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for the Southern District of New York. The opin- suits. ion states the case.

George H. Forster, for plaintiff in error.

B. F. Tracy and Wm. C. Dellitt, for defendant in

error.

HARLAN, J. This action was brought in the Circuit Court of the United States for the Southern District of New York. The plaintiff, Preston, is a citizen of that State, while the defendant is the consul, at the port of New York, for the Kingdom of Norway and Sweden.

The object of the action is to recover damages for the alleged unlawful conversion by defendant, to his own use, of certain articles of merchandise. The answer denies the material allegations of the complaint, and in addition, by way of counter-claim, asks judgment against the plaintiff for certain sums. To the counter-claim a replication was filed, and a trial had before a jury, which resulted in a verdict in favor of plaintiff for $7,313.10. For that amount judgment was entered against the defendant.

The assignments of error question the jurisdiction of the Circuit Court, under the Constitution and the laws of the United States, to hear and determine any suit whatever brought against the consul of a foreign government.

Some reference was made in argument to the fact that the defendant did not in the court below plead exemption, by virtue of his official character, from

suit in a Circuit Court of the United States. To this it is sufficient to reply that this court must, from its own inspection of the record, determine whether a suit against a person holding the position of consul of a foreign government is excluded from the jurisdiction of the Circuit Courts. In cases of which the Cir

cuit Courts may take cognizance only by reason of the citizenship of the parties, this court, as its decisions indicate, has except under special circumstances declined to express any opinion upon the merits on appeal or writ of error, where the record does not affirmatively show jurisdiction in the court below; this because the courts of the Union, being courts of limited jurisdiction, the presumption, in every stage of the cause, is that it is without their jurisdiction unless the contrary appears from the record. Grace v. American Insurance Co., 109 U. S. 283; Robertson v. Cease, 97 id. 646.

Much more therefore will we refuse to determine on

The Constitution declares that "the judicial power of the United States shall extend ** * to all cases affecting ambassadors or other public ministers and consuls; "to controversies between citizens of a State and foreign citizens or subjects; that "in all cases affecting ambassadors, other public ministers and consuls, * * * the Supreme Court shall have original jurisdiction;" and that in all other cases previously mentioned in the same clause "the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make."

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The judiciary act of 1789 invested the District Courts of the United States with "jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls," except for offenses of a certain character; this court with original, but not exclusive, jurisdiction of all suits * * in which a consul or vice-consul shall be a party;" and the Circuit Courts with jurisdiction of civil suits in which an alien is a party. 1 Stat. 76-80. In this act we have an affirmance, by the first Congress-many of whose members participated in the convention which adopted the Constitution, and were therefore conversant with the purposes of its framers-of the principle that the original jurisdiction of this court of cases in which a consul or vice-consul is a party, is not necessarily exclusive, and that the subordinate courts of the Union may be invested with jurisdiction of cases affecting such representatives of foreign governments. On a question of constitutional construction, this fact is entitled to great weight.

Very early after the passage of that act, the case of United States v. Ravara, 2 Dall. 297, was tried in the Circuit Court of the United States for the District of

Pennsylvania, before Justices Wilson and Iredell of this court, and the district judge. It was an indictment against a consul for a misdemeanor of which, it was claimed, the Circuit Court had jurisdiction under the eleventh section of the judiciary act, giving Circuit Courts "exclusive cognizance of all crimes and offenses cognizable under the authority of the United States," except where that act "otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the District Courts of the crimes and offenses cognizable therein." In behalf of the accused it was contended that this court, in virtue of the constitutional grant to it of original jurisdiction in all cases affecting consuls, had exclu

the merits, and will reverse on the point of jurisdic-sive jurisdiction of the prosecution against him. Mr. tion, cases where the record shows affirmatively that

they are of a class which the statute excludes

altogether from the cognizance of the Circuit Courts. If this were not so it would be in the power of the parties by negligence or design to invest those courts with a jurisdiction expressly denied to them. To these considerations it may be added, that the exemption of the consul of a foreign government from suit in particular courts is the privilege, not of the person who happens to fill that office, but of the State or government he represents. It was so decided in Davis v. Packard, 7 Pet. 284. While practically it may be of no consequence whether original jurisdiction of suits against consuls of foreign governments is conferred upon one court of the United States rather than another, it is sufficient that the legislative branch of

Justice Wilson and the district judge concurred in overruling this objection. They were of opinion that although the Constitution invested this court with original jurisdiction in cases affecting consuls, it was competent for Congress to confer concurrent jurisdiction, in those cases, upon such inferior courts as might, by law, be established. Mr. Justice Iredell dissented, upon the ground that the word original, in the clause of the Constitution under examination, meant exclusive. The indictment was sustained, and the defendant upon the final trial, at which Chief Justice Jay presided, was found guilty. He was subsequently pardoned on condition that he would surrender his commission and exequatur.

