corporation whatever." The revisers included both these acts in the revision, the first as sections 972 and 973, and the second as a part of section 974, but omitted the repealing clause of the last act. They probably acted upon the opinion that it was not their province but that of the courts to determine upon the compatibility of the two acts, and therefore inserted both. Whether the act of the 8th of March would have exempted the corporation defendant in this case from the operation of the general statutes concerning insurance companies, we deem it unnecessary to determine, since the act of the 19th of May, if it did not operate as a repeal of the former act, undoubtedly so modified it as to exclude the defendant from its operation. The charter of defendant constitutes life insurance the main, indeed the only, business of the company. It is not incidental to some other form of benevolence in which aid is extended to bereaved widows or orphans, but as has been shown, practically exhibits benevolence in the same way it is promoted by all life insurance companies.

In plain terms the two acts are irreconcilable, the one aiming to relieve those benevolent associations from the burdens imposed on mutual insurance companies; the other designing, and in terms declaring, that they are not so exempt. They were obviously brought about by different and opposite interests, and from different and opposite motives. They were framed diverso intentu. It is unnecessary to cite authority to show that the last act must govern, though passed by the same Legislature and at the same session.

What was meant by the proviso to the repealing clause of the act of May 19, I confess myself unable to conjecture. It has been suggested that it might apply to a company organized between the 8th of March and the 19th of May, but it is unnecessary to determine the plausibility of such a conjecture, since the defendant was not in that condition. Previous to the session of 1879, no such provision in regard to benevolent associations as were inserted in the act of March 8 is to be found in 1 Wag. Stat., title Corporations, art. 8, p. 339. This act is the sole reliance for any claim of exemption, and being of opinion that the act was repealed or so essentially modified as to prevent any such effect, a judgment of ouster necessarily follows. The other judges concur.

MUNICIPAL CORPORATION – REGULATION OF SLAUGHTER-HOUSES.

NEW YORK COURT OF APPEALS, NOVEMBER, 1880.

CRONIN V. PEOPLE OF THE STATE OF NEW YORK. A power conferred upon a city in its charter to "regulate the erection, use, and continuance of slaughter-houses" within the city, includes the power of total prohibition within specified limits or localities.

HE opinion states the case.

THE

FINCH, J. The plaintiff in error was indicted in the Court of Sessions of the county of Albany for slaughtering cattle in violation of an ordinance of the common council of that city, which forbids such act within certain prescribed limits specifically named and described, and directs, in the interest of health and cleanliness, the manner of conducting such business in the localities from which it is not excluded. Penalties are imposed by the ordinance for its violation, which may be recovered in a civil action, or by prosecution as for a criminal offense. The Legislature, in 1871, made such violation of a city ordinance a misdemeanor, punishable by fine or imprisonment, or both, in the discretion of the court. Laws 1871, ch. 536, tit. 15,

1. The accused demurred to the indictment, and raises here, in support of his demurrer, the single point, that in passing the ordinance in question the common council exceeded its powers, and the ordinance so passed is inoperative and void. The power of the Legislature to confer authority for such municipal legislation is not assailed, but the claim that it has actually done so is strenuously denied.

The argument on behalf of the city is that the power to pass such ordinance was incidental to it as a municipal corporation, and resulted from its creation as such, without dependence upon particular words; that it was embraced in the powers granted by the Dongan charter of July 22, 1686, and which were reserved to the city by the act of 1842; and was specially conferred by the amended charter of 1870. Laws of 1870, tit. 3, § 12, sub. 14.

The last-named act authorizes the common council of Albany to enact ordinances, with penalties not exceeding one hundred dollars, in the matters and for the purposes thereinafter named; and among these purposes is one contained in subdivision 14, the language of which is as follows, viz.: "To regulate the erection, use and continuance of slaughter-houses." The counsel for the defendant contends that the power thus conferred upon the common council does not justify the ordinance for the violation of which the prisoner was indicted, and his argument is that the clause referred to is a clear recognition of the right to erect, use, and continue slaughter-houses within the city, and everywhere and anywhere within its limits; and that therefore the authority to regulate them cannot be construed to permit a total prohibition in particular areas or location.

