whether the person is on board voluntarily or involuntarily ;if while on board he is entitled to the protection of its flag, he is also bound by the obligations imposed by the law governing that ship. The utmost that can be said as regards the theft in this case is that the bonds may have been stolen by some one who came on board the ship casually; it may be a foreigner who took them off the vessel at Rotterdam. Suppose the thief had not been able to get off the ship and had been captured and brought here, could he have been tried here? In my opinion he could, for if while he was on board the ship he was entitled to the protection of the British flag, he was at the same time equally liable to the disabilities of the criminal law of this country. It appears to me that the evidence shows that the bonds were stolen within the jurisdiction of the English law, and I am of opinion that the prisoners therefore were triable at the Central Criminal Court for receiving them, well knowing them to have been stolen. I think that the conviction should be affirmed.

POLLOCK, B. I am of opinion that the conviction should be affirmed. The prisoners were convicted of the offense of feloniously receiving stolen goods, and

I think therefore that the thief in this case, if he had
been captured, might have been tried at the Old
Bailey.
Conviction affirmed.

WILLIAMS, J. I concur.

VALIDITY OF STATE STATUTE FORBIDDING INTERMARRIAGE OF RACES.

SUPREME COURT OF THE UNITED STATES, JAN. 29, 1883.

PACE V. STATE OF ALABAMA.

The statute of Alabama provides that "if any man and woman live together in adultery and fornication, each of them" shall be liable to a specified punishment. Another statute provides a greater punishment to each one "if any white person and any negro intermarry or live in adultery or fornication with each other." Held, that the latter statute does not discriminate against the negro, and is not invalid under the fourteenth amendment to the Federal Constitution.

N error to the Supreme Court of Alabama. Section 4184 of the Code of Alabama provides that "if any many and woman live together in adultery or fornication, each of them must, on the first conviction of the offense, be fined not less than one hundred dollars, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months. On the second conviction for the offense with the same person, the offender must be fined not less than three hundred dollars, and may be im

LOPES, J. I think also that the conviction should be affirmed. As to the question of the thief not being one of the crew of the vessel, I do not think that that matters. The thief was on board au English ship at the time the bonds were stolen, and therefore came within the English law.

STEPHEN, J. Since the time of Richard II the jurisdiction of the admiralty has been extended to waters where great ships go. There are many statutes which gave jurisdiction to particular courts in particular cases. But the jurisdiction of the admiralty itself has never been defined in any other way than as laid down in the reported cases. The case of Rex v. Jemot, bears on the question of local jurisdiction, and decided that the admiralty had jurisdiction over a theft on board an English vessel in a Spanish port, and shows that the jurisdiction of the admiral was not confined to the waters outside creeks, ports, harbors, etc. Regina v. Allen, sup., is to the same effect. Reg. v. Anderson, sup. goes further and affects both the questions of place and person, the place being in a foreign river, and the person being an American subject, who had committed manslaughter on board an English ship. No doubt the prisoner was one of the crew of that ship, but it seems to me that we cannot lay down the rule in narrower terms than that the jurisdiction of the admiralty extends to all tidal waters where great ships go, and to all persons on board of them whether foreigners or not. There is no reason which should induce us to lay down restrictions to the extent which has been contended by the prisoners' counsel, that the admiralty jurisdiction extends only when the British flag is flying, and not when it is lowered. It seems to me that the protection of the British flag and the English jurisdiction are co-extensive, and that protection and obedience must co-exist.

for the county for not more than twelve months; and for a third or any subsequent conviction with the same person, must be imprisoned in the penitentiary or sentenced to hard labor for the county for two years."

Section 4189 of the same Code declares that "if any white person and any negro, or the descendant of any negro to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must on conviction be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years."

In November, 1881, the plaintiff in error, Tony Pace, a negro man, and Mary J. Cox, a white woman, were indicted under section 4189, in a Circuit Court of Alabama, for living together in a state of adultery or fornication, and were tried, convicted, and sentenced, each to two years imprisonment in the State penitentiary. On appeal to the Supreme Court of the State the judgment was affirmed, and he brought the case here on a writ of error, insisting that the act under which he was indicted and convicted is in conflict with the concluding clause of the first section of the fourteenth amendment of the Constitution, which declares that no State shall "deny to any person the equal protection of the laws."

FIELD, J. The counsel of the plaintiff in error compares sections 4184 and 4189 of the Code of Alabama, and assuming that the latter relates to the same offense as the former, and prescribes a greater punishment for it, because one of the parties is a negro, or of negro descent, claims that a discrimination is made against the colored person in the punishment designated, which conflicts with the clause of the fourteenth amendment prohibiting a State from denying to any person within its jurisdiction the equal protection of the laws.

