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contracts made for their principals; liability of promoters; liability of directors; statutory liability of directors; personal liability of presidents, cashiers, and other executive officers of corporations; liability of sureties on the bonds of officers of corporations. Of the 33 leading cases reported, 11 are English, 1 from Canada, 5 from Massachusetts, 5 from New York, 3 from New Hampshire, 3 from Pennsylvania, 2 from Maine, and 1 from each of the States of Rhode Island, Michigan and Florida. The book has an appendix of statutory and constitutional provisions. The book is well printed; indeed, St. Louis publishers now stand

in the front rank.

CORRESPONDENCE.

JUDGE DAVIS.

Editor of the Albany Law Journal:

Its fearlessness and independence combined with its undoubted ability have given to your JOURNAL its commanding influence, and it therefore becomes every faithful friend to insure that its influence is exerted in the right direction. True manliness demands defense as well as attack. It is often easier to condemn than to commend

I think, and would like to convince you, that you erred in your attack upon Judge Davis. While we have such pigmies on the bench, let not our Samson be shorn, unles he threatens the temple of justice. If he does, off with his locks and out with his eyes; bind him and blind him. If he does not, if the temple is not in danger, let him alone; his personal conduct is comparatively unimportant.

The spirit of your article is summed up in its closing word, "busybody." This involves a question of right, not of taste. "De gustibus non disputandum." Were it otherwise, a law journal has higher aims than discussions of taste. Nor is the question limited to Judge Davis alone. It is a grave question for the profession, bench and bar alike. A busybody is a meddler, one who interferes in matters with which he has no legitimate concern. In applying that opprobrious epithet to Judge Davis in your remarks upon the Philp trial, I contend that you were positively and unqualifiedly

in error.

The following propositions must be conceded, and if conceded, demonstrate that fact: Judge Davis, as chief justice of the Supreme Court in the First Department, lawfully sat as committing magistrate in the Philp case. The illustrious example of Chief Justice Mansfield in a similar case, cited by Judge Davis, is in point. As such magistrate, where the prosecution refused to accept a waiver of examination, it was his sworn duty to take the testimony of the witnesses for the prosecution and defense. In rendering his decision he had the right to give a written opinion stating the conclusions at which he had arrived. In that opinion he might review the evidence, state the facts proved and his conclusions of law. In reviewing the evidence, he had the right to refer to any particular witness, collate the evidence given by other witnesses on the same subject, and state his convictions respecting the accuracy or truthfulness of such witness, although he was not the accused. The books are full of similar cases. Jury trials constantly witness such procedure. Errors in such statements neither demonstrate nor emphasize an improper interference of the judiciary. Such errors are protected in the doctrine of judicial irresponsibility.

If the foregoing propositions are sound in law, then Judge Davis, in making comments upon a witness in the Philp investigation, did what he had a right to do, and acted judicially, and not as one concerning himself about other men's matters.

NEW YORK, Nov. 24, 1880.

WM. HENRY ARNOUX.

[Our learned friend misapprehends the ground of our animadversion. We did not deny the right of a judge to comment on the testimony, conduct, or demeanor of a witness, although we intimated that we thought the right was often abused. What we endeavored to rebuke was the moral lecture read by the judge to a witness, who, it was not pretended, had committed any crime, or who had not told the exact truth, and whose action thus condemned by the judge was outside the domain of the law, and a mere matter of political conduct. We notice that the leading independent newspapers take the same view as ourselves. We do not object to Samson on the bench, but we advise him to eschew that strong man's favorite weapon. -ED. ALB. L. J.]

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Judgment affirmed with costs-Loeb v. Hellman; The Eaton, Cole & Burnham Co. v. Avery; Peckham v. Van Wagener; Bergen v. Uhrbahn; The National Bank of Newburgh v. Bigler. Judgment reversed and new trial granted, costs to abide event - Hilton v. Vanderbilt. Judgment of General Term reversed and that of Special Term affirmed with leave to defendants to answer on payment of costs--Marie v. Garrison. Order of General Term reversed, and that of Special Term affirmed with costs-Ranney v. Peyser.-Order of General Term reversed, and judgment on verdict affirmed with costs-Painton v. The Northern Central Railway Co.—Orders of General Term and Special Term reversed without costs- Geib v. Topping.