We do not think the reasoning is sound. The statute recognizes the fact that slaughter-houses exist in the city, rather than the right to erect them, and recognizing the fact, gives to the common council the power to regulate them. The use of the word "regulate" in the statute is not confined merely to the manner in which the business of slaughtering animals is carried on. To regulate implies a power of restriction and restraint, and is applied in the charter not merely to the " use "of slaughter-houses, which would relate to the manner of conducting the business, but also to their " erection on the one hand, and their "continuance on the other; so that their "erection" in the first instance, and then the mode and manner of their use" after they are built, and lastly their "continuance," are placed under the regulating power of the municipal authority. It would be a very narrow and technical construction to say that a power to regulate the erection of a slaughter-house is exhausted in prescribing the form or material of its erection and has no reference to its locality. And the construction wholly fails when applied to the "continuance" of such a structure, and the business carried on within it. How is it possible to regulate its continuance, except by limiting and restricting that continuance, which again can only be done by prohibiting its continued existence. It is the plain purpose of the statute to give to the common council the right to fix and determine the limits and localities within which new slaughter-houses may be erected, and the areas from which they shall be excluded; to direct and control the mode and manner of using those so erected, and those already existing, as they may deem the health and cleanliness of the city requires; and to prohibit their continuance whenever and wherever they become sources of danger to the health or comfort of the community.

The counsel argues that this construction may result in a total prohibition; that if the municipal control can exclude slaughter-houses from the area already named in the ordinance, it can steadily increase and

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 nothing, therefore, in the language of the other subdivisions to change our conclusion, that an ordinance which 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 nature 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 Charch 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 seutence to the Court of Sessions of the county of Albany.

VACATING JUDGMENT FOUNDED UPON ILLEGAL CONTRACT.

PENNSYLVANIA SUPREME COURT, JANUARY, 1880.

BREDIN, Plaintiff in Error, v. DORSEY.

PROCE

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. ROCEEDING 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 McCullough 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 discharged 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; and Nemo allegans suam turpitudinem audiendus est. There are cases, indeed (such as attempts to poison the fountains of justice, and 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. Blystone, 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 England and this country ever since. The bond in that case was given as an indemnity for a note entered into by the obligee for the purpose of inducing a prosecutor of an indictment for perjury to withhold his evidence. After speaking of the transaction as one to gild over and conceal the truth, the court said: "This is an agreement to stifle a prosecution for willful and corrupt perjury, a crime most detrimental to the Commonwealth; for it is the duty of every man to prosecute, appear against and bring offenders of this sort to justice." * "This is a contract to tempt a man to transgress the law, to do that which was injurious to the community; it is void by the common law, and the reason why the common law says such contracts are void is for the public good." Had the defendant not been heard the court would have known nothing of the facts, they were not set out in the bond, the plaintiff was not compelled to show them in making out his case, and on the face of the bond he was entitled to recover; all that which proved it a void contract was shown by the defendant. So in the late case of Ham et al. v. Smith, 6 Norris, 63, the corrupt, immoral and forbidden contract appeared in the proofs adduced by the defendant; the plaintiff made his case by showing the note, the fair-looking fruit of the illegal bargain. Notwithstanding the maxim, it has been settled that where a contract or deed is made for an illegal purpose, a defendant against whom it is sought to be enforced may show the turpitude of both himself and the plaintiff, and a court of justice will decline its aid to enforce a contract thus wrongfully entered into. The principle depends on the public good, not on the merit of the defendant, whose hand is as foul as the plaintiff's. Public policy requires that he be heard, and if the contract be void, his relief is an incident. Swan v. Scott, 11 S. & R. 155, is no exception. There the suit was on a boud, given in satisfaction of an award of arbitrators which had become a judgment; and the defendant proposed to go behind the judgment and show the illegal contract on which the award was obtained; held that he could not, and Duncan, J., remarked: "The test, whether a demand connected with the illegal transaction is capable of being enforced at law, is whether the plaintiff requires the aid of the illegal transaction to establish his case." It is manifest the judgment was conclusive, though obtained in a suit on an illegal contract, and the remark strictly fitted the facts in that case, without infringing on the rule. Wherever that test has been quoted and applied, it will be found there was a good consideration for the contract in suit, before reaching back to the alleged illegal one.

