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effect of the testimony, and directed the jury that part of the thing done at the doctor's office, and all the declarations of the deceased made before she were therefore no part of the res geste. But the was informed she could not live, in which the de- court say: ‘Had it been shown that the medicine fendant's name was connected, could only be con- was to be taken to aid in producing the miscarriage, sidered as evidence tending to show that at that what was said in respect to it would have been adtime the deceased had formed the purpose to go to

missible.' P. 103. The conclusion which we have the defendant to have an abortion produced upon reached in view of all the cases upon the subject is, her, but was not evidence that the defendant actu- that the declarations of the deceased made to the ally produced the abortion or had engaged to do it. witness Mary Erickson were so connected with her The court on review said: “The first inquiry is, act of going to the defendant's as to constitute a whether the declarations of deceased to Mary part of that act, and were admissible as explanatory Erickson were admissible for the purpose of show- of that act. See Regina v. Edwards, 12 Cox's Cr. ing her intention, and as their scope and effect were Law Cas. 230." restricted by the court, we are of opinion that This case seems to us, like most compromises, exthey were. They constituted a part of the res gestae, ceedingly weak. In saying “such declarations were contemporaneous with the main fact under became a part of the res gesta," the court beg the consideration, and were so connected with it as to whole question. In deciding that the declaration illustrate its character. 1 Greenl. Ev. 108. It was of the intent to go to the defendant's to have him certainly competent to prove that the deceased went commit the crime was admissible to show the purto the house of the defendant at the time it was pose of the deceased, but not to show that the charged in the information the abortion was pro- defendant carried it out, the court clearly admitted duced. Upon the authorities, her intent or purpose irrelevant evidence, for that intent of the deceased in going there might be shown by her declarations was quite outside the issue. The issue was whether then made or previously made; because such the prisoner committed the crime. If he did, the declarations became a part of the res gestce. For it intent of the deceased was immaterial; if he did is evident the declarations were connected with the not, it was equally immaterial. In any light the act of her going to the defendant; were expressive evidence could only tend to convict the prisoner by of the character, motive or object of her conduct; the declaration of a purpose on his part which may and they are to be regarded 'as verbal acts indicat- never have been carried out. The cases cited are ing a present purpose or intention, and therefore very inconclusive. The citation from New York is are admitted in proof like any other material facts.' a mere dictum, and not one of the powerful authori1 Greenl. Ev., supra; Insurance Co. v. Mosley, 8 ties which we have cited to the contrary was proWall. 397; Enos v. I'uttle, 3 Conn. 27; Inhabitants duced. of Corinth v. Inhabitants of Lincoln, 34 Me. 310; Lund None of the foregoing cases were alluded to by v. Inhabitants of Tyngsborough, 9 Cush. 36; Nutting Lord Cockburn in his discussion with Mr. Taylor, v. Page, 4 Gray, 581; State v. Howard, 32 Vt. 380; It would seem that if the decision in the Edwards Moore v. Meacham, 10 N. Y. 207; People v. Davis, case is sound, that in the Bedingfield case cannot be, 56 id. 96. It is obvious that the mere act of the for the declarations in the former were much more deceased going to defendant's house was equivocal; remote than in the latter. It need not be conceded it might be innocent or not; it might warrant the that if the former case is law it goes far to sustain inference that she went for proper treatment of the ruling in the Hayden case, for it simply admitted some ailment; the declarations would render her past threats, while in the latter case evidence was motive clear and intelligible. They therefore seem admitted of what had not happened and might not to us as falling under the denomination of the res happen. The llayden case, too, is inconsistent with geste, and were admissible as original evidence as the Wainwright and Pook cases in England. The distinguished from hearsay.

