rem." In Finlon v. Clark, 118 Ill. 32, the same doctrine is announced, and the cases above cited are referred to with approval. Taylor v. Adams, 115 Ill. 570. Courts of equity however from a very early period took a widely different view of the matter. They looked upon the forfeiture of the estate at law because of non-payment on the very day fixed by the mortgage, as in the nature of a penalty, and as in other cases of penalties, gave relief accordingly. This was done by allowing the mortgagor to redeem the land on equitable terms at any time before the right to do so was barred by foreclosure. The right to thus redeem after the estate had become absolute at law in the mortgagee was called the "equity of redemption," and has continued to be so called to the present time. These courts, looking at the substance of the transaction, rather than its form, and with a view of giving effect to the real intentions of the parties, held that the mortgage was a mere security for the payment of the debt; that the mortgagor was the real beneficial owner of the land, subject to the incumbrance of the mortgage; that the interest of the mortgagee was simply a lien and incumbrance upon the land rather than an estate in it. In short the positions of mortgagor and mortgagee were substantially reversed in the view taken by courts of equity.

These two systems grew up side by side, and were maintained for centuries without conflict or even friction between the law and equity tribunals by which they were respectively administered. The equity courts did not attempt to control the law courts, or even question the legal doctrines which they aunounced. On the contrary, their force and validity were often recognized in the relief granted. Thus equity courts, in allowing a redemption after a forfeiture of the legal estate, uniformly required the mortgagee to reconvey to the mortgagor, which was of course necessary to make his title available in a court of law. In maintaining these two systems and theories in England, there was none of that confusion and conflict which we encounter in the decisions in the courts of this country; resulting chiefly from a failure to keep in mind the distinction between courts of law and equity, and the rules and principles applicable to them respectively. The courts there, by observing these things, kept the two systems intact, and in this condition they were transplanted to this country, and became a part of our own system of law. But other causes have contributed to destroy that certainty and uniformity which formerly prevailed with us. Chiefly among these causes may be mentioned the statutory changes in the law in many of the States, and the failure of the courts and authors to note those changes in their expositions of the law of such States. Perhaps another fruitful source of confusion on this subject is the fact that in many of the States the common-law forms of action have been abolished by statute, and instead of them a single statutory form of action has been adopted, in which legal and equitable rights are administered at the same time, and by the same tribunal. Yet the distinction between legal and equitable rights is still preserved, so that although the action in theory is one at law, it is nevertheless subject to be defeated by a purely equitable defense. Under the influence of these statutory enactments and radical changes in legal procedure, by which legal and equitable rights are given effect and enforced in the same suit, the equitable theory of a mortgage has in many of these States entirely superseded the legal one. Thus in New York it is said, in the case of Trustees, etc., v. Wheeler, 61 N. Y. 88, "that a mortgage is a mere chose in action. It gives no legal estate it the land, but is simply a lien thereon; the mortgagor remaining both the legal and equitable owner of the fee." Following this doctrine to its log

ical results, it is held by the courts of that State that ejectment under the Code will not be at the suit of the mortgagee against the owner of the equity of redemption. Murray v. Walker, 31 N. Y. 399. In strict conformity with the theory that the mortgagee has no estate in the land, but a mere lien as security for his debt, the courts of New York, and others taking the same view, hold that a conveyance by the mortgagee before foreclosure, without an assignment of the debt, is in law a nullity. Jackson v. Curtis, 19 Johns. 325: Wilson v. Troup, 2 Cow. 231; Jackson v. Willard, 4 Johns. 41. And this court seems to have recognized the same rule as obtaining in this State, in Delano v. Bennett, 90 Ill. 533.

