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ABSTRACT OF DECISIONS OF SUPREME a corporation, it might rightfully purchase and COURT OF KANSAS.
hold, to defeat the action by showing a technical omission in some of the proceedings prescribed
for the organization of incorporations. The corpor. July Term, 1878.
ation is as to bim one de facto, and whether it
be one also de jure is a question not open for inquiry HON. ALBERT H. HORTON, Chief Justice.
in that collateral manner. 3. Quere: Was pot section o D. M. VALENTINE, Associate Justices.
30 of the corporation law intended as a substitute for 6 D. J. BREWER,
section 6, so far as the incorporation of savings associations is concerned? 4. A petition was filed in the
name of the “Capitol Bank of Topeka.” The cerACTION OF FORCIBLE DETAINER-SHERIFF'S DEED
tificate of incorporation offered in evidence showed --CONFIRMATION-DELIVERY_EVIDENCE.-1. In an
that the name selected for the association was the action of forcible detainer, the plaintiff otfered in ev
“Capitol Bank," and that its prescribed place of busiidence a sheritt's deed, from wbich he claimed title
ness was Topeka. Held, that the variance was too to the premises in dispute, dated July 13th, 1374, and
slight to be regarded as a defense to the action and the journal entry of the confirmation of the sheriff's
any needed amendment will be considered made, 5. sale of the date of July 16th, 1874, together with the
Under the general power of discounting negotiable testimony of the clerk of the district court, and the
notes, granted by section 127 of the corporation law to sheriff who executed the deed, that the deed was not
savings associations, such institutions have the power executed till after the confirmation of the sheriff's
to purchase such notes. Opinion by BREWER, J. sale, and thereupon the defendant moved the court
Affirmed. All the justices concurring.-Pape 0. Cap to strike out the sherift's deed, for the reason that
itol Bank. the records of the court introduced in evidence showed that there never was any confirmation of
DEPOSITION-PRACTICE-IMPEACHMENT OF WITthe sheriff's sale prior to the date of the execution
NESS-INSTRUCTIONS-POSSESSION OF REAL ESTATE of the deed. The court sustained the motion and a de
-CONSTRUCTIVE NOTICE OF TITLE:-1, Where & murrer to the evidence of the plaintiff: Held, error,
plaintiff makes a general objection and exception as the evidence, under proper instructions, should
to a deposition to the effect that it is incompchave been submitted to the jury. 2. Ordinarily the
tent and irrelevant, and a large portion of the testidate of a deed, (admitted to have been delivered) is
mony is clearly admissible against the party exceptprima facie evidence of the time of its delivery, but
ing, and the portion of the deposition which is incom. this presumption may be rebutted by testimony, and
petent only effects a co-plaintiff, who takes no exception, where a sheriff's deed is dated three days prior to the
and the deposition is admitted in evidence and read date of confirmation of the sale therein recited, but is
to the jury: Held: no cause for reversing the judge not delivered till after such confirmation, the deed is
ment obtained in the action. 2. Where the deposition not void. Opinion by HORTON, C. J. Reversed. All
of a witness has been read in evidence, and the opthe justices concurring.-Cain v. Robinson.
posing party produces another and a conflicting depo
sition of the same witness, taken in another action TAX DEED-DEFECTIVE RECORD OF TAX PROCEED
between the same parties, of a prior date, and offers to INGS–MANDAMUS.-1. When a tax deed has been is
introduce the same to impeach the witness, and the sued, which is void upon its face as showing the county
court of its own motion excludes the testimony: Held, to have been a competitive bidder, and the purchaser
not error, as the witness sought to be impeached, and at the tax sale, the party entitled may, if the sale was
the party to be affected thereby, are entitled of rigbt to in fact valid, and that fact is apparent from the record any explanation which the witness can give of the of tax sales and the sale certificate, compel by manda
statements imputed to him; and, therefore, the attenmus the issue of a valid tax deed. Clipplinger v. Ful tion of the witness must be first called, on cross-exler, 10 Kan. 377. 2. Before the mandamus will lie, amination, to such prior contradictory statements. 3. the clerk must, after demand therefor, have refused
Where a party requests the court to instruct the jury to execute such deed. 3. Where the record of tax
that if a particular witness (naming him) has knowsales and the sale certificate show upon their face a ingly and willfully testified falsly in regard to any masale not made in accordance with law, the clerk is terial fact in the case, they must entirely disregard the concluded by the recitals therein, and is not at liberty testimony of the witness, and the court modifies the to take parol testimony as to the aciual facts of the instruction to include all the witnesses, and then gives sale, and such record and sale certiticate must be cor the same, and thereafter, the party asking the instrucrected by appropriate proceedings before mandamus tions alleges the court committed error in giving in. will lie to compel him to issue a valid tax deed. Upin structions thus modified: Held, that, as the instrucion by BREWER, J. All the justices concurring.-Bry tion is virtually in accord with the request of the party son v. Spaulding.