In United States v. Ortega, 11 Wh. 467. which was a criminal prosecution, in a Circuit Court of the United

States, for the offense of offering personal violence to a public minister, contrary to the law of nations and the act of Congress, one of the questions certified for decision was whether the jurisdiction conferred by the Constitution upon this court, in cases affecting ambassadors or other public ministers, and consuls, was not only original but exclusive of the Circuit Courts. But its decision was waived and the case determined upon another ground. Of that case it was remarked by Chief Justice Taney, in Gittings v. Crawford, Taney's Dec. 5, that an expression of opinion upon that question would not have been waived had the court regarded it as settled by previous decisions.

In Davis v. Packard, ubi supra, upon error to the court for the correction of errors of the State of New York, the precise question presented was whether, under the Constitution and laws of the United States, a State court could take jurisdiction of civil suits against foreign consuls. It was determined in the negative upon the ground that by the ninth section of the act of 1789, jurisdiction was given to the District Courts of the United States, exclusively of the courts of the several States, of all suits against consuls and vice-consuls, except for certain offenses mentioned in the act. The jurisdiction of the State courts was denied because-and no other reason was assignedjurisdiction had been given to the District Courts of the United States exclusively of the former courts; a reason which probably would not have been given had the court, as then organized, supposed that the constitutional grant of original jurisdiction to this court, in all cases affecting consuls, deprived Congress of power to confer concurrent original jurisdiction, in such cases, upon the subordinate courts of the Union. It is not to be supposed that the clause of the Constitution giving original jurisdiction to this court, in cases affecting consuls, was overlooked, and] therefore the decision, in that case, may be regarded as an affirmance of the constitutionality of the act of 1789, giving original jurisdiction in such cases, also to District Courts of the United States. And it is a significant fact, that in the decision in Davis v. Packard, Chief Justice Marshall concurred, although he had delivered the judgments in Marbury v. Madison, 1 Cr. 137, 821; Cohens v. Virginia, 6 Wh. 264, and Osborn v. United States Bank. 9 id. 738, some of the general expressions in which are not infrequently cited in support of the broad proposition that the jurisdiction of this court is made by the Constitution exclusive of every other court, in all cases of which by that instrument it is given original jurisdiction. It may also be observed that of the seven justices who concurred in the judgment in Davis v. Packard, five participated in the decision of Osborn v. United States Bank.

In St. Luke's Hospital v. Barclay, 3 Blatchf. 259, which was a suit in equity in the Circuit Court of the United States for the Southern District of New York, the question was distinctly raised whether the consular character of the, alien defendant exempted him from the jurisdiction of the Circuit Courts. The jurisdiction of the Circuit Court was maintained, the opinion of the court being that the jurisdiction of the District Courts was made by statute exclusive only of the State courts, and that under the 11th section of the act of 1789, the defendant being an alien-no exception being made therein as to those who were consuls-was amenable to a suit in the Circuit Court brought by a citizen. Subsequently the question was reargued before Mr. Justice Nelson and the district judge, and the proposition was pressed that the defendants could not be sued except in this court or in some District Court. But the former ruling was sustained.

In Graham v. Stucken, 4 Blatchf. 50, the same ques

tion was carefully considered by Mr. Justice Nelson, who again held that the constitutional grant of original jurisdiction to this court in cases affecting consuls: the legislative grant in the act of 1789 to this court of original but not exclusive jurisdiction of suits in which a consul or vice-consul is a party; and the legislatiye grant of jurisdiction to the District Courts, exclusive of the State courts, of suits against consuls or vice-consuls, did not prevent the Circuit Courts, which had jurisdiction of suits to which an alien was a party. from taking cognizance of a suit brought by a citizen against an alien, albeit the latter was, at the time, the consul of a foreign government.

In Gittings v. Crawford, Taney's Dec. 1, which was a suit upon a promissory note brought in the District Court of the United States for Maryland, by a citizen of that State against a consul of Great Britain, the point was made in the Circuit Court on writ of error that by the Constitution of the United States this court had exclusive jurisdiction of such cases.