The New York cases just cited, and all others taking the same view, are clearly inconsistent with the whole current of our decisions on the subject, as is abundantly shown by the authorities already cited. The doctrine would seem to be fundamental that if one sui juris, having the legal title to land, intentionally delivers to another a deed therefor, containing apt words of conveyance, the title at law, at least, will pass to the grantee; but for what purposes or uses the grantee will hold it, or to what extent he will be able to enforce it, will depend upon circumstances. If the mortgagee conveys the land without assigning the debt to the grantee, the latter would hold the legal title as trustee for the holder of the mortgage debt. Sanger v. Bancroft, 12 Gray, 367; Barnard v. Eaton, 2 Cush. 304; Jackson v. Willard, 4 Johns. 40. It is true the interest which passes is of no appreciable value to the grantee. Thus in the case last cited, Chancellor Kent, in speaking of it, says: "The mortgage interest, as distinct from the debt, is not a fit subject of assignment. It has no determinate value. If it should be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the bond." In Wait's Actions and Defenses (vol. 4, p. 565) the rule is thus stated: "By the common law a mortgagee in fee of land is considered as absolutely entitled to the estate, which he may devise or transmit by descent to his heirs." In conformity with this view, Pomeroy, in his work on Equity Jurisprudence (vol. 3, p. 150), in treating of this subject, says: "In law, the mortgagee may convey the land inself by deed, or devise it by will, and on his death intestate it will descend to his heirs. In equity, his interest is a mere thing in action, assignable as such, and a deed by him would operate merely as an assignment of the mortgage; and in administering the estate of a deceased mortgagee a court of equity treats the mortgage as personal assets, to be dealt with by the executor or administrator." We have already seen that under the decisions of this court, and by the general current of authority, a mortgage is not assignable at law by mere indorsement, as in the case of commercial paper. But on the other hand, the estate and interest of the mortgagee may be conveyed to the holder of the indebtedness, or even of a third party, a deed with apt words of conveyance; and the fact that it is in form an assignment will make no difference. 2 Washb. Real Prop. 115, 116. Such an assignee, if owner of the mortgage indebtedness, might no doubt maintain ejectment in his own name for his own use. Or the action might be brought in his name for the use of a third party owning the indebtedness. Kilgour v.

Gockley, 83 Ill. 109. So in this case, if the action had been brought in the name of Kearns' heirs for the use of Hinkley, no reason is perceived why the action might not be maintained.

It must not be concluded, from what we have said, that the dual system respecting mortgages, as above explained,exists in this State precisely as it did in England prior to its adoption in this country, for such is not the case. It is a conceded fact that the equitable

theory of a mortgage has, in process of time, made in this State, as in others, material encroachments upon the legal theory which are now fully recognized in courts of law. Thus it is now the settled law that the mortgagor or his assignee is the legal owner of the mortgaged estate, as against all persons except the mortgagee or his assigns. Hall v. Lance, 25 Ill. 277; Emory v. Keighan, 88 id. 482. As a result of this doctrine, it follows that in ejectment by the mortgagor against a third party, the defendant cannot defeat the action by showing an outstanding title in the mortgagee. Hall v. Lance, supra. So too courts of law now regard the title of a mortgagee in fee in the nature of a base or determinable fee. The term of its existence is measured by that of the mortgage debt. When the latter is paid off, or becomes barred by the statute of limitations, the mortgagee's title is extinguished by operation of law. Pollock v. Maison, 41 Ill. 516; Har ris v. Mills, 28 id. 44; Gibson v. Rees, 50 id. 383. Hence the rule is well established at law, as it is in equity, that the debt is the principal thing, and the mortgage an incident. So also while it is indispensable in all cases to a recovery in ejectment that the plaintiff show in himself the legal title to the property as set forth in the declaration, except where the defendant is estopped from denying it, yet it does not follow that because one has such title he may under all circumstances maintain the action, and this is particularly so in respect to a mortgage title. Such title exists for the benefit of the holder of the mortgage indebtedness, and it can only be enforced by an action in furtherance of his interests; that is, as a means of coercing payment. If the mortgagee therefore should for a valuable consideration, assign the mortgage indebtedness to a third party, and the latter, after default in payment, should take possession of the mortgaged premises, ejectment would not lie against him, at the suit of the mortgagee, although the legal title would be in the latter, for the reason it would not be in the interest of the owner of the indebtedness. In short, it is a well-settled principle that one having a mere naked legal title to land in which he has no interest, and in respect to which he has no duty to perform, cannot maintain ejectment against the equitable owner, or any one having an equitable interest therein, with a present right of possession. This case, with a slight change of the circumstances, would afford an excellent illustration of the principle. Suppose the present plaintiff had obtained possession under his equitable title to the note and mortgage, and the heirs of Kearns, who had the legal title, had brought ejectment against him, the action clearly could not have been maintained, for the reasons we have just stated. But it does not follow, because such an action would not lie against him, that he could, upon a mere equitable title, maintain the action against others. Cottrell v. Adams, 2 Biss. 351-353; 9 Myers Fed. Dec. 240. The question in that case was almost identical with the question in this, and the court reached the same conclusion we have. See also Speer v. Hadduck, 31 Ill. 439.