Where the public is not interested, the maxim has its full force, and the law leaves the parties as they placed themselves. Obligors in an instrument under seal, made for the purpose of defrauding the obligee's wife, cannot shield themselves by alleging their own fraud; for this does not belong to the class of contracts forbidden by statute or public policy. Evans v. Dravo, 12 Har. 63; Hendrickson v. Evans, 1 Cas. 441. On like principle voluntary conveyances and contracts, made to defraud creditors, though void as to them, are good and binding between the immediate parties. These are voided by the statute of 13 Elizabeth, for the benefit of creditors, but not as to the parties. Hershey v. Weiting, 14 Wright, 240; Blystone v. Blystone, 1 P. F. S. 373. "That a collusive contract binds the parties to it, is a principle which commends itself no less to the moralist than to the jurist; for no dictate of duty calls on a judge to extricate a rogue from his own toils." Stewart v. Kearney. 6 Watts, 453. In all such cases the actor is met by the maxim, "In pari delicto melior est conditio possidentis."

Forgery, or the crimen falsi, is an infamous offense. It is classed with other infamous felonies and misde

meanors, the compounding of any of which is a misdemeanor punishable by fine and imprisonment. Act March 31, 1860, § 10, P. L. 387. Under section 9 of the Criminal Procedure Act of 1860 (P. L. 432), no magistrate or court can lawfully permit a settlement of a prosecution for forgery on satisfaction being made to the party complaining; for infamous crimes are excepted from its operation. The Legislature committed no such inconsistency as enacting two acts of the same date, one of which prohibits the settlement of forgery under a severe penalty, and the other authorizing it, if the complaining party acknowledges satisfaction.

Cheats by false pretenses are among the cases authorized to be settled by the 9th section of the Criminal Procedure Act, and therefore Steinbacher v. Wilson & Young, 1 Leg. Gaz. Rep. 76, has no application to the question now pending. And the settlement of cases within that section is not touched by the principles applicable to the compounding of an infamous crime. Dorsey charged McCullough with forgery, and conducted the prosecution to his indictment and acquit tal. After the indictment, and before the acquittal, a bargain was struck, the judgment note given, Dorsey's claim against McCullough satisfied, and Dorsey was not to appear and testify in the forgery case. He saw the Commonwealth fail, for he did not answer to testify, though present. It cannot be doubted that the abandonment of the prosecution and failure to testify entered into the agreement. The note was given for the debt and for the acquittal, and if any part of an indivisible promise, or of an indivisible consideration for a promise, is illegal, the whole is void. Filson v. Himes, 5 Barr, 452.

Agreements founded upon the suppression of crimiual prosecutions are void; they have a manifest tendency to subvert public justice. 1 Story's Eq., § 294. It is the nature of the crime, not so much whether it be felony or misdemeanor, which is to be considered. Many felonies are not so enormous as some misdemeanors. The law recognizes this in their punishment; for instance, the maximum of imprisonment for one convicted of forgery is ten years, of larceny three. Stifling a prosecution for forgery, though an offense of the same grade as compounding divers felonies. seems to be a graver offense than compounding some felonies. It comes within the rule, that where the welfare of society and the vindication of the law are the chief objects, the defendant may givo in evidence the illegality of the contract as a bar to a suit to enforce it, and this to prevent evil which would be produced by enforcing the contract or allowing it to stand.

Shall these objects be thwarted, and the evil follow which the law designs to prevent, because of a judgment confessed by virtue of a warrant which is but a part of the criminal transaction?

It was said by the present chief justice, in Hopkins v. West, 2 Norris, 109: "There is no difference in legal effect between a judgment confessed or for want of appearance or plea, and a judgment on the verdict of a jury. The court in which the judgment is rendered will indeed open one of the former kind, and let the defendant in to a defense in a proper case, and upon equitable terms." In Pennsylvania it has always been the right of a defendant in a judgment confessed by virtue of a warrant of attorney to petition that it bo opened for cause. This right was so well respected by the courts that there was no occasion for legislation providing for appeal from refusal to open till a recent date. The entry of judgment, either by attorneys or prothonotaries on judgment notes is very common. These, though having the samo effect as if on the verdict of a jury, while they stand, in fact never waive the results of adjudication.

