a marriage between a white person and a negro. The parties were domiciled in Massachusetts, whose laws at that time prohibited such marriages. They went into Rhode Island, where such marriages were lawful, were there married, and returned to Massachusetts. The supreme court of that state held the marriage to be valid, and declared in an elaborate opinion that "a marriage which is good by the laws of the country where it is celebrated is valid in every other country; and although it should appear that the parties went into another state to contract such marriage with a view to evade the laws of their own country, the marriage in the foreign country will, nevertheless, be valid in the country in which the parties live." In commenting on this case the Lord Chancellor in Brook v. Brook, supra, says: "I cannot think it is entitled to much weight, for the learned judge admitted that he was overruling the doctrine of Hurberus and other eminent jurists; he relied on decisions in which the forms only of celebrating the marriage in the country of celebration and the country of domicil were different; and he took the distinction between cases where the absolute prohibition of marriage is forbidden on motives of policy and where the marriage is prohibited as being contrary to religion on the ground of incest. I myself must deny the distinction. If a marriage is absolutely prohibited in any country as being contrary to public policy, and leading to social evils, I think that the domiciled inhabitants of that country cannot be permitted, by passing the frontier and entering another state in which the marriage is not prohibited, to celebrate a marriage forbidden by their own state, and immediately returning to their own state, to insist on their marriage being recognized as lawful."

Lord Cranworth, referring to the same case, said: "I also concur entirely with my noble and learned friend that the American decision of Medway v. Needham cannot be treated as proceeding on sound principles of law. The Province or State of Massachusetts positively prohibited by its laws, as contrary to public policy, the marriage of a mulatto with a white woman, and on the grounds pointed out by Mr. Story such a marriage ought certainly to have been held void in Massachusetts, though celebrated in another province where such marriages were lawful." With such condemnation from so high a source as this decision as authority, and when it is opposed by the decisions of our sister southern states above referred to, and contrary to sound principles of law, I think, though a case exactly in point upon its facts, it can have but little weight in forming our judicial determination of the question before us in this case. There is another case also relied on by the counsel for the plaintiff in error for the doctrine that "a marriage valid where celebrated is valid everywhere." It is a Kentucky case, Stevenson v. Gray, 17 B. Mon. 192. That was a marriage between a nephew and his uncle's wife. Such marriages were prohibited in Kentucky but not in Tennessee, and they were there married and returned to Kentucky. It was held that the marriage was valid in Kentucky. Bat it is noted, that such marriages are not de

clared by the Kentucky statute absolutely void, but voidable only—that is, to be voided by judgment of a district court or court of quarterly sessions. The reasoning of the judge who delivered the opinion of the court in the case, shows that he treats the case of marriage voidable only, and not ipso facto void. If such inarriage had been declared absoJutely void by the Kentucky statute, the decision of the court no doubt would have been different.

In the seventh edition of Story's Conflict of Laws, p. 178, the editor adds a section which follows an exhaustive discussion of this whole subject, in which he says: "The limitation defined by Lord Campbell, Chancellor, in Brook v. Brook, is certainly characterized by great moderation and good sense; that while the form of the contract, the rites and ceremonies proper or indispensable for its due celebration are to be governed by the law of the place of contract or of celebration, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. Hence if the incapacity of the parties is such, that no marriage could be solemnized between them and without changing their domicil they go into some other country where no such limitation or restriction exists, and there enter into the formal relation, with a view to return and dwell in the country where such marriage is prohibited by positive law, it is proper to say that a proper self respect of the state government prohibiting such marriage would seem to require that the attempted evasion should not be allowed to prevail."

*

I have thus considered at length the authorities English and American on this question, because it is one of first impression in this court, and because it is a question which materially affects public morality, social order, and the best interests of both races. The public policy of this state, in preventing the intercommingling of the races, by refusing to legitimize marriage between them, has been illustrated by its legislature for more than a century.

Every well organized society is essentially interested in the existence and harmony and decorum of all its social relations. Marriage, the most elementary and useful of all, must be regulated and controlled by the sovereign power of the state. The purity of public morals, the moral and physical development of both races and the highest advancement of our cherished southern civilization under which two distinct races are to work out and accomplish the destiny to which the Almighty has assigned them on this continent, all require that they should be kept distinct and separate, and that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.

