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effect of the testimony, and directed the jury that all the declarations of the deceased made before she was informed she could not live, in which the defendant's name was connected, could only be considered as evidence tending to show that at that time the deceased had formed the purpose to go to the defendant to have an abortion produced upon her, but was not evidence that the defendant actually produced the abortion or had engaged to do it. The court on review said: "The first inquiry is, whether the declarations of deceased to Mary Erickson were admissible for the purpose of showing her intention, and as their scope and effect were restricted by the court, we are of opinion that they were. They constituted a part of the res gestæ, were contemporaneous with the main fact under consideration, and were so connected with it as to illustrate its character. 1 Greenl. Ev. 108. It was certainly competent to prove that the deceased went to the house of the defendant at the time it was charged in the information the abortion was produced. Upon the authorities, her intent or purpose in going there might be shown by her declarations then made or previously made; because such declarations became a part of the res gestœ. For it is evident the declarations were connected with the act of her going to the defendant; were expressive of the character, motive or object of her conduct; and they are to be regarded 'as verbal acts indicating a present purpose or intention, and therefore are admitted in proof like any other material facts.' 1 Greenl. Ev., supra; Insurance Co. v. Mosley, 8 Wall. 397; Enos v. Tuttle, 3 Conn. 27; Inhabitants of Corinth v. Inhabitants of Lincoln, 34 Me. 310; Lund v. Inhabitants of Tyngsborough, 9 Cush. 36; Nutting v. Page, 4 Gray, 581; State v. Howard, 32 Vt. 380; Moore v. Meacham, 10 N. Y. 207; People v. Davis, 56 id. 96. It is obvious that the mere act of the deceased going to defendant's house was equivocal; it might be innocent or not; it might warrant the inference that she went for proper treatment of some ailment; the declarations would render her motive clear and intelligible. They therefore seem to us as falling under the denomination of the res gesta, and were admissible as original evidence as distinguished from hearsay.

"In State v. Howard, supra, the declarations of the deceased, Olive Ashe, as to the purpose of the journey in going to the defendant's, were held by the court to be admissible as part of the res gesta. Upon this question, Redfield, C. J., observes that 'the mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act of going, and were admissible as part of the act.' In People v. Davis, when the deceased came home, in answer to inquiries from her step-mother she made statements telling what had been done to her by Dr. Crandall at his office, and how he did it, exhibiting certain medicine which she said the doctor gave her, and stated what he told her as to taking it when her pains came on. The court held these declarations incompetent because they were merely narratives of past occurrences, did not become a

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part of the thing done at the doctor's office, and were therefore no part of the res geste. But the court say: 'Had it been shown that the medicine was to be taken to aid in producing the miscarriage, what was said in respect to it would have been admissible.' P. 103. The conclusion which we have reached in view of all the cases upon the subject is, that the declarations of the deceased made to the witness Mary Erickson were so connected with her act of going to the defendant's as to constitute a part of that act, and were admissible as explanatory of that act. See Regina v. Edwards, 12 Cox's Cr. Law Cas. 230."

This case seems to us, like most compromises, exceedingly weak. In saying "such declarations became a part of the res gesta," the court beg the whole question. In deciding that the declaration of the intent to go to the defendant's to have him commit the crime was admissible to show the purpose of the deceased, but not to show that the defendant carried it out, the court clearly admitted irrelevant evidence, for that intent of the deceased was quite outside the issue. The issue was whether the prisoner committed the crime. If he did, the intent of the deceased was immaterial; if he did not, it was equally immaterial. In any light the evidence could only tend to convict the prisoner by the declaration of a purpose on his part which may never have been carried out. The cases cited are very inconclusive. The citation from New York is a mere dictum, and not one of the powerful authorities which we have cited to the contrary was produced.

None of the foregoing cases were alluded to by Lord Cockburn in his discussion with Mr. Taylor. It would seem that if the decision in the Edwards case is sound, that in the Bedingfield case cannot be, for the declarations in the former were much more remote than in the latter. It need not be conceded that if the former case is law it goes far to sustain the ruling in the Hayden case, for it simply admitted past threats, while in the latter case evidence was admitted of what had not happened and might not happen. The Hayden case, too, is inconsistent with the Wainwright and Pook cases in England. The Dula, Williams, Kirby and Cheek cases seem to us to lay down the proper doctrine. It will be noticed that all the contrary cases which we have cited are distinguishable frrom the Hayden case, in that the declarations received did not in any instance convey an intimation of criminal intent or motive on the part of the prisoner. We regard the Hayden ruling as unsound and dangerous, and cannot see that it is supported by any authority in this country, further than to the extent of the intended meeting with the prisoner, and even as to that extent it is strongly opposed to the Dula, Williams, Kirby and Cheek cases. On principle, the admission of antecedent declarations is much more dangerous than the admission of subsequent or contemporaneous declarations. The latter are generally attended by corroborative circumstances, and are of a character appealing more directly to the conscience; while the former may be entirely false or gratuitous, or if made in