To hold that such a judgment, entered on an immoral and illegal obligation, part of a transaction subversive of public interest, shall be deemed an executed

contract, with absolute right in the plaintiff to judicial process for collection, would be shocking to every man's sense of justice. The argument is that the judgment shall stand, for the plaintiff need only show the note, and the defendant, as actor, will not be heard alleging his own and the plaintiff's turpitude in an application for opening the judgment. In one sense the plaintiff is an actor; he caused confession of judgment on the void instrument, and uses the process of the law to collect the money agreed to be paid for its violation.

The reason of the rule which allows a defendant to plead and prove the illegality of a contract in bar of a suit upon it demands that he be heard on an application to open a judgment so confessed. His rights are of secondary importance, and he is not heard for their vindication. It is the duty of the court, on proper showing, to open such a judgment, to the end that there may be a trial as if suit had been originally commenced on the note, or other obligation, on which the judgment was entered. In this way the law may be vindiIcated, and the interests of the Commonwealth conserved.

The order and decree, discharging the rule to show cause why judgment should not be opened, reversed, and now the said rule is made absolute; the record to be remitted for further proceeding. Appellees to pay costs of this appeal.

NEW YORK COURT OF APPEALS ABSTRACT.

COUNTER-CLAIM - ARISING OUT OF SAME TRANSACTION ALLOWABLE, THOUGH NOT EXISTING WHEN ACTION COMMENCED. — - A claim for overpayment upon a contract upon which an action was brought, held to be permissible as a counter-claim, to be set up by an amended or supplemental answer, whether it was a fact occurring after the first answer was put in or was one of which the defendant's attorney was ignorant when he made the first pleading. It was a claim that arose out of the contract or transaction set forth in the complaint and was also connected with the subject of the action. It fell within the first subdivision of old Code, section 150; it was not obnoxious to the condition stated in subdivision 2 that it must exist at the commencement of the action. And defendant would be entitled to prove and have judgment for the amount overpaid. The case of Ashley v. Marshall, 29 N. Y. 494, is, as far as it goes, in accord with this view. The case of Van Valen v. Lapham, 13 How. Pr. 240, does not conflict, the construction there being under subdivision 2. Order of General Term reversed and judgment upon report of referee affirmed. Howard v. Johnston, appellant. Opinion by Folger, C. J. [Decided Oct. 5, 1880.]

CRIMINAL LAW EVIDENCE -LARCENY CHARGE TO JURY- EXPRESSING OPINION AS TO GUILT.

- (1)

Defendant was indicted for grand larceny in having stolen goods from R., by whom he had been employed, and for receiving stolen goods knowing them to havo been stolen. It was shown that when leaving the store of R. he was stopped and searched and a small amount of goods found on him. Some $200 worth of goods were found upon searching his barn the next day, but the evidence of ownership was so uncertain that the district attorney abandoned the prosecution as to them and a conviction was had for petit larceny. At the trial a question was asked of a witness who aided in the search of prisoner's house, "What did you find there?" Held, that the allowance of this question was not error, on the ground that it was proof of a separate offense. The evidence was admissible as tending to prove the charge of grand larceny, etc.; that it failed of its purpose did not make it incompetent. (2) At the conclusion of the evidence the court

was asked to charge "that the mere possession by the prisoner is not of itself sufficient to justify his conviction." The court answered, "taken in connection with the other evidence, I believe it is." Held, that it could not be claimed that the court expressed an emphatic opinion of the prisoner's guilt, and thereby substantially directed a conviction as a matter of law, when the judge had, before this request was made, fairly presented all the questions of fact and left to the jury to determine from the whole evidence the guilt or innocence of the accused. The province of the jury was in no manner involved. The ruling, taken in connection with the rest of the charge, was in substance that the question of the guilt or innocence of the accused was wholly for the jury, but if they should find him guilty, the evidence was legally sufficient to sustain the verdict. This comes within the rule in Stover v. People, 56 N. Y. 318, where it is said, that "in many cases judges have instructed juries that such proof was sufficient to convict. This is correct, with the addition that if it convinced them of the guilt of the party, which would ordinarily be implied from the direction." Judgment affirmed. Henze, plaintiff in error, v. People of New York. Opinion by Finch, J.

