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corporation whatever." The revisers included both $1. The accused demurred to the indictment, and these acts in the revision, the first as sections 972 and raises here, in support of his demurrer, the single point, 973, and the second as a part of section 974, but omitted that in passing the ordinance in question the common the repealing clause of the last act. They probably council exceeded its powers, and the ordinance so acted upon the opinion that it was not their province passed is inoperative and void. The power of the Legbut that of the courts to determine upon the com- islature to confer authority for such municipal legispatibility of the two acts, and therefore inserted both. lation is not assailed, but the claim that it has actually

Whether the act of the 8th of March would have ex- done so is strenuously denied. empted the corporation defendant in this case from the The argument on behalf of the city is that the power operation of the general statutes concerning insurance to pass such ordinance was incidental to it as a municcompanies, we deem it unnecessary to determine, since ipal corporation, and resulted from its creation as such, the act of the 19th of May, if it did not operate as a without dependence upon particular words; that it repeal of the former act, undoubtedly so modified it was embraced in the powers granted by the Dongan as to exclude the defendant from its operation. The charter of July 22, 1686, and which were reserved to charter of defendant constitutes life insurance the the city by the act of 1842; and was specially conferred main, indeed the only, business of the company. It is by the amended charter of 1870. Laws of 1870, tit. 3, not incidental to some other form of benevolence in $ 12, sub. 14. which aid is extended to bereaved widows or orphans, The last-named act authorizes the common council but as has been shown, practically exhibits benevo- of Albany to enact ordinances, with penalties not exlence in the same way it is promoted by all life insur-ceeding one huudred dollars, in the matters and for ance companies.

the purposes thereinafter named; and among these In plain terms the two acts are irreconcilable, the purposes is one contained in subdivision 14, the lanone aiming to relieve those benevolent associations guage of which is as follows, viz. : “To regulate the from the burdens imposed on mutual insurance com- erection, use aud continuance of slaughter-houses." panies; the other designing, and in terms declaring, The counsel for the defendant contends that the power that they are not so exempt. They were obviously thus conferred upon the common council does not jusbrought about by different and opposite interests, and tify the ordinance for the violation of which the prisfrom different and opposite motives. They were framed oner was indicted, and his argument is that the clauso diverso intentu. It is unnecessary to cite authority to referred to is a clear recognition of the right to erect, show that the last act must govern, though passed by use, and continue slaughter-houses within the city, the same Legislature and at the same session.

and everywhere and anywhere within its limits; and What was meant by the proviso to the repealing that therefore the authority to regulate them cannot clause of the act of May 19, I confess myself unable to be construed to permit a total prohibition in particuconjecture. It has been suggested that it might apply | lar areas or location. to a company organized between the 8th of March and We do not think the reasoning is sound. The statthe 19th of May, but it is unnecessary to determine the ute recoguizes the fact that slaughter-houses exist in plausibility of such a conjecture, since the defendant the city, rather than the right to erect them, and rewas not in that condition. Previous to the session of cognizing the fact, gives to the common council the 1879, no such provision in regard to benevolent associa- power to regulate them. The use of the word "regutions as were inserted in the act of March 8 is to be late" in the statute is not confined merely to the manfound in 1 Wag. Stat., title Corporations, art. 8, p. 339. ner in which the business of slaughtering animals is This act is the sole reliance for any claim of exemption, carried on. To regulate implies a power of restriction and being of opinion that the act was repealed or so and restraint, and is applied in the charter not merely essentially modified as to prevent any such effect, a to the " " of slaughter-houses, which would relate judgment of uster necessarily follows. The other to the manner of conducting the business, but also to judges concur.

their " erection” on the one hand, and their “continuance on the other; so tbat their “ erection" in the

first instance, and then the mode and manner of their MUNICIPAL CORPORATION REGULATION

"use" after they are built, and lastly their "continuOF SLAUGHTER-HOUSES.

ance,” are placed under the regulating power of the

municipal authority. It would be a very narrow and NEW YORK COURT OF APPEALS, NOVEMBER, 1880.