good faith, may not be supported by subsequent facts. It is quite possible, for example, that Hayden did not meet Mary Stannard in the woods, although she may have expected him. It is quite possible that whether he did or not, he had never agreed on the meeting for the purpose indicated by her. On the other hand, if she had been found there alive, there would have been some show of reason for admitting her contemporaneous declaration that Hayden had tried to kill her to conceal her pregnancy. At all events, both on authority and principle, if her previous declaration that she was going to the woods, or was going to the woods to meet Hayden, was competent, her accompanying declaration of the motive and purpose of the meeting was clearly incompetent. People cannot be put to death upon hearsay evidence before the fact.

A

TREATMENT OF INSANE CRIMINALS.

MONG the many legal problems which the future is to solve there is one which should be, and I think will be, solved in the near future. It is the problem of the treatment of insanity, in cases where the criminal law has been violated. Properly speaking there can be no such thing as a crime committed by an insane person. But there are persons whom, for convenience sake, we call insane criminals; because they have violated laws which would render those who are responsible for their acts amenable to punishment. What shall be done with this class - the class of insane criminals?

A few years ago Dr. Henry Maudsley, of England, published his now well-known treatise, entitled "Responsibility in Mental Disease." With the author's statements concerning the causes of insanity, the ways in which it is indicated, and its effect upon the will, I have no quarrel. Any criticism in this direction should come from a physician, and furthermore, a physician who has made a most thorough study of the subject of insanity. But it is one thing to state facts and quite another thing to draw conclusions from them. Froude, in his History of England, has shown his ability to do the former and his inability to do the latter. In this respect Dr. Maudsley resembles Froude. We may admit his facts, but deny his conclusions.

For his conclusion is, in substance, that in every case of alleged insanity it belongs to the physician to pass judgment, or in other words, to pronounce for or against the existence of insanity; that if the physician finds that the disease of insanity exists, there should be no infliction of capital punishment, or indeed, of any kind of punishment, but a simple confinement of the patient in order that the disease may receivo proper treatment; that it belongs to the physician to terminate this confinement at any moment, by declaring that a cure has been effected, and that on the announcement of a cure by the physician, the patient should be discharged. Now I take exception to the last part of this conclusion, that on the announcement of a cure by the physician the patient should be discharged.

The Revised Statutes of New York provide that "no act done by a person in a state of insanity can be punished as an offense; and no insane person can be tried, sentenced to any punishment, or punished for any crime or offense while he continues in that state." The latter part of this section has no application to the subject under consideration. A person who becomes insane after the commission of a crime may be, and undoubtedly should be, though in reality he seldom is, punished, upon his recovery. I wish to speak

merely of that growing class of persons, who, having committed some act which would subject a sane person to punishment, seek to avoid responsibility by alleging that at the time of the commission of the act they were not sane.

The laws of New York, relating to this subject, are in a condition which must be unsatisfactory to all except the "insane criminals" themselves. I quote the pertinent provisions:

"When a person shall have escaped indictment or shall have been acquitted of a criminal charge upon trial on the ground of insanity, the court being certified by the jury or otherwise of the fact, shall carefully inquire and ascertain whether his insanity in any degree continues, and if it does, shall order him in safe be sent to the asylum, the county from which he is custody, and to be sent to the asylum. If such person sent shall defray all his expenses while there, and of sending him back, if returned; but the county raay recover the amount so paid from his own estate if he have any, or from any relative, town, city or county that would have been bound to provide for and maintain him elsewhere." Laws of 1842, ch. 135, § 31. See, also, Laws of 1874, ch. 446, § 22.

"Persons charged with misdemeanors and acquitted on the ground of insanity may be kept in custody and sent to the asylum in the same way as persons charged with crime." Id., § 34.

"A patient of the criminal class may be discharged by order of one of the justices of the Supreme Court, or a Circuit judge, if upon due investigation it shall appear safe, legal and right to make such order." Id., $42.