The counsel is undoubtedly correct in his view of the purpose of the clause of the amendment in ques

tion, that it was to prevent hostile and discriminating State legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected for the same offense to any greater or different punishment. Such was the view of Congress in the re-enactment of the Civil Rights Act, after the adoption of the amendment. That act, after providing that all persons within the jurisdiction of the United States shall have the same right in every State and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, declares that they shall be subject "to like punishment, pains, penalties, taxes, licenses, and exactions of every kind and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding." (16 Stats., ch. 114, § 16.)

The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. The two sections of the Code cited are entirely consistent. The one prescribes generally a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. There is in either section any discrimination against either race. Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.

APPEAL -JURISDICTION DEPENDENT ON AMOUNT. -The cashier of a National bank was under a law of Ohio called upon by a country auditor to appear and testify concerning the condition of the bank,in order to enable such auditor to perfect the county tax lists. Thereupon the bank filed a bill in equity in the Federal Circuit Court, to enjoin the auditor, alleging for cause that such a proceeding on his part would unlawfully expose its business affairs, lessen public confidence in it as a depository of moneys, diminish its deposits, and greatly impair the value of its franchises. The Circuit Court dismissed the bill. Held, that an appeal would not lie to this court. In Barry v. Mercein, 5 How. 120, it was decided that to give this court jurisdiction in cases dependent upon the amount in controversy, "the matter in dispute must be money or some right, the value of which in money can be calculated and ascertained." To the same effect are Pratt v. Fitzhugh, 1 Black. 273; De Krafft v. Barney, 2 id. 714; Potts v. Chumasero, 92 U. S. 361. Appeal from U. S. Circ. Ct., N. D. Ohio, dismissed. First National

Bank of Youngstown v. Hughes. Opinion by Waite, C. J.

[Decided Jan. 8, 1883].

CONSTITUTIOLAL LAW TAXATION FOR PRIVATE PURPOSE INVALID - MUNICIPAL BONDS UNDER VOID LEGISLATIVE ACT- ESTOPPEL RESCISSION OF CON

TRACT. (1) There was no provision in the Constitution of West Virginia in force in 1868, authorizing the levying of taxes to be used to aid private persons in conducting a private manufacturing business. Held, that an act of the legislature of that State passed dur ing that year, authorizing the city of Parkersburg to issue its bonds for the purpose of lending the same to persous engaged in manufacturing, was invalid, and the bonds issued under it are void, as against the city. (2) As the consideration for bonds to the amount of $20,000, issued by the city to M., under said act he executed to J., as trustee, a deed conveying to J. certain real estate and personal property, in trust to secure the payment by M. to the city of semi-annual interest on $20,000, and of annual installments on the principal, with a power of sale in case of default. The bonds were payable to M. or order. He indorsed them in blank and sold them to the plaintiffs, who bought them for value in good faith. M. paid to the city one installment of interest. The city made five payments of interest on the bonds. It took into its possession the property and refused to make further payments of interest. In a suit in equity brought by the holders of the bonds against the city, held, that the bonds were void because the necessary amount to pay the principal and interest of them was to be raised by taxation, and such taxation was not taxation for a public object, and the Constitution of the State did not authorize such taxation, and the Legislature had no power to pass said act; that the payment of interest on the bonds by the city did not, nor did the acts of its officers or agents in dealing with the property, operate by way of estoppel or ratification, to make the city liable on the bonds, there having been a total want of power to issue them originally (Loan Association v. Topeka, 20 Wall. 655), but that M. had a right to reclaim the property and to call on the city to account for it in disaffirmance of the illegal contract, the transaction being merely malum prohibitum, and the city being the principal offender. Such right

passed to the plaintiffs as an incident to the bonds. White v. Franklin Bank, 22 Pick. 81: Morville v. American Tract Society, 123 Mass. 129; Davis v. Old Colony R. Co., 131 id. 258. Decree of U. S. Circ. Ct., West Virginia, reversed. City of Parkersburg v. Brown. Opinion by Blatchford, J. [Decided Jan. 8, 1883.]