technical construction to say that a power to regulato the erection of a slaughter-house is exhausted in pre

scribing the form or material of its erection and has CRONIN V. PEOPLE OF THE STATE OF New York. no reference to its locality. And the construction

wholly fails when applied to the " 'continuance" of A power conferred upon a city in its charter to "regulate the erection, use, and continuance of slaughter-houses"

such a structure, and the business carried on within within the city, includes the power of total probibition

it. How is it possible to regulate its continuance, exwithin specified limits or localities.

cept by limiting and restricting that continuance,

which again can only be done by prohibiting its conHE opinion states the case.

tinued existence. It is the plain purpose of the statFINCH, J. The plaintiff in error was indicted in ute to give to the commou council the right to fix and the Court of Sessions of the county of Albany for determine the limits and localities within which new slaughtering cattle in violation of an ordinance of the slaughter-houses may be erected, and the areas from common council of that city, which forbids such act which they shall be excluded; to direct and control within certain prescribed limits specifically named and the mode and manner of using those so erected, and described, and directs, in the interest of health and those already existing, as they may deem the health cleanliness, the manner of conducting such business in and cleanliness of the city requires; and to prohibit the localities from which it is not excluded. Penalties their continuance whenever and wherever they beare imposed by the ordinance for its violation, which come sources of danger to the health or comfort of the may be recovered in a civil action, or by prosecution community. as for a criminal offense. The Legislature, in 1871, made The counsel argues that this construction may result such violation of a city ordinance a misdemeanor, pun- in a total prohibition; that if the municipal control ishable by fine or imprisonment, or both, in the dis- can exclude slaughter-houses from the area already cretion of the court. Laws 1871, ch. 536, tit. 15, named in the ordinance, it can steadily increase and

use

THE

VACATING JUDGMENT FOUNDED UPON

ILLEGAL CONTRACT.

PENNSYLVANIA SUPREME COURT, JANUARY, 1880.

PROCO

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enlarge such area until the business is driven wholly from the city. That does not necessarily follow. It will be soon enough to decide that question when it arises. It is not yet here. We are not to presume that the common council will abuse the authority intrusted to them, or fail to recognize the absolute need of the business to the necessities of the community, while at the same time they feel their responsibility for the health and comfort of the people. It is enough to say, for the present, that their action is clearly within the authority of the charter.

Our attention is called to other paragraphs under section 12 as tending to throw light upon the meaning of the word “regulate.” The suggestion is that where authority to prohibit is intended, some stronger word than regulate" is used indicating the severer restriction. The language of legislative enactments is not always rigidly precise and accurate, and an argument drawn from the use of specific words is often dangerous; yet in the present case the terms of the subdivisions referred to, favor, rather thau oppose, the meaning we attach to the word in question. As a general rule, with perhaps occasional exceptions, through all the paragraphs of the section, where some act or thing is not to be permitted at all, anywhere or in any locality, a more restrictive word than “regulate is used; as, “to prevent and remove" obstructions in the streets. Where the act or thing is such as may be permitted under proper restraint, at convenient times, in suitable localities, the word “regulate" is used; and where the act is one which it may be wise either to permit under appropriate restraints or wholly to prohibit, the two words are used, “to regulate or prevent;” and where 'a more general and undefined power is intended, involving various details, the phrase adopted is in relation to." We see pothing, therefore, in the language of the other subdivisions to change our conclusion, that an ordinance wbich excludes from a specific place or locality the business of slaughtering cattle is a regulation of that business, and therefore within the power conferred upon the common council by the provision under discussion. Indeed the precise point was long ago adjudged. In Village of Buffalo v. Webster, 10 Wend. 100, where a similar ordinance was assailed as in restraint of trade, the court held that an ordinance providing “that meat shall not be sold in a particular place is good, not being a restraint of the right to sell meat but a regulation of that right.” The same authority disposes of the objection that the ordinance in question is void as being in restraint of trade, following in that respect still older cases: Bush v. Seabury, 8 Johns. 418; Pierce v. Bartram, Cowp. 269; and justifying the principle of the later authorities in which the exercise of such powers by boards of health has been steadily sustained. Metropolitan Board of Health v. Heister, 37 N. Y. 662; Polinsky v. People, 73 id. 65.