"Whenever any person in confinement under indictment for the crime of arson, murder, or attempt at murder, or highway robbery, desires to offer the plea of insanity as a general traverse and his whole defense to such indictment, he shall present such plea at the time of his arraignment, and at no other stage of the trial but this, shall such plea or defense be received or entertained by the court; and the court before whom such trial is pending shall have power, with the concurrence of the presiding judge thereof, to appoint a commission to examine such person and to inquire and report to the court aforesaid, upon the fact of his mental sanity at the date of the offense with which he stands charged. The commission aforesaid shall institute a careful investigation, call such witnesses as may be necessary and for that purpose is fully empowered to compel the attendance of witnesses.

"Upon the report of said commission, if the court before whom such indictment is pending shall find that such person was insane and irresponsible at the date of the offense with which he stands charged, the court aforesaid shall order his removal to some State lunatic asylum, there to remain for observation and treatment until such time as in the opinion of a justice of the Supreme Court it is safe, legal and right to discharge him." Laws of 1874, ch. 446, § 30.

"Whenever any person accused of tho crime of arson, murder, or attempted murder, or highway robbery, shall have been acquitted upon trial upon the ground of insanity, the jury shall bring in a special verdict to that effect and so state it in their finding; and the court before whom such trial is had shall order such person to be committed to some State lunatic asylum, there to remain for observation and care until such time as in the judgment of a justice of the Supreme Court, founded upon satisfactory evidence, it is safe, legal and right to discharge him." Laws of 1874, ch. 446, § 31, as amended by Laws of 1875, ch. 574, § 4.

"Whenever any insane person in confinement under indictment for arson, murder, or attempt at murder, or highway robbery, or who has been acquitted thereof on the ground of insanity, and has been committed to

some State lunatic asylum, pursuant to the provisions of the preceding sections, shall be restored to his right mind, it shall be the duty of the superintendent of such asylum to give notice thereof to the State commissioner in lunacy, who shall thereupon inquire into the truth of such fact, and if the same shall be proved to his satisfaction he shall so certify it under his official hand and seal to a justice of the Supreme Court of the district in which such asylum is situated, who shall thereupon, and upon such other facts as may be proven before him, determine whether it is safe, legal and right that such party in confinement as aforesaid should be discharged." Laws of 1874, ch. 446, § 33, as amended by Laws of 1875, ch. 574, § 5.

I have made these quotations at length - possibly too great length—in order to show clearly the present condition of the laws of New York on this subject. It will be seen that the idea of Dr. Maudsley is almost completely realized. Punishment or immunity hangs upon the lips of the physician. Where the charge is arson, murder, attempted murder or highway robbery, the accused may escape trial altogether. He has simply to offer the plea of insanity at the time of his arraignment, thus securing an extra-judicial examination by a commission, and if on the report of the commission the court finds that he was insane at the date of the offense, it must "order his removal to some State lunatic asylum." There he remains until he can satisfy some justice of the Supreme Court that "it is safe, legal and right to discharge him." Where the accused is acquitted upon trial on the ground of insanity, the proceeding is substantially the same. The doors of an insane asylum open to receive him and close upon him for a time; then, at the bidding of a justice of the Supreme Court, they opeu, and he walks out. In every case the keys which unlock the doors of State lunatic asylums are held by the justices of the Supreme Court. Undoubtedly, if there are to be such keys, they could not be placed in better custody, for though it is reasonably certain that the justice will accept the opinion of the physician, yet it is well to give the judiciary some part in the proceeding, and to add its voice to that of the physician in a question which affects the public safety. My objection is not to the person in whom the right to discharge insane criminals is vested, but to the existence of any such right, in case of grave offenses, and particularly where the offense is homicide.

It may be that I have done Dr. Maudsley injustice. I confess that in stating his conclusion to be that insane criminals should be discharged when a physician has declared them cured, I gave an impression derived from the general tone of his work rather than from any express declaration to that effect. Indeed, in one place he uses language which seems to warrant a very different conclusion, as the following quotation will show:

"The argument in favor of hanging madmen in order to deter others from crime must then be pronounced utterly baseless; the execution of them would be of use only if it deterred persons from going mad, which no one had asserted that it does; but the argument that it is necessary to execute them in order to protect society would be incontrovertible if society had no other effectual means of protecting itself. But this is not so; it has the power of protecting itself effectually, and at the same time of inflicting upon the insane wrong-doer what he assuredly regards as a heavy punishment, by shutting him up in a lunatic asylum. There need be no fear that the prospect of such a fate would be less deterrent to him than the prospect of death on the scaffold.