alleging error, the giving of the same is not sufficient BANKS — CORPORATION DE FACTO-EVIDENCE
reason to reverse the judgment. K. P. R. W. Co. v. VARIANCE — DISCOUNTING - POWER TO PURCHASE
Cutter, 19 Kan. 83. 4. Where a defendant purchased NOTES.-1. Article 13, of the State Constitution, en
real estate July 4th, 1859, and obtained a deed of that titled “Banks and Currency," applies to banks of issue
date, and thereafter has open, notorious and exclusive and does not prohibit the legislature from creating
possession of the premises, but fails to record his deed banks of deposit and discount. 2. Where there is a
till August 20th, 1859, a plaintiff, buying the property general law under which an incorporation can be bad,
August 16, 1859, and recording his deed the same day, an incorporation attempted in good faith to be made
has notice of the title and interest of the defendant to thereunder by the requisite number of corporators,
the property of which he is in full possession at the and where, in reliance upon such supposed perfect com
date of plaintiff's purchase, and, Held, that the plainpliance with the statute in all the steps prescribed for
tiff, by his subsequent purchase, obtains no title which the organization, there is an actual, open and notori
he can assert against the defendant in possession of ous exercise for a series of years, unchallenged by the
the premises. Johnson v. Clark, 18 Kan. 157; School state, of the powers of a corporation, public policy
District No. 82 v. Taylor, 18 Kan. 287. Opinion by will not permit one who bas frequently dealt with it as
HORTON, C. J. Affirmed. All the justices concura corporation when sued upon a note purchased and ring.-- Greer v. Higgins. held by such supposed corporation, and which, as I REPLEVIN-LAND CONTRACT-A HOUSE A CHATTEL.–1. Where A enters into a written contract to sell cient, if made upon one who is the “stock and claim a certain piece of land to C, and this contract con adjuster, and authorized to settle for stock killed." templates that C shall take possession of the land, | Opinion by BREWER, J. Affirmed. All the justices build a residence thereon, and make other improve concurring.–Union Trust Co. v. Kendall. ments thereon, and that all such improvements shall remain on the land until all the terms and conditions
MANDAMUS-JUDICIAL PROCEEDINGS.-1. An inof the contract shall be complied with and fulfilled,
formation was filed in the Probate Court alleging inand that if all such terms or conditions should be ful sanity of a certain person. Upon this an order was filled, then that the contract should be at an end, and entered in which the court, after reciting the filing of that all the improvements made on the land should the information, states that it appears from its own remain thereon and be the property of the realty; and records that prior proceedings had been had by which Cassigns said contract and all his rights thereunder to said person had once been adjudged insane, and still D, and D builds a dwelling house on said land and re
remained under said adjudication, and therefore the sides therein, and said dwelling house is a one-story
inquiry prayed for is refused. Held, that whether frame building, about 16 by 24 feet in size, and is set
the decision of the Probate Court was right or wrong upon ten blocks of wood, the highest one being about was a question which could not be enquired into on one foot, so that said house almost touches the ground mandamus, and that the probate court having acted on one side, and is about one foot from the ground on
in the premises and refused the application, could not the otber side, and afterwards D removes said house be compelled by mandamus to reverse its decision and into the highway adjoining the land, and then assigns institute the inquiry prayed for. Opinion by BREWER, said contract and all his right thereunder to R, and
J. Judgment for respondent. All the justices conat the same time sells said house to B for $200, curring.–State v. Norton. to be paid in one year, and B then removes said house to his own land, and places it on permanent stone
LEGISLATURE - QUALIFICATION OF MEMBERS — foundation, intending to make the house a part of his
RIGHT OF REMOVAL OF MEMBERS.-1. A member of real estate, and to make it his own. The terms and
the legislature can not be removed from office under conditions of said contract were not fulfilled, but were
cbapter 122 of the laws of 1875. 2. The exclusive violated before the removal of said house from the