The former adjudications of this and other courts of the Union were there examined, and the conclusion reached-and in that conclusion we concur-that as Congress was not expressly prohibited from giving original jurisdiction in cases affecting consuls to the inferior judicial tribunals of the United States, neither public policy nor convenience would justify the court in implying such prohibition, and upon such implication, pronounce the act of 1789 to be unconstitutional and void. Said Chief Justice Taney: "If the arrangement and classification of the subjects of jurisdiction into appellate and original, as respects the Supreme Court, do not exclude that tribunal from appellate power in the cases where original jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as respects other courts whose jurisdiction is not there limited or prescribed, but left for the future regulation of Congress? The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one court does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere affirmative words of grant. and none that import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter." Taney's Dec. 9. After alluding to the fact that the position of consul of a foreign government is sometimes filled by one of our own citizens, he observes: "It could hardly have been the intention of the statesmen who framed our Constitution to require that one of our citizens who had a petty claim of even less than five dollars against another citizen, who had been clothed by some foreign government with the consular office, should be compelled to go into the Supreme Court to have a jury summoned in order to enable him to recover it; nor could it have been intended, that the time of that court, with all its high duties to perform, should be taken up with the trial of every petty offense that might be committed by a consul in any part of the United States; that consul too being often one of our own citizens."

Such was the state of the law when the Revised Statutes of the United States went into operation. By section 563 it is provided that "the District Courts shall have jurisdiction * * * of all suits against consuls or vice-consuls," except for certain offenses; by sectiou 629, that "the Circuit Courts shall have original jurisdiction" of certain classes of cases, among which are civil suits in which an alien is a party; by section 687, that this court shall have 'original but not exclusive jurisdiction of all suits * * * in which a consul or vice-consul is a party;" and by section 711, that the jurisdiction vested in the

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courts of the United States in the cases and proceedings there mentioned-among which (par. 8) are "suits against ambassadors or other public ministers or their domestics, or domestic servants, or against consuls or vice-consuls"-shall be exclusive of the courts of the several States. But by the act of February 18, 1875, that part of section 711,last quoted, was repealed (Sup. R. S., p. 138, par. 18); so that by the existing law there is no statutory provision, which in terms makes the jurisdiction of the courts of the United States exclusive of the State courts in suits against consuls or vice-consuls.

It is thus seen that neither the Constitution nor any act of Congress defining the powers of the courts of the United States has made the jurisdiction of this court, or of the District Courts, exclusive of the Circuit Courts in suits brought against persons who hold the position of consul, or in suits or proceedings in which a consul is a party. The jurisdiction of the latter courts, conferred without qualification, of a controversy between a citizen and an alien, is not defeated by the fact that the alien happens to be the consul of a foreign government. Consequently the jurisdiction of the court below cannot be questioned upon the ground simply that the defendant is the consul of the Kingdom of Norway and Sweden.

But as this court and the District Courts are the only courts of the Union, which under the Constitution or the existing statutes are invested with jurisdiction, without reference to the citizenship of the parties, of suits against consuls, or in which consuls are parties, and since the Circuit Court was without jurisdiction, unless the defendant is an alien or a citizen of some State other than New York, it remains to consider whether the record shows him to be either such citizen or an alien. There is neither averment nor evidence as to his citizenship, unless the conceded fact that he is the consul of a foreign government is to be taken as adequate proof that he is a citizen or subject of that government. His counsel insist that the Consul of a foreign country, discharging his duties in this country, is in the absence of any contrary evidence to be presumed in law to be a citizen or subject of the country he represents. This presumption, it is claimed, arises from the nature of his office and the character of the duties he is called upon to discharge. But in our opinion, the practice of the different nations does not justify such presumption. "Though the functions of consul," says Kent, "would seem to require that he should not be a subject of the State in which he resides, yet the practice of the maritime powers is quite lax on this point, and it is usual, and thought most convenient, to appoint subjects of the foreign country to be consuls at its ports." 1 Kent, 44. In Gittings v. Crawford, ubi supra, it was said by Chief Justice Taney that "in this country, as well as others, it often happens that the consular office is conferred by a foreign government on one of our own citizens." It is because of this practice that the question has frequently arisen as to the extent to which citizens of a country, exercising the functions of foreign consuls, are exempt from the political and municipal duties which are imposed upon their fellow citizens. Halleck's International Law (London ed.), vol. 1, ch. 11, § 10, et seq.