The following decisions were handed down Wednesday, Dec. 1, 1880:

Judgment affirmed, with costs-Canaday v. Krum; Zimmerman v. Erhard; Jones v. Benedict; Harris v. Tumbridge; Kinghorn v. Wright; Gotendorf v. Goldschmidt; Callmeyer v. The Mayor, etc., of New York; Co. Judgment reversed and new trial granted, costs Wooley v. The Grand Street and Newtown Railroad to abide event-The St. Nicholas Insurance Company v. The Merchants' Mutual Fire and Marine Insurance Company; Clark v. McCann. Judgment reversed and demurrer overruled, with leave to defendant to answer on payment of costs-Horn v. The Town of New Lots. Order reversed and judgment modified by deducting therefrom the additional allowance, and as so modified, affirmed without costs to either party in this court-Weaver v. Ely.

NOTES.

The American Law Register for November has an article on Voidable and Void Judgments, by Frederick J. Brown; the case of Corporation of London v. Riggs, concerning right of way by necessity, with note by Edmund H. Bennett; the case of Cotton v. Gregory, concerning fraudulent delivery of escrow, with note by M. D. Ewell. The current number of Abbott's New Cases contains a note on special public officers as agents of the State or municipality.

Mr. Hall's excellent treatise on International Law, which we noticed at page 238, is published by Macmillan & Co., New York, and is sold in Albany by E. Ellis & Co.-We have received a communication on jury trial, which we should like to publish, if only for the reason that the writer does not agree with our views, but it is anonymous, and we never publish anonymous communications.-Mr. John T. Wheelwright, a rising young lawyer of Boston, says of chief-justice Gray, "his head rises above the region of perpetual hair."

The Albany Law Journal.

ALBANY, DECEMBER 11, 1880.

CURRENT TOPICS.

HE Secretary of State, the Comptroller, and the State Reporter, constituting the board empowered to award the contract for publishing the Court of Appeals Reports of this State, have awarded the contract for three years to Weed, Parsons & Co., publishers of this JOURNAL, at the price of $1 per

volume when delivered over their counter, and $1.30 when delivered by mail or express, delivery to be prepaid. The board adopted the sensible resolution not to award the contract at a price less than the fair cost, and thus got rid of the abuses and annoyances which have attended the late contract. The new publishers certainly will not grow rich out of the contract; indeed, the price will barely cover expenses; but the public may be sure that the contract will be cheerfully, faithfully, and promptly fulfilled. The reports are ridiculously cheap at this price, and by far the cheapest in the world. Two dollars a volume would be about a fair price. These reports really ought to be published by the State. As it now stands, the series is owned by three different publishers, always "by the ears," and unwilling to sell to one another, so that it is a difficult and annoying matter to obtain a complete set.

We

We barely alluded last week to the fine mare's nest discovered by Mr. Richard Grant White, namely, that education leads to pauperism and crime. suppose Mr. White himself, being one of the best educated men in our country, has only been saved from the poor-house or the penitentiary by dint of arduous straining and holding back. But let us glance at Mr. White's statistics. The six New England States in 1860 had a native white population of 2,666,000, of which only 8,543 adults could not read and write; a proportion of 1 to 312. In Delaware, Virginia, Maryland, North Carolina, South Carolina, and Georgia, there were at the same time 3,182,000 native white inhabitants, of whom about 263,000 could not read and write; a proportion of 1 to 12. In the New England prisons at the same time, there were 2,459 criminals, and in those of the six Southern States only 477. New England culture, therefore, furnished 1 native white criminal to every 1,084 inhabitants, while the ignorance of the Southern States produced only 1 to every 6,670; a disproportion of more than 6 to 1. At the same time New England had 1 publicly supported pauper to 178 inhabitants, while the six Southern States had but 1 to 345. Now this looks prima facie, as if a little learning were a dangerous thing. But Mr. White's basis of reasoning is delusive. Crime and pauperism are always most prevalent where population is the densest, as in our large cities, both North and South. In New England there are about 50 people to a square mile, while in the six States named above there are only about 33. MassachuVOL. 22.- No. 24.