power to judge of the qualifications of its own members land of A, and also by such removal. Held, that said
is vested in each house, and can not by its own consent, house, while it was on the land of A, was real estate
or by legislative action, be vested in any other tribunal and belonged to A, subject to said contrant; that when
or officer. 3. This power is not exhausted by the adit was removed into the highway it became personal
mission of a member to his seat, but continues during property of A and belonged absolutely to bim; and
the entire term of office. Opinion by BREWER, J. that after it was removed from the highway and placed
1. Judgment for defendant. All the justices concurring. upon a permanent stone foundation on B's land, it still -State v. Gilmore. remained the personal property of A, and did not become a part of the real estate of B. 2. When a house,
FRAUDULENT CONVEYANCE-POWER AND RIGHTS which is a chattel and belongs to A, is wrongfully re
OF ADMINISTRATORS.-1. When a person conveys moved on to a permanent stone foundation on the
personal property with the intention of defrauding his land of B, B intending at the time to convert the house
creditors, the conveyance is good and binding as into real estate and to make it his own, and the house
against him and his representatives, including his is one that can easily be removed from the land of B,
agents, executors, administrators and heirs, and is void without any substantial injury to either the house or
only as against his creditors wbom he intended to dethe land: Held, that such house does not thereby be
fraud. 2. Where a person loaning money, took the come a part of the realty belonging to B, but remains
note and mortgage given for the money, in his son's merely a chattel belonging to A, and that A may re
name, and gave them to his son for the purpose of decover the same in an action of replevin. Opinion by
frauding his creditors: Held, that the administrator VALENTINE, J. Reversed. All the justices concur
for such person can not, after his death, maintain an ring.-C. B. U. P. R. R. v. Fritz.
action against the son to recover said note and mortgage and to restrain the son from collecting the same,
even though the estate may be insolvent; that only the HOMESTEAD-DISTRIBUTION.-1. Where V. and wife
creditors of the deceased can mantain an action against occupied certain real estate as a homestead at the time of
the son to deprive him of the benefit of said note and V.'s death, and the children of V. were all of age, and none of them occupied the residence of the intestate at
mortgage, and they can do it only for the purpose of his death, nor thereafter, but the widow continued to
subjecting the same to the payment of their claims occupy it as her home after the decease of her husband :
against the deceased. Opinion by VALENTINE, J. Held, that the premises are the absolute property of
Affirmed. All the justices concurring.- Loomis v. the widow and children, and the children, being all of
Crawford. age, are entitled to have the premises partitioned, onehalf in value to go to the widow, and the other onehalf in value to go to the children. If the homestead
QUERIES AND ANSWERS. is not susceptible of division, the same may be sold and the proceeds divided. Opinion by HORTON, C. J. Reversed. All the justices concurring.- Vandweir v. Vndroeir
QUERIES. CORPORATION DE FACTO-STOCK LAW OF 1874–
60. IN THE BLANK FORMS OF PROMISSORY NOTES,
the following clauses frequently occur: “Waiving all DEMAND.--1. A corporation which has the possession, control and management, and is engaged in the busi
right to exemption and homestead Jaws”; “ Without
exemption from appraisement, valuation or homestead ness of running and operating a railroad in this state,
laws.” Do the above create a legal waiver? Y. is a “railway corporation” within chapter 94 of the laws of 1874, although it is so doing in the execu
De Soto, Mo. tion and discharge of a trust for the benefit of the
[This question is governed to a great extent by the bond and stockholders of the corporation which built
| language of the homestead laws themselves. Our corand owned the road, and it is not itself the absolute respondent is referred to Mr. Thompson's work on owner thereof. 2. A demand under that act is suffi. I “Homesteads and Exemptions.”—ED. CENT. L. JI
A Justice, holding balance, sword and shield,
Bating, or giving, as the Right displays;
'Tis ours to crown with honorable bays; 'Tis ours to mingle our memorial tears, As he ascends from earth to nobler, happier, spheres.
(EDMUND S. HOLBROOK, of the Chicago Bar.