In an elaborate opinion by Attorney-General Cushing, addressed to Secretary Marcy, the question was considered whether citizens of the United States, discharging consular functions here by appointment of foreign governments, were subject to service in the militia or as jurors. 8 Opin. Attys-Genl. 168. It was perhaps because of the difficulties arising in determining questions of this character that many of the treaties between the United States and other countries define with precision the privileges and exemp

tions given to consuls of the respective nations-exemptions from public service being accorded, as a general rule, only to a consul who is a citizen or subject of the country he represents. Rev. Stat. of Dist. Col., Public Treaties, index, title "Consuls."

But it seems unnecessary to pursue the subject further. When the jurisdiction of the Circuit Court depends upon the alienage of one of the parties, the fact of alienage must appear affirmatively either in the pleadings or elsewhere in the record. Brown v. Keene, 8 Pet. 115; Bingham v. Cabot, 3 Dall. 382; Capron v. Vanorden, 2 Cr. 126; Robertson v. Cease, supra. It cannot be inferred, argumentatively, from the single circumstance that such person holds and exercises the office of consul of a foreign government. Neither the adjudged cases nor the practice of this government prevent an American citizen-not holding an office of profit or trust under the United States-from exercising in this country the office of consul of a foreign government.

Our conclusion is, that as it does not appear from the record that the defendant is an alien, and since it is consistent with the record that the defendant was and is a citizen of the same State with the plaintiff, the record, as it now is, does not present a case which the Circuit Court had authority to determine. Without therefore considering the merits of this cause, the judgment must be reversed, and the cause remanded for such further proceedings as may be consistent with this opinion.

It is so ordered.

Mr. Justice GRAY. Mr. Justice Miller and myself concur in the judgment of reversal, on the ground that the Circuit Court had no jurisdiction of the case, because the record does not show that the defendant was an alien, or a citizen of a different State from that of which the plaintiff was a citizen. We express no opinion upon the question, whether if the record had shown that state of facts, as well as that the defendant was a consul, the Circuit Court would have had jurisdiction.

NEW YORK COURT OF APPEALS ABSTRACT.

LIMITATIONS-STALE DEMAND PRESUMPTION OF PAYMENT.-It is only where there is an actual, continuing and subsisting trust that a trustee is precluded from setting up the statute of limitations. Wedderburn v. Wedderburn, 2 Keene, 749; S. C., 4 M. & C. 52; Portlock v. Gardner, 1 Hare, 594; Kane v. Bloodgood, 7 Johns. Ch. 39. Assuming that S. might have elected to adopt the agreement made by her husband and to treat W. as trustee, that would not change the result. When the complainant has a concurrent remedy in a court of equity and in a court of common law, time is as absolute a bar in equity as it is at law. Humbert v. Trinity Church, 7 Paige, 195; S. C., 24 Wend. 587. And in such cases the limitation as to actions at law applies. Birch v. Corey, 15 N. Y. 505; Rundle v. Allison, 34 id. 182. But assuming that the case was one solely of equitable cognizance only, and that for any reason the statute afforded no protection, it is the law of courts of equity, independent of positive legislative limitations, that it will not entertain stale demands. Story, J., 9 Pet. 416; Kingsland v. Roberts, 2 Paige, 193; Platt v. Vattier, 9 Pet. 405; Perry on Trusts, § 869; Kane v. Bloodgood, 7 Johns. Ch. 93; Hunton v. Davis, 2 Rep. of Cas. in Chan. 44; St. John v. Turner, 2 Vern. 418. Independently of the statute of limitations, and even if there were any obstacle to its application, the legal presumption of payment applied after the lapse of such a great number of years. In the case of Bean v. Tonnele, 94 N. Y, 381, lately decided in this

court, it was held that the presumption of payment after the lapse of twenty years was applicable to a simple contract indebtedness, and in the present case there are no facts or circumstances to rebut such presumption. Matter of Neilly. Opinion by Rapallo, J. [Decided April 15, 1884.]

