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puts its decision upon a question of law, we cannot say it would not have reached the same result had it exercised its discretion and entertained a different opinion on the question of law. The prisoner was entitled to a review of the facts and the exercise of the discretionary power of the court, which he might lose if the case should be disposed of solely on the question of law. The case should therefore be remitted to the General Term, to consider the questions of fact and exercise its discretion. Feb. 1, 1887. People v. Stevens. Opinion per Curiam.

EVIDENCE- PERSONAL TRANSACTIONS -CODE, § 829 POWER OF ATTORNEY TRANSCRIPT OF CLERK'S RECORD. (1) A judgment should not be reversed for an error in admitting evidence which is so far immaterial that if stricken out, it could in no way affect the result. (2) A transcript of a power of attorney, authorizing the conveyance of real estate, duly recorded in the proper clerk's office, may be received in evidence with the same effect as if the original was produced. (3) Plaintiff was asked this question: "What was done by you, excepting, of course, personal transactions or communication with the deceased, defendant's testator, from the time you first commenced your labor, for which the action was brought, down to his death?" This was objected to as incompetent, and calling for transactions with deceased. The objection was overruled, and the court stated that what he intended to rule was that the plaintiff could not testify to an employment or request by the deceased, but where that was proved by other evidence, the party might describe simply the things which he did, provided such acts could have been done in the absence of deceased, and without his immediate or personal participation. Held, no error. Jan. 18, 1887. Lerche v. Brasher. Opinion by Finch, J.

EXECUTOR AND ADMINISTRATOR ACCOUNTING DEALINGS WITH TESTATOR GIFT OF OWN NOTE

STATUTE LIMITATIONS—INDORSEMENT OF PAYMENT CODE, § 829.- (1) An executor cannot be charged with the amount of a note made by him, payable to the order of his testator, which has been surrendered to him by the testator during his life-time and afterward destroyed by the executor, when there is no evidence that at the time the gift was made the testator was insolvent, or that there was actual intent to defraud creditors. (2) An attorney for the testator in the action against one S. received in New York $6,500 on account of that action, at half-past nine A. M., October, 10, 1881. He learnt that the testator was at the point of death. He sent on that day his check for $6,000 — deducting $500, his fee to K., at his office in New York, K. having been for many years the agent of the testator in his business. The attorney told the person in charge of the office to telegraph K. that the money was there. The check was on a New York bank and to the order of A. B. Kellogg. The deceased died that day. The check was paid October twelfth. On the tenth of October there was an unsettled account between the deceased and K., on which there was a large balance owing to K.; K. credited this check on his account and charged himself with the balance after such credit. The surrogate having allowed the credit as claimed by the executor it was insisted that the executor should have been charged with the $6,000 as if he had actually received the check after the testator's death.

Held, that appellants, not having complied with the provisions of section 2545, Code of Civil Procedure, were not in a position to claim that any error had been made as to said item. Held, further, that when the money was drawn upon the check, the payment related back to the delivery of the check. K. did not draw the money as executor but as payee of the check, and could not be compelled to account for the check

except by first applying it upon what the testator owed him in current account. (3) At the time of the death of the testator his widow held a note for $5,000 against him, given for borrowed money, dated March 17, 1870, upon which there were indorsed the following payments: $350 March 17, 1873; $350 March 17, 1874; $350 March 17, 1875: $300 March 17, 1877, and $200 December 8, 1880. It was proved that the indorsements were made by the widow at their dates. The note had been presented to the executor as a claim before the accounting and admitted by him, and he had made payments upon it. The objection is now made, by some of the appellants, that the note was barred by the statute of limitations and that the surrogate erred in ordering the executor to pay it. To this there are several answers. The only objection filed to this note before the surrogate was that it had been paid, and the statute of limitations does not appear to have been mentioned during the trial. The objection that the note was barred should not, therefore, prevail here. The executor had admitted the claim upon the note, and in doing that he acted for and represented all the persons interested in the estate. The admission implied that the note had not been paid and that by payments made thereon it had been kept in life, and so upon the admission alone, in the absence of countervailing evidence, fraud or collusion, the surrogate was authorized to find. But proof that the indorsements were made at their dates was sufficient to authorize the surrogate to find, and required him in the absence of conflicting evidence to find, that the note had been kept in life by payments actually made. The indorsements were all made while the note was in life and when it was against the interest of the holder to make them, unless true. It matters not that the last two payments were made after the lapse of six years from the date and maturity of the note. It is the fact and that alone that it was against the interest of the holder to make such indorsements that makes them prima facie evidence of payments. Roseboom v. Billington, 17 Johns. 182; Risley v. Wightman, 13 Hun, 163; Hulbert v. Nichol, 20 id. 454. It is claimed on behalf of the executor that this evidence as to the payment of $590 to the testator was improperly excluded and that he was thus erroneously deprived of a credit for that sum. The payment was a personal transaction with the testator and hence, under section 829 of the Code, he was incompetent to prove it. We cannot be certain from an examination of all the evidence that the executor, by his previous examination on behalf of the contestants, had been rendered competent to testify as to the payment, and in view of the small difference the allowance of this credit would make in the final result, we are constrained to hold that the surrogate did not err in reference thereto. Jan. 18, 1887. Matter of Kellogg as Executor. Opinion by Earl, J.