Upon the whole case, I am of the opinion that the marriage celebrated in the District of Columbia between Andrew Kinney and Mahala Miller, though lawful there, being positively prohibited and declared void by the statutes of this state, is invalid

here, and that said marriage was a mere evasion of the laws of this state and can not be pleaded in bar of a criminal prosecution here. If the parties desire to maintain the relation of man and wife they must change their domicil and go to some state or country whose laws recognize the validity of such marriages.

Upon the whole case I am of opinion that there is no error in the judgment of the circuit court affirming the judgment of the county court, and that both be affirmed by this court. All concur.

NOTES OF RECENT DECISIONS.

NEGOTIABLE PAPER

NOT CERTAIN

NOTE WHERE AMOUNT NOT NEGOTIABLE. Farquhar v. Fidelity Ins. Co. United States Circuit Court, Eastern District of Pennsylvania, 35 Leg. Int. 404. Where a note was for the payment of a certain sum "together with an attorney's commission of five per cent. for collection, in case suit be instituted hereon, and together with all taxes and charges in the nature thereof that may be levied upon this note or upon the indenture of mortgage accompanying the same, or the principal or interest moneys thereby secured, immediately upon their assessment:" Held, that the amount of the note not being certain it did not possess the character of negotiable paper. MCKENNAN, J.: "Overlooking the clause touching attorney's commission, how can it be said that the notes are either unconditional or certain in amount, in view of the stipulation for the payment of taxes or charges in the nature thereof, assessed upon the principal or interest? Liable to taxation as the property and in the hands of the holder (and this is the import of the stipulation), in some places they would probably be free from this charge, while in others they may be subjected to indefinite and varying rates of taxation, so that the amount to be paid by the maker, either before or at the maturity of the notes, would fluctuate according to collateral circumstances, and be dependant upon the domicil of the holder. And of these contemplated charges, or additions to the nominal consideration, the notes themselves indicate no standard of measurement. They could only be ascertained by reference to extrinsic circumstances, and thus the amount to be paid by the maker is left indeterminate and subject to possible contention. Instruments whose consideration is thus fluctuating and indefinite, and which are laden with such embarrassments to their circulation, could not perform the functions, and therefore do not possess the character of negotiable paper."

had previously given in the cause. Howк, J., says: "The action of the court complained of was such an irregularity in the proceedings of the court as the law affords no waraant for, nor will excuse. After a cause has been finally submitted to a jury, and they have retired for deliberation, it is provided in sec. 331 of the practice act, that "if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their attorneys." The provisions of this section are mandatory in their requirements. While a jury is out deliberating upon a verdict, it certainly would be an irregularity in the proceedings if, in the absence of and without the knowledge of the parties or their counsel, the court should enter the jury-room and there give the jury information 'as to any part of the testimony,' or as to any point of law.' This would be so whether such action of the court was had on Sunday or any other day of the week. The action of the court was such an irregularity in the proceedings as prevented appellant from having a fair trial." Reversed. Jones v. Johnson.

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PLEADING.

CIVIL AND SCHOOL TOWNSHIPS Suit upon the official bond of A as trustee of B township, by the state on the relation of A's successor in office. WORDEN, J., said: "The action was evidently brought to recover money due the civil township as also money due the school township. The civil and the school townships are two different corpotrations existing in the same territory, but the trustee is the trustee of both corporations. He gives but one bond, which is intended to secure the faithful performance of his duty in respect to both corporations. The complaint seeks to recover moneys due to each of the corporations, and if this can not be done it must be solely because the relator describes himself simply as trustee of the township, which implies the civil and not the school township. 52 Ind. 114. But this court will take notice, as matter of law, that the relator was trustee of the school township if he was trustee of the civil township, and is of the opinion that the designation of his official character was sufficient to enable him to recover as relator the money due to each of the corporations." Affirmed. Englis v. State.

