ances or incumbrances in their own favor is a waiver of their right, and equivalent to a representation that they do not exist, in favor of the innocent subsequent purchaser, who otherwise would be wrongfully affected by them. It is a case for the application of the maxim, idem est non esse et non apparere.

It applies to cases of negligence as well as of fraud, for the injurious consequences of both are not distinguishable. It was stated by Lord Romilly, Master of the Rolls, in Briggs v. Jones,, L. R., 10 Eq. 98, in this comprehensive form: "A person who puts it in the power of another to deceive and raise money, must take the consequences. He cannot afterward rely on a particular or a different equity." It was applied by Vice-Chancellor Kindersley in Rice v. Rice, 2 Drew, 73, as between a vendor, asserting his equitable lien for unpaid purchase-money, and a subsequent equitable mortgagee by deposit of title-deeds. In deciding the case he said, what is very pertinent in the present: "The vendors, when they sold the estate, chose to leave part of the purchase-money unpaid, and yet executed and delivered to the purchaser a conveyance by which they declared, in the most solemn and deliberate manner, both in the body of the deed and by a receipt indorsed, that the whole purchase-money had been duly paid. * * They thus voluntarily armed the purchaser with the means of dealing with the estate as the absolute legal and equitable owner, free from every shadow of incumbrance and adverse equity. * * The defendant, who afterward took a mortgage, was in effect invited and encouraged by the owners to rely on the purchaser's title. They had in effect by their acts assured the mortgagee, that as far as they (the vendors) were concerned, the mortgagor had an absolute title both at law and in equity." See also, Waldron v. Sloper, 1 Drew. 193; Dowle v. Saunders, 2 H. & M. 242; Perry Herrick v. Attwood, 2 De G. & J. 21; Darnell v. Hunter, L. R., 11 Eq. 292; S. C., L. R. 7 Ch. Ap. 75.

*

*

The rule applies in favor of the superior equity of a junior mortgagee, even in cases where the prior mortgage conveys the legal estate. Ordinarily the priority between incumbrance is determined by their quality,as each successive conveyance passes only what title remains after satisfying those which precede it. The first mortgage conveys the legal estate; the second, merely an equity of redemption; and as equity follows the law, and the owner of the legal title, by means of it, has a legal right, after condition broken, to the possession and a remedy at law for acquiring it, he is entitled to priority. A mortgage however, in equity, at the present day, has almost ceased to be regarded as a conveyance of an estate, and is considered rather as merely a lien upon the estate of the mortgagor, the tendency of the modern law being to look upon it simply as a security for the payment of a debt or duty. Such indeed is an express statutory provision in Utah, section 260 of the Civil Practice act of February 17, 1870, enacting that "a mortgage of real property shall not be deemed a conveyance, whatever its term, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale." Under this provision all mortgages, without respect to their relative dates, are legal liens, and priority cannot attach to the earlier in date by reason of the superior dignity of the estate conveyed. The rule therefore that gives preference to the legal title has no application, and the priority among them must be determined by purely equitable considerations.

The only circumstance on which the appellant can rest the claim of his mortgage to a preference over that of the appellee, is that it is prior in date. But the maxim quoted in support of this claim - qui prior est tempore potior est jure — only applies in cases in which the equities are equal. That, we have already de

cided, is not the case. Here equity cannot be satisfied otherwise than by subjecting the appellant to the loss, which has to be suffered by one of the two solely in consequence of his own fault.

Some question was made in argument as to whether the appellees were holders of the mortgage to Kerr for a valuable consideration. But the findings of the court, which are conclusive as to the facts, leave no room for doubt upon the legal conclusion.

We find no error in the decree, and it is accordingly affirmed.

INVALIDITY OF FOREIGN DIVORCE.

OHIO SUPREME COURT, JANUARY TERM, 1881.

VAN FOSSEN V. STATE OF OHIO.*

A decree of divorce under a statute of another State authorizing a divorce between husband and wife, neither of whom is domiciled therein, is of no force or effect in this State where the parties have their domicile.

RROR to the Court of Common Pleas of Muskingum county. The opinion states the case.

Evans & Evans & Charles A. Beard, for plaintiff in

error.

George K. Nash, Attorney-General for the State.

BOYNTON, C. J. The plaintiff in error was tried and convicted of bigamy, in the Court of Common Pleas of Muskingum county, at its May term of the present year, and sentenced to the penitentiary. The State gave evidence at the trial, tending to show that in March, 1850, the accused was married to Lydia J. Fowler, who was still living, and that on the 18th of January, 1881, at said county, he intermarried with

one Louisa Williams. The defendant offered in evidence what purported to be a record of a decree of divorce, granted by the county court of Larimer county, Colorado, by which it appeared that in an action apparently brought by the said Lydia J., she was divorced

from the defendant at the December term of said County Court in 1880, for some marital offense alleged and found to have been committed within that State.