NEGLIGENCE-FAILURE TO GIVE SIGNALS- RAILWAY CROSSING-LOOK AND LISTEN — QUESTION FOR JURY.- - Failure to give the statutory signals of the approach of a railway train is negligence per se. It is the duty of one travelling on a street crossed by a railway to exercise care and diligence to discover whether a train is about to pass, and failing to do so, or if seeing an approaching train, an attempt is made to cross the track, the party is guilty of contributory negligence, which bars a recovery. Whether a complaining party is within the rule of exclusion, and whether conduct in a given case is consistent with reasonable and ordinary care, is under all the circumstances a question for the jury. By the sudden appearance of the locomotive she, plaintiff's intestate, was called upon to determine whether she should stand still or go north or south, north to retreat, or south to get over the tracks. If as is assumed she saw the locomotive, it

may also be inferred that she was ignorant as to which track it was upon. The configuration of the tracks, the wind driving before the locomotive its steam aud smoke, might well tend to disturb her judgment; the noise of the mills, the fracas with the woman whose course was interrupted, the train coming from the east, even the very number of the tracks, might add to her confusion. Determine she must, and that instantly, between these hazards. It cannot be said as matter of law what a prudent and reasonable person would have done in circumstances similar to those in which the intestate was placed. For aught she could see there was possible danger in each direction, and her present position one of jeopardy. A jury alone can determine what was her duty and how far it was performed. These things were to be ascertained as facts, and the principle embodied in the maxim, "Ad questiones facti non respondent judices," has full application. Wasmer v. Del., etc., R. Co., 80 N. Y. 218; Beiseigel v. Same, 34 id. 622; Greany v. Long Island R. Co., 101 | id. 419. We think the court erred in taking the case from the jury. Jan. 18, 1887. Sherry v. N. Y. C. & H. R. R. Co. Opinion by Danforth, J.

RAILROAD-NEW YORK CABLE COMPANY.-Section 16 of the General Surface Act, Laws 1884, ch. 252, construed in connection with section 18 of the same act, did not abrogate the right and power of the petitioner' if in other respects legally organized to proceed to obtain the requisite consents, and when obtained to construct the railways in conformity to their articles of association. The Rapid Transit Act, Laws 1875, ch. 606, did, before the passage of the general surface act, authorize the organization of companies to construct street railways on the surface, to be operated by any power other than animal. The objection, that the organization of the plaintiff is defective on the ground that the commissioners failed to fix the time of the completion of the railways, is not well taken. The objection is well taken that the articles of association prepared by the commissioners fail to comply with section 7 of the rapid transit act, in that they do not provide for the release and forfeiture to the supervisors of the county, of all the rights and franchises acquired by the company, in case of its failure to complete its railways within the prescribed time. The commissioners have failed to substantially comply with the requirement of section 5 of the act, to decide upon the plan for the construction of the railways and other appliances specified in that section, and such compliance was essential to their valid organization. Dec. 17, 1887. Matter of the New York Cable Co. v. Mayor, etc., of New York. Opinion by Rapallo, J.