"It will be observed that I have spoken of the punishment of death as one which should never be inflicted upon an insane person; it is another question whether

such a person should not be otherwise punished under any circumstances. Abolish capital punishment and the dispute between lawyers and doctors ceases to be of practical importance."

If this language is to be construed as an assertion that imprisonment for life should be substituted for capital punishment in cases of insanity, and that that imprisonment should be unaffected by any announcement of a cure, then I, for one, have no further criticism to make. The question of insanity should doubtless be submitted to the physician, who is the only person competent to give it a proper consideration. The ordinary jury is not competent to pass upon that question. There is danger that it may ignorantly convict an irresponsible person. But if it be right to constitute the physician sole judge in a question of insanity, it is no less right to restrict him to a simple determination of that question, and to refuse to listen to him when he declares the disease eradicated and recommends the liberation of the patient. This last point I do not understand Dr. Maudsley to concede.

It will be remembered that I am now speaking of the treatment of those unfortunates, whose insanity has culminated in the killing of a fellow being. Of course I would not advocate the life-long imprisonment of an insane person for an offense which would only subject a sane person to imprisonment for a term of years. Why then should he, whom an insane impulse has driven to the commission of homicide, be deprived of liberty till death? For an all-sufficient reason: the safety of society demands it. Let it be admitted that a certain act is essential to the protection of society and all argument as to its propriety is at an end; it becomes imperative. It therefore only remains to show why the safety of society requires that the subjects of homicidal mania should be kept in confinement during life.

If the time ever comes when the physician can say of the person whose insanity has led him to take human life: "This man is completely cured. There will never be a recurrence of the deed. I answer for it;" there will then be reason for insisting that recovery from insanity shall bring release from imprisonment. But the physician of the present day is not able to make this declaration. Dr. Maudsley himself, in commenting on a celebrated case, says: Another lesson which may be drawn from this case is one which sad experience of homicidal mania has often taught, namely, the exceeding danger of a recurrence of the attack. One can hardly ever say of a person who has once labored under it that he has recovered entirely, so sudden, unexpected, convulsive may be the outbreak of a paroxysm." This statement is corroborated by other distinguished physicians and experts on the subject of insanity. It is therefore safe to affirm, on such testimony, that for him who has once insanely killed or threatened to kill, such a thing as complete recovery is in the last degree problematical if not utterly impossible; and that the safety of society can be adequately secured only by confining for life the sufferer from homicidal mania.

This then is the conclusion. The plea of insanity, in cases of homicide, should be an application for a life lease in a lunatic asylum; and the granting of the application should follow the success of the plea. There could be no such thing as pardon, for no crime would have been committed. Moreover, since the liberation of the insane sufferer would be dangerous to the public, the right to discharge should not be vested in any one. He who offers the plea of insanity should expect to take a final, irrevocable farewell of all society except that of an insane asylum.

I do not see how this conclusion can be avoided. Those whom the plea of insanity saves from the gallows may be divided into two classes-those whose

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A charter granted by a State Legislature authorizing a lottery for a special time, in consideration of certain payments into the State treasury, is not a contract protected by the provision of the Federal Constitution forbidding State legislation impairing the obligation of a contract.

IN error to the Supreme Court of the State of Missis

sippi. Sufficient facts appear in the opinion. WAITE, C. J. It is now too late to contend that any contract which a State actually enters into when granting a charter to a private corporation is not within the protection of the clause in the Constitution of the United States that prohibits States from passing laws impairing the obligation of contracts. Art. I, § 10. The doctrines of the Dartmouth College case, 4 Wheat. 518, announced by this court more than sixty years ago, have become so imbedded in the jurisprudence of the United States as to make them to all intents and purposes a part of the Constitution itself. In this connection, however, it is to be kept in mind that it is not the charter which is protected, but only any contract the charter may contain. If there is no contract there is nothing in the grant on which the Constitution can act. Consequently the first inquiry in this class of cases always is, whether a contract has in fact been entered into, and if so, what its obligations are.