[7 Cent. L. J. 179.] B's remedy is properly against C, by bill to foreclose, in which all the grantors and grantees should be made parties defendant. B, on filing his bill to foreclose, first discovered that, by mutual mistake of the parties, the description in the mortgage did not embrace the land or lot intended to be mortgaged, and which neither A nor B owned, or claimed to own. In the case of Davenport v. Sovil, 6 Ohio St. 459, it was held that parol proof is competent to establish sucb mistake, and that the mortgage may be reformed and enforced in the same proceeding. Such, also, are the opinions of those eminent chancellors, Kent and Story, 2 Johns., Ch. 585; 4 Ib. 44, Story's Equity Juris., sec. 154. This decision is approved and followed in the case of Goshorn v. Purcell, 11 Ohio St. 641, in which the court say: “The court has (the same power to correct the mistake, whether the defect is in the execution or in the body of the instrument-whether the mistake is that of the parties or of an officer in taking or certifying the acknowledgment.” 11 Ohio St. 641. The circuit court erred in refusing to reform the mortgage executed by C to B. F first discovered the error when he sold and conveyed to G, but concealed the fact and conveyed lot 20, to which he had no legal title, instead of instituting proceedings to reform his title. I, having derived title to lot 20 through F, could only acquire such title as F possessed; and if he suffered loss by the reforming of B's mortgage, his remedy would be against F for a breach of covenant in conveying lands to which he held no title.
THE CODE OF CIVIL PROCEDURE of the State of Iowa, with references to the decisions of the Supreme Court and prior Statutes. Compiled by J. S. STACY, Attorney at law. Des Moines, Ia. Mills & Co., 1878.
This is a compilation which will prove of great value to the profession in Iowa. It gives, in a compact form, the statutes relating to procedure in Iowa, as adopted by the fourteenth general assembly, and as amended by the fifteenth, sixteenth and seventeenth general assemblies, with references under each section to prior statutes, and the decisions of the supreme court made thereunder. Two editions of the work have been issued, one in the usual law-book size, with a wide margin for annotations, and the other, the one before us, in a pocket form similar to Desty's Federal Procedure, so well known to the profession. The arrangement is excellent, and the printing and binding are of the best kind. The index is more thorough than usual in works of this kind, and deserves particular mention.
CHIEF JUSTICE HORTON, of Kansas, has been re. nominated for another term.- J. G. Dickerson, one of the associate justices of the Supreme Court of Maine, died at Belfast in that state, on the 1st inst., in his sixtyfifth year. - T. Bradford Dwight died at Andover, Mass., on the 1st inst. He was born at Portland, Me., in 1837, and after graduating at Yale College was admitted to the bar of Philadelphia in 1862. He was for a short time a judge of the Orphans Court of Phila. delphia- It is scarcely necessary to refer at length to the event of the week in this city, viz: the opening of the St. Louis Fair and Exposition. This is the eighteenth annual fair, and promises, both in the number of entries and the variety of attractions, to eclipse all former ones. It will last until October 12th. In addition to the exposition proper, each week is given up to competitions of different kinds, which will be in themselves more than admirably interesting. The first week will be devoted to contests between the military companies of this and other cities. The second is the muscians' week. The third week will be taken up with trials of agricultural implements and machinery; the fourth with athletic sports and contests, and from the 7th of October to the close of the fair the exhibition of live stock will take place. We would remind the profession that the exposition opens before the lawyers' vacation ends, and we bave no doubt that many of our subscribers in this and other states will take advantage of the occasion to see a sight which only one city in the Union can present. - The London Times contains the following with respect to the Congress of the International Association for the Reform and Codification of the International Law, at Frankfort-on-theMain. The congress has adopted a resolution, proposed by Herr Marcus, of Bremen, approving the decision taken at Berne establishing a uniform railway goods tariff. Mr. Freeland, who was supported by Mr. Peabody of the United States, spoke, amid general assent, in terms of approval of the new relations promoted in London by the Chinese and Japanese Ambassadors, both in the domain of political economy and international law. The congress unanimously adopted a resolution proposed by Sir Travers Twiss supported by Count Sparre of Sweden, to the effect that the Suez Canal and similar international works should be declared free in case of war, and not be subject to any restrictive measures on the part of belligerents.--Newgate Prison has been condemned but it will not fall alone. The old Bailey is to be removed and a new block of buidings will take its place. Within the dock to be removed have stood Jack Sheppard, Jonathan Wild and the poet Savage, whose biography was one of the best that Dr. Johnson wrote. It was in the Old Bailey that the regicides had their trial, but that portion of the original structure has disappeared. It is many and curious forms of law that the Old Bailey has seen come and go. “The hangman no longer," says the Echo, "sits down by the side of a prisoner balter in hand, as he did in 1669;" and the awful warrants are no longer issued in shoals, as formerly, or in the “ good old days." The Old Bailey Chronicles, however, are enough to make the mind of man shudder over the fallibility of verdicts and the cruelty of law. Is it credible that, when a new set of courts have been provided, a new spirit will be prepared to enter them?