[Decided Oct. 5, 1880.]

MASTER AND SERVANT-NEGLIGENCE - CONTRIB

UTORY NEGLIGENCE BY EMPLOYEE

- WHAT DOES NOT

CONSTITUTE.-In an action by one who had been employed as locomotive engineer by a railway company against such company, for injury by the overturning of an engine he was running, caused by the defective condition of defendant's road, it was claimed by defendant that plaintiff knew of the dangerous condition of the road when he run the engine, and was therefore negligent. It appeared that while plaintiff knew that the road was somewhat out of repair, it did not appear conclusively that he knew how badly it was out of repair, or that the danger was imminent or very great. Three or four passenger trains besides freight trains passed over the road each way daily, and no other accident was shown to have happened from the badness of the road. Plaintiff and other engineers had frequently run over the road with safety in the same way that he ran at the time of the accident. At that time he was by special order running his engine at the rate of twenty miles an hour without cars attached in front of a passenger train. Held, that the question as to whether plaintiff was guilty of contributory negligence was for the jury, and a nonsuit was not proper. In such a case the court must take into account a plaintiff's position. His business was that of an engineer, and unless he obeyed orders and ran his engine he would have been obliged to abandon the defendant's service. Of one thus situated the law should not be too exacting. The court must assume that the officers of defendant who had charge of the road and must have known its condition deemed it safe, and plaintiff had the right to rely somewhat upon their judgment. It would be a very unjust rule which would allow a master to shield himself from responsibility for the consequence of his own negligence, by alleging those acts, not inevitably or imminently dangerous, to have been negligent, which his servant performed by his express orders. Patterson v. Pittsburg, etc., R. Co., 76 Penn. St. 389. Judgment affirmed. Hawley v. Northern Central Railway Co., appellant. Opinion by Earl, J.

[Decided Oct. 15, 1880.]

TAXATION OF CORPORATION MUST BE AT PRINCIPAL OFFICE AS SET FORTH IN ITS CERTIFICATE OF INCORPORATION REVIEW OF ERRONEOUS NEED NOT BE BY CERTIORARI.-(1) Plaintiff, a corporation organized under the "Act for the incorporation of companies formed to navigate the lakes and rivers," passed April

15, 1854, filed in the proper offices the required certificate of incorporation, in and by which, as directed by the act, it certified and declared that "the name of the town and county in which the principal office for managing the affairs of such company is to be situated, is the town of Clarkstown, in the county of Rockland, in the State of New York." It was always assessed, when assessed for taxation, in the county named, and paid taxes, and in the town named its annual meetings for the election of directors and the choice of officers were always held, sometimes in a room in the village of Nyack, sometimes in a store in Upper Nyack, and once in a railroad car. No other business was transacted there, though a sign "The Union Steamboat Co." was kept up at principal office. The rest of its business was mainly transacted at Buffalo. The company's business was transporting freight on the great lakes in which some twenty propellers were used whose home port was Buffalo. In that city the managers resided and controlled a large and profitable business with the aid of numerous clerks, who kept the general accounts of the company, received its income and paid its expenses and managed its affairs very much after the manner of a resident corporation. Held, that the corporation was taxable in Rockland county and not in Buffalo. Western Transportation Co. v. Scheu, 19 N. Y. 408; Oswego Starch Factory v. Dolloway, 21 id. 449. In these cases it was held that for the purposes of taxation, the principal office of the corporation was fixed conclusively by the certificate of incorporation and that in the county thus designated and in that alone a corporation could lawfully be taxed. This would not be affected by the fact that the principal office of plaintiff was located in the county of Rockland to avoid taxation. (2) The assessors of Buffalo imposed upon plaintiff a tax which plaintiff (upon the ground that its principal office was located elsewhere) opposed before the assessors, but ineffectually. The collector of taxes levied upon one of plaintiff's steamers to collect the tax, whereupon, to secure the release of its property, plaintiff paid the tax under protest. Held, that an action to recover back the amount paid would lie against the city, and the city could not set up that the assessors, having acted judicially, the only remedy for error on their part was certiorari. Where assessors have jurisdiction, certiorari is the proper remedy, but this is not so where they have no right to act at all. In this case they had no jurisdiction. See National Bk. v. City of Elmira, 53 N. Y. 49. Judgment affirmed. Union Steamboat Co. v. City of Buffalo, appellant. Opinion by Finch, J. [Decided Oct. 15, 1880.]