TRESPASS HIGHWAY REMOVING GRAVEL TO GRADE. A contractor, in building a public road, dug pits to a depth of six feet below the established grade, within the limits of the road in front of the plaintiff's premises, in order to get gravel with which to perform his contract, without paying for it. Held, that the taking of the gravel was not an "incident" to the construction of the road, and that defendant was liable. The courts have held that where to reach and prepare the surface of the road in accordance with its grade line, superincumbent material is necessarily removed, it may be used upon the other parts of the road and on premises of other land-owners, and that where there has been no negligence in construction, consequential injuries necessarily resulting cannot be recovered. It was said in Pumpelly v. Green Bay Co., 13 Wall. (U. S.) 181, that this class of decisions "have gone to the utmost limit of sound judicial construction," and "in some cases beyond it." The observation was just. To take merely an easement in land, leaving the fee in the owner, and then by advancing stages of judicial endurance sap the value and utility of the fee by adding its benefits to the easement, is

scarcely consistent with a policy which is, at the same time sedulously protecting the rights of abutters having no fee in the street whatever, to their easements of light and air and access. It is perfectly well settled that in a case like the present the public acquire only a right of way with the powers and privileges incident to that right. Jackson v. Hathaway, 15 Johns. 452, and that the owner of the fee retains his exclusive right in all mines, quarries, springs of water, timber and earth for all purposes not incompatible with the right of way. The question in every case turns upon what is "incident to the construction or maintenance of the right of way. In Higgins v. Reynolds, 31 N. Y. 156, stone was taken from the limits of a highway and its value recovered. In Niagara Falls Susp. Br. Co. v. Bachman, 4 Laus. 423, it was said that gravel might be removed to other parts of the road, but it is quite apparent that this was gravel necessary to be removed in order to get the highway to its grade. In Fisher v. City of Rochester, 6 Lans. 225, the work done was the construction of a sewer and the contractor used stones excavated from within the street limits. It was held that they belonged to the land-owner. In Kenney v. Williams, 14 Barb. 631, the owner of the fee took away sand from within the limits of the highway, but without injury to the public right of travel, and his action was sustained. In Denniston v. Clark, 125 Mass. 216, the gravel removed was a bank above the grade necessary to be cut through and such as afterward from natural causes fell down from the side slopes and filled the ditches which it became necessary again to open. These are the cases cited by the General Term. None of them sustains the conclusion reached. Those which are not adverse justify only the taking of earth or soil which the process of construction or repair requires, and necessarily compels, to be removed. I have found no case in this State which goes further and am unwilling to pass beyond those limits. Here the pits were dug to be filled again. Concededly, the process was to take from the land-owner valuable material and substitute a poorer quality. Digging the pits was not only no incident necessarily or naturally growing out of construction but a deliberate destruction of the grade when reached and which did not need to be disturbed, but on the contrary compelled replacement and repair of the mischief done. Of the two cases cited from other States one goes no further than we here concede to be just. City of New Haven v. Sargent, 38 Conn. 50. The court is careful to speak of the soil taken as that "which must necessarily be removed by some one in grading the street." The other, Bissell v. Collins, 38 Mich. 277, seems to go further, because the "major portion of the gravel was taken from below the grade of the street. The report of the case furnishes no details, and it may be that the gravel removed was loosened and made superfluous at the point of removal, in the ordinary process of grading. If it goes further we do not think its doctrine should be followed. Cases which hold that the fee in a highway, devoted to the perpetual easement of the public use, is of only nominal value, need not be considered. If such value is in any case a question of law which the court may determine, the smallness of the value does not justify a seizure of the fee without due and lawful authority or its destruction by indirect rulings. No invasion of the property rights of the citizen can safely be deemed trifling. Jan. 18, 1887. Robert v. Sadler. Opinion by Finch, J.

UNITED STATES SUPREME COURT ABSTRACT.