PROMISSORY NOTE-SUFFICIENCY Of Tender.Action upon a promissory note of which the following is a copy; "Hartford City, Ind., March 18, 1874. Ou the first day of January, 1876, we promise to pay to the order of Robert Polk $1,506.13, payable in good notes then due, drawing ten per cent. interest; said notes shall provide for attorney's fees for collecting the same, and to be indorsed by us; should we fail to furnish notes that provide for attorney's fees for the collection of the same, then we agree to place such notes as do not provide for attorney's fees in judgment, without any expense to said Robert Polk," etc. Answer alleging a tender of "good notes" to plaintiff. On the trial one of the notes was objected to, because it was indorsed by the defendants in such a manner as to require all parties on the note to be exhausted before recourse could be had on the defendants as indorsers. It was shown that the maker of the note was insolvent, but that it was secured by mortgage and its payment assured. Howк, J.: "It is evident from the stipulations of the note sued on, as to attorney's fees, that the 'good notes' in which payment was to be made, might have to be collected by process o. law. A note, therefore, that is secured by mortgage on real estate and the payment thereof secured, even though the makers on such note are insolvent, must be regarded as a "good note," within the meaning of the note in

suit. The appellant can not justify his refusal to accept the tender of the note on account of the restricted liability of appellees in their indorsement of the note." Affirmed.-Polk v. Frash.

SURVIVING PARTNER-RIGHT TO DISPOSE OF ASSETS OF FIRM.-Action by appellee against appellants, Samuel C. Willson and John N. McConnell, on the following instrument in writing: "I hereby agree to pay R. H. Craig & Co. $300, in consideration of a full and final compromise and settlement this day signed between R. H. Craig & Co. and B. E. Smith & Co. and the I. C. & D. R. R. Co. Payment to be made as soon as work on the line of said road commences west of Crawfordsville. March 6, 1869. S. C. Willson." The complaint alleged that the said instrument was sold and assigned by delivery, and without indorsement, to the plaintiff by McConnell, surviving partner of the firm of R. H. Craig & Co., after the death of all other members of the firm. McConnell was made a defendant to answer to his interest in the writing. Hough and others filed separate counterclaims, alleging that they were creditors of R. H. Craig & Co.; that the firm was insolvent; that the instrument sued on belonged to said firm: that plaintiff had purchased it with full knowledge of all the facts and asking that they be admitted as parties to the suit, and that the proceeds of the instrument sued on be applied in payment of their claims against the firm. On plaintiff's motion these counterclaims were struck out by the court. NIBLACK, C. J.: “A surviving partner is entitled to the exclusive possession and control of the assets of his firm, including choses in action, for the purpose of settling and closing up the business of the partnership. It must be inferred from the facts alleged that the transfer of the obligation in suit by McConnell was for some legitimate purpose within the scope of his authority and not in violation of his trust as surviving partner. The plaintiff was not responsible for McConnell's alleged misapplication of the proceeds of the sale, unless he participated in such misapplication, There is no averment in any one of the counterclaims that the plaintiff's purchase was not a bona fide one, and not for a valuable consideration; or that the plaintiff in any manner participated in the misapplication of the proceeds of his purchase. The court did not err in striking out the counterclaims. The insolvency of the firm and of all the members of it, constituted no impediment to McConnell's making a bona fide transfer of the assets of the firm, with the ostensible purpose of closing up its business." Affirm. ed.- Willson v. Nicholson.

CRIMINAL LAW PRESUMPTION OF COERCION OF WIFE-VERDICT.-1. The presumption that a married woman who commits a criminal act in the presence of her husband acts under his coercion, is only prima facie; and when it is shown that she acted voluntarily and not by coercion she is liable to a prosecution. 2. On a trial, under an indictment for fœticide containing two counts, in one of which it to charged that the crime was committed by means of an instrument, and in the other by administering a drug, it is not error for the court to refuse to charge that if the destruction of the foetus was the combined effect of the instrument and the drug, and was not caused solely by either,. there can be no conviction. 3. A general verdict of "guilty" upon such indictment is not bad for repugnancy. Judgment affirmed. Opinion by MCILVAINE, J, Tabler v. State.