For the reasons stated, the judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

NEW YORK COURT OF APPEALS ABSTRACT.

ATTACHMENT-PUBLICATION OF SUMMONS-APPEARANCE-DISCONTINUANCE.-An attachment is not void, when in the proceedings a publication of summons was ordered commenced, pending which the defendant entered an appearance, and consented that further publication cease, and judgment be entered

against him. Feb. 10, 1888. Tuller v. Beck; Pierce v. Beck. Opinion by Finch, J.

CANALS- -NEGLIGENCE IN MANAGEMENT - LIABILITY OF STATE CONTRIBUTORY NEGLIGENCE.The State built a swing-bridge upon its own land to carry a tow-path across a channel connecting a State canal with an adjunct thereof for the use of persons navigating the canals. The bridge was frequently required to be swung open to allow the passage of boats. A ferry company had for some years used a landing place on the premises of the State near the bridge, though it did not appear that it had received permission to do so, and people had been accustomed to use the bridge in going to and from the ferry. The ferry company also had a bridge across the channel. While proceeding to the ferry, in the evening, intestate walked from the abutment into the channel and was drowned, the bridge having been pushed from its place by the pressure of a canal boat. By Laws of 1870, chap. 321, the State is liable for negligence in the management of the canals where the facts would establish a liability against an individual. Held, that the State owed no duty to the public to keep the In bridge in repair, and plaintiff could not recover. Nicholson v. Railway Co., 41 N. Y. 529, it was said that "negligence consists in the commission of some lawful act in a careless manner, or in the omission to perform some legal duty to the injury of another. It is essential in the latter case to establish that the defendant owed at that time some specific, clear, legal duty to the plaintiff or the party injured." The remarks of Judge Earl in the same case are quite pertinent to the question here. He says: "It cannot be doubted from the evidence that he (the deceased) had an implied license to cross at that point, and hence that he was lawfully there. He was not there by invitation of the defendant, nor in the business of the defendant, but for his own purpose, on his way home. While he was lawfully there, he had no right, as against the defendant, to be there. It could at any time have revoked the license, and then he could not have crossed at that point without being a trespasser. The cars were lawfully upon the branch track, and the defendant had the right to have them there. The defendant owed the intestate no active duty. It owed him no duty whatever, except such as every citizen owes another. It had no right intentionally to injure him, and would be liable if it needlessly or carelessly injured him while performing its own business. It owed him a duty to abstain from injuring him, either intentionally or carelessly, but it did not owe him the duty of active vigilance to see that he was not injured while upon its land merely by permission, for his own convenience." The learned judge refers to and comments upon the cases of Gautret v. Egerton, L. R., 2 C. P. 371; Southcote v. Stanley, 1 Hurl. & N. 246; Hounsell v. Smyth, 97 E. C. L. 729, and Smith v. Docks Co., L. R., 3 C. P. 326, which are cussion here. It was said by Judge Andrews, in Larparticularly applicable to the question under dismore v. Iron Co., 101 N. Y. 394, that "there is no negligence, in a legal sense, which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons and not as to others, depending upon peculiar relations and circumstances." The State had erected a bridge which was sufficient and safe, so far as appears, for the purposes for which it was intended. It had upon this occasion left it, at the close of the day, in the situation in which it had been usual and customary to leave it; and it had been displaced, leaving the situation dangerous to careless and inattentive persons, by the wrongful act of a stranger. We can see in this no violation of duty on the part of the