If we correctly understand the counsel for the appellant, he also claims that the ordinance is void because it punishes the prohibited acts “without pretense, or any form of proof that they were injurious to the wellbeing of the town, or that prudence required its passage." The answer is that neither in the ordinance itself, nor in the indictment founded upon it, is it necessary to allege or explain the reasons for its enactment or the exigency out of which it grew. It is of the pature of legislative bodies to judge for themselves, and the fact and the exercise of that judgment is to be implied from the law itself. Stuyvesant v. Mayor of N. Y., 7 Cow 606; Martin v. Mott, 12 Wheat. 19; Rector, etc., of Trinity Church v. Higgins, 4 Rob. 1.

We do not see, therefore, that any error was committed in the court below. The judgment must be affirmed, and the case remanded for the proper sentence to the Court of Sessions of the county of Albavy.

BREDIN, Plaintiff in Error, v. DORSEY. B., in consideration that D. would drop a prosecution for

forgery against M., executed a judgment note upon which D. subsequently entered judgment. Held, that B. was entitled to have the judgment opened, on the

ground of the illegality of the consideration of the note. PROCEEDING to open a judgment entered in favor

of Dorsey against Bredin and others, upon a judgment note, on the ground that the consideration of the note was the stifling of a prosecution for forgery. Dorsey had procured an indictment against one McCullough, for the forgery of the certificate of a cashier of a bank that a check drawn on such bank was good. Thereafter, and before the indictment was tried, it was arranged that the judgment note in question should be given by Bredin and another, who were connections by marriage with McCullough, to Dorsey, in consideration and upon the condition that Dorsey should not appear to testify on the trial against McCullough, but that he should drop the prosecution and permit a verdict of the petit jury in favor of McCul. lough on said indictment. The note was accordingly executed and delivered, without other consideration, and in pursuance of the bargain, when the case was called for trial, Dorsey (though present) did not appear to testify, and in the absence of testimony for the prosecution, a verdict of not guilty was rendered.

The court below discbarged a rule to show cause why the judgment should not be opened. The court said: “If this was a suit on a note or bond the defense could be set up, Ex turpi causa non oritur actio. But here the defendants are the actors, they apply to open a judgment and restrain an execution. In this attempt they are met by the maxims: In pari delicto melior est conditio possidentis; aud Nemo allegans suam turpiludinem audiendus est. There are cases, indeed (such as attempts to poison the fountains of justice, aud others), where the public interest demands the overthrow and exposure of the scheme, that the particeps criminis may be used for that purpose. But this is not such a case, and the agreement being executed, not executory, defendants are without remedy." “There is no difference in legal effect between a judgment confessed and a judgment on a verdict of a jury. Hopkins v. West, 2 Norris, 109. A judgment is an executed contract. So long as a contract continues executory it may not only be impeached for fraud or mistake, but any invalidity which would be a defense at law would in general be ground for cancellation in equity; as for instance, the illegality of contracts for gaming or smuggling, or aiding prosecution, for compounding a felony or for paying usury. But a contract already executed cannot be set aside as illegal or immoral, and nothing but fraud or palpable mistake is ground for rescinding an executed conveyance. Nace v. Boyer, 6 Casey, 110. See, also, Hershey v. Weiting, 14 Wright, 245; Blystone v. Bli;stone, 1 P. F. Smith, 375, and Steinbaker v. Wilson, 1 Leg. Gaz. Rep. 76."

From this decision the defendants below took a writ of error.

John M. Thompson and W. D. Brandon, for plaintiff in error.

John M. Greer, for defendant in error.