First Nature gave to him a dowery grand
Health, strength and grace, of body, mind and soul; Then Culture came, and with most cunning hand,
Polished and wrought to one harmonious whole. Mounted, he swept Life's course from goal to goal; A Counselor, replete with legal lore
A Soldier, taking rank on Honor's roll; A Statesman, searching far his country o’er, That freedom, health and peace obtain from shore to
shore. A Scholar, garnering fruit from every field
A Patron, seeking modest worth to praise;
The Central Law Journal.
in this contract, and was, in fact, the agent of the defendants. The masons built the wall
and did everything that they were required by SAINT LOUIS, SEPTEMBER 20, 1878.
their contract to do to it; the architect sur
veyed and estimated the work, and gave them CURRENT TOPICS.
a certificate therefor, which by the contract entitled them to their pay. After the wall
had been so completed by the masons and In a recent Pennsylvania case, Price v. | accepted by the defendants, it fell and Kirk, 35 Leg. Int. 325, it was held that a crushed the building and property upon the claim by an architect for preparing drawings adjoining lot of plaintiff. The plaintiff and specifications for a house, was not the sub offered evidence tending to show that the fall ject of a mechanic's lien. The drawing of of the wall was occasicned by negligence in plans and specifications, of itself, is not building it without sufficient stays or sup“work” within the meaning of the statute- | ports, or in building it in such cold weather not work in the ordinary sense of the term. An that the mortar froze as soon as laid, and was architect is not a mechanic or laborer, and has afterwards softened by a sudden thaw. The no better claim to a lien than the scrivener jury were instructed that if the accident was who copies specifications or draws contracts caused by such negligence the defendant for the building, or the surveyor who marks would be liable, although it was the negligence the plan upon the ground. In Bank v. Griese, of the masons in executing their contract. 11 Casey, 423, the court held that an architect Upon exceptions to the supreme judicial who drew plans and specifications for a build court, this instruction was held correct and ing, directed and superintended the work done sufficiently favorable to the defendants. In in pursuance of them by the various mechan- | their opinion the court say: “ Assumics, inspecting materials, examining accounts, | ing that the relation of the masons to the countersigning orders, and generally occupy- defendants was that of contractors, the ing the builder's place, and discharging his former alone would be responsible to a third duties throughout, performed 6 work about
person for any injury caused by their neglithe erection or construction of the building,” gence in a matter collateral to the contract, and included the drawing of plans and speci
as, for instance, in depositing materials, handlfications necessary to enable him to perform
ing tools, or constructing temporary safethis work within the act. See, also, Penn. R.
guards, while doing the work; but where the R. v. Leuffer, 5 Cent. L. J. 74, as to civil en
very thing contracted to be done is improperly gineers ; also 6 Cent. L. J. 182.
done, and causes the mischief upon the land of another, the employer is responsible for it,
at least where it occurs after the structure has The case of Gorham v. Gross, lately decided been completed to his acceptance.” The case by the Supreme Judicial Court of Massachu of Fletcher v. Rylands, L, R. 1 Ex. 265, 279; setts, raised the question of the liability of a s. c. L. R., 3 H. L. 330, 339, 340; Shipley v. person who has built a party wall for the neg Fifty Associates, 106 Mass. 194, 198: Chauntligence of contractors, to whom the work was ler v. Robinson, 4 Exch. 163, 170, and Nichols intrusted, in building the same. By an in- v. Marsland, L. R. 10 Ex. 259, 260, 2 Cent. denture between the parties, either was au L. J. 523, were cited and relied upon. thorized to build a party wall of brick with a stone foundation, half on the land of each, half the cost of which should be paid by the other if he used it. The defendants made a | THE Tennessee Ku-klux act of 1869-70 contract with a firm of masons, by which the | (Code 4770 b,) provides that if any person or latter were to furnish all the material and | persons “ disguised or in mask, by day or by labor in completing the stone and brick night, shall enter upon the premises of another, work, according to the plans and specifica- | or demand admission into the hous tions, and under the superintendence and to sure of any citizen of this state, it shall be the acceptance of an architect, who was called I considered prima facie that his or their inten
Vol. 7-No. 12.