Dula, Williams, Kirby and Cheek cases seem to us to “In State v. Howard, supra, the declarations of the lay down the proper doctrine. It will be noticed deceased, Olive Ashe, as to the purpose of the jour- that all the contrary cases which we have cited are ney in going to the defendant's, were held by the distinguishable frrom the Hayden case, in that the court to be admissible as part of the res gesta. declarations received did not in any instance convey Upon this question, Redfield, C. J., observes that an intimation of criminal intent or motive on the 'the mere act of going was equivocal; it might part of the prisoner. We regard the Hayden ruling have been for professional advice and assistance. as unsound and dangerous, and cannot see that it is The declarations were of the same force as the act supported by any authority in this country, further of going, and were admissible as part of the act.' than to the extent of the intended meeting with the In People v. Davis, when the deceased came home, prisoner, and even as to that extent it is strongly in answer to inquiries from her step-mother she opposed to the Dula, Williams, Kirby and Cheek made statements telling what had been done to her On principle, the admission of antecedent by Dr. Crandall at his office, and how he did it, ex- declarations is much more dangerous than the admishibiting certain medicine which she said the doctor sion of subsequent or contemporaneous declarations. gave her, and stated what he told her as to taking The latter are generally attended by corroborative it when her pains came on.

The court held these circumstances, and are of a character appealing declarations incompetent because they were merely more directly to the conscience; while the former narratives of past occurrences, did not become a may be entirely false or gratuitous, or if made in


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good faith, may not be supported by subsequent merely of that growing class of persons, who, having facts.

It is quite possible, for example, that Ìlay committed some act which would subject a sano perden did not meet Mary Stannard in the woods, alleging that at the time of the commission of the act

son to punishment, seek to avoid responsibility by although she may have expected him. It is quite they were not sane. possible that whether he did or not, he had never The laws of New York, relating to this subject, are agreed on the meeting for the purpose indicated by in a condition which must be unsatisfactory to all exher. On the other hand, if she had been found

cept the "insane criminals” themselves. I quote the there alive, there would have been some show of pertinent provisions :

“When a person shall have escaped indictment or reason for admitting her contemporaneous declara

shall have been acquitted of a criminal charge upon tion that Hayden had tried to kill her to conceal her

trial on the ground of insanity, the court being certipregnancy. At all events, both on authority and fied by the jury or otherwise of the fact, shall carefully principle, if her previous declaration that she was inquire and ascertain whether his insanity in any degoing to the woods, or was going to the woods to

gree continues, and if it does, shall order him in safe meet Hayden, was competent, her accompanying gastody, and to be sent to the asylum. If such person

be sent to the asylum, the county from which he is declaration of the motive and purpose of the meet- sent shall defray all his expenses while there, and of ing was clearly incompetent. People cannot be put sending him back, if returned; but the county nay to death upon hearsay evidence before the fact. recover the amount so paid from his own estate if he

have any, or from any relative, town, city or county

that would have been bound to provide for and mainTREATMENT OF INSANE CRIMINALS. tain him elsewhere." Laws of 1812, ch. 135, $ 31. See,

also, Laws of 1874, ch. 416, $ 22.

“Persons charged with misdemeanors and acquitted AMONG the many legal problems which the future


on the ground of insanity may be kept in custody and think will be, solved in the near future. It is the

sent to the asylum in the same way as persons charged problem of the treatment of insanity, in cases where

with crime." Id., $ 34. the criminal law has been violated. Properly speaking

“A patient of the criminal class may be discharged there can be no such thing as a crime committed by

by order of one of the justices of the Supreme Court, an insane person. But there are persons whom, for or a Circuit judge, if upon due investigation it shall convenience sake, we call insane criminals; because appear safe, legal and right to make such order.” Id., they have violated laws which would render those who

$ 42. are responsible for their acts amenable to punishment. · Whenever any person in confinement under indictWhat shall be done with this class — the class of insane

ment for the crime of arson, murder, or attempt at criminals?

murder, or highway robbery, desires to offer the plea A few years ago Dr. Henry Maudsley, of England, of insanity as a general traverse and his whole defense published his now well-known treatise, entitled “Re- to such indictment, he shall present such plea at the sponsibility in Mental Disease.” With the author's

time of his arraignmeut, and at no other stage of the statements concerning the causes of insanity, the ways

trial but this, shall such plea or defense be received or in which it is indicated, and its effect upon the will, I

entertained by the court; and the court before whom have no quarrel. Auy criticism in this direction should

such trial is pending shall have power, with the concome from a physician, and furthermore, a physician currence of the presiding judge thereof, to appoint a who has made a most thorough study of the subject of

commission to examine such person and to inquiro insanity. But it is one thing to state facts and quite and report to the court aforesaid, upon the fact of his another thing to draw conclusions from them. Froude, mental sanity at the date of the offense with which he in his History of England, has shown his ability to do stands charged. The commission aforesaid shall inthe former and his inability to do the latter. In this stitute a careful investigation, call such witnesses as respect Dr. Maudsley resembles Froude. We may ad- may be necessary and for that purpose is fully empowmit his facts, but deny his conclusions.