State. It owed no duty to the public to build this bridge, to keep it in repair, or to rebuild it in the event of its destruction. It could keep it up or let it decay, at its own pleasure, and made itself liable to no one in either event, except perhaps to persons navigating its cauals by its invitation. The whole claim of the appellant rests upon the assumption that the State owed a duty to all persons using its tow-path for their own purposes, whether with or without license or permission, to keep it in such repair as to make passage over it safe and secure at all times, both day and night. We do not think that such a claim is tenable. The State had simply built a tow-path and bridge upon its own land for the use of persons navigating its canals. It had raised no structure which was not necessary for this purpose, and the purpose of the bridge was obvious, from its location and connection with the tow-path, to all persons who came in its vicinity. No enticement or allurement to people generally to pass over the bridge was held out, except such as any bridge upon private lands holds out; and no one had a right to suppose, from the mere existence of a tow-path bridge, that the State undertook the duty of keeping it in place at all times for the use of the general public. Indeed the statutes of the State make it a misdemeanor for citizens, other than those navigating the canals, to use its tow-path for the passage over them of horses, cattle, or other live animals (1 Rev. Stas., [7th ed.] 697, § 181), and every citizen had notice that the State was jealous of the use of its canal property, except for the purposes of canal navigation. What obligations the ferry company assumed by building its ferry-house on state lands, and the sidewalk from it to the bridge over the channel, it is unnecessary to discuss, but it is quite certain that it did not thereby impose any duty on the State toward the public using such ferry to facilitate or render safe the passage to it. The consideration of this branch of the case may be concluded by an extract from the opinion of Judge Andrews in Larmore v. Iron Co., supra, which is directly in point upon the question involved here: The duty of keeping premises in a safe condition, even as against a mere licensee, may also arise where affirmative negligence in the management of the property or business of the owner would be likely to subject persons exercising the privilege theretofore permitted and enjoyed to great danger. The case of running a locomotive without warning over a path across the railroad, which had been generally used by the public without objection, furnishes an example. Barry v. Railroad Co., 92 N. Y. 289; Beck v. Carter, 68 id. 283. The cases referred to proceed upon definite and intelligible grounds, the justice of which cannot reasonably be controverted. But in the case before us there were no circumstances creating a duty on the part of the defendant to the plaintiff to keep the whimsey in repair, and consequently no obligation to remunerate the latter for his injury. The machine was not intrinsically dangerous; the plaintiff was a mere licensee; the negligence, if any, was passive and not active-of omission and not of commission." In attempting to cross a stream in the evening, by means of a swing-bridge, intestate fell into the stream and was drowned, the bridge having been pushed from its position by a boat so that it was connected with the path by but four feet of its width. The evidence tended to show that there was a light on the bridge, and five or six others within from 50 to 150 feet. The bridge was frequently opened in this manner, as well as for the passage of boats. Intestate had frequently crossed the bridge, and was familiar with the surroundings. Held, that the evidence tended to support the charge of contributory negligence, Jan. 17, 1888. Splittorf v. State. Opinion by Ruger, C. J.

CARRIERS-COMMON CARRIERS OF GOODS-DESTRUCTION OF PROPERTY BY FIRE-NEGLIGENCE-QUESTION FOR JURY.—(1) In an action against a railroad company for property destroyed by fire while in a car alongside of a warehouse which was burned, the evidence of plaintiff tended to show that the warehouse was fired by sparks from an east-bound train. Defendant gave no evidence in regard to the east-bound engine, but showed that the engine on a west-bound train, which passed the warehouse about the same time, was in perfect condition, and would not emit sparks. Held, that the case should have been left to the jury, as they might reasonably infer that the fire was due to the defective condition of the east-bound engine. (2) The evidence showed that the freighthouse was a wooden building, standing close to the track, with a shingle roof, covered with moss; that the roof had frequently before this occasion taken fire from sparks from passing engines, which was known to defendant, and that a high wind was blowing at the time, and the car containing plaintiff's goods was left standing directly in the path of the flames. Held, that the case should have been left to the jury to determine whether defendant exercised proper care in leaving the car exposed to the hazard. Jan. 17, 1888. Tanner v. New York Cent. & H. R. R. Co. Opinion by Andrews, J.

OF

GOODS-LOSS-LIMITATION IN CONTRACT -BURDEN OF PROOF-STATUTE PROHIBITING LIMITATIONS EXTRA-TERRITORIAL EFFECT-STIPULATED SUBROGATION TO INSURANCE-RIGHTS OF INSURER. (1) Where cotton is shipped under a bill of lading exempting the carrier from responsibility for loss or damage from "fire, unless the same be proved to have occurred from the fraud or gross negligence of the company or companies, their agents or servants," and the cotton is destroyed by fire, the burden is upon the plaintiff to establish that the fire was occasioned and the cotton destroyed, by the carrier's fraud or gross negligence. Lamb v. Railroad Co., 46 N. Y. 271; Cochran v. Dinsmore, 49 id. 249; Insurance Co. v. Railroad Co., 72 id. 90. (2) A South Carolina statute, providing that no special contract shall "limit or affect the liability at common law of any railroad company within this State, for or in respect of any goods to be carried and conveyed by them," has no application to a corporation organized under the laws of another State, and such a corporation may lawfully make a contract in South Carolina, limiting its liability for goods delivered to it in another State for transportation over its road in such State. (3) The bill of lading provided that in case of loss or damage during transportation, whereby any legal liability should be incurred, the company incurring such liability "shall have the benefit of any insurance which may have been effected upon or on account of said cotton." The cotton was insured, and on its destruction by fire, while on defendant's wharf, the insurance company paid the loss to the owners, and took an assignment of their claim against defendant. Held, that there was no subrogation, and by the payment to the assured the defendant was, under the terms of the bill of lading, relieved from any liability. It is true that by a general rule of equity, where goods are totally lost by perils insured against, the insurer, upon payment of the loss, becomes subrogated to all the assured's rights of action against third persons who have caused or are responsible for the loss; and the insurer has this right of subrogation without any express stipulation to that effect in the policy. It grows out of the very nature of the contract of insurance as a contract of indemnity. Insurance Co. v. Railway Co., 73 N. Y. 399; Insurance Co. v. Transportation Co., 117 U. S. 312. But this right of subroga