EVIDENCE INSTRUMENT ACKNOWLEDGED SUMPTION-CONSIDERATION PRACTICE PARTITION

PRE

- (1)

-

EQUITABLE DECREE- INNOCENT PURCHASER. When an instrument concerning real estate is acknowledged or proved so as to be admitted to record, and read in evidence, the burden of proof is on the party denying its execution, and the fact that a person whose name is signed as a witness to its execution is alive and is not called to testify leaves a strong inference that its execution cannot be disproved. (2) When a man who has married a woman and become the father of two children by her, makes to her an assignment of a mortgage, after she discovers that he had a wife living from whom he had no divorce, the assignment is a. meritorious act and not impeachable for immorality of consideration. (3) The difference between a judgment and writ of partition at common law, and a partition by decree in chancery as it affects the title, that the former operates by way of delivery of possession and estoppel, while in the latter the transfer of title can be effected only by the execution of conveyances

between the parties, which may be decreed by the court and compelled by attachment. In some of the States of the Union the chancery courts have been authorized to make such conveyances by master commissioners, or it has been enacted that the decree itself shall operate as such conveyance. But where in a partition in equity no such decree for conveyance has been made, and no such statute exists, the proceeding is incomplete, and while it may be effectual as a division and allottment of the property, no title passes, and that remains as it was before. See Whaley v. Dawson, 2 Sch. & L. 366; Attorney General v. Hamilton, 1 Madd. 214; Cart wright v. Pultney, 2 Atk. 380. Where such a decree undertook to declare the nature of the estate of each co-tenant, and does it erroneously and where deeds have been made three days after,inter partes, which do not follow this erroneous decree, and where twelve years afterward a bill in chancery is brought to perfect the partition by compelling conveyances in accordance with the erroneous declaration of the orginal decree, it is open to the court on this new bill to inquire into the equities of the parties arising out of the surrounding circumstances, and to refuse to decree conveyances in accord with the title as found by the former decree, when it is inequitable to do so. If such former decree was made by consent of the party against whom the error was committed, and without any valuable consideration, and no one is interested but volunteers, or those who have purchased with full notice of the facts, no such decree for conveyance will be made, but the parties will be left to rely for their title on the conveyances which were interchangeably made to each other in accordance with the allotments to the parties. (4) No person can be an innocent purchaser for value under the first decree who bought while the suit to enforce it was pending, and who was attorney for the plaintiff in that suit throughout and whose purchase was from such plaintiff. Decree of U. S. Circ. Ct., N. D., Illinois, affirmed. Gay v. Parport. Miller, J.

[Decided Jan. 8, 1883.]

Opinion by

UNITED STATES CIRCUIT COURT ABSTRACT.*

CONSTITUTIONAL LAW-STATE LICENSE TAX — EXPRESS COMPANY.-A license or privilege tax imposed by a State on the business of an express company engaged solely in commerce between the States, where there is no intention by this means to obstruct or prohibit the business, is not unconstitutional. Railroad Co. v. Maryland, 21 Wall. 456; Osborn v. Mobile, 16 id. 479; U. S. Circ. Ct., Sept. 9, 1882. Memphis & Little Rock Railroad Co. v. Nolan. Opinion by Hammoud, D. J.

- INJUNCTION

RESTRAINING COLLEC

LIMITATION TION OF DEBT.- A debtor who procures and keeps in force an injuction against the collection of a debt which he ought to pay, until it is barred at law by the statute of limitations, will not be allowed to avail himself of the bar in a court of equity. Where under the State statute the purchaser at a tax sale can bring no suit for possession after the lapse of five years from the time of the sale, nor can the owner after that time question the validity of the sale, and such purchaser has been prevented from asserting his legal rights in a court of law by unfounded and protracted litigation until the statute has run against him, he is not remediless in a court of equity. See Williamson v Flowers, 37 Miss. 579; Barrett v. Love, 48 Iowa, 108; U. S. Circ. Ct., Indiana, July, 1882. Union Mutual * Appearing in 14 Federal Reporter.

Life Insurance Co. of Maine v. Dice. Opinion by Gresham, D. J.

MUNICIPAL BONDS-INVALID BONDS RATIFICATION INNOCENT PURCHASER.- Where a town had no power to issue bonds in aid of a railroad extension, there can be no protection of the holder of such bonds as an innocent purchaser, and no ratification of a power that never existed can aid him, although the bonds are regular on their face and recite that they issued "under the provisions" of an act of the legislature and specify the act, and although he took them otherwise bona fide. East Oakland v. Skinner, 94 U. S. 255; South Ottawa v. Perkins, id. 260; McClare v. Oxford, id. 429; Ogden v· Daviess Co., 102 id. 634; Buchanan v. Litchfield, id. 278; U. S. Circ. Ct., N. D. New York, Sept. 6, 1882. Thomas v. Town of Lansing. Opinion by Blatchford, J.

are

KANSAS SUPREME COURT ABSTRACT. JULY TERM, 1882.*

AND VALID IN PART.