ered to compel the attendance of witnesses. For his conclusion is, in substance, that in every * Upon the report of said commission, if the court case of alleged insanity it belongs to the physician to before whom such indictment is pending shall find pass judgment, or in other words, to pronounce for or that such person was insano and irresponsible at the against the existence of insanity; that if the physician date of the offense with which he stands charged, the finds that the disease of insanity exists, there should court aforesaid shall order his removal to some State be no infliction of capital punishment, or indeed, of lunatic asylum, there to remain for observation and any kind of punishment, but a simple confinement of treatment until such time as in the opinion of a justhe patient in order that the disease may receive tice of the Supreme Court it is safe, legal and right to proper treatment; that it belongs to the physician to discharge him." Laws of 1874, ch. 446, $ 30. terminate this confinement at any moment, by declar- “Whenever any person accused of tho crime of aring that a cure has been effected, and that on the an- son, murder, or attempted murder, or highway robnouncement of a cure by the physician, the patient bery, shall have been acquitted upon trial upon the should be discharged. Now I take exception to the ground of insanity, the jury shall bring in a special last part of this conclusion, that on the announcement verdict to that effect and so state it in their finding; of a cure by the physician the patient should be dis- and the court before whom such trial is had shall charged.

order such person to be committed to some State The Revised Statutes of New York provide that lunatic asylum, there to remain for observation and no act done by a person in a state of insanity can be care until such time as in the judgment of a justice of punished as an offense; and no insaue person can be the Supreme Court, founded upon satisfactory evitried, sentenced to any punishment, or punished for dence, it is safe, legal and right to discharge him." any crime or offense while he continues in that state." Laws of 1874, ch. 446, $ 31, as amended by Laws of 1875, The latter part of this section has no application to ch. 574, 84. the subject under consideration. A person who be- “ Whenever any insane person in confinement under comes insane after the commission of a crime may be, indictment for arson, murder, or attempt at murder, and undoubtedly should be, though in reality he sel- or highway robbery, or who has been acquitted thereof dom is, punished, upon his recovery. I wish to speak on the ground of insanity, and has been committed to

some State lunatic asylum, pursuant to the provisions such a person should not be otherwise punished under of the preceding sections, shall be restored to his right any circumstances. Abolish capital punishment and mind, it shall be the duty of the superintendent of the dispute between lawyers and doctors ceases to be such asylum to give notice thereof to the State com- of practical importance." missioner in lunacy, who shall thereupon inquire into If this language is to be construed as an assertion the truth of such fact, and if the same shall be proved that imprisonment for life should be substituted for to his satisfaction he shall so certify it under his offi- capital punishment in cases of insanity, and that that cial hand and seal to a justice of the Supreme Court imprisonment should be unaffected by any announceof the district in which such asylum is situated, who ment of a cure, then I, for one, have no further critishall thereupon, aud upon such other facts as may be cism to make. The question of insanity should proven before him, deterinine whether it is safe, legal doubtless be submitted to the physician, who is the and right that such party in confinement as aforesaid only person competent to give it a proper considerashould be discharged." Laws of 1874, ch. 446, $ 33, as tion. The ordinary jury is not competent to pass amended by Laws of 1875, ch. 574, $ 5.