ARMY AND NAVY-PAY OF NAVAL OFFICER-SEA SERVICE AND SHORE SERVICE-SECRETARY OF THE NAVY,

-(1) Section 1571 of the Revised Statutes-which is a reproduction of the third section of an act of June 1, 1860, increasing and regulating the pay of the navy (12 St. 27)-provides that "no service shall be regarded as sea service except such as shall be performed at sea, under orders of a department, and in vessels employed by authority of law." It is not disputed that the services of Symonds were performed under the orders of the secretary of the navy, and in a vessel employed by authority of law. If they were performed "at sea his compensation therefor is absolutely fixed by section 1556. Does the statute confer upon the secretary of the uavy, acting alone or by direction of the president, the power to declare a particular service to be shore service, if in fact it was performed by the officer "when at sea," under the orders of the department, and on a vessel employed by authority of law? By the navy regulations of 1876, it was declared that "duty on board a sea-going vessel of the navy in commission, on board a practice ship at sea, or on board a coast survey vessel, actually employed at sea, will be regarded by the department as sea service." Page 85. Assuming that the first clause of that regulation contemplates services at sea under the orders of the department, in a vessel employed with authority of law, it is clear that all the different kinds of service described therein are services performed at sea, in the meaning of sec. 1556. But they are to be deemed such, not because the secretary of the navy has announced that the department will so regard them, but because they are in fact services performed at sea, and not on shore. If the regulations of 1876 had not reoognized services "on board a practice ship at sea as sea services, the argument in behalf of the government would imply that they could not be regarded by the courts, or by the proper accounting officers as sea services; in other words, that the secretary of the navy could fix, by order, and conclusively, what was and what was not sea service. But Congress certainly did not intend to confer authority upon the secretary of the navy to diminish an officer's compensation, as established by law, by declaring that to be shore service which was in fact sea service, or to increase his compensation by declaring that to be sea service which was in fact shore servise. The authority of the secretary to issue orders, rcgulations and instructious, with the approval of the president, in reference to matters connected with the naval establish

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ment, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the navy. He may, with the approval of the president, establish regulations in execution of, or supplementary to, but not in conflict with the statutes defining his powers, or conferring rights upon others. The contrary has never been held by this court.

What we

now say is entirely consistent with Gratiot v. U. S., 4 How. 80, and Ex parte Reed, 100 U. S. 13, upon which the government relies. Referring, in the first case, to certain army regulations, and in the other to cer. tain navy regulations, which had been approved by Congress, the court observed that they had the force of law. See also Smith v. Whitney, 116 U. S. 181; S. C., 6 Sup. Ct. Rep. 570. In neither case however was it held that such regulations, when in conflict with the acts of Congress, could be upheld. If the services of Symonds were, in the meaning of the statute, performed "at sea,' " his right to the compensation established by law for sea service is as absolute as is the right of any other officer to his salary as established by law. The same observations may be made in reference to the order of the secretary of the navy of July 7, 1882. which-without modifying the previous order that Symonds should perform the duties of executive officer of the New Hampshire-declared that that ship

would not be considered as in commission for sea service after August 1, 1882. It does not appear that the secretary had any purpose, by his order, to affect the pay of the officers of the ship as fixed by the statute. Other reasons doubtless suggested the propriety or necessity of its being issued. But this order is relied upon here as depriving Symonds of the right to sea pay after the date last named. For the reasons stated, that order could not convert the services of Symonds from sea services into shore services, if they were in fact performed when "at sea." (2) We concur in the conclusion reached by the Court of Claims, namely, that the sea pay given in section 1556 may be earned by services performed under the orders of the navy department in a vessel employed with authority of law in active service in bays, inlets, roadsteads or other arms of the sea, under the general restrictions, regulations and requirements that are incident or peculiar to service on the high sea. It is of no consequence in this case that the New Hampshire was not, during the period in question, in such condition that she could be safely taken out to sea beyond the main-land. was a training ship, anchored in Narragansett bay during the whole time covered by the claim of appellee, and was subject to such regulations as would have been enforced had she been put in order and used for purposes of cruising or as a practice ship at sea. Within the meaning of the law, Symonds, when performing his duty as executive officer of the New Hampshire, was "at sea. Jan. 10, 1887. United States v. Symonds. Opinion by Harlan, J.