NATIONAL BANKS-PROMISSORY NOTE-RENEWAL -PRACTICE.-1. Where a national bank makes to one of its directors a loan of money which, in amount, and in the rate of interest, is in contravention of the national banking act, the borrower is not estopped to defend against a recovery of interest. 2. If a payee take. from the maker a promissory note, and at the same. time surrenders the maker's note of an earlier date given for a loan of money, the facts, and not merely. what the payee called or considered the transaction, will determine whether it was a renewal of, or a payment of the original loan. 3. In rendering judgment on a promissory note given to a national bank on renewal, into which note illegal interest on the original, note was incorporated, the whole interest on both notes will be disallowed. 4. Payments made generally on a promissory note to a national bank, which note embraces illegal interest, will be applied in satisfaction of the principal. 5. The refusal of the court to compel a witness, on cross-examination, to answer a question as to a matter not relevant to the issue, for the purpose of impairing his credibility, is no ground for a reversal. 6. Where a judgment on a warrant of attorney is opened by proceedings under the civil code, §§534—542, and on issue joined the amount of the judgment is reduced, and the plaintiff takes a second trial, which results in a finding in his favor of the same amount as on the former trial, it is not error to render judgment against him for the costs of the latter trial. Judgment affirmed. Opinion by OKEY, J.-First Nat. Bk.. of Cadiz v. Slemmons,

NON-NEGOTIABLE CHOSE IN ACTION-PURCHASER: -TITLE.-1. A bona fide purchaser for value of a nonnegotiable chose in action, from one upon whom the owner has by assignment conferred the apparent absolute ownership, when the purchase is made upon the faith of such apparent ownership, obtains a valid title as against the real owner, who is estopped from asserting title thereto. 2. B makes and delivers his non-. negotiable promissory notes to C, from whom they are obtained by fraud, misrepresentation and without ad.

equate consideration. The assignee, having thus obtained them, transfers them to W, who is a bona fide purchaser, for value, before due, without notice: Held, C can not reclaim the notes from W. Judgment affirmed. Opinion by WRIGHT, J.-Combs v. Chandler.

JUSTICE OF THE PEACE-LIABILITY TO ACTION FOR OFFICIAL ACTS.-1. Justices of the peace, whilst actting within the scope of their authority, are not answerable in a private action for the erroneous exercise of the judicial functions with which they are invested by law. 2. But such justices, and other inferior tribunals, which are invested only with special jurisdiction, and clothed with limited authority, must, at their peril, keep within their prescribed jurisdiction; and, if they transcend the limits of their authority, they are answerable to any one whose rights are thereby invaded. 3. And, in such a case, honesty of purpose, whilst it may mitigate damages, can not justify a clear usurpation of power. 4. Therefore, where a justice of the peace, without authority of law, isssues a warrant of arrest, both he and the person at whose instance he so acts, are liable in an action for false imprisonment at the suit of the party illegally arrested by virtue of such warrant. Judgment of district court affirmed. Opinion by SCOTT, J.-Truesdell v. Combs.

DOWER-WITNESS-DELIVERY OF DEED.-1. In a suit for dower, while the amended section 313 of the Civil Code, passed April 13, 1874, (71 O. L. 68), was in force, the heir of the deceased husband was a competent witness for the defense, where the title of the deceased husband was at issue. 2. Whether he would have been a competent witness under said section as it was in force prior to the passage, or subsequent to the repeal of said amende: section, quare. 3. The delivery of a deed by the grantor to the officer taking the acknowledgement, with unqualified instruction to deliver it to the grantee whenever he calls for it, followed by an acceptance of the title to the land conveyed, operates to invest the grantee with the title to the land, although, for convenience merely, the grantee permits the officer to retain possession of the deed. 4. If, after such absolute delivery to the officer, and acceptance by the grantee, but before he takes actual possession of the deed, the grantor marries, his wife is not vested with an inchoate right of dower in the premises, and on her surviving her husband she is not entitled to dower therein. Judgment reversed. Opinion by JOHNSON, C. J.-Black v. Hoyt.