TRUNKEY, J. The maxim, “Nemo allegans suam turpitudinem audiendus est,” is good in its use, and the authority of a long line of decisions prevents its abuse. In Collins v. Blantern, 2 Wils. 341, a leading case, it was decided that illegality may be pleaded as a defense

to an action on a bond; and so it has been held in Eng- meanors, the compounding of any of which is a misland and this country ever since. The bond in that demeanor punishable by fine and imprisonment. Act case was given as an indemnity for a note entered into March 31, 1860, S 10, P. L. 357. Under section 9 of the by the obligee for the purpose of inducing a prosecutor Criminal Procedure Act of 1800 (P. L. 432), no magisof an indictment for perjury to withhold his evidence. trate or court can lawfully permit a settlement of a After speaking of the transaction as one to gild over prosecution for forgery on satisfaction being made to and conceal the truth, the court said: “This is an the party complaining; for infamous crimes are exagreement to stifle a prosecution for willful and cor- cepted from its operation. The Legislature committed rupt perjury, a crime most detrimental to the Com- no such inconsistency as enacting two acts of the same monwealth; for it is the duty of every man to prose- date, one of which prohibits the settlement of forgery cute, appear against and bring offenders of this sort to under a severe penalty, and the other authorizing it, if justice.” *

* * “This is a contract to tempt a man the complaining party acknowledges satisfaction. to transgress the law, to do that which was injurious Cheats by false pretenses are among the cases authorto the community; it is void by the common law, and ized to be settled by the 9th section of the Criminal the reason why the common law says such contracts Procedure Act, and therefore Steinbacher v. Wilson & are void is for the public good.” Had the defendant Young, 1 Leg. Gaz. Rep. 76, has no application to the not been heard the court would have known nothing question now pending. And the settlement of cases of the facts, they were not set out in the bond, the within that section is not touched by the principles plaintiff was not compelled to show them in making applicable to the compounding of an infamous crime. out his case, and on the face of the bond be was enti- Dorsey charged McCullough with forgery, and contled to recover; all that which proved it a void con- ducted the prosecution to his indictment and acquito tract was shown by the defendant. So in the late case tal. After the indictment, and before the acquittal, a of Ham et al. v. Smith, 6 Norris, 63, the corrupt, im- bargain was struck, the judgment note given, Dorsey's moral and forbidden contract appeared in the proofs claim against McCullough satisfied, and Dorsey was adduced by the defendant; the plaintiff made his case not to appear and testify in the forgery case. He saw by showing the note, the fair-looking fruit of the ille- the Commonwealth fail, for he did not answer to tesgal bargain. Notwithstanding the maxim, it has been tify, though present. It cannot be doubted that the settled that where a contract or deed is made for an abandonment of the prosecution and failure to testify illegal purpose, a defendant against whom it is sought entered into the agreement. The note was given for to be enforced may show the turpitude of both him- the debt and for the acquittal, and if any part of an self and the plaintiff, and a court of justice will de- indivisible promise, or of an indivisible consideration cline its aid to enforce a contract thus wrongfully for a promise, is illegal, the whole is void. Filson v. entered into. The principle depends on the public | Himes, 5 Barr, 452. good, not on the merit of the defendant, whose hand Agreements founded upon the suppression of crimiis as foul as the plaintiff's. Public policy requires that nal prosecutions are void; they have a manifest teuhe be heard, and if the contract be void, his relief is dency to subvert public justice. 1 Story's Eq., $ 294. it an incident. Suan v. Scott, 11 S. & R. 155, is no ex- is the nature of the crime, not so much whether it be ception. There the suit was on a boud, given in satis- felony or misdemeanor, which is to be considered. faction of an award of arbitrators which bad become Many felonies are not so enormous as some misdea judgment; and the defendant proposed to go behind meanors. The law recognizes this in their punishment; the judgment and show the illegal contract on which for instance, the maximum of imprisonment for ong the award was obtained; held that he could not, and convicted of forgery is ten years, of larceny three. Duncan, J., remarked: “The test, whether a demand Stifling a prosecution for forgery, though an offense of connected with the illegal transaction is capable of the same grade as compounding divers felonies, seems being enforced at law, is whether the plaintiff requires to be a graver offense than compounding some felonies. the aid of the illegal transaction to establish his case.' It comes within the rule, that where the welfare of It is manifest the judgment was conclusive, though society and the vindication of the law are the chief obtained in a suit on an illegal contract, and the re- objects, the defendant may givo in evidence the illemark strictly fitted the facts in that case, without in- gality of the contract as a bar to a suit to enforce it, fringing on the rule. Wherever that test has been and this to prevent evil which would be produced by quoted and applied, it will be found there was a good enforcing the contract or allowing it to stand. consideration for the contract in suit, before reaching Shall these objects be thwarted, and the evil follow back to the alleged illegal one.