She

JURISDICTION-OFFENSE COMMITTED ON FOREIGN VESSEL TREATIES.-Article 11 of the convention between the United States and Belgium relating to consular officers, concluded March 9, 1880, provides that consuls "shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognizance of all differences which may arise, either at sea or in port, between the captains, officers and crews, without exception, particularly with reference to the adjustment of wages and the execution of contracts. The local authorities shall not interfere except when the disorder that has arisen is of such a nature as to disturb tranquillity and public order on shore or in the port. Held, that under this provision the local authorities are not deprived of jurisdiction of a homicide committed on board of a Belgian steamship, moored to the dock in a port of the United States, arising out of an affray between two Belgians, both belonging to the crew of the vessel, although it occurred below deck, and was only witnessed by other members of the crew. At first provision was made only for giving consuls police authority over the interior of the ship, and jurisdiction in civil matters arising out of disputes or differences on board; that is to say, between those belonging to the vessel. Under this police authority the duties of the consuls were evidently confined to the maintenance of order and discipline on board. This gave them no power to punish for crimes against the peace of the country. In fact, they were expressly prohibited from interfering with the local police in matters of that kind. The cases of The Sally and The Newton are illustrative of this position. That of The Sally related to the discipline of the ship, and that of The Newton to the maintenance of order on board. In neither case was the disturbance of a character to affect the peace or the dignity of the country. In the next conventions consuls were simply made judges and arbitrators to settle and adjust differences between those on board. This clearly related to such differences between those belonging to the vessel as are capable of adjustment and settlement by judicial decision or by arbitration, for it simply made the consuls judges or arbitrators in such matters.

circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in a regular way, the consul has no right to interfere to prevent it. That, according to the petition for the habeas corpus, is this case. Jan. 10, 1887. Mali v. Keeper of the Common Jail. Opinion by Waite, C. J.

APPELLATE-JUDICIAL NOTICE-LAWS OF AN

OTHER STATE.-The railroad company set up in its
answer as a defense to the action that it had no au-
thority to make the contract sued on, and in support
of this defense put in evidence its Illinois acts of in-
corporation.
Without doubt the constitutional re-
quirement (article 4, §1) that "full faith and credit
shall be given in each State to the public acts, records
and judicial proceedings of every other State," implies
that the public acts of every State shall be given
the same effect by the courts of another State that
they had by law and usage at home. This is clearly
the logical result of principles announced as early as
1813, in Mills v. Duryee, 7 Cranch, 481, and steadily
adhered to ever since. The claim of the railroad com-
pany is, that by law and usage in Illinois the operative
effect of its charter in that State is to make such a
contract as that now sued on ultra vires. Whenever it
becomes necessary under this requirement of the Con-
stitution for a court of one State, in order to give faith
and credit to a public act of another State, to ascer-
tain what effect it has in that State, the law of that
State must be proved as a fact. No court of a State
is charged with knowledge of the laws of another State.
But such laws are in that court matters of fact, which
like other facts must be proved before they can be
acted upon. This court, and the other courts of the
United States, when exercising their original jurisdic-
tion, take notice, without proof, of the laws of the
several States of the United States; but in this court,
when acting under its appellate jurisdiction, whatever
was matter of fact in the court whose judgment or
decree is under review, is matter of fact here. This
was expressly decided in Hanley v. Donoghue, 116
U. S. 1, in respect to the faith and credit to be given
by the courts of one State to the judgment of the
courts of another State, and is equally applicable to
the faith and credit due in one State to the public acts
of another. Whether the charter of this company, in
its operation on the contract now in suit, had any

That would of itself exclude all idea of punishment for crimes against the State which affected the peace and tranquillity of the port; but to prevent all doubt on this subject, it was expressly provided that it should not apply to differences of that character. Next came a form of convention which in terms gave the consuls authority to cause proper order to be maintained on board, and to decide disputes between the officers and crew, but allowed the local authorities to interfere if the disorders taking place on board were of such a nature as to disturb the public tranquillity, and that is substantially all there is in the convention with Belgium which we have now to consider. This treaty is the law which now governs the conduct of the United States and Belgium toward each other in this particular. Each nation has granted to the other such local jurisdiction within its own dominion as may be neces sary to maintain order on board a merchant vessel, but has reserved to itself the right to interfere if the disorder on board is of a nature to disturb the public tranquillity. The treaty is part of the supreme law of the United States, and has the same force and effect in New Jersey that it is entitled to elsewhere. If it gives the consul of Belgium exclusive jurisdiction over the offense which it is alleged has been committed within the territory of New Jersey, we see no reason why he may not enforce his rights under the treaty by writ of habeas corpus in any proper court of the United States. This being the case, the only important question left for our determination is whether the thing which has been done-the disorder that has arisen-on board this vessei is of a nature to disturb the public peace, or as some writers term it, the "public repose," of the people who look to the State of New Jersey for their protection. If the thing done" the disorder," as it is called in the treaty-is of a character to affect those on shore or in the port when it becomes known, the fact that only those on the ship saw it when it was done, is a matter of no moment. Those who are not on the vessel pay no special attention to the mere disputes or quarrels of the seamen while on board, whether they occur under deck or above. Neither do they as a rule care for any thing done on board which relates only to the discipline of the ship, or to the preservation of order and authority. Not so however with crimes which from their gravity awaken a public interest as soon as they become known, and especially those of a character which every civilized nation considers itself bound to provide a severe punishment for when committed within its own jurisdic-different effect in Illinois from what it would have, action. In such cases inquiry is certain to be instituted at once to ascertain how or why the thing was done, and the popular excitement rises or falls as the news spreads, and the facts become known. It is not alone the publicity of the act, or the noise and clamor which attends it, that fixes the nature of the crime, but the act itself. If that is of a character to awaken public interest when it becomes known, it is a "disorder," the nature of which is to affect the community at large, and consequently to invoke the power of the local government whose people have been disturbed by what was done. The very nature of such an act is to disturb the quiet of a peaceful community, and to create, in the language of the treaty, a "disorder" which will disturb tranquillity and public order on shore or in the port." The principle which governs the whole matter is this: Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and if need be, the offenders punished, by the proper authorities of the local jurisdiction. It may not be easy at all times to determine to which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend upon the attending