In the present case the question is whether the State of Mississippi, in its sovereign capacity, did by the charter now under consideration bind itself irrevocably by a contract to permit "the Mississippi Agricultural, Educational and Manufacturing Aid Society," for twenty-five years, "to receive subscriptions and sell and dispose of certificates of subscriptionhich shall entitle the holders thereof to" "any lands, books, paintings, statues, antiques, scientific instruments or apparatus, or any other property or thing that may be ornamental, valuable or useful,' ""awarded to them" "by the casting of lots, or by lot, chance, or otherwise." There can be no dispute but that under this form of words the Legislature of the State chartered a lottery company, having all the powers incident to such a corporation for twenty-five years, and that in consideration thereof the company paid into the State treasury five thousand dollars for the use of a university, and agreed to pay, and until the commencement of this suit did pay, an annual tax of one thousand dollars and "one-half of one per cent on the amount of receipts derived from the sale of certificates or tickets." If the Legislature that granted this charter had the power to bind the people of the State and all succeeding legislatures to allow the corporation to continue its corporate business during the whole term of its authorized existence, there is no doubt about the sufficiency of the language employed to effect that object, although there was an evident purpose to conceal the vice of the transaction by the phrases that

were used. Whether the alleged contract exists, therefore, or not, depends on the authority of the Legislature to bind the State and the people of the State in that way.

All agree that the Legislature cannot bargain away the police power of a State. "Irrevocable grants of property and franchises may be made if they do not impair the supreme authority to make laws for the right government of the State: but no Legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police." Met. Bd. of Excise v. Barrie, 34 N. Y. 668; Boyd v. Alabama, 94 U. S. 650. Many attempts have been made in this court and elsewhere to define the police power, but never with entire success. It is always easier to determine whether a particular case comes within the general scope of the power than to give an abstract definition of the power itself which will be in all respects accurate. No one denies, however, that it extends to all matters affecting the public health or the public morals. Patterson v. Kentucky, 97 U. S. 504; Beer Co. v. Massachusetts, supra. Neither can it be denied that lotteries are proper subjects for the exercise of this power. We are aware that formerly, when the sources of public revenue were fewer than now, they were used in some or all of the States, and even in the District of Columbia, to raise money for the erection of public buildings, making public improvements, and not unfrequently for educational and religious purposes, but this court said, more than thirty years ago, speaking through Mr. Justice Grier, in Phalen v. Virginia, 8 How. 168, that "experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the wide-spread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor, and it plunders the ignorant and simple." Happily, under the influence of restrictive legislation, the evils are not so apparent now, but we very much fear that with the same opportunities of indulgence the same results would be manifested.

If lotteries aro to be tolerated at all, it is no doubt better that they should be regulated by law, so that the people may be protected as far as possible against the inherent vices of the system; but that they aro demoralizing in their effects, no matter how carefully regulated, cannot admit of a doubt. When the government is untrammelled by any claim of vested rights or chartered privileges, no one has ever supposed that lotteries could not lawfully be suppressed, and those who managed them punished severely as violators of the rules of social morality. From 1822 to 1867, without any constitutional requirement, they were prohibited by law in Mississippi, and those who conducted them punished as a kind of gamblers. During the provisional government of that State, in 1867, at the close of the late civil war, the present act of incorporation, with more of like character, was passed. The next year, 1868, the people, in adopting a new Constitution with a view to the resumption of their political rights as one of the United States, provided that "the Legislature shall never authorize any lottery, nor shall the sale of lottery tickets be allowed, nor shall any lottery heretofore authorized be permitted to be drawn, or tickets therein to be sold." Art. XII, § 15. There is now scarcely a State in the Union where lotteries are tolerated, and Congress has enacted a special statute, the object of which is to close the mails against them. R. S., § 3894; 19 Stat. 90, § 2.

The question is, therefore, directly presented whether, in view of these facts, the Legislature of a State can, by the charter of a lottery company, defeat the will of the people, authoritatively expressed, in relation to the further continuance of such business in their midst.

We think it cannot. No Legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself. Beer Co. v. Massachusetts, supra.

In the Dartmouth College case it was argued that the contract clause of the Constitution, if given the effect contended for in respect to corporate franchises, "would be an unprofitable and vexatious interference with the internal concerns of a State, would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions, which are established for the purpose of internal government, and which, to subserve those purposes, ought to vary with varying circumstances" (p. 628); but Chief Justice Marshall, when he announced the opinion of the court, was careful to say (p. 629) "that the framers of the Constitution did not intend to restrain States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed." The present case, we think, comes within this limitation. We have held, not, however, without strong opposition at times, that this clause protected a corporation in its charter exemptions from taxation. While taxation is in general necessary for the support of government, it is not part of the government itself. Government was not organized for the purposes of taxation, but taxation may be necessary for the purposes of government. As such, taxation becomes an incident to the exercise of the legitimate functions of government, but nothing more. No government dependent on taxation for support can bargain away its whole power of taxation, for that would be substantially abdication. All that has been determined thus far is that for a consideration it may, in the exercise of a reasonable discretion, and for the public good, surrender a part of its powers in this particular.