MANUFACTURING COMPANIES

tion is a derivative one, and comes solely from the assured, and can only be enforced in his right. If the assured has no right which he can transfer to the insurer, then the insurer can have no subrogation, and cannot take the place of the assured for the purpose of enforcing the liability of the wrong-doer for the loss. Here by the express contract between the assured owners and the railroad company, it was to have the benefit of the insurance, and thus it was entitled to the insurance for its indemnity; and when the insurance company paid the entire loss sustained by the fire to the assured, by the very terms of the contract it relieved the defendant of any liability therefor. If the insurance company had not paid the loss to the assured, upon payment of the loss by the defendant it would have been entitled to be subrogated to the rights of the assured, and to the full benefit of the policy which the assured had taken. A further discussion of this point is unnecessary, as it is fully covered by the decision in Insurance Co. v. Railway Co., supra, where the precise question was involved. Feb. 10, 1888. Platt v. Richmond, Y. R. & C. R. Co. Opinion by Earl, J. CORPORATIONS FAILURE TO FILE ANNUAL REPORT-PERSONAL LIABILITY OF TRUSTEES-JUDGMENT FOR COSTS.-The New York General Manufacturing Act of 1848, § 12, as amended by the Laws of 1875, chap. 510, provides that every such company shall, within twenty days from the first day of January in each year, * * make a report of its assets and liabilities; * * * and if any such company shall fail so to do, all the trustees shall be held jointly and severally liable for the debts then existing, and for all that shall be contracted before such report is made. Held, that a judgment for costs against a company who has violated the provisions of this section is a debt for which a trustee may be rendered personally liable. It is true it was not a debt existing antecedently to the judgment; but it was a debt created by the judgment itself, and as it was a debt against the corporation which it was bound to pay, it could be enforced against the defendant. It may be that the judgment is not conclusive as against the defendant, and it is undoubtedly open to him to show that the recovery was either collusive or fraudulent. But it is a debt created by the judgment itself. It is proved by the production of the judgment, and that is at least prima facie evidence of its existence. It is unlike the case of Miller v. White, 50 N. Y. 137, where the judgment was upon a debt antecedently existing, in which case it was held that the judgment was neither conclusive nor prima facie evidence of the debt, and that it was the duty of the plaintiff to prove and establish his debt independently of the judgment. The reason upon which that decision is based can have no application to a case like this, where there was no liability on the part of the company to pay the costs antecedently to or independently of the judgment. We have carefully examined all the authorities to which our attention is called, and we find none of them in conflict with the views here expressed. We have not overlooked the clause which follows the words "debts of the company then existing," to-wit, "and for all that shall be contracted before such report shall be made." The claim on the part of the defendant that these words limit the meaning of the former words to such debts of a corporation as are voluntarily contracted, we do not deem to be well founded. The word "contracted" here means the same as "incurred," and includes every debt for which the corporation becomes bound. There is no apparent reason for any discrimination as to the kind of debts, and we do not think any was intended. Jan. 24, 1888. Allen v. Clark. Opinion by Earl, J.