CONSTITUTIONAL LAW — STATUTE INVALID IN PART While it is undoubtedly true that a statute may be constitutional in one part and unconstitutional in another, yet this rule obtains only where the two parts are separate and independent; and where they are so related that the latter is a condition of, a compensation for, or an inducement to the former, or where it is obvious that the legislature, having respect to opposing rights and interests, would not have enacted one but for the other, then the unconstitutionality of the latter avoids the entire statute. Warren v. Mayor of Boston, 2 Gray, 84; Slauson v. City of Racine, 13 Wis.; Meshmeier v. State, 11 Md. 482; Lathrop v. Mills, 19 Cal. 529; Reed v. Omnibus R. Co., 33 Cal. 212; Campau v. City of Detroit, 14 Mich. 275; State v. Wheeler, 25 Con. 290; State v. Dousman, 28 Wis. 541. Central Branch Union Pacific Railroad Co. v. Atchison, Topeka & Santa Fe Railroad Co. Opinion by Brewer, J.

LIBEL DEFENSE

CHARGE OF LAWYER ABANDON“

ING CLIENT. - It is not necessarily a defense to an action of libel, that every act charged in the alleged libellous article might be done without the violation of any law. It is enough if the acts charged are such as are calculated to render the party in the judgment of his fellows infamous, odious, or ridiculous. While a lawyer may sometimes be justified in abandoning the cause of his client in the midst of a litigation, yet to do so unnecessarily and wantonly, and under such circumstances as to cause large additional expense to the client, and especially when the litigation is brought on by following his advice, is unprofessional and dishonorable; and an article charging a lawyer with such conduct is prima facie libellous. See White v. Nichols, 3 How. 266; Curtis v. Mussey, 6 Gray, 261; Russell v. Anthony, 21 Kan. 450. Hetherington v. Sterry. Opinion by Brewer, J.

PRACTICE PROPERTY IN CUSTODIA LEGIS.-Where property is held by an individual under a bond given in judicial proceedings for the re-delivery of the specific property, it is to be deemed in custodia legis the same as if it had continued in the possession of the officer. C., a merchant, sold and delivered a stock of goods to P. Thereafter A., a creditor of C., claiming that the sale was fraudulent, commenced an action against C., issued an order of attachment and levied upon the stock of goods. P. replevied from the sheriff, gave bond as required by law and took possession of the stock. While this replevin action was pending, B., another creditor of C., commenced an

* Appearing in 28 Kansas Reports.

action against C. and P. jointly, alleging that P., as a condition of the purchase from C., promised in writing to pay C.'s debt to B. He also issued an order of attachment and levied upon the same stock of goods as the property of P. P. thereafter moved to discharge the property from this attachment, on the ground that the goods were in custodia legis, being held by virtue of said replevin bond. The district court sustained the motion, and discharged the goods. Held, no error. See Acker v. White, 25 Wend. 614; Selleck v. Phelps, 11 Wis. 380; Hogan v. Lucas, 10 Pet. 400; Rhiner v. Phelps, 3 Gilm. 455; Roberts v. Dunn, 71 Ill. 46. Also, Rives v. Wilbourne, 6 Ala. 848; Kane v. Pilcher, 7 B. Mon. 651; Tyler v. Safford, 24 Kans. 580. Mc Kinney v. Purcell. Opinion by Brewer, J.

NEW HAMPSHIRE SUPREME COURT

-

ABSTRACT.*

CONTRACT RESCISSION OF.--A party seeking to rescind a contract must ordinarily restore or offer to restore whatever he has received under it; and in case of the refusal of the wrong-doer to receive it, an offer to restore, properly made, is equivalent to actual restoration. Concord Bank v. Gregg, 14 N. H. 331; Sanborn v. Batchelder, 51 id. 426; Luey v. Bundy, 9 id. 298, 303; Manahan v. Noyes, 52 id. 232, 237; Moody v. Drown, 58 id. 45. Noyes v. Patrick. Opinion by Clark, J.

EXEMPTION

HOMESTEAD - MATERIALS TO REPAIR

NOT EXEMPT.-Materials designed for rebuilding or repairing a homestead dwelling are not included in the class of chattels protected from attachment by statute, nor are they in terms covered by the homestead act. If the lumber was exempt from attachment, it was because it had become a part of the homestead Things movable and personal in their nature, when fitted and applied to use as a part of the realty, and necessary to its beneficial enjoyment, may be regarded as incident to it and become an essential part of it. But it is by adaptation and use that chattels acquire this character. A mere unexecuted intention of future use is not sufficient to impart it. Burnside v. Twitchell, 43 N. H. 390; Wadleigh v. Janvrin, 41 id. 503, 512; Manchester Mills v. Rundlett, 23 id. 271; Woodman v. Pease, 17 id. 282, 284. The character of the lumber was not changed by being placed on the homestead lot. There was nothing to designate it as exempt from attachment, or to distinguish it from ordinary lumber suitable for building purposes. It was not affixed to the soil. It was neither in form nor position as it was designed to be permanently used. It was intended, at some future time, to be made a part of the homestead dwelling, but until it became such it was not within the protection of the homestead law. Chattels are not exempt from attachment and levy under the provisions of the homestead law unless they have become a part of the homestead. The case Krueger v. Pierce, 37 Wis. 269, dissented from. Carkin v. Babbitt. Opinion by Clark, J.