which the law designs to prevent, because of a judgWhere the public is not interested, the maxim has ment confessed by virtue of a warrant which is but a its full force, and the law leaves the parties as they part of the criminal transaction? placed themselves. Obligors in an instrument under It was said by the present chief justice, in Hopkins seal, made for the purpose of defrauding the obligee's v. West, :? Norris, 109: “There is no difference in legal wife, cannot shield themselves by alleging their own effect between a judgment confessed or for want of fraud; for this does not belong to the class of contracts appearauce or plea, and a judgment on the verdict of forbidden by statute or public policy. Evans v. Dravo, a jury. The court in which the judgment is rendered 12 Har. 63; Ilendrickson v. Evans, 1 Cas. 441. On like will indeed open one of the former kind, and let the principle voluntary conveyances and contracts, made defendant in to a defense in a proper case, and upon to defraud creditors, though void as to them, are good equitable terms.” In Pennsylvania it has always been and binding between the immediate parties. These the right of a defendant in a judgment confessed by are voided by the statute of 13 Elizabeth, for the benefit virtue of a warrant of attorney to petition that it bo of creditors, but not as to the parties. Hershey v. opened for cause. This right was so well respected by Weiting, 14 Wright, 240; Blystone v. Blystone, 1 P. F. the courts that there was no occasion for legislation S. 373. “That a collusive contract binds the parties to providing for appeal from refusal to open till a recent it, is a principle which commends itself no less to the date. The entry of judgment, either by attorneys or moralist than to the jurist; for no dictate of duty prothonotaries on judgment notes is very common. calls on a judge to extricate a rogue from his own These, though having the samo effect as if on the vertoils.Stewart v. Kearney. 6 Watts, 453. In all such dict of a jury, while they stand, in fact never waire cases the actor is met by the maxim, In pari delicto the results of adjudication. melior est conditio possidentis."

To hold that such a judgment, entered on an imForgery, or the crimen fulsi, is an infamous offense. moral and illegal obligation, part of a transaction subIt is classed with other infamous felonies and misde- versive of public interest, shall be deemed au executed contract, with absoluto right in tho plaintiff to judi- was asked to charge “that the mere possession by the cial process for collection, would be shocking to every prisoner is not of itself sufficient to justify his conman's sense of justice. The argument is that the viction.” The court answered, “taken in connection judgment shall stand, for the plaintiff need only show with the other evidence, I believe it is.” Held, that the note, and the defendant, as actor, will not be heard it could not be claimed that the court expressed an allegiug his own and the plaintiff's turpitude in an ap- emphatic opinion of the prisoner's guilt, and thereby plication for opening the judgment. In one sense the substantially directed a conviction as a matter of law, plaintiff is an actor; he caused confession of judgment when the judge had, before this request was made, on the void instrument, and uses tho process of the fairly presented all the questions of fact and left to law to collect tho money agreed to be paid for its the jury to determine from the whole evidence the violation.