MASTER AND SERVANT NEGLIGENCE-FELLOWSERVANTS.-1. A master, whether an individual or a corporation, is responsible to his servants for his own negligence; but, as a general rule, not for that of their fellow-servants. 2. Where, however, a master places one servant in a position of subordination to another servant, and the subordinate servant, without fault, is injured through the negligence of the superior servant, while both are acting in the common service, the master is liable therefor. 3. Whether or not one servant is placed by a common master under the control of another servant, thereby creating the relation of superior and subordinate between them, must be determined from the evidence in each particular case. 4. Where an engineer and brakeman were employed by a railroad company in operating the same train, and there was no evidence to prove that the brakeman was placed in a position of subordination to the engineer, other than what may be implied from the rules of the company, requiring the engineer to give certain specified siguals as "a notice" to apply or loose the brakes, and requiring the brakeman to manage the brakes "according to circumstances and the signals of the enginemau," and placing the brakeman, while on the train, in subordination to the conductor: Held, that

the engineer and brakeman were servants of the company engaged in a common service; that the relation of superior and subordinate did not exist between them; and that, therefore, the company was not re. sponsible to the brakeman for an injury occasioned by the negligence of the engineer. 5. Where in an action brought in this state against a master by a servant, for an injury sustained in another state through the negligence of a superior servant while engaged in the same service, and the answer merely stated that, by the law of that state, a servant has no action against the master for the negligence of a fellow-servant: Held, that the answer fails to meet the case, in not stating what the law of the state was, when the negligence complained of is that of a superior servant, and that a demurrer to the answer may, for that reason, be sustained. Judgment reversed. Opinion by DAY, J., Scott and Ashburn, JJ., dissented from the fourth point of the syllabus.-Pitts., Ft. Wayne & Chicago R. R. v. Lewis.

WILL-ANNUITY-ABATEMENT. - 1. A clause in a will in these words: "I order that five hundred dollars per year for ten years be paid over to my niece A," gives her an annuity and not a legacy of five thousand dollars payable in installments. Brimblecorn v. Haven, 12 Cush. 511; Stephens' Exrs. v. Haven, 24 N. J. (Eq.) 356. 2. Such annuity is subject to abatement if the income proves insufficient to pay all the annuities in full. 3. Such bequest, containing no words of inheritance or succession, must be construed as giving an annuity for ten years, if the annuitant should survive the testator so long; otherwise for her life only. Blewitt v. Roberts, Cr. & Ph. 274; Yates v. Madden, 3 Mac. & Gor. 532; Savery v. Dyer, 124 Mass. Opinion by SOULE, J.-Bates v. Barry.

RAILROAD A LIABILITY TO TICKET HOLDER. person who has bought a railroad ticket, by virtue of which he has been carried to a station short of that to which the ticket entitles him to go, and has then voluntarily left the company's premises intending to return by a later train, can not hold the company liable for injuries received upon returning subsequently to the premises, not as passenger, but merely for his own convenience, using the premises as a passage way from the highway to a station of another railroad, it not being alleged that the injuries were willfuly inflicted. Sweeny v. Old Colony & N. R. R., 10 Allen, 368; Gaynor v. Same, 100 Mass. 208. Opinion by SOULE. J.-Johnson v. Boston & Maine R. R.

DEPOSIT IN BANK BY WIFE OF WAGES OF HUSBAND-CREDITOR'S BILL.-Where a husband deposited his wages with his wife for safe keeping, and the wife, without his knowledge, deposited the same in a savings bank from time to time, and without his knowledge or assent, used the amount so deposited, together with some money she had borrowed on her sole credit, in payment for certain real estate, the title to which she took and still holds in her own name, it was held, that the husband had an equitable lien upon the land

MALICIOUS PROSECUTION-TERMINATION OF PRIOR ACTION.-In an action for malicious prosecution, it appeared that the defendant had caused to be instituted before the police court of Salem a complaint against the plaintiff charging her with the crime of larceny: that she was adjudged to be probably guilty and ordered to recognize with surety to answer further to the complaint at the October term, 1874, of the superio court; that she thereupon entered into a recognizance to appear at the October term of the superior court and at any subsequent term or terms until the final sentence, decree or order of the superior court, and to abide such final sentence, decree or order. To prove that this prosecution was at an end, the plaintiff introduced the records of the superior court to show that the grand jury had returned "no bill" in the plaintiff's case, but the record did not show that the plaintiff was thereupon discharged by the court. Held, that the prosecution alleged to be malicious had not been terminated, and that the plaintiff, therefore, could not maintain this action. Bul. N. P. 12. Opinion by MORTON, J.-Knott v. Sargent.