COSTS-REVERSAL OF ORDER DIRECTING PAYMENTJURISDICTION OF APPELLATE COURT.-Upon a reversal of an order awarding costs to defendant's attorney, the appellate court may direct a return of the costs paid under the order, where the attorney still has the money in his possession, and has promised to repay it, although the payment to him was made by the plaintiff's attorney, and not by the plaintiff himself. It has been the uniform practice of the courts to execute summary jurisdiction over the conduct of parties and attorneys in actions pending in court, and enforce obedience to orders and directions made by it in the interest of fair dealing and honesty, to protect the rights of all parties or persons whose rights have been affected by the litigation. Both parties and attorneys, who through the aid of the court have come into possession of property or money during a litigation, which subsequent proceedings in the action show was either wrongfully acquired or unjustly retained, may be compelled to restore it to the rightful owner, by order and attachment to enforce such restoration. It was held in Langley v. Warner, 3 N. Y. 327, that where moneys were collected by execution from a party to an action, and were paid over to the attorney of the party recovering the judgment, who had agreed with such attorney that he might retain and apply such moneys upon a previous indebtedness of the party to him, and such application of the money had been made, that no action arose against the attorney in favor of the party from whom such moneys were collected, although the judgment upon which they were received was subsequently reversed. It was said that the title to the moneys collected had vested in the client, and that he had in good faith paid them out to his attorney, and although the party remained liable to restore them, the attorney could not be subjected to an action therefor. But that is far from being this case. Here the attorney has received moneys under an erroneous order, and still has them in his hands. Not only that, but he has several times promised to repay them. It would be a reproach to the law if the court, knowing that one of its officers had money in his hands which had been erroneously taken from a party to the action, could not compel such officer to restore them to the rightful owner. In the case of Wilmerdings v. Fowler, as reported in 14 Abb. Pr. (N. S.) 249, and subsequently upon reargument and rehearing, in 15 id. 86, and 55 N. Y. 641, it was held, as shown by tke head-note in 55 N. Y., that "when an attorney, without fraud, collects money, as attorney, and pays it over to his client, although the one paying it shows that he is entitled to have it refunded, an order will not be granted requiring the attorney personally to refund it, but in such case the fact of payment over should be clearly shown." This case fairly implies that if the money had been obtained by the fraud of the attorney, an order would be made by the court requiring the attorney to repay it regardless of the fact whether he had paid it to his client or not, and that most clearly he would be required to repay it if he had the money in his hands, and had not paid it over. Jan. 17, 1888. Forstman v. Schulting. Opinion by Ruger, C. J.

CRIMINAL LAW-BURGLARY-" BUILDING "-VAULT IN CEMETERY.-A stone vault in a cemetery, used for the interment of dead bodies, though wholly above ground, is not a “building," or "other erection or inclosure," within the meaning of the Penal Code of New York, $$ 498, 504, defining the crime of burglary in the third degree. As was stated by Andrews, J., in Rodgers v. People, 86 N. Y. 360, "Burglary, at common law, is an offense against the habitations of men." It may also be stated that the crime of burglary, even at common law, extends to the felonious breaking and

entering a church. 3 Inst. 64; 1 Hale P. C. 556; 1 Hawk. P. C., chap. 38, § 17; 2 Russ. Crimes, 1 (vol. 3, 4th ed.); Reg. v. Baker, 3 Cox Crim. Cas. 581; 2 Whart. Crim. Law, § 1556. Lord Coke was of the opinion that the crime could be committed in regard to a church, because as he said, it was a mansion-house of the omnipotent God. Lord Hale said that was only Lord Coke's quaint way of putting it, and that burglary at common law could be committed by breaking and entering, not only a mansion-house, but a church, as a church, and without speaking of it as the mansionhouse of God. It will be seen upon examination that there were two exceptions at common law to the general rule that burglary consisted in breaking into a mansion-house; the word "mansion" being synonymous in that respect with dwelling-house. Those two exceptions were-first, in regard to a church; and second, in regard to breaking through the walls or gates of a town. It was however primarily an offense committed against a man's house-his dwelling-and in the night-time. Section 504 says: "The term 'building' as used in this chapter, includes a railway car, vessel, booth, tent, shop, or other erection or inclosure."