UNITED STATES SUPREME COURT ABSTRACT.

OCTOBER TERM, 1880.

ent of and separate from the original suit, it cannot be re-examined here either by writ of error or appeal. This was decided more than fifty years ago in Kearney's case, 7 Wheat. 39, and the rule then established was followed as late as New Orleans v. Steamship Co., 20 Wall. 392. In error to United States Circuit Court, S. D. New York, motion to dismiss writ granted. Hayes, plaintiff in error, v. Fischer. Opinion by Waite, C. J.

JURISDICTION

- OF FEDERAL COURTS NOT CONFERABLE BY CONSENT OF PARTIES- REMOVAL OF CAUSE FROM STATE COURT DEPENDENT UPON SUBJECT-MATTER. While the mere consent of parties cannot confer upon the courts of the United States the jurisdiction to hear and decide their cases, for if it could those courts would become the common resort of persons who have no right, either under the Constitution of the United States nor by the laws creating them, to litigate in them, where there are conflicting suits in relation to the same property (a railroad), one in a State court and the other in a Federal court, and the Federal court has possession of the property, the parties in the suit in the State court may by consent remove the cause into the Federal court. That court by taking possession of the property had drawn to itself the subject-matter of the litigation and the right to decide upon the conflicting claims to the possession and control of the road. These principles are not new in this court. They will be found to be sustained by the cases of Minnesota Co. v. St. Paul Co., 2 Wall. 609; Watson v. Jones, 13 il. 715; Freeman v. Horne, 24 How. 450; and Buck v. Colbath, 3 Wall. 337. In consenting, therefore, to the voluntary transfer of the litigation from the State court into the Federal court, the parties did no more than what they could have been compelled to do by the injunction of the latter, and what would have been done by such compulsory order if they had not submitted to it by agreement. Wiswall v. Sampson, 14 How. 52. Judgment of United States Circuit Court, S. D. Illinois, affirmed. People's Bank of Belleville, plaintiff in error, v. Winslow et al. Opinion by Miller, J.

LISION

JURISDICTION-FEDERAL COURTS SUITS FOR COL- FEDERAL QUESTION.-The single question here was whether the courts of the United States, as courts of admiralty, have exclusive jurisdiction of suits in personam, growing out of collisions between vessels while navigating the Ohio river. The court hold that this is a Federal question giving it jurisdiction, but being decided as it was substantially in The Moses Taylor, 4 Wall. 431; Hine v. Trevor, id. 571; The Belfast, 7 id. 642; Leon v. Garcelon, 11 id. 190; and Steamboat Co. v. Chase, 16 id. 531, it is not any longer open to argument. The Judiciary Act of 1789 (1 Stat. 76, § 9), reproduced in section 563, Rev. Stat., paragraph 8, which confers admiralty jurisdiction on the courts of the United States, expressly saves to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. That there always has been a remedy at common law for damages by collision at sea cannot be denied. Motion to dismiss denied, and that to affirm granted. In error to Pennsylvania Supreme Court. Schoonmaker et al.,

the order was obeyed. To reverse this order Hayes sued out this writ of error, which Fischer moved to dismiss, on the ground that such proceedings in the Circuit Court cannot be re-examined here. This court held that if the order complained of is to be treated as part of what was done in the original suit, it cannot be brought here for review by writ of error. Errors in equity suits can only be corrected in this court on appeal, and that after a final decree. This order, if part of the proceedings in the suit, was interlocutory only. If the proceeding below, being for contempt, was independ

PRACTICE-REHEARING AFTER JUDGMENT.- A petition for rehearing after judgment, under the rule promulgated in Public Schools v. Walker, 9 Wall. 604, cannot be filed, except at the term in which the judgment was rendered. In Hudson v. Guestier, 7 Cr. 1, a motion was made at the February term, 1812, for a rehearing in a case decided two years before, but the court said "the case could not be reheard after the term in which it was decided." At the end of the term, the parties are discharged from further attend