tion is to commit a felony, and such demand the statute.” “The penalties for a violation shall be deemed an assault with an intent to of this law,” says the learned judge in concommit a felony; and the person or persons so clusion, “ are severe, but they have proved offending shall, upon conviction, be punished themselves wholesome in the partial suppresby imprisonment in the penitentiary not less sion already of one of the greatest of the disthan ten years nor more than twenty years." | turbing elements of social order in this state.” In Walpole v. State, decided at the last term of the supreme court of that state, it was held that the prisoner, who had gone upon the The case of Mott v. Consumers Ice Co., repremises in a disguise for the purpose of steal cently decided by the New York Court of Aping chickens, was properly convicted under peals, is a leading case on a question of law this act SNEED, J., said: “It is apparent | lately much discussed in these columns, viz, that the object of this statute was to repress a the liability of a master for the willful acts of great evil which arose in this country after the his servant. See 6 Cent. L. J. 281, 412, 483; war, and which grew to be an offense of fre 7 Cent. L. J. 82. While the plaintiff was quent occurrence—that of evil-minded and | driving along a street in his carriage, one of mischievous persons disguising themselves to the company's ice wagons was driven against terrify or to wrong those who happened to be his, throwing him out and severely injuring the object of their wrath or resentment. This him. The court below dismissed the comwas a kind of mob law, enforced sometimes plaint, on the ground that the driver's act was by a multitude of vagabonds, which grew to willful, and the company was therefore not be a great terror to the people, and placed liable. On appeal, this judgment is reversed. human life and property at the mercy of bad The rule recognized in all the recent cases, and men whose crimes could scarcely ever he pun which does not materially conflict with any of ished, because of the disguises under which the older decisions, although it may qualify they were perpetrated. There were laws some of the intimations and casual expressions already sufficiently rigorous and severe for the or illustrations of the judges is, that for the due punishment of any and all offenses which acts of the servant within the general scope of might be committed without disguise, and this his employment, while engaged in his master's act of 1869-70 was intended to strike at business, and done with a view to the furtheroffenses committed in masquerade ; to make ance of that business and the master's interest, these more highly penal, because of the inhe the master will be responsible whether the act rent difficulty of identifying offenders, who be done negligently, wantonly, or even will. wore masks in order to secure immunity from fully. In general terms, if the servant detection. The mere entry in disguise upon misconducts himself in the course of his the premises of another is made prima facie employment, his acts are the acts of the masevidence of an intention to commit a felony, ter, who must answer for them. There are and this of itself is a substantive offense from intimations in several cases of authority that which there is no escape, except by proof that for the willful acts of the servant the master there was in fact no purpose to commit crime. is not responsible. McManus v. Crickett, 1 In this case, we have not only the prima facie East., 106; Hibbard v. N. Y. & E. R. R. case, but the conclusive case of an intent to Co., 15 N. Y., 455; Wright v. Wilcox, 19 commit a felony by the confession of the pris Wend., 343. But these intimations are suboner.” See, also, State v. Box, (Jackson, ject to the material qualification that the acts 1875), not yet reported, where the same court designated "willful” are pot done in the course said: “We are of opinion that the statute of the service, and were not such as the sermakes it a felony to enter upon the premises vant intended and believed to be for the inof another disguised or in mask; and to de terest of the master. In such case the master mand in masks or disguise entrance or admis would not be excused from liability by reason sion into the house of another is likewise a of the quality of the act. Limpus v. London felony; and to demand entrance into his in Gen. Omnibus Co. 1 H. & C., 526; Seymour closure, masked or disguised, is a felony; and v. Greenwood, 6 H. & C., 359, affirmed 7 the person or persons doing either of said acts | Id., 355 ; Shea v. Sixth Avenue R. R. Co., 62 subjects himself to the penalty prescribed in | N. Y., 180; Jackson v. Second Avenue R. B.