There is contained in the section of the Code one alteration in the definition of the crime, as it is made burglary to break and enter a building with intent to commit a crime, instead of, as in the old statute, with an intent to commit a larceny or felony. As section 504 does not say that the term "building" shall only include such structures as are therein named, it is argued that any thing which can possibly be regarded as a building, under the broadest and most liberal signification of that term, is included therein, or at least within the expression added at the end of the section," or other erection or inclosure." If this be sound, a most sweeping enlargement of the generally accepted idea of the nature of the crime of burglary is accomplished in a statute which has been regarded more in the light of a codification of the body of the criminal law than as materially altering and enlarging its scope and nature. We do not believe, in this instance, that any such result was contemplated by the Legislature. That section simply says that the term "building" includes a "railroad car, vessel, booth, tent, shop," etc., and leaves out the words "in which any goods, merchandise or valuable thing shall be kept for use, sale or deposit." This omission we do not regard as very material as enlarging in any way the definition of the crime, for the specific words used imply substantially the same meaning which is to be gathered from the use of the words which are omitted, and which is probably the cause of their omission. The meaning of the term "building" other than as including therein the structures specifically mentioned in the statute is still left, as we think, to be gathered precisely in the same way as it would have been if section 504 had not been passed. Taking the law in regard to burglary, from the earliest period of the common law where the crime is referred to down to the present time, we feel quite confident that not one case can be found where breaking and entering such a structure as the one in question has been held to come within that crime. We come to the belief that it is really nothing more than a grave above ground. The witness speaks of these various compartments as graves. They are intended solely for the interment of dead bodies, and the structure itself can be put to no other possible use, without altering its nature and purpose. The small room, as it is termed, in the front portion of the structure, between the outside wall and the place for the deposit of the coffins, is used for nothing. No service of a religious nature could be carried on there, and language could not be tortured into calling that place a church or a place for religious worship. If in

stead of being placed above ground, this structure had been placed in a foundation deep enough to receive it, and then used for the purpose of burying the dead, and that only, could there be any question that it was not the subject of burglary, even although sufficient of the structure were above the ground, to enable one to reach it through a door and steps? We think not; and we do not think it becomes a building within the statute in regard to burglary any more because it is placed above the ground, when its sole purpose is that it shall be used as furnishing graves for the burial of the dead. It is claimed that the words 66 or other erection or inclosure" would include it. They undoubtedly would if the widest meaning of those words is to be taken as within the meaning of the Legislature, and if whatever could, under other circumstances, and for other purposes, be called an "erection " or "inclosure" is to be regarded as the subject of burglary. We do not attach any such meaning to those words when used in this connection; and we think it quite plain that the Legislature never intended any such meaning. A farm lot, or a vacant city lot, might be inclosed with a fence, and inside that fence there would be an inclosure. Can it be supposed possible that the Legislature intended that burglary might be committed by breaking and entering such an inclosure? In one sense, and in the widest, any thing that is inclosed is an inclosure, and the thing which inclosed it would be the thing the breaking of which and entering the inclosure would be burglary. A bronze statue in a public square is an erection, and if it be of colossal size, may be broken and entered. Can any one suppose that burglary would be predicated of such an act? These are extreme cases, but they are nevertheless within the possible meaning of those terms, when such meaning is not to be arrived at and limited by an examination of the context. It is plain that some limitation must be made to the meaning of those words other than their possible capacity when standing alone. The rule which usually obtains in cases of this kind is that where general words follow specific words designating certain special things, the general words are to be limited to cases of the same general nature as those which are specified. The rule is familiar, and needs not the citation of many authorities. Re Hermance, 71 N. Y. 481; People v. Railway Co., 84 id. 565; Insurance Co. v. Hamilton, 12 App. Cas. 484. Applying a rule which is so well established, both in England and in this country, to the case in hand, we think that the phrase "other erection or inclosure" is to be interpreted as including things of a similar nature to those already described by the specific words found in the statute. If this be so, then under the phrase in question, the erection or inclosure included in burglary in the third degree was to be of that character which mankind used for the purpose of sheltering property, or for the purpose of transporting the same, or the purpose of trade or commercial intercourse. Jan. 17, 1888. People v. Richards. Opinion by Peckham, J. FRAUD Plaintiff's son, about to abscond, executed to him a conveyance to secure liabilities incurred by his father for him. Defendant, a justice of the peace, who had often acted as plaintiff's conveyancer, was employed in the transaction. At the time, plaintiff, a farmer, was nearly seventy years old. Immediately thereafter defendant, by continued threats to have the conveyance set aside as in fraud of creditors, induced plaintiff, who was distressed by his son's failure, to execute a conveyance securing defendants, his son's other creditors. Plaintiff was not personally liable to pay such creditors, and the value of the property conveyed to him by his son was less than his actual liabilities incurred in his behalf. Held, that the con

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CONSTRUCTIVE

UNDUE INFLUENCE.