He also offered in evidence a copy of the general laws of Colorado, by which a year's residence was required by the party applying for a divorce, unless the marital offense was committed within the State, or while one or both of the parties resided therein.

In reply to this evidence the State offered testimony tending to show that at the time said decree of divorce was granted, as well as at the time the action therefor was commenced, and for many years before, the defendant and his wife, Lydia J., were both residents of and domiciled in Ohio; and that neither of them had acquired a domicile in Colorado. Whereupon the court charged the jury, that if they found that neither the husband nor wife was domiciled in Colorado when the action for divorce was instituted or prosecuted, but that both were then domiciled in Ohio, the decrée of the Colorado court was void or inoperative byond the limits of that State. The question to be decided arises upon an exception to this instruction.

We think the instruction was correct.

The courts of one State have no jurisdiction over any marital offense, or cause of divorce, wherever arising, unless one of the parties has an actual bona fide domicile within the State. 2 Bish. on Mar. & Div., § 144; Cox v. Cox, 19 Ohio St. 502. Nor does it alter the case that the alleged marital offense was committed within the State where the divorce is sought, or that the parties submit to its jurisdiction.

*To appear in 37 Ohio State Reports.

What is wanting in such case is jurisdiction over the subject matter. Marriage is a status exclusively regulated and controlled by the laws of the State where the relation exists. Cheever v. Wilson, 9 Wall. 108.

It is upon this status that the decree of the court operates. If the courts of one State can dissolve the marriage relation of parties both of whom are domiciled in another, for an act or offense committed while the parties were temporarily within the former State, they could as well be clothed with jurisdiction to divorce parties for an act or offense, wherever committed, provided the defendant could be found and summoned within their jurisdiction.

The doctrine is however well settled, and is founded upon the most obvious considerations of public policy, that the law of the place of the actual domicile, where both parties dwell within the same jurisdiction, governs not only as to the causes or grounds of divorce, but as to the tribunals in which the action therefor may be prosecuted. Story on Confl. Laws, § 230 a; Strader v. Graham, 10 How. 82, 93.

It is true that courts may be authorized to take jurisdiction where either of the parties is domiciled within the State; and a wife may acquire a domicile different from that of her husband whenever it is necessary or proper that she should have such separate domicile, and away from the domicile of marriage, or the place or State where the marital offense was committed. Cheever v. Wilson, supra; Bish. on Mar. & Div., § 428, a.

But it is held by numerous cases, and may be regarded as settled law, that a decree of divorce granted by another State in which neither of the parties was domiciled, is, beyond the limits of such State, a nullity. Sewall v. Sewall, 122 Mass. 156; Hoffman v. Hoffman, 46 N. Y. 30; Hood v. State, 56 Ind. 263; People v. Dowell, 25 Mich. 247; Litowich v. Litowich, 19 Kans. 451.

It is however said in argument, that the clause of the Constitution of the United States requiring full faith and credit to be "given in each State to the public acts, records, and judicial proceedings of every other State" saves the Colorado decree from impeachment, and requires full force and effect to be given to it. This result would quite likely follow, if the Colorado court had acquired jurisdiction of both the parties and the subject matter of the action. But where jurisdiction is not acquired - a fact always open to inquiry, although the record recites the facts necessary to give the same- the judgment is void, and the provision of the Constitution has no effect upon it. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas Light & Coke Co., 19 Wall. 58; Pierce v. Ward, 25 N. J. Law, 225; Kerr v. Kerr, 41 N. Y. 272; Carleton v. Bickford, 13 Gray, 591; Folger v. Columbian Ins. Co., 99 Mass. 267, 273.

The jurisdiction of the court granting the decree was therefore open to inquiry, and the jury having found neither party to the decree to have been domiciled in the State where the same was rendered, it was entirely void beyond its territorial limits.

Judgment affirmed.