WILL- -ONE OBTAINING DEVISE FOR OTHER'S BENEFIT-TRUSTEE-FRAUD IF DOES NOT PERFORM-JOINT

TENANTS-PROMISE BY ONE BINDS OTHERS.-(1) Where a person, even by silent acquiescence, encourages a testator to make a devise or bequest to him, with a declared expectation that he will apply it for the benefit of others, this has the force and effect of an express promise so to apply it. Walgrave v. Tebbs, 2 K. & J. 321; Schultz's Appeal, 80 Peun. St. 405. If he does not mean to act in accord with the declared expectation which underlies and induces the devise, he is bound to say so, for his silent acquiescence is otherwise a fraud. Russell v. Jackson, 10 Hare, 204. Equity acts in such case not because of a trust declared by the testator, but because of the fraud of the legatee. For him not to carry out the promise by which alone he procured the devise and bequest, is to perpetrate a fraud upon the devisor which equity will not endure. The authorities on this point are numerous. Thynn v. Thynn, 1 Vern. 296; Oldham v. Litchford, 2 Freem. 284; Reech v. Kenningdale, 1 Ves. Sr. 124; Podmore v. Gunning, 5 Sim. 485; Mickleston v. Brown, 6 Ves. 51; Hoge v. Hoge, 1 Watts, 163; Jones v. McKee, 6 Penn. St. 425; Dowd v. Tucker, 41 Conn. 197; Hooker v. Oxford, 33 Mich. 454; Williams v. Vreeland, 32 N. J. Eq. 135. The circumstances in these cases were varied and sometimes peculiar, but all of them either recognize or enforce the general doctrine. It has been twice applied in our own State. Brown v. Lynch, 1 Paige, 47; Williams v. Fitch, 18 N. Y. 546. The character of the fraud which justifies the equitable interference is well described in Glass v. Hurlbert, 102 Mass. 40; 3 Am. Rep. 418. It was said to consist"in the attempt to take advantage of that which has been done in performance or upon the faith of the agreement while repudiating its obligation under cover of the statute." (2) When the gift is to several as joint tenants and the promise to carry out the declared purpose of the testator is made by one of them it is obligatory upon all. Rowbotham v. Dunnett, 8 Ch. Div. 430; Hooker v. Oxford, 38 Mich. 453; Russell v. Jackson, 10 Hare, 203. O'Hara v. O'Hara. Opinions by Finch, J. [Decided April 15, 1884.]

CONTRACT-RESCISSION MISTAKE GRANTEE DISCHARGED FROM PAYMENT OF COVENANT TO PAY MORT

GAGE.—In an action brought to rescind a contract for the exchange of lands on the ground of fraud, the court found that plaintiff agreed to exchange his premises, subject to a mortgage thereon, for four lots which defendants represented that they owned, but to which they had no title; they did own a parcel of land in the neighborhood of the lots, of much less value. Plaintiff conveyed his premises, and received a deed purporting to convey the four lots. The court refused to find fraud. Defendants claimed that they intended to convey the land actually owned by them, but by mistake the four lots were described in their deed, and asked to have the deed reformed. Held, that plaintiff was entitled to equitable relief whether the case was one of fraud or mistake; if the latter, the minds of the party never met, and no actual contract was made; that defendants were not entitled to a reformation of their deed, as plaintiff never had agreed to take the premises actually owned by defendants, and the only way the mistake could be corrected was by a rescission of the formal coutract and the restoration to each party of what had been parted with on its faith. Plaintiff's deed contained a covenant on the

part of the grantees to pay the mortgage. Defendants objected that in case of a rescission they would be left liable upon the covenant to the holder of the mortgage. Held, untenable; that the rights of such holder were wholly dependent upon an effectual transfer and affected by the equities between the parties, and a judgment annulling the whole transaction released defendants from any liability. The principle decided in Dunning v. Leavitt, 85 N. Y. 30; 39 Am. Rep. 617, fully covers the point. There Mrs. Leavitt's promise to pay the mortgage debt was founded upon the conveyance to her, but the judgment in ejectment brought by the Howell heirs determined that no title passed to her by her deed, that the land was not transferred, and as a consequence that no consideration for her promise to the grantor for the benefit of the mortgagee remained, and so she never became liable. The effect of the decree is here the same. It annuls the deed, and adjudges that the land did not pass, and so the savings bank can have no right of action upon a promise divested by the judgment of any consideration. Crowe v. Lewin. Opinion by Finch, J. [Decided April 15, 1884.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