guilt or immocence of the accused. The province of The reason of the rule which allows a defendant to the jury was in no manner involved. The ruling, plead and prove the illegality of a contract in bar of a taken in connection with the rest of the charge, was suit upon it demands that he be heard on an applica- in substance that tho question of the guilt or innotion to open a judgment so confessed. His rights are cence of the accused was wholly for the jury, but if of secondary importance, and he is not heard for their they should find him guilty, the evidence was legally vindication. It is the duty of the court, on proper sufficient to sustain the verdict. This comes within showing, to open such a judgment, to the end that there the rule in Stover v. People, 56 N. Y. 318, where it is may be a trial as if suit had been originally commenced said, that “in many cases judges have instructed juries on the note, or other obligation, on which the judg- that such proof was sufficient to convict. This is corment was entered. In this way the law may be vindi- rect, with the addition that if it couvinced them of cated, and the interests of the Commonwealth con- the guilt of the party, which would ordinarily be imserved.

plied from the direction.” Judgment affirmed. Henze, The order and decree, discharging the rule to show plaintiff in error, v. Peopie of New York. Opinion by cause why judgment should not be opened, reversed, Finch, J. and now the said rule is made absolute; the record to [Decided Oct. 1880.) be reinitted for further proceeding. Appellees to pay costs of this appeal.

MASTER AND SERVANTNEGLIGENCE - CONTRIBUTORY NEGLIGENCE BY EMPLOYEE — WHAT DOES NOT

CONSTITUTE.-In an action by one who had been emNEW YORK COURT OF APPEALS ABSTRACT.

ployed as locomotive engineer by a railway company

against such company, for injury by the overturning COUNTER-CLAIM - ARISING OUT OF SAME TRANSAC- of an engine he was running, caused by the defective TION ALLOWABLE, THOUGH NOT EXISTING WHEN AC- condition of defendant's road, it was claimed by deTION COMMENCED. — A claim for overpayment upon a fendant that plaintiff knew of the dangerous condicontract upon which an action was brought, held to be tion of the road when he run the engine, and was permissible as a counter-claim, to be set up by an therefore negligent. It appeared that while plaintiff amended or supplemental answer, whether it was a knew that the road was somewhat out of repair, it did fact occurring after the first answer was put in or was not appear conclusively that he knew how badly it one of which the defendant's attorney was ignorant was out of repair, or that the danger was imminent or when he made the first pleading. It was a claim that very great. Three or four passenger trains besides arose out of the contract or transaction set forth in freight trains passed over the road each way daily, and the complaint and was also connected with the subject no other accident was shown to have happened from of the action. It fell within the first subdivision of the badness of the road. Plaintiff and other engineers old Code, section 150; it was not obnoxious to the con- had frequently run over the road with safety in the dition stated in subdivision 2 that it must exist at the same way that he ran at the time of the accident. At commencement of the action. And defendant would that time he was by special order running his engine be entitled to prove and have judgment for the amount at the rate of twenty miles an hour without cars overpaid. The case of Ashley v. Marshall, 29 N. Y. attached in front of a passenger train. Held, that the 494, is, as far as it goes, in accord with this view. The question as to whether plaintiff was guilty of contribcase of Van Valen v. Lapham, 13 How. Pr. 240, does utory negligence was for the jury, and a nonsuit was not conflict, the construction there being under sub- not proper. In such a case the court must take into division 2. Order of General Term reversed and account a plaintiff's position. His business was that of judgment upon report of referee affirmed. Howard y. an engineer, and unless he obeyed orders and ran his Johnston, appellant. Opinion by Folger, C. J.

engine he would have been obliged to abandon the de[Decided Oct. 5, 1880.]

fendant's service. Of one thus situated the law should CRIMINAL LAW

not be too exacting. The court must assume that the EVIDENCE- LARCENY -- CHARGE TO JURY - EXPRESSING OPINION AS TO GUILT. — (1)

officers of defendant who had charge of the road and

must have known its condition deemed it safe, and Defendant was indicted for grand larceny in having stolen goods from R., by whom he had been employed,

plaintiff had the right to rely somewhat upon their and for receiving stolen goods knowing them to havo judgment. It would be a very unjust rưle which would been stolen. It was shown that when leaving the

allow a master to shield himself from responsibility store of R. he was stopped and searched and a small

for the consequence of his own negligence, by alleging amount of goods found on him. Some $200 worth of

those acts, not inevitably or imminently dangerous, to goods were found upon searching his barn the next

have been negligent, which his servant performed by day, but the evidence of ownership was so uncertain

his express orders. Patterson v. Pittsburg, etc., R.