upon that question. There is danger that it may I have made these quotations at length — possibly ignorantly convict an irresponsible person. But if it too great length-in order to show clearly the present be right to constitute the physician sole judge in a condition of the laws of New York on this subject. question of insanity, it is no less right to restrict him It will be seen that the idea of Dr. Maudsley is almost to a simple determination of that question, and to completely realized. Punishment or immunity hangs refuse to listen to him when he declares the disease upon the lips of the physician. Where the charge is eradicated and recommends the liberation of the paarson, murder, attempted murder or highway robbery, tient. This last point I do not understand Dr. the accused may escape trial altogether. He has sim- Maudsley to concede. ply to offer the plea of insanity at the time of his ar- It will be remembered that I am now speaking of raignment, thus securing an extra-judicial examina- the treatment of those unfortunates, whose insantion by a commission, and if on the report of ity has culminated in the killing of a fellow being. Of the commission the court finds that he was in- course I would not advocate the life-long imprisonsane at the date of the offense, it must “order his ment of an insane person for an offense which would removal to some State lunatic asylum." There he only subject a sane person to imprisonment for a term remains until he can satisfy some justice of the Su- of years. Why then should he, whom an insane impreme Court that "it is safe, legal and right to dis- pulse has driven to the commission of homicide, be charge him." Where the accused is acquitted upon deprived of liberty till death ? For an all-sufficient trial ou the ground of insanity, the proceeding is reason: the safety of society demands it. Let it be substantially the same. The doors of an insane admitted that a certain act is essential to the protecasylum open to receive him and close upon him for a tion of society and all argument as to its propriety time; then, at the bidding of a justice of the Supreme is at an end; it becomes imperative. It therefore only Court, they opeu, and he walks out. In every case remains to show why the safety of society requires the keys which unlock the doors of State lunatic that the subjects of homicidal mania should be kept in asylums are held by the justices of the Supreme Court. confinement during life. Undoubtedly, if there are to be such keys, they could If the time ever comes when the physician can say not be placed in better custody, for though it is reas- of the person whose insanity has led him to take onably certain that the justice will accept the opinion human life: “This man is completely cured. There of the physician, yet it is well to give the judiciary will never be a recurrence of the deed. I answer for some part in the proceeding, and to add its voice to it;" there will then be reason for insisting that recovthat of the physician in a question which affects the ery from insanity shall bring release from imprisonpublic safety. My objection is not to the person in ment. But the physician of the present day is not able whom the right to discharge insane criminals is vested, to make this declaration. Dr. Maudsley himself, in but to the existence of any such right, in case of grave commenting on a celebrated case, says: " Another offenses, and particularly where the offense is homi- lesson which may be drawn from this case is one cide.

which sad experience of homicidal mania has often It may be that I have done Dr. Maudsley injus- taught, namely, the exceeding danger of a recurrence tice. I confess that in stating his conclusion to be of the attack. One can hardly ever say of a person that insane criminals should be discharged when a who has once labored under it that he has recovered physician has declared them cured, I gave an impres- entirely, so sudden, unexpected, convulsive may be the sion derived from the general tone of his work rather outbreak of a paroxysm.” This statement is corrobthan from any express declaration to that effect. In- orated by other distinguished physicians and experts deed, in one place he uses language which seems to on the subject of insanity. It is therefore safe to warrant a very different conclusion, as the following affirm, on such testimony, that for him who has once quotation will show:

insanely killed or threatened to kill, such a thing as “The argument in favor of hanging madmen in complete recovery is in the last degree problematical order to deter others from crime must then be pro- if not utterly impossible; and that the safety of sonounced utterly baseless ; the execution of them ciety can be adequately secured only by confining for would be of use only if it deterred persons from going life the sufferer from homicidal mania. mad, which no one had asserted that it does; but the This then is the conclusion. The plea of insanity, argument that it is necessary to execute them in order in cases of homicide, should be an application for a to protect society would be incontrovertible if society life lease in a lunatic asylum; and the granting of the had no other effectual means of protecting itself. But application should follow the success of the plea. this is not so; it has the power of protecting itself There could be no such thing as pardon, for no crime effectually, and at the same time of inflicting upon the would have been committed. Moreover, since the insane wrong-doer what he assuredly regards as a liberation of the insane sufferer would be dangerous heavy punishment, by shutting him up in a lunatic to the public, the right to discharge should not be asylum. There need be no fear that the prospect of vested in any one. He who offers the plea of insanity such a fate would be less deterrent to him than the

should expect to take a final, irrevocable farewell of prospect of death on the scaffold.