setts has 157, while Georgia has 18, North Carolina 19, South Carolina 20. This is the first delusion. The second is Mr. White's assumed elimination of the effect of "foreign-born immigration upon the criminal record of the United States." He cannot eliminate it. Among his native-born white population are a great number of children of immigrants, which are really a foreign element. The proportion of foreigners to natives in New England was 1 to 7, while in the six Southern States it was not more than 1 to 25. The third delusion is the argument prisons. The apparent advantage on the side of the derived from the population of the poor-houses and South springs simply from the unquestionable fact that in those States paupers were not supported nor criminals punished in any proportion approaching that which prevailed in New England. So much for Mr. White's statistics and his argument. It is quite probable that a new estimate, founded on the present census, might show much more favorably for New England and education. Let Mr. White try his hand on fresh materials, and bring in New York for the North, and embrace Texas among the Southern States, and we think the cause of education would look up. In the mean time Mr. White ought not to say a word against the education of New England, which furnishes him so many readers and so much patronage, nor try to inculcate the idea that his works are more popular among the criminal than among the virtuous classes. We are somewhat relieved by learning that Dr. Hammond thinks that insanity is gradually becoming milder, and that he attributes this to popular education.

Mr. Bergh does not believe much in prison libraries, prison schools, or prison preaching. If Mr. Bergh is to be taken at his own word he is much tenderer of dumb beasts than of mankind. This is the natural result of turning the sympathies for a great many years into a single channel. One cannot reasonably be expected to make it his sole business to defend animals from the cruelty of men, and to have much spare sympathy for men. So Mr. Bergh says, "if a man cannot live without murdering somebody, he must be got out of the way — I say kill him." He would abolish all the penitentiaries, and substitute the whipping-post. He admires the bastinado. "As for the criminal, when he leaves prison, my advice to him is to profit by the punishment, and go away off somewhere where nobody knows him, and build up for himself a new name. It is utterly out of the question for him to rise to be a respectable citizen in the place where his crime was committed. He cannot do it. It's a sad fact, Mr. President, but it is true. You cannot change human nature." This is the humane gentleman whose heart bleeds for a belabored jackass, and who goes into hysterical weeping over a pig scalded rather than stuck. Put Mr. White and Mr. Bergh together in charge of public affairs, and we should have a rare world. By all means let us abolish common schools and set up the whipping-post, and give the criminal to understand that he can

never redeem himself. This will encourage the others. First, Mr. White to promote ignorance, and then Mr. Bergh to wale the ignorant for not knowing better than to sin. If one wishes to see the hardest-hearted man on earth let him look at a professional humanitarian; and if one would see a man who has no faith in education for the common people, let him look at him who has gotten so much more than his share that he regards learning as the monopoly of himself and a few others. Truly, our wise men are talking a great deal of nonsense just

now.

Our readers will be greatly interested in the memoir of Lord Chief Justice Cockburn in another column. The writer has exceptional advantages for speaking of the great judge, having known him for 40 years, and having witnessed some of his greatest

forensic successes. There must be two opinions,

however, about Chief Justice Cockburn's conduct on the Tichborne trial, and about his domestic virtues. It is our opinion, derived from reading and listening to witnesses, that Mr. Kenealy had quite as much to suffer from the judge as the judge had to bear from him. Nor do we believe that "evil should be to him who thinks evil" of the chief justice's irregular domestic life. There is altogether too much truckling to and condonation of such faults in great men. It is bad enough for a king or a prince to keep mistresses and breed bastards, but these things in a judge are monstrous, not to be excused or winked at. No man, however great, can be a law unto himself, and he who enforces the law, should keep it. The domestic virtue of Lord Eldon "smells sweet and blossoms in the dust," when contrasted with the lawless and defiant domestic conduct of Lord Chancellor Thurlow and Lord Chief Justice Cockburn, and if the talents and virtues of the latter are worthy of admiration, their vices are surely proper matter of warning and rebuke.

It is probable that several vacancies will soon occur in the Federal Supreme Court. The health of Justices Clifford and Hunt is such that they will probably never sit in court again, and it is rumored that Justices Swayne and Strong will soon resign. This will leave places to be filled which are now occupied by residents of Maine, New York, Pennsylvania, and Ohio. The remainder of the court consists of Chief Justice Waite, of Ohio; Mr. Justice Bradley, of New Jersey; Mr. Justice Harlan, of Kentucky; Mr. Justice Miller, of Iowa; Mr. Justice Field, of California. It is to be hoped that in the new appointments some regard will be had to geographical distribution. The proper South is now without any representative on this bench. She certainly ought to have one, if not two. New England, New York and Pennsylvania will of course expect the successors of their respective representatives to be taken from the same localities. Probably Ohio will have

the resignation of Mr. Justice Swayne we earnestly hope it will be supplied from one of the Southern Atlantic or Gulf States. This is due to that region. We are confident that there are lawyers there fit for the office, and we dare say some one of them could be induced to accept it. In our own State the president would have ample materials for selection. ExSecretary Bristow, or ex-Judge Dillon, would shed luster on the post, being both in the prime of their mental and physical powers, and having exceptional gifts and attainments for this elevated judicial station. We say this without personal acquaintance with either of these gentlemen, and upon the assumption that a Republican would naturally be

selected to succeed Mr. Justice Hunt. It would be a graceful act to appoint a Democrat in place of Mr. Justice Clifford, and the court would be none the tical opinion than at present. worse even if it were more equally divided in poli