Co., 76 Penn. St. 389. that the district attorney abandoned the prosecution

Judgment affirmed. Hawley as to them and a conviction was bad for petit larceny.

v. Northern Central Ruilway Co., appellant. Opinion At the trial a question was asked of a witness who

by Earl, J. aided in the search of prisoner's house, “What did

[Decided Oct. 15, 1880.] you find there?" Held, that the allowance of this TAXATION - OF CORPORATION MUST BE AT PRINCIquestion was not error, on the ground that it was proof PAL OFFICE AS SET FORTH IN ITS CERTIFICATE OF INof a separate offense. The evidence was admissible as CORPORATION - REVIEW OF ERRONEOUS NEED NOT BE tending to prove the charge of grand larceny, etc.; BY CERTIORARI.--(1) Plaintiff, a corporation organthat it failed of its purpose did not make it incompe- ized under the “ Act for the incorporation of companies tent. (2) At the conclusion of the evidence the court formed to navigate the lakes and rivers,” passed April

TER.

15, 1854, filed in the proper offices the required certifi- ent of and separate from the original suit, it cannot be cate of incorporation, in and by which, as directed by re-examined here either by writ of error or appeal. the act, it certified and declared that “the name of the This was decided more than fifty years ago in Keartown and county in which the principal office for ney's case, 7 Wheat. 39, and the rule then established managing the affairs of such company is to be situated, was followed as late as New Orleans v. Steamship Co., is the town of Clarkstown, in the county of Rockland, 20 Wall. 392. In error to United States Circuit Court, in the State of New York.” It was always assessed, S. D. New York, motion to dismiss writ granted. when assessed for taxation, in the county named, and Hayes, plaintiff in error, v. Fischer. Opinion by paid taxes, and in the town named its annual meetings Waite, C. J. for the election of directors and the choice of officers

JURISDICTION OF FEDERAL COURTS NOT CONFERAwere always held, sometimes in a room in the village of

BLE BY CONSENT OF PARTIES - REMOVAL OF CAUSE Nyack, sometimes in a store in Upper Nyack, and once

FROM STATE COURT DEPENDENT UPON SUBJECT-MATin a railroad car. No other business was transacted there, though a sign “The Union Steamboat Co." was

- While the mere consent of parties cannot conkept up at principal office. The rest of its business

fer upon the courts of the United States the jurisdicwas mainly transacted at Buffalo. The company's

tion to hear and decide their cases, for if it could those

courts' would become the common resort of persons business was transporting freight on the great lakes in which some twenty propellers were used whose home

who have no right, either under the Constitution of port was Buffalo. In that city tho managers resided

the United States nor by the laws creating them, to and controlled a large and profitable business with the

litigate in them, where there are conflicting suits in reaid of numerous clerks, who kept the general accounts

lation to the same property (a railroad), one in a State of the company, received its income and paid its ex

court and the other in a Federal court, and the Fedpeuses and managed its affairs very much after the

eral court has possession of tho property, the parties manner of a resident corporation. Held, that the

in the suit in the State court may by consent remore corporation was taxable in Rockland county and not

the cause into the Federal court. That court br takin Buffalo. Western Transportation Co. v. Scheu, 19

ing possession of the property had drawn to itself the N. Y. 408; Oswego Starch Factory v. Dolloway, 21 id.

subject-matter of the litigation and the right to de419. In these cases it was held that for the purposes of

cide upon the conflicting claims to the possession and taxation, the principal office of tho corporation was

control of the road. These principles are not new in fixed conclusively by the certificate of incorporation

this court. They will be found to be sustained by the

cases of Minnesota Co. v. St. Paul Co., 2 Wall. 609; and that in the county thus designated and in tbat

Watson v. Jones, 13 id. 715; Freeman v. Horne, 24 alono a corporation could lawfully bo taxed. This would not be affected by the fact that the principal