cording to the principles of general law which govern like charters and like contracts, in Missouri and elsewhere throughout the country, was under this rule a question of fact in the Missouri court, as to which no testimony whatever was offered. The case from the beginning to the end, both in the pleadings and in the requests for rulings, seems to have been considered by the parties and by the court as involving questions of general law only, which were not at all dependent upon any thing peculiar to the jurisprudence of Illi nois. Thus while in the answer it is alleged, in effect, that the contract is "in violation of the laws of the State of Illinois, and contrary to the public policy thereof," no proof was offered to support the averment, and the whole case was made to rest, so far as the testimony was concerned, on the further general allegation that the contract "was and is contrary to public policy, and void." So in the requests for findings no special reliance was had on any peculiar law or usage in Illinois, but on the general claim that the contract was illegal, and the defendant had no legal right or authority to bind itself to comply with and perform the same." And in the trial court the ruling was that the contract was not void as being in restraint of trade," nor as being beyond the powers of

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the corporations parties thereto," nor "as beyond the power of the Chicago & Alton Railroad Company to become the assignee thereof, and be bound thereby," nor as being contrary to public policy." In the Supreme Court, whose judgment we are asked to review, the ruling and decision was even more general, for it was there held that the contract as interpreted was not "ultra vires, condemned by public policy, or in restraint of trade." It thus appears conclusively, as we think, that both the parties and the court understood, as they certainly might from the way this case was presented, that the decision was to be made, not upon any thing peculiar to the State of Illinois, but upon the general law of the land applicable to the facts established by the evidence. Such evidently was the ground of the decision, and that being so, it is well settled we have no power to bring it under review. The decision would have been the same upon the case as made, whether the Constitution had contained the provision relied on or not. Bethell v. Demaret, 10 Wall. 537; West Tennessee Bank v. Citizens' Bank, 13 id. 432; Delmas v. Insurance Co., 14 id. 661, in which it was expressly held that this court cannot review the decision of a State court holding a contract valid or void, when "made upon the general principles by which courts determine whether a consideration is good or bad, on principles of public policy." Traver v. Keach, 15 Wall. 67; Rockhold v. Rockhold, 92 U. S. 129; New York Life Ins. Co. v. Hendren, id. 286; U.S. v. Thompson, 93 id. 587; Bank v. McVeigh, 98 id. 333; Dugger v. Bocock, 104 id. 601; Allen v. McVeigh, 107 id. 433; San Francisco v. Scott, 111 id. 768; Grame v. Assurance Co., 112 id. 273. It is not enough to give us jurisdiction to say in the pleadings, or elsewhere in the course of the proceedings, that the contract, whatever it might be in Missouri, was beyond the powers of the company under its acts of incorporation as they were construed and given effect by law and usage in Illinois. It must somehow be made to appear on the face of the record that the facts, as they were actually presented for adjustment, made it necessary for the court to consider and give effect to the act of incorporation, in view of some peculiar jurisprudence of Illinois rather than the general law of the land. That, as we have seen, was not done in this case. Consequently we have no jurisdiction, and the motion to dismiss is granted. Jan. 10, 1887. Chicago & Alton R. Co. v. Wiggins Ferry Co. Opinion by Waite, C. J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