all society except that of an insane asylum. “It will be observed that I have spoken of the punish- I do not see how this conclusion can be avoided. ment of death as one which should never be inflicted Those whom the plea of insanity saves from the galupon an insane person; it is another question whether lows may be divided into two classes – those whose that way.


insanity is actual and those whose insanity is feigned. were used. Whether the alleged contract exists, thereIle who belongs to the first class cannot obtain free- fore, or not, depends on the authority of the Legisladom without endangering the safety of society. He ture to bind the State and the people of the State in must submit to a hard necessity. A member of the second class only receives righteous punishment and All agree that the Legislature cannot bargain away should not be permitted to better his condition by the police power of a State. “Irrevocable grants of proving his own fraud. In both cases justice demands property and franchises may be made if they do not imprisonment for life.

impair the supreme authority to make laws for the

J. H. HOPKINS. right government of the State: but no Legislature can ROCHESTER, June 12, 1880.

curtail the power of its successors to make such laws

as they may deem proper in matters of police." Met. LOTTERY GRANTS NOT CONTRACTS PRO

Bd. of Excise v. Barrie, 34 N. Y. 668; Boyd v. Alubuma, TECTED BY FEDERAL CONSTITUTION.

94 U. S. 650. Many attempts have been made in this court and elsewhere to define the police power, but

never with entire success. It is always easier to deterSUPREME COURT OF THE UNITED STATES-OCTOBER

mine whether a particular case comes within the geneTERM, 1879.

ral scope of the power than to give an abstract defini

tion of the power itself which will be in all respects STONE ET AL., Plaintiffs in error, v. STATE OF MISSIS

accurate. No one denies, however, that it extends to SIPPI EX REL, HARRIS.

all matters affecting the public health or the public A charter granted by a State Legislature authorizing a lot

morals. Patterson v. Kentucky, 97 U. S. 50+; Beer Co. tery for a special time, in consideration of certain pay

v. Massachusetts, supra. Neither can it be denied that ments into the State treasury, is not a contract protected

lotteries are proper subjects for the exercise of this by the provision of the Federal Constitution forbidding power. We are aware that formerly, when the sources State legislation impairing the obligation of a contract. of public revenue were fewer than now, they were

used in some or all of the States, and even in the Diserror to the Supreme Court of the State of Missis

trict of Columbia, to raise money for the erection of

public buildings, making public improvements, and WAITE, C. J. It is now too late to contend that any not unfrequently for educational and religious purcontract which a State actually enters into when grant- poses, but this court said, more than thirty years ago, ing a charter to a private corporation is not within the speaking through Mr. Justice Grier, in Phalen v. Virprotection of the clause in the Constitution of the ginia, 8 How. 168, that “experience has shown that the United States that prohibits States from passing laws common forms of gambling are comparatively innocuimpairing the obligation of contracts. Art. I, § 10. ous when placed in contrast with the wide-spread pesThe doctrines of the Dartmouth College case, 4 Wheat. tilence of lotteries. The former are confined to a few 518, announced by this court more than sixty years persons and places, but the latter infests the whole ago, have become so imbedded in the jurisprudence of community; it enters every dwelling; it reaches every the United States as to make them to all intents and class; it preys upon the hard earnings of the poor, and purposes a part of the Constitution itself. In this it plunders tho ignorant and simple." Happily, under connection, however, it is to be kept in mind that it is the influence of restrictive legislation, the evils are not not the charter which is protected, but only any con- so apparent now, but we very much fear that with the tract the charter may contain. If there is no contract same opportunities of indulgence the same results there is nothing in the grant on which the Constitution would be manifested. can act. Consequently the first inquiry in this class of If lotteries aro to be tolerated at all, it is no doubt cases always is, whether a contract has in fact been better that they should be regulated by law, so that entered into, and if so, what its obligations are.

