased to be receivers of the State court prior to the origin of the demand in suit, yet no order for discharging them as receivers had ever been entered in the State court, and that this court should still regard them as official receivers of the State court. Held, that the receivership formerly existing in the State court had practically ceased prior to the period covered by the accounting claimed in this case, and that the State court had so determined, and that as the parties themselves had brought the receivership to a close by their own acts, no formal entry in court of such discharge was necessary, and that as the parties to the proceeding in the State court were not the same as the parties in this case, the pendency of such proceedings would be no bar to this suit. Also, held, that the rule of comity toward the State court could not operate to deprive this court of its own rightful jurisdiction. Cases referred to: Stanton v. Embrey, 93 U. S. 548; Cook v. Burnley, 11 Wall. 668; Slocum v. Mayberry, 2 Wheat. 1; Harriss v. Dennie, 3 Pet. 292; Hagan v. Lucas, 10 id. 400; Wiswall v. Sampson, 14 How. 52; Buck v. Colbath, 3 Wall. 334; Anonymous, 6 Ves. 287: Angel v. Smith, 9 id. 335; Booth v. Clark, 17 How. 322; Peck v. Jenness, 7 id. 612; Vermont & Can. R. Co. v. Vermont Cent. R. Co., 50 Vt. 500; Mallett v. Dexter, 1 Curt. 178; Erwin v. Lowery, 7 How. 172; Suydam v. Broadnax, 14 Pet. 67; Union Bank v. Jolly, 18 How. 503; Shelby v. Bacon, 10 id. 56; Green v. Creighton, 23 id. 90; Davis v. Duke of Marlborough, 2 Swanst. 113; Railroad Co. v. Soutter, 2 Wall. 510; Windsor v. McVeigh, 93 U. S. 274; Payne v. Hook, 7 Wall. 425; U.S. Circ. Ct. Vermont, Feb. 22, 1881. Andrews v. Smith. Opinion by Wheeler, D. J. NEGLIGENCE-UNDER COMMON LAW OR CIVIL LAW NO LIABILITY FOR NEGLIGENT DEATH — BUT UNDER *Appearing in 5 Federal Reporter. ADMIRALTY LAW THERE IS. - - (1) Although by the common law (Baker v. Bolton, 1 Camp. 493; Insurance Co. v. Brame, 95 U. S. 754), and apparently also by the civil law (though the Code Napoleon allows it, Hubgh v. New Orleans, etc., R. Co., 6 La. Ann. 495; Herman v. Carrolton, R. Co., 11 id. 5), it seems that in admiralty a libel by a father, to recover for the loss of the services of his minor son, killed in a collision, will be sustained. Plummer v. Webb, 1 Hare, 75; Cutting v. Seabury, 1 Sprague, 522; The Sea Gull, Chiss. Dic. 143; The Highland Light, id 150; Holmes v. Oregon & Col. R. Co., 5 Fed. Rep. 75. (2) Where a statute confers upon an administrator the right to recover for a loss of life occasioned by the wrongful act, neglect or default of another, if such loss of life is occasioned by a collision upon navigable waters, the administrator may proceed by a libel in rem against the offending vessel. Cases referred to, Steamboat Co. v. Chase, 16 Wall. 532; Ex parte McNiel, 13 id. 236; The Guldfall L. R., 2 Adm. 325; The Explorer, L. R., 3 id. 359; The Beta L. R., 2 P. C. 447; The Franconia, 3 Asp. Marit. Cases, 415; Smith v. Brown, L. R., 6 Q. B. 720; U. S. Dist. Ct. E. D. Michigan, Feb. 21. 1881. The Garland. Opinion by Brown, D. J. OFFICER DE FACTO, ACTS OF, ARE BINDING-OFFICER APPOINTED UNDER UNCONSTITUTIONAL STATUTE. A person in office by color of right is an officer de facto, and his acts as such are valid and binding as to third persons; and an unconstitutional act is sufficient to give such color to an appointment to office thereunder. The constitution of Oregon authorizes the Legislature, when the population of the State equals 200,000, to provide by election for separate judges of the Supreme and Circuit Courts. On October 17, 1880, the Legislature passed an act providing for the election of such judges at the general election in June, 1880, and also that the governor should appoint such judges in the meantime, which was done. Held, that admitting such act was unconstitutional, because the population of the State was less than 200,000, and that the appointments by the governor were therefore invalid, and also because the Constitution only authorized the selection of such judges by election, still the persons so appointed under the act, and performing the duties of the judges of said courts, were judges de facto, and a person imprisoned under a judgment given in one of them, convicting him of a crime, is not thereby deprived of his liberty without due process of law, contrary to the fourteenth amendment. Authorities referred to, 1 Kent's Com. 612; Kennard v. Louisiana, 92 U. S. 481; Pennoyer v. Neff, 95 id. 723; People v. Kelsey, 34 Cal. 475; People v. Albertson, 8 How. Pr. H. 66; Huntington v. Blaisdell, id. 317; Butterfield v. Clemence, 10 Cush. 269; Crawford v. Newell, 23 Iowa, 453. (2) Where writs of attachment issue from a Federal and State court against the same defendant, the one under which the property is first actually taken into custody has priority, without regard to the date of the respective writs, and a United States marshal and sheriff cannot make a joint or partnership levy, nor can one of these officers make a levy subject to the prior levy of the other. Hagan v. Lucas, 10 Pet. 400; Brown v. Clarke, 4 How. 4; Pulliam v. Osborne, 17 How. 471; Taylor v. Caryl, 20 id. 583; Fox v. Hempfield R. Co., 2 Abb. (U. S.) 151; Johnson v. Bishop, 1 Woolw. 