FRAUD FRAUDULENT SALE OF CHATTEL.-The title of a vendee of a chattel, in a sale void as to creditors of the vendor for want of a change of possession, is invalid against a subsequent mortgage of the chattel by the vendor to one having no notice of the sale. A mortgagee is a creditor of the mortgagor, and to the extent of his claim a purchaser, and as such is entitled to the same protection from secret equities and trusts, of which he had no notice, as any other bona fide purchaser. Plaisted v. Holmes. Opinion by Clark, J.

*To appear in New Hampshire Reports.

NEGLIGENCE-INJURY TO PLAINTIFF'S CHILDDAMAGES.-In case for loss of service and expenses incurred in caring for and nursing plaintiff's child. injured by defendant's horse, plaintiff may recover for his own time spent in taking care of the child. Time spent by plaintiff stands on the same ground as money paid by him for medical attendance or nursing. Connell v. Putnam. Opinion by Stanley, J.

TAXATION ASSESSMENT OF LAND TO ONE NOT OWNER - REMEDY.-The fact that a tax on land is assessed to one who does not own it, affords no sufficient reason why the tax should be abated on the owner's appeal, it not being shown that the tax is ex cessive. Justice requires that he should pay his share of the public taxes. He will therefore be left to his choice, to pay the tax, or take his chances of losing his title or having a cloud thrown over it by a sale for non-payment. State Railroad Tax Cases, 92 U. S. 575; Du Page County v. Jenks, 65 Ill. 275; Ottawa Glass Co. v. McCaleb, 81 id. 556; Albany & Boston Mining Co. v. Auditor-general, 37 Mich. 391; Cedar Rapids, etc., R. Co. v. Carroll Co., 41 Iowa, 153: Morrison v. Hershire, 32 id. 271; Parmley v. Railroad Co., 3 Dill. 25; Harrison v. Haas, 25 Ind. 281; Twombly v. Kimbrough, 24 Ark. 459; Adams v. Castle, 30 Conn. 404; Lawrence v. Killam, 11 Kans. 499. Carpenter v. Town of Dalton. Opinion by Smith, J.

NEBRASKA SUPREME COURT ABSTRACT.

POSSESSION

-

ERRONEOUS BY ADJOINING

ADVERSE ESTOPPEL BOUNDARY LINE AGREED UPON OWNERS. In 1864 the owner of a north half section of land sold and conveyed to T. the north-east quarter section, and to H. the north-west quarter section of such half section. H. and T. went into possession and caused a division line to be run equidistant between the east and west lines of the half section, fixed monuments and occupied up to the line, building division fences thereon. Held, that after peaceable possession of the parties more than ten years (the time for adverse possession then to be established), the line thus established would not be disturbed although it was not in accordance with the true quarter section line, and did not divide the half section into equal parts. Whether owners of adjoinining lands having agreed upon a dividing line between them and built fences upon the line agreed upon are estopped from changing the line if afterward it is found not to conform to the true line, is a question upon which the courts are somewhat at variance. Thus in Laverty v. Moore, 32 Barb. 347, where two adjoining owners of land covered with water which they were about to fill agreed upon a line between them, and one of them thereupon filled his part to the line agreed upon, it was held that the other was estopped to deny that the line agreed upon was the true one. And in Burdick v. Heivley, 23 Iowa, 515, where the parties by mistake had occupied up to a dividing fence on each side for the period of limitation, the bar of the statute was held to be complete. In the case of Yetzer v. Thomun, 17 Ohio St. 130, it was held that where one of two proprietors, respectively, of adjoining lands holds actual, continuous, notorious and exclusive possession up to a certain line, though not originally the true one for the full period of 21 years, the statute of limitations applies in his favor and against the adjoining proprietor, although such mistake may have grown out of the mutual mistake of the parties as to the true line between them. In McAfferty v. Conover, 7 Ohio St. 99, it was held that where adjoining proprietors under a mutual mistake occupy up to and acquiesce in