the people may be protected as far as possible against In the present case the question is whether the State the inherent vices of the system; but that they aro of Mississippi, in its sovereign capacity, did by the demoralizing in their effects, no matter how carefully charter now under consideration bind itself irrevocably regulated, cannot admit of a doubt. When the govby a contract to permit “the Mississippi Agricultural, erument is untrammelled by any claim of vested rights Educational and Manufacturing Aid Society," for or chartered privileges, no one has ever supposed that twenty-five years, “to receive subscritions and sell lotteries could not lawfully be suppressed, and those and dispose of certificates of subscription which shall who managed them punished severely as violators of entitle the holders thereof to" “any lands, books, the rules of social morality. From 1822 to 1867, withpaintings, statues, antiques, scientific instruments or out any constitutional requirement, they were proapparatus, or any other property or thing that may hibited by law iu Mississippi, and those who conducted be ornamental, valuable or useful," "awarded to them" them punished as a kind of gamblers. During the *by the casting of lots, or by lot, chance, or other-provisional government of that State, in 1867, at the wise." There can be no dispute but that under this close of the late civil war, the present act of incorporaform of words the Legislature of the State chartered tion, with more of like character, was passed. The a lottery company, having all the powers incident to next year, 1868, the people, in adopting a new Constisuch a corporation for twenty-five years, and that in tution with a view to the resumption of their political consideration thereof the company paid into the State rights as one of the United States, provided that "the treasury five thousand dollars for the use of a univer- Legislature shall never authorize any lottery, nor shall sity, and agreed to pay, and until the commencement the sale of lottery tickets be allowed, nor shall any of this suit did pay, an annual tax of one thousand lottery heretofore authorized be permitted to be drawn, dollars and “one-half of one per cent on the amount or tickets therein to be sold." Art. XII, $ 15. Thero of eceipts derived from the sale of certificates or is now scarcely a State in the Union where lotteries tickets." If the Legislature that granted this charter are tolerated, and Congress has enacted a special stathad the power to bind the people of the State and all ute, the object of which is to close the mails against succeeding legislatures to allow the corporation to them. R. S., $ 3894; 19 Stat. 90, $ 2. continue its corporate business during the whole term The question is, therefore, directly presented whether, of its authorized existence, there is no doubt about the in view of these facts, the Legislature of a State can, sufficiency of the language employed to effect that by the charter of a lottery company, defeat the will of object, although there was an evident purpose to con- the people, authoritatively expressed, in relation to the ceal the vice of the transaction by the phrases that further continuance of such business in their midst. We think it cannot. No Legislature can bargain away lators and gamblers, living on the expectation of what the public health or the public morals. The people "by the casting of lots, or by lot, chance or otherwise,' themselves cannot do it, much less their servants. The might be “awarded” to them from the accumulations supervision of both these subjects of governmental of others. Certainly the right to stop them is governpower is continuing in its nature, and they are to be mental, and to be exercised at all times by those in dealt with as the special exigencies of the moment power at their discretion. Any one, therefore, who may require. Government is organized with a view accepts a lottery charter does so with the implied unto their preservation, and cannot divest itself of the derstanding that the people, in their sovereign capacity power to provide for them. For this purpose the larg- and through their properly constituted agencies, may est legislative discretion is allowed, and the discretion take it back at any time the public good shall require, cannot be parted with any more than the power itself. and this whether it be paid for or not. All one can get Beer Co. v. Massachusetts, supra.

by such a charter is a suspension of certain governIn the Dartmouth College case it was argued that the mental rights in his favor, subject to withdrawal at contract clause of the Constitution, if given the effect will. He has in legal effect nothing more than a contended for in respect to corporate franchises, Jicense to continue on the terms named for the speciwould be an unprofitable and vexatious interferenco fied time, unless sooner abrogated by the sovereign with the internal concerns of a State, would unneces- power of the State. It is a permit, good as against sarily and unwisely embarrass its legislation, and ren- existing laws, but subject to future legislative and der immutable those civil institutions, which are constitutional control or withdrawal. established for the purpose of internal government, On the whole, we find no error in the record, and and which, to subserve those purposes, ought to vary the judgment is consequently affirmed. with varying circumstances (p. 6:28); but Chief Justice Marshall, when he announced the opinion of the court, was careful to say (p. 629) “that tho framers of PARTNERSHIP IN NAME OF SINGLE the Constitution did not intend to restrain States in

MEMBER. the regulation of their civil institutions, adopted for internal government, and that the instrument they ENGLISH COURT OF APPEAL, MARCH, 11, 1880. have given us is not to be so construed." The present case, we think, comes within this limitation. We have