JURISDICTION-STATE AND FEDERAL-RECEIVER APPOINTED IN STATE COURT-EVIDENCE-COPIES OF RECORD.-(1) Of two courts having concurrent jurisdiction of any matters the one whose jurisdiction first attaches acquires exclusive control of all controversies respecting it involving substantially the same interests. Chief Justice Marshall thus announced the rule in Smith v. McIver, 9 Wheat. 532, and it has been followed in many cases since. Mallett v. Dexter, 1 Curt. 178; The Robert Fulton, 1 Paine, 621; Ex parte Rob inson, 6 McLean, 355; Board of F. Missions v. McMasters, 4 Am. Law Rev. 526; Ex parte Sifford, 5 id. 659; Parsons v. Lyman, 5 Blatchf. C.C. 170; U. S. v. Wells, 20 Am. Law Rev. 424; Crane v. McCoy, 1 Bond, 422; Blake v. Railroad, 6 N. B. R. 331; Levi. v. Life Ins. Co., 1 Fed. Rep. 206; Hamilton v. Chouteau, 6 id. 339; Ins. Co. v. University of Chicago, id. 443; Walker v. Flint, 7 id. 435; Wire Co. v. Wheeler, 11 id. 206; Ins. Co. v. Railroad, 13 id. 857; The J. W. French, id. 916; Stout v. Lye, 103 U. S. 66. (2) Accordingly where the Supreme Court of New Hampshire decreed the foreclosure of a deed of trust and mortgage of a railroad, and the property was actually sold, held, that the Circuit Court of the United States could not entertain a bill to enforce the operation of the road by trustees for the benefit of its stockholders, although the bill was filed before the sale, and the sale when made was declared to be subject to the result of the suit in the Circuit Court. (3) The possession of a receiver is the possession of the court appointing him, and cannot be divested by a court of co-ordinate jurisdiction. Taylor v. Carryl, 20 How. 583; Hagan v. Lucas, 10 Pet. 100; Freeman v. Howe, 24 How. 450; Buck v. Colbath, 3 Wall. 834; Walker v. Flint, 7 Fed. Rep. 435. (4) The admissibility of copies of a record in evidence does not render the record itself inadmissible. Cate v. Nutter, 24 N. H. 108; Jones v. French, 22 id. 64; U. S. Bauk v. Benning, Cranch C. C. 81. Cir. Ct., D. N. H. February 14, 1884. Bruce v. Manchester R. Opinion by Clark, J. [See ante, p. 12.-ED.]

INTERNAL REVENUE-CUSTOM DUTIES-AWARD OF APPRAISERS CANNOT BE IMPEACHED.-A merchant appraiser appointed under section 2930 of the Revised Statutes is a quasi judicial officer, and will not be per

*19 Fed. Rep.

mitted to testify to his own neglect of duty. To permit the awards of the important tribunal which Congress has established to appraise imported merchandise, to be overthrown on the assertion of one of its members made years afterward, is clearly against public policy. It is putting a premium upon incompetency, inaccuracy and fraud. Appraisers occupy the position of quasi judicial officers; they have been aptly described as "legislative referees." Tappan v. U. S., 2 Mason, 406; Harris v. Robinson, 4 How. 336. The merchant appraiser is presumed to be, and in fact is, the special representative of the importer, and quite naturally, as was demonstrated by the evidence in this case, is somewhat biased against the government. The examination which he is required to make may take place when he is entirely alone; its extent is largely in his discretion. What he says of it and its sufficiency no one can contradict. The government, if he is permitted to testify, is left remediless and wholly at his mercy. Cir. Ct., S. D. N. Y. February, 1884. Oelberman v. Merritt. Opinion by Coxe, J.

PATENTS-ESTOPPEL.-The inventor of a certain mechanism assigned the improvement to his employers, by whom it was patented. While in the same employ he ordered a mechanism to be made which he represented as a modification of the patented invention. After leaving the service of his employers he manufactured machinery identical with what he had previously ordered to be made. Held, that he and those in privity with him were estopped to deny that the mechanism in question was covered by the patent. Cir. Ct., S. D. N. Y. January 30, 1884. Time Telegraph Co. v. Himmer. Opinion by Wallace, J.