A movement has been organized by the Municipal Society of the city of New York for the reduction of the expenses of the judiciary and law department in that city. These expenses now amount to $1,250,000 annually, and it is sought to reduce them to $800,000 or $850,000. This is a much needed reform." We see no reason for paying the higher judges in that city $15,000 a year, while judges of the same rank outside the city, and even the judges of the Court of Appeals, get only half as much. The police justices in the city have $6,000 a year, or as much as cabinet officers. There can be no doubt that the judges in the city are most extravagantly paid. It is proposed, however, to reduce the salaries of the Supreme Court judges only to $10,000, or the same that the judges of the Federal Supreme Court receive; and those of the judges of the Superior Court and Court of Common Pleas to $8,000, while those of the police justices are to be reduced only to $5,000. It was stated in the meeting that a judge of the Superior Court has been suffering from softening of the brain, and has not done a day's work in two years, but has drawn his salary. If this is correct, this is an abuse. Why do not those stalwart reformers, the Bar Association, take hold of these matters? It was stated in the meeting of the Municipal Society that "they don't touch delicate matters over there." Has the asso

ciation degenerated since the days of the "ring" judges? It is a great deal better for the bench to have a healthy fear of the bar, than for the bar to be slavishly afraid of the bench; and if the lawyers in New York will lay hold of this abuse by concert, the judges will not be able, even if inclined, to molest them. The Municipal Society has our hearty sympathy and concurrence in this matter, while to the Bar Association we look with curiosity.

NOTES OF CASES.

'N Atlantic State Bank v. Savely, a decision of our

the like expectation, but it ought not to be gratified. Court of Appeals, reported ante, 453, a principle

Let her be content with the chief justiceship, the presidency for two successive terms, and the secretaryship of the treasury. If a vacancy occurs by

is laid down which will be important to National as well as State banks, namely, that such banks may

lawfully purchase promissory notes, as well as discount such paper. The State law in question is substantially the same as the Federal act. The power is "to carry on the business of banking by discounting bills, notes and other evidences of debt," "by buying and selling gold and other bullion, foreign coins and bills of exchange,” etc. The court, quoting and approving McLeod on Banking, said: "In the language of the money market it is usual to estimate the value of money by the discount or profit it yields, and to buy or purchase a debt is always in commerce termed to discount it." In Tracy v. Tallmage, 18 Barb. 456, it is said: "To discount includes to buy, for discounting at most is but another term for buying at a discount." See Johnson v. National Bank of Gloversville, 74 N. Y. 329; S. C., Browne's Nat. Bank Cas. 302. Of authorities holding a different doctrine, Niagara Co. Bank v. Baker, 15 Ohio St. 68; Farmers', etc., Bank v. Baldwin, 23 Minn. 198, the court said the decisions were upon violations of positive law, and are distinguishable from this case. The doctrine thus pronounced is in harmony with Pape v. Capitol Bank of Topeka, 20 Kans. 440; 27 Am. Rep. 183; Browne's Nat. Bk. Cas. 238; First Nat. Bk. of North Bennington v. Town of Bennington, Browne's Nat. Bk. Cas. 437; but is opposed to the dissenting opinion of Tappan, J., in Nat. Bk. of Gloversville v. Wells, 15 Hun, 51; S. C., Browne's Nat. Bk. Cas. 333; to First Nat. Bk. of Rochester v. Pierson, 24 Minn. 140; 31 Am. Rep. 341; Thomp. Nat. Bk. Cas. 637; and to Lazear v. Nat. Union Bk. of Baltimore, Browne's Nat. Bk. Cas. 261, besides the cases mentioned by the court in the principal case. In the case last cited, in the Court of Appeals of Maryland, the court said: "While we do not mean to say that a National bank may not invest its surplus capital in notes, we are of opinion that it has no authority to use such surplus funds, as may remain on hand from day to day, for the purpose of buying notes" (citing the Minnesota cases). "If any other construction were given to such a transaction as this the intention of Congress to prohibit National banks from buying and selling notes would be entirely defeated, and those institutions would be at perfect liberty to decline making discounts for their customers, and afterward to buy up the very paper which had been offered for discount and refused, at such price as the banks might choose to give." This important question ought to be settled, as to National banks, by the Federal Supreme Court.