ASSOCIATIONS-ODDFELLOWS' SOCIETY-TENANTS IN

COMMON-COMPELLING PURCHASE OF FURNITURE.-A court of equity will not, at the instance of the minority, compel the majority of the owners of the furniture of an Odd Fellows' hall to purchase the interests of the minority therein, nor to remove and sell the same, and divide the proceeds among all the owners; it appearing that the furniture is being used for the very purpose for which it was originally purchased. The case shows that an association of individuals raised a fund of about $2,000 to fit up the Odd Fellows' Hall in Belfast. A large portion of this fund was expended for carpets, chairs, desks and settees. This was in 1876. So far as appears, the carpets and furniture remain in the same positions in which they were originally placed, and are used for the same purposes to which they were originally dedicated, not by the same lodge, but by their successors, under a new charter and a new name. Now can any one say that in equity and good conscience a small minority of the owners may compel the majority to purchase their interests, or

submit to have the carpets torn up, and the furniture removed and sold for whatever price can be obtained, and the proceeds divided? Can those who have thus taken upon themselves a common burden for a charitable or benevolent purpose thus escape from their share of it, and throw it upon their associates, or defeat the whole enterprise? Would not such a course be in violation of the original understanding or compact between the parties? Would it not be a breach of good faith? We think so. And this court, sitting as a court of equity, cannot sanction such a proceeding. We think the furniture must be allowed to remain where the original purchasers of it put it, and subject to the uses to which they dedicated it. We should as soon think of sanctioning the removal and sale of Bunker Hill monument, on petition of some of those who contributed to the fund by which it was erected, as to allow this furniture to be withdrawn from the uses to which its original proprietors dedicated it. Hinkley v. Blethen, 78 Me. 221. Maine Jud. Sup. Ct., Jan. 17, 1887. Robbins v. Waldo Lodge No. 12, I. O. 0. F. Opinion by Walton, J.

CONSTITUTIONAL LAW-LEGISLATIVE JOURNALS EVIDENCE OF REGULARITY OF PROCEEDINGS.-The journals of the houses of the Legislature of Michigan are conclusive evidence of their proceedings, which cannot be disputed or overthrown by parol testimony; and on the hearing of an information alleging that the proceedings by which a bill was passed for the organization of a township were unconstitutional, the courts will not listen to stipulations or admissions by pleadings that the act was not properly or constitutionally passed, unless the informality is shown by the printed journals or the certificate of the secretary of State. The Constitution provides that each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy." Are these journals kept by the clerks of each house, and read and corrected each day by each body, and duly certified by the proper officers to be correct, and to stand as conclusive evidence of their proceedings, or are they liable to be disputed and overthrown by parol testimony, either of individual officers and members, or of strangers who may be interested in nullifying legislative action? It would seem that there can be but oue answer. The legislative record must prevail. Any other ruling would necessarily lead to dangerous and alarming results. "The testimony of an individual could not be received to contradict a statute, and if not, why receive it to contradict an entry upon the journal?" State v. Moffitt, 5 Ohio, 363; Miller v. State, 3 Ohio St. 476, 484. Mich. Sup. Ct., Jan. 20, 1887. Attorney-General v. Rice. Opinion by Morse, J.

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ENACTMENT AND ENTITLING STATUTE-PENSTROKE THROUGH THE WORDS BE IT ENACTED."-A bill is not void for lack of the enacting clause, when it appears that it was regularly passed, but on the enrolled bill on file in the office of the secretary of State appears a heavy pen-stroke through the words "Be it enacted," as that was probably the act of some irresponsible party, done without the authority of the Legislature. Oreg. Sup. Ct., Jan. 10, 1887. State v. Wright. Opinion by Strahan, J.

CONTRACT-CONSIDERATION-LOVE AND AFFECTION FOR DECEASED BROTHER'S WIDOW.-" Love and affection" for a deceased brother's widow is not a sufficient consideration to support a bond, and a mortgage securing it; and neither a partial payment of interest on the bond by some of the obligors, nor the mutual promise of all, nor the acceptance of the trust by the trustee who was directed to invest the proceeds of the bonds for the use of the beneficiary is sufficient to sup

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