324; U. S. Circ. Ct. E. D. Arkansas, Jau., 1881. Adler v. Roth. Opinion by Caldwell, D. J. MARYLAND COURT OF APPEALS ABSTRACT.* MALICIOUS PROSECUTION -WHAT NECESSARY TO SUSTAIN ACTION-PROBABLE CAUSE. In order to maintain the action for malicious prosecution, it is incumbent on the plaintiff to show that he had been prosecuted by or at the instigation of the defendant, and that such prosecution was instituted maliciously and without probable cause. These ingredients are essential to the right of action, and if they are not found to co-exist, the action is not maintainable. While the malice necessary to the right of recovery may not be deduced as a necessary legal conclusion from a mere act, irrespective of the motive with which the act was done, yet any motive other than that of instituting the prosecution for the purpose of bringing the party to justice is a malicious motive on the part of the person who acts under the influence of it. Mitchell v. Jenkins, 5 B. & Ad. 594; Add. on Torts, 594, 613; 2 Greenl. on Ev., § 453; Boyd v. Cross, 35 Md. 194; Cooper v. Utterbach, 37 id. 283; Stansbury v. Fogle, id. 386; Tayl. on Ev. 40. Probable cause is made to depend upon knowledge of facts and circumstances which were sufficient to induce the defendant or any reasonable person to believe the truth of the accusation made against the plaintiff, and that such knowledge and belief existed in the mind of the defendant at the time the charge was made or being prosecuted, and were in good faith the reason and inducement for his putting the law in motion. Mere belief that cause existed, however sincere that belief Delegal v. Highley, 3 may have been, is not sufficient. Bing. N. C. 950; McWilliams v. Hoban, 42 Md. 57; 2 Greenl. on Ev., § 455; Perryman v. Lister, L. R., 3 Exch. 197; S. C., L. R., 4 H. L. 521; Merriam v. Mitchell, 13 Me. 439. Johns v. Marsh. Opinion by 363; Brown v. Blake, 49 Barb. 9; King v. Corporation Alvey, J. of Bedford, 6 East, 356; Wilcox v. Smith, 5 Wend. 232; People v. White, 24 id. 539; People v. Collins, 7 Johns. 549; McInstry v. Tanner, 9 id. 135; Mallitt v. Uncle Lane, 1 Nev. 188; Fowler v. Bebee, 9 Mass. 231; Commonwealth v. Fowler, 10 id. 290; Brown v. O'Connell, 36 Conn. 451; Brown v. Lunt, 37 Me. 428; Ex parte Strang, 21 Ohio St. 610; Taylor v. Skrine, 3 Brevard, 516; State v. Messmore, 14 Wis. 164; State v. Bloom, 17 id. 521; Stark v. Starr, 1 Sawy. 20; U. S. Dist. Ct. Oregon, April 19, 1881. In re Ah Lee. Opinion by Deady, D. J. PROCESS-LEVY UNDER ATTACHMENT OF PERSONAL PROPERTY CONFLICT OF LAW-PROCESS FROM FEDERAL AND STATE COURTS. —(1) To constitute and preserve an attachment of personal property capable of manual delivery, the officer must take the property into custody and continue in the actual possession of it, by himself or by an agent appointed by him for that purpose. Hollister v. Goodale, 8 Conn. 332; Chadburne v. Sumner, 16 N. H. 129; Mills v. Camp, 14 Conn. 219; Gower v. Stevens, 19 Me. 92; Lane v. Jackson, 5 Mass. 157; Gale v. Ward, 14 id. 356; Odiorne v. Colley, 2 N. NEGLIGENCE-INJURY TO PERSON STOPPING UPON STREET FROM FALL OF DEFECTIVE WALL. - A person lawfully passing along a street, who stops on the door sill of a house fronting on the street, for the purpose of adjusting his shoe, and while thus occupied, his head being within the lines of the street, without any negligence on his part is injured by a brick falling on his head, in consequence of the dilapidated condition of the wall of the house, has a right of action against the owner of the house for the injury inflicted. Deford v. State, 30 Md. 205; Irwin v. Sprigg, 6 Gill, 200; Copeland v. Hardengham, 3 Campb. 348; Maenner v. Carroll, 46 Md. 212; Butterfield v. Forrester, 11 East, 60; Bridge v. G. J. R. Co., 3 M. & W. 244; Angell on Highw. 347. Travellers on a street have not only the right to pass but to stop and rest on necessary and reasonable occasions, so that they do not obstruct the street, or doorways, or wantonly injure them. Douglas, 745; 3 Steph. N. P. 2768; 2 Bl. Com., note 26, by Christ.; Adams v. Rivers, 11 Barb. 390. A ruined or dilapi* Appearing in 52 Maryland Reports. |