Associate Justices.

TAXES- VALUATION OF LANDS NO POWER IN COURT TO CHANGE.-This was an application by the collector of Jackson county for judgment against lands for delinquent taxes of 1874. The defendant in error appeared, and as a defense insisted that the land had been over-valued. The court heard evidence, and reduced the valuation. The People bring the case to this court. WALKER, J. (abstract of opinion). The rule adopted by this court is, that when the assessor and board of equalization have acted, their valuation can not be reviewed. Courts are powerless to hear evidence to alter or in anywise change their valuation. The defendant in error should, under sec. 86 or sec. 97 of the revenue law, have applied to have the assessment corrected. Having failed to do this there is no other remedy, even if the assessment is too high. Reversed and remanded.-People v. Big Muddy Iron Co. JOINT JUDGMENT CAN NOT BE SUSTAINED, UNLESS JOINT LIABILITY IS SHOWN.-This was an action of assumpsit brought by Jeremiah Callahan v. The Cairo & St. Louis R. R. Co., and Heary R. Pay son and Fred. E. Canda, partners, as H. R. Payson & Co. Payson & Co. failed to plead, and default was entered as to them. The R. R. Co. pleaded, and upon trial judgment was rendered against all the defendants for amount claimed to be due. All the defendants join in this writ of error. CRAIG, J. (abstract of opinion): There are three grounds of error assigned: (1.) The court overruled the motion for a new trial. (2.) The court refused to rule plaintiff's attorney to produce

on the trial a certain account. (3.) A joint judgment was rendered against all the defendants, when the evidence fails to show any liability on the part of Payson & Co. The motion for a new trial was based on affidavits filed with it, which are not included in the bill of exceptions, and which are, therefore, not properly before the court. For this reason we can not pass on this point. In support of the second reason, it is not shown that due notice was given, and the rule was no doubt properly refused. The third point we regard as well taken. The record does not show any evidence showing any liability on the part of Payson & Co., or either of them. The rule is well established, that in actions ex contractu, in order to recover the plaintiff must establish his cause of action against all of the defendants, and that if the proof fails to show all liable in the contract described in the pleadings, a recovery can not be had. The plaintiff, under our present statute might have amended his declaration and dismissed as to against Payson & Co., and under the evidence recovered against the railroad company. As the evidence fails to show any cause of action against Payson & Co. the judgment must be reversed. Reversed and remanded.-Cairo & St. Louis R. R. Co. v. Easterly,

Admr.

CAVEAT EMPTOR- EXECUTORS SALES. This was an action in assumpsit by the executors of Webster against Rumsey on two promissory notes given by Blackwell, since deceased, and signed by Rumsey as surety, the notes being given in payment for certain lands sold at public sale by the plaintiffs as executors. The grounds of defense are three, set up in as many special pleas. The third, being the one relied on, is, in effect, that the notes were given for all the right, title and interest of Leah P. Webster, in and to the lands sold: that the plaintiffs represented at the sale that she died seized thereof in fee simple, and thereby Blackwell was induced to buy the property at its full value and execute the notes, averring that she did not die so seized; that plaintiffs conveyed only their interest as executors; that Blackwell and wife are both dead; that prior to the commencement of this suit a deed was tendered to the plaintiff's reconveying all right gained by the executor's deed; that the conveyance of a fee simple title was the only consideration of the notes and an eviction by superior title. The jury found for defendant, and plaintiffs come to this court on appeal. SCOTT, J. (abstract of opinion): The point relied on by defendant that the purchaser was induced to buy by the representations of the executors that the title was perfect in the decedent, and the title being what he purchased, that failing, there was a total failure of consideration can not be maintained, unless there was such fraud on the part of the executors as would authorize the vendee to rescind the contract in toto on reconveying whatever estate he may have obtained. The rule of caveat emptor applies to such sales as this, and there is no exception to this rule, except where there has been such fraud as will authorize the vendee to recover the money in case the contract has been executed. In such sales the purchaser, who has no covenants that cover defects in the title, is absolutely without relief, unless a fraud has been practiced on him in the sale that will vitiate the contract. There is no proof of actual fraud in this case. Reversed and remanded.-Bond v. Rumsey.