How. 450; and Buck v. Colbath, 3 Wall. 337. In conoffice of plaintiff was located in the county of Rock

senting, therefore, to the voluntary transfer of the litland to avoid taxation. (2) The assessors of Buffalo

igation from the State court into the Federal court, imposed upon plaintiff a tax which plaintiff (upon the

the parties did no more than what they could have ground that its principal office was located elsewhere)

been compelled to do by the injunction of the latter, opposed before the assessors, but ineffectually. The

and what would have been done by such compulsory collector of taxes levied upon one of plaintiff's steam

order if they had not submitted to it by agreement. ers to collect the tax, whereupon, to secure the release

Wiswall v. Sampson, 14 How. 52. Judgment of United of its property, plaintiff paid the tax under protest.

States Circuit Court, S. D. Illinois, affirmed. People's Held, that an action to recover back the amount paid

Bank of Belleville, plaintiff in error, v. Winslow et al. would lie against the city, and the city could not set

Opinion by Miller, J. up that the assessors, having acted judicially, the only JURISDICTION- FEDERAL COURTS — SUITS FOR COLremedy for error on their part was certiorari. Where

LISION — FEDERAL QUESTION.- The single question assessors have jurisdiction, certiorari is the proper here was whether the courts of the United States, as remedy, but this is not so where they havo no right to

courts of admiralty, have exclusive jurisdiction of suits act at all. In this case they had no jurisdiction. See

in personam, growing out of collisions between vessels National Bk. v. City of Elmira, 53 N. Y. 49. Judgment

while navigating the Ohio river. The court hold that affirmed. Union Steamboat Co. v. City of Buffalo,

this is a Federal question giving it jurisdiction, but appellant. Opinion by Fiuch, J.

being decided as it was substantially in The Moses [Decided Oct. 15, 1880.]

Taylor, 4 Wall. 431; Hine v. Trevor, id. 571; The Bel

fast, 7 id. 612; Leon v. Garcelon, 11 id. 190; and SteamUNITED STATES SUPREME COURT AB

boat Co. v. Chase, 16 id. 531, it is not any longer open STRACT.

to argument. The Judiciary Act of 1789 (1 Stat. 76, $ 9),

reproduced in section 563, Rev. Stat., paragraph 8, OCTOBER TERM, 1880.

which confers admiralty jurisdiction on the courts of

the United States, expressly saves to suitors, in all APPEAL —WHEN ORDER FOR CONTEMPT NOT REVIEW

cases, the right of a commou-law remedy, where the ABLE.— Fischer brought a suit in equity in the Circuit Court to restrain Hayes from usirg a certain patented

common law is competent to give it. That there aldevice. In this suit an interlocutory injunction was

ways has been a remedy at common law for damages

by collision at sea camuot be denied. Motion to disgranted. Upon proceedings for violating this injunc

miss denied, and that to affirm granted. In error to tion the Circuit Court ordered Hayes to pay the clerk

Pennsylvania Supreme Court. Schoonmaker et al., $1,389.99 as a fine, and that he stand committed until

plaintiffs in error, v. Gilmore. Opinion by Waite, C. J. the order was obeyed. To reverse this order Hayes sued out this writ of error, which Fischer moved to dismiss, PRACTICE :- REHEARING AFTER JUDGMENT.- A petion the ground that such proceedings in the Circuit tion for rehearing after judgment, under the rule proCourt cannot be re-examined here. This court held that mulgated in Public Schools v Walker, 9 Wall. 604, if the order complained of is to be treated as part of cannot be filed, except at the term in which the judgwhat was done in the original suit, it cannot be brought ment was rendered. In Hudson v. Guestier, 7 Cr. 1, here for review by writ of error. Errors in equity a motion was made at the February term, 1812, for a suits can only be corrected in this court on appeal, and rehearing in a case decided two years before, but the that after a final decree. This order, if part of the court said “the case could not be reheard after the proceedings in the suit, was interlocutory only. If the term in which it was decided." At the end of the proceeding below, being for contempt, was independ. I term, the parties are discharged from further atteud.

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