But the power of governing is a trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals and the protection of public and private rights. These several agencies can govern according to their discretion, if

lators and gamblers, living on the expectation of what "by the casting of lots, or by lot, chance or otherwise," might be "awarded" to them from the accumulations of others. Certainly the right to stop them is governmental, and to be exercised at all times by those in power at their discretion. Any one, therefore, who accepts a lottery charter does so with the implied understanding that the people, in their sovereign capacity and through their properly constituted agencies, may take it back at any time the public good shall require, and this whether it be paid for or not. All one can get by such a charter is a suspension of certain governmental rights in his favor, subject to withdrawal at will. He has in legal effect nothing more than a license to continue on the terms named for the specified time, unless sooner abrogated by the sovereign power of the State. It is a permit, good as against existing laws, but subject to future legislative and constitutional control or withdrawal.

On the whole, we find no error in the record, and the judgment is consequently affirmed.

PARTNERSHIP IN NAME OF SINGLE MEMBER.

ENGLISH COURT OF APPEAL, MARCH, 11, 1880.

YORKSHIRE BANKING COMPANY V. BEATSON AND MYCOCK (42 L. T. Rep., N. S. 455).

Where a bill of exchange is drawn, accepted, or indorsed by an individual for his private purpose, his name being the same as that of a firm of which he is a member, the holder cannot recover against the firm. But where the name of the individual and of the firm is the same, and the individual carries on no business apart from the firm, the presumption, in the absence of evidence to the contrary, is that a bill bearing such a name is the bill of the firm. There is no difference in this respect between a dormant and an ostensible partner.

M. and B. owned a business, which was carried on in B.'s name, M. being a dormant partner. B., without the authority, and in fraud of M., signed accommodation bills in his own name, one of which was addressed to him at the place of business of the firm. The proceeds were paid into the same banking account with B.'s own money and that of the firm; but the effect of these transactions (which were not entered in the partnership books) was to diminish tho capital of tho firm. Held, in an action by a bona fide holder without notice, that these facts rebutted the presumption that the bills were the bills of the firm, and that a finding by the jury to that effect ought to be set aside as against evidence.

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

power, but they cannot give away nor sell the discretion of those that are to come after them, in respect to matters the government of which, from the very nature of things, must "vary with varying circumstances." They may create corporations and give them, so to speak, a limited citizenship, but as citizens, limited in their privileges, or otherwise, these creatures of the government creation are subject to such rules and regulations as may from time to time be ordained and established for the preservation of health and morality.

The contracts which the Constitution protects are those that relate to property rights, not governmental. It is not always easy to tell on which side of the line which separates governmental from property rights a particular case is to be put, but in respect to lotteries there can be no difficulty. They are not, in the legal acceptation of the term, mala in se, but as we have just seen, may properly be made mala prohibita. They are a species of gambling, and wrong in their influences. They disturb the checks and balances of a well-ordered community. Society built on such a foundation would almost of necessity bring forth a population of specu

Denman and Lopes, JJ. (reported 40 L. T. Rep. [N. S.] 654; 4 C. P. Div. 204), directing the verdict and judgment, which had been given for the plaintiffs against the defendant Mycock, to be set aside, and judgment to be entered for the defendant Mycock.

The facts of the case, the findings of the jury, and the points raised in argument before the Court of Appeal, are fully stated in the judgment.

The appeal was argued by Bompas, Q. C., and Forbes (H. Tindal Atkinson with them), for the plaintiffs, and by Waddy, Q. C., and Gainsford Bruce, for the defendant Mycock.

In addition to the authorities noticed in the judgment, the following were referred to: Winship v. United States Bank, 5 Peters, 561; Ex parte Bushell, 3 M. D. & De G. 615; Sutton v. Gregory, 2 Peake, 150; Baird's case, 23 L. T. Rep. (N. S.) 424; L. Rep., 5 Ch. 725, 733; Ex parte Buckley, 14 M. & W. 469; Smith v. Craven, 1 C. & J. 500; Hall v. West, cited in Lindley on Partnership (4th ed.), p. 343; Lloyd v. Ashby, 2 C. & P. 138; 2 B. & Ad. 23; Mercantile Bank v. Cox, 38 Me. 500; National Bank of Chemung v. Ingraham, 58 Barb. 290; Ex parte Law, 3 Deacon, 541.

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