In Meriwether v. Morrison, Kentucky Court of Appeals, September 28, 1880, 10 Rep. 661, the deceased, a few weeks before his death, indorsed upon certain notes of which he was the owner, the words: "I transfer the within note as a gift to Miss Agnes Morrison." The evidence would authorize the finding of fact that the deceased then placed the notes in the hands of A. in trust, to be delivered to Miss Morrison, at his death, or that they were so handed to A. and were placed by him in a desk of deceased and remained under the control of deceased until

com

his death. Held, that in either case it was a gift inter vivos, and that the title to the notes vested in the donee at the instant they were assigned and delivered as aforesaid. The court said: "The contingency of death simply postponed the beneficial enjoyment. It was an event that must happen, and did not render the gift conditional. By the assignment and delivery all control over the notes passed from Meriwether, Sr., and the gift became irrevocable. In Ray v. Simmons, 11 R. I. 266; S. C., 23 Am. Rep. 447, the facts are that B. deposited in bank certain moneys in his own name as trustee for R. B. gave the bank book to R., who returned it to B., in whose control it remained. In an equity suit by R. against the administrator of B., claiming the deposit, it was held that the trust was pletely constituted, and the fact that it was voluntary was no reason for refusing it. In Ellis v. Secor, 31 Mich. 185; S. C., 18 Am. Rep. 178, the facts are: On a slate by the bedside of E., who was found dead, was, in her writing and signed by her, "I wish Dr. L. to take possession of all, both personal, real, and mixed. I am so sick I believe I shall die; look in valise." In valise was found a memorandum written by her, directing Dr. L. to take all of her property. In the opinion it is said: "We think it clear that Rachel Hill did all that she could to create a gift causa mortis, and fully intended it, and that the written declaration should prevail as a valid appointment to the uses indicated as fully as if there had been a manual delivery of the securities." So far as the act of delivery is necessary to complete the gift, the law is the same as to gifts causa mortis and inter vivos. A case in point is Hill v. Stevenson, 63 Me. 364; S. C., 18 Am. Rep. 231. M., having money on deposit in bank, handed her book to C., at the same time saying to him that she gave the money in that book to H. and I., and requested him to keep the book, and after her decease divide the money between H. and I. It was held to be a valid gift of the money on deposit to H. and I. In Minor v. Rogers, 40 Conn. 512; S. C., 16 Am. Rep. 69, A. deposited in bank money in her own name as trustee for W., but during her life drew out the money at different times. A. died leaving a will in which no mention was made of W. or the deposit. In the suit by W. against the executor of A., it was held that the deposit was a complete gift that the depositor could not revoke. See, also, Camp's Appeal, 36 Conn. 88; S. C., 4 Am. Rep. 39; Gardner v. Merritt, 32 Md. 78; S. C., 3 Am. Rep. 115; Southerland v. Southerland's Adm'r, 5 Bush, 591." To same effect, Giddings v. Giddings' Adm'r, 51 Vt. 227; S. C., 31 Am. Rep. 682.

In Steinman v. Henderson, Pennsylvania Supreme Court, May 17, 1880, 10 Rep. 617, it was held that a husband cannot subject his wife's realty to a lien even for necessary repairs without her authority or consent. The court said: "It is essential to the validity of a mechanic's lien against the separate estate of a married woman that the claim should set forth that the work was done and the materials furnished

revocation of warrant of extradition; infant's re

qualification of juror for opinion; leap-year; action by wife for procuring husband to abandon her; liability of husband for wife's funeral expenses; mechanics' lien in favor of architect; obstruction of surface-water by municipal corporation; action by employee against co-employee for negligence; negiigent communication of fire; partnership — share of profits for services; real property — ice in pond; sale of article for unlawful use; keeping open barber-shop on Sunday; surety for faithful performchange of principal's duties; taxation of capital stock and shares; exemption of bank building from taxation.

ance

The following cases are worthy of especial note: ACTION. An action of tort for negligence or deceit lies against the personal representatives of the deceased wrong-doer. Tichenor v. Hayes, 12 Vroom, 193; p. 186.