MARYLAND SUPREME COURT ABSTRACT.*

NEGLIGENCE-BURDEN ON DEFENDANT TO SHOW CONTRIBUTORY-DEFECTIVE BRIDGE-QUESTION EOR JURY.-The burden of showing contributory negligence on the part of the plaintiff rests on the defendants as well in suits for injuries occasioned by defective county roads and bridges as in actions against railroad companies for injuries occasioned by them. Reed v. Northfield, 13 Pick. 94. If there be evidence tending to show there was contributory negligence on the part of the plaintiff, it is for the jury to say whether it existed; and in such case it ought not to be ignored in the instructions to the jury. Hoyt v. City of Hudson, 41 Wis. 105. The fact that a person travelling on a public road knew that a bridge thereon had a hole in it, and was in an unsafe condition, is not a sufficient bar to his recovery for an injury occasioned thereby in passing over it; but he is concluded if he knew the bridge to be wholly impassable. The case of Haton v. Inbab. of Ipswich, 12 Cush. 492, is in perfect accord with Reed's

's case we have cited from 13 Pick. Tisdale's case, in 8 Metc. 392, lays down the law for a case where the road is so bad, a bridge so impassable as to make it foolhardy to attempt a passage. Farnum v. Town of Concord, 2 N. H. 394, and Folsom v. Town of Underhill, 36 Vt. 581, are to the same effect. The doctrine to be extracted from all these cases is that if the defect in the road or bridge be such as to make the same practically impassable, a person takes all the hazard who with such knowledge attempts to pass over the road or bridge, and will not be redressed if he is injured. If this defect in the bridge had existed, and the county commissioners could be reasonably affected with notice of it, as the evidence indicates was the case, then their liability to the plaintiff for his injury is undenia ble. Duckett's Case, 20 Md. 174; Gibson's Case, 36 id. 237, and County Comrs. of Harford Co. v. Hamilton, *To appear in 61 Maryland Reports.

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OF STATUTE AS TO ERECTION-CHARGING TOLLS.-In an action for tolls brought by one of the turnpike companies chartered by the Act of 1804, chapter 51, it was held: (1) That it was not contemplated by said act that said company should have but one toll-gate for every ten miles of its road, or that they should be located exactly ten miles apart; (2) that in view of the object of the grant it was reasonable to suppose that the Legislature intended that the power to determine the number and location of the gates should be a continuing one, to be exercised at any time, and to include the power of removing gates from one place to another. It is true the terms of the grant are to erect and fix "the gates, and counsel for the appellee have strenuously contended that such a power, when once exercised, is exhausted, and no power, either to erect new gates or to change the location of old ones, any longer exists. This position is undoubtedly countenanced, if not sustained, by the two cases in Connecticut to which we have referred. State v. Norwalk & Dan. Turnpike Co., 10 Conn. 157; Turnpike Society v. Hosmer, 12 id. 361. But in our judgment a more reasonable view of the subject has been taken by the courts of New Hampshire and Vermont in the cases of Cheshire Turnpike v. Stevens, 10 N. H. 133, and Fowler v. Pratt, 11 Vt. 369. (3) If this question were a doubtful one then a long-established usage in this respect, which has met with the uniform and entire acquiescence of the public, may well be invoked to solve the doubt in favor of the existence of the power. That the defendant was chargeable with tolls according to the distance between the gates, and not according to the distance on the turnpike actually travelled by him. People v. Kingston and Middletown Turnpike Co., 23 Wend. 194; Buncombe Turnpike Co. v. Mills, 10 Ired. 30; Stuart v. Rich, 1 Caines, 182; Lincoln Avenue and Niles Centre Gravel Road Co. v. Daum, 79 Ill. 599. Baltimore and F. Turnpike Co. v. Routzahn. Opinion by Miller, J.

LOTS

IOWA SUPREME COURT ABSTRACT. MUNICIPAL CORPORATION-SURFACE-WATER BELOW GRADE.—A municipal corporation is not liable for a failure to provide gutters and culverts sufficient to keep the surface-water from the street from overflowing lots below the established grade. The rule upon the subject is thus stated in 2 Dill. Mun. Corp. (3d ed.), § 1051; "There will be a liability if the direct effect of the work, particularly if it be a sewer or a drain, is to collect an increased body of water and to precipitate it on the adjoining property to its injury. But since surface-water is a common enemy which the lot-owner may fight by raising his lot to grade, or in any other proper manner, and since the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining private owner, it is not ordinarily, if ever, liable for simply failing to provide culverts or gutters adequate to keep surface-water off from adjoining lots below grade, particularly if the injury would not have occurred had the lots been filled up so as to have been on a level with the street." To the end that we may not be misunderstood, we think it proper to refer briefly to certain decisions of this

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