YORKSHIRE BANKING COMPANY V. BEATSON AND held, not, however, without strong opposition at times,

MYCOCK (42 L. T. Rep., N. S. 455). that this clause protected a corporation in its charter exemptions from taxation. While taxation is in gene- Where a bill of exchange is drawn, accepted, or indorsed ral necessary for the support of government, it is not

by an individual for his privato purpose, his name being part of the government itself. Government was not

the same as that of a firm of which he is a member, the

holder cannot recover against the firm. But where the organized for the purposes of taxation, but taxation

name of the individual and of the firm is the same, and may be necessary for the purposes of government.

the individual carries on no business apart from the As such, taxation becomes an incident to the exercise

firm, the presumption, in the absence of evidence to of the legitimate functions of government, but nothing the contrary, is that a bill bearing such a name is the more. No government dependent on taxation for sup- bill of the firm. Thero is no difference in this respect port can bargain away its whole power of taxation, for

between a dormant and an ostensible partner. that would be substantially abdication. All that bas

M. and B. owned a business, which was carried on in B.'s been determined thus far is that for a consideration it

name, M. being a dormant partner. B., without the may, in the exerciso of a reasonable discretion, and

authority, and in fraud of M., signed accommodation

bills in his own name, one of which was addressed to for the public good, surrender a part of its powers in

him at the place of business of the firm. The proceeds this particular.

were paid into the same banking account with B.'s own But tho power of governing is a trust committed by money and that of the firm ; but the effect of these the people to the government, no part of which can be transactions (which wero not entered in the partnership granted away. The people, in their sovereign capacity,

books) was to diminish tho capital of tho firm. Held, have established their agencies for the preservation of

in an action by a bona fide holder without notice, that the public health and the public morals and the pro

these fiets rebutted the presumption that the bills were

the bills of tho firm, and that a finding by the jury to tection of public and private rights. These several

that effect ought to be set aside as against evidence. agencies can govern according to their discretion, if

within the scope of their general authority, while in APPEAL by the


, from the judgment of

power, but they cannot give away nor sell the discre- Denman and . tion of those that are to come after them, in respect to [N. S.] 654; 4 C. P. Div. 204), directing the verdict and matters the government of which, from the very nature judgment, which had been given for the plaintiffs of things, must “vary with varying circumstances. against tho defendant Mycock, to be set aside, and They may create corporations and give them, so to judgment to be entered for the defendant Mycock. speak, a limited citizenship, but as citizens, limited in The facts of the case, the findings of the jury, and their privileges, or otherwise, these creatures of the the points raised in argument before the Court of Apgovernment creation are subject to such rules aud peal, are fully stated in the judgment. regulations as may from time to time be ordained The appeal was argued by Bompas, Q. C., and Forbes and established for the preservation of health and (H1. Tindal Atkinson with them), for the plaintiffs, and morality.

by Waddy, Q. C., and Gainsford Bruce, for the defendThe contracts which the Constitution protects are ant Mycock. those that relate to property rights, not governmental. In addition to the authorities noticed in the judgIt is not always easy to tell on which side of the line ment, the following were referred to: Winship v. which separates governmental from property rights a United States Bank, 5 Peters, 561; Ex parte Bushell, 3 particular case is to be put, but in respect to lotteries M. D. & De G. 615; Sulton v. Gregory, % Peake, 150; there can be no difficulty. They are not, in the legal Baird's case, 23 L. T. Rep. (N. S.) 424; L. Rep., 5 Ch. acceptation of the term, mala in se, but as we have just | 725, 733; Ex parte Buckley, 14 M. & W. 469; Smith v. seen, may properly be made mala prohibita. They are Craven, 1 C. & J. 500; Hall v. West, cited in Lindley a species of gambling, and wrong in their influences. on Partnership (4th ed.), p. 343; Lloyd v. Ashby, 2 C. They disturb the checks and balances of a well-ordered & P. 138; 2 B. & Ad. 23; Mercantile Bank v. Cox, 38 community. Society built on such a foundation would Me. 500; National Bank of Chemung v. Ingraham, 68 almost of necessity bring forth a population of specu- Barb. 290; Ex parte Law, 3 Deacon, 541.

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