AGENCY.- An agent appointed to sell a horse is not thereby authorized to warrant. Cooley v. Perrine, 12 Vroom, 322; p. 210.

with her authority and consent; in other words, that she or some one authorized by her contracted | pudiation of executed contract for services; distherefor. Her property is not subject to a lien for work done or materials furnished under a contract with her husband unless by her authority, nor can he incumber her real estate without her consent, even for the purpose of making necessary repairs." The same was held in Flannery v. Rohrmayer, 46 Conn. 558; S. C., 33 Am. Rep. 36, where the wife knew of the erection, while it was in progress, and did not object to it. The court there said: "She was not a party to the contract out of which the debt originated. It was the debt of her husband alone, and she was under no obligation to pay it. The fact that she knew of the work and made no objection to it does not make it her debt, and does not charge her land with its payment. Her husband having a life estate in the land might well contract for an improvement which would make it more valuable to him, and her knowledge and silence, without an active participation in the contract, and with no resulting benefit to her or her estate, are insufficient to impose upon her any liability. But it is claimed that the statute justifies this decree. That provides that a lien attaches where services are performed 'by virtue of an agreement with or by consent of the owner of the land upon which such building is erected.' It is true the language of the statute seems to be broad enough to include the estate of the wife under the circumstances of this case, if mere knowledge and silence constitute a consent. We think they do not. It has never been the policy of our law to subject the wife's real estate to the payment of the husband's debts, and the tendency of modern legislation is to extend rather than contract this immunity. If the statute is to be interpreted as including the real estate of the wife in cases where she is not a party to the contract, and where it does not appear to be for her benefit or for the benefit of her estate, then it works a radical change in the law relating to the property of married women, and subjects it to the payment of the debts of the husband, thereby and to that extent repealing prior laws on that subject. We cannot believe that such was the intention of the Legislature, and must therefore hold that such a construction is inadmissible." To the same effect, Lauer v. Bandow, 43 Wis, 556; S. C., 28 Am. Rep. 571.

THIRTY-SECOND AMERICAN REPORTS.

THIS

HIS volume contains cases selected from 61 Alabama, 90 Illinois, 65, 66 Indiana, 50 Iowa, 41 Michigan, 12 Vroom, 76 New York, 34 Ohio State, 88 Pennsylvania State, 11, 12 South Carolina, 6, 7 Baxter, 5, 6, 7 Texas Court Appeals, 50, 51 Texas, 30 Grattan, 46, 47 Wisconsin. It has notes on the following subjects: Removal of remains from burial grounds; destroying private property to stop fire; contract by letter; evasion of statutes; larceny of paraphernalia; reservation of timber in deed; duress; evidence of declarations of testator to show his mental condition; who is "head of a family ";

BAIL.—In an action on a bail bond for the appearance of an indicted person, it is a good defense that the person was in prison in another county in the same State, on conviction for another offense. Cooper v. State, 5 Tex. Ct. App. 215; p. 571.

BURIAL GROUNDS.- The Legislature has a right to authorize a municipality to remove the remains of the dead from cemeteries. The right of burial in a church-yard is a privilege enjoyable only so long as the ground continues a church-yard, and is subject to any right of the church to abandon it; and one who is merely a pew-holder, or has relatives buried in the yard, and has no contract relation with the church, cannot maintain the objection that an act of the Legislature authorizing the removal of the dead from such church-yard impairs the obligation of a contract. Craig v. First Presbyterian Church of Pittsburgh, 88 Penn. St. 42; p. 417.

CARRIER. A passenger on defendant's railway, finding no vacant seats in the ordinary coaches, the seats being occupied either by passengers or their baggage, proceeded to a drawing-room car, owned by a private individual, but forming part of the train, and regularly run with it by contract with the defendant, and there took a seat. When called on for extra fare for that seat, he refused, announcing his readiness to go into the other cars if a seat were provided for him there. Thereupon the porter of the drawing-room car, employed by its owner, attempted to eject him. Held, that the defendant was liable for this assault. Thorpe v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 402; p. 325.

In an action against a common carrier for failure to receive and carry live stock in pursuance of its agreement, it is a good defense that it was prevented from fulfillment solely by the armed violence of its late employees, whose wages had been reduced, and who had quit work and struck for higher wages. Pittsburg, Cincinnati & St. Louis Ry. Co. v. Hollowell, 65 Ind. 188; p. 63.

CONSTITUTIONAL LAW.-The constitutional pro

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