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

CONSTITUTIONAL LAW-RIGHT OF CITY TO EXACT WHARFAGE CHARGES.-A municipal corporation cannot exact from vessels a charge for entering or leaving its pilot, or remaining therein. Cannon v. New Orleans, 20 Wall. 577; Alexander v. Railroad Co., 3 Strobh. 594. It cannot levy a tax on vessels and water-craft entering its port and using the wharves and landings, for the benefit of the general revenue of such corporaAppearing in 9 Federal Reporter.

tion. Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 4 Dill. 10. But a municipal corporation owning improved wharves and other artificial means, which it maintains at its own cost for the benefit of those engaged in commerce upon the public navigable waters of the United States, may charge and collect from parties using its wharves such reasonable fees as will fairly remunerate it for the use of its property. Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. Tobin, id. 430. That such fees are regulated by the tonnage of the vessel will not constitute them a tonnage tax in the meaning of paragraph 3, § 10, of article 1, Constitution of the United States. Johnson v. Drummond, 20 Gratt. 419. From these propositions, well sustained by authority, the following are legitimate corollaries: No charges can be made on vessels landing at wharves of a municipal corporation for facilities not furnished. The commerce of this year cannot be taxed to furnish facilities for the next year. It is immaterial what disposition is made of the funds collected, except as showing what the collection is based on. No charges can be made on the promise to furnish facilities to commerce. U. S. Circ. Ct.. E. D., Louisiana, Dec. 21, 1881; Leathers v. Aiken. Opinion by Pardee, C. J. FORMER ADJUDICATION - WHAT CONSTITUTES ACTIONS IN DIFFERENT COURTS.- Where the substantial issue in two actions is the same, although the particular claims or causes of action be different, a trial and judgment upon the merits in the one action may be pleaded or given in evidence as an estoppel upon the same matter in the other. The rule is the same, though the one action be in admiralty and the other in a State court or a foreign jurisdiction. Where the owners of the brig T. C. chartered her to W. & Co. to proceed to Turk's island for a cargo of salt, to be furnished with quick dispatch, and the brig went there, and after waiting eight days for a cargo, and none being furnished, returned to New York, refusing to wait longer or to go elsewhere for a cargo, as desired by W. & Co.; and the owners thereupon sued the charterers in a State court for breach of the contract in not furnishing the cargo as agreed, and the charterers then sued the owners by libel in this court for breach of the contract in not

waiting longer or going elsewhere for a cargo as desired, and the defendants in each case set up a breach of the charter-party by the opposite side, held, that the substantial issue in each action was the same, and that a judgment in favor of the plaintiffs, after a trial by jury in the State court, might be set up as an estoppel in favor of the defendants in the action pending in this court; that leave should be given to set up the recovery of such judgment by supplemental answer; and as there was an appeal pending from the judgment in the State court, the cause, on being reached for trial in this court, should be stayed until the determination of the appeal. "A fact which has been directly tried and decided by a court of competent jurisdiction cannot be again contested between the same parties in the same or any other court." Hopkins v. Lee, Wheat. 109. Its operation is not as a former judgment recovered upon the same cause of action, for the cause of action is not the same, but as an estoppel of record by an adjudication of the same identical matter once heard and determined between the parties. Russell v. Place, 94 U. S. 606; Beloit v. Morgan, 7 Wall. 619; Aurora City v. West, id. 82; Gardner v. Buckbee, 3 Cow. 120; Bouchaud v. Dias, 1 Coms. 201; Hopkins v. Lee, 6 Wheat. 109; Bigelow, Estoppel (2d ed.), 36, 45; Flanagin v. Thompson, 9 Fed. Rep. 177. This case does not present the question which has given rise to conflicting decisions in the different State courts, viz., whether the same estoppel should be held to apply where the same claim or defense was legally involved in the prior action, and might have been presented, but was not in fact presented or considered. In such cases the court

of this State hold that if such matter be available in the former suit, and the issue by its nature involves the whole transaction, the defeated party is equally bound, whether he avails himself of it or not. Dunham v. Bower, 77 N. Y. 76; Schwinger v. Raymond, 83 id. 192. Other cases hold that where the causes of action are not the same, though growing out of the same transaction, the estoppel applies only to such issues as were actually raised and controverted, or to those ultimate facts upon which the verdict and judgment were predicated; and such has recently been the decision of the United States Supreme Court. Cromwell v. County of Sac, 94 U. S. 351; Davis v. Brown, id. 423; Smith v. Town of Ontario, 4 Fed. Rep. 386; Flanagin v. Thompson, 9 id. 177. In the answer here the plea in abatement of the other suit pending was of no avail, as that suit was in a foreign jurisdiction. Wadleigh v. Veazie, 3 Sumn. 165; Loring v. Marsh, 2 Cliff. 322; Mitchell v. Bunch, 2 Paige, 606; Salmon v. Wootton, 9 Dana, 422. But in such cases, whichever first ripens into judgment becomes effective, and may be then allowed to be set up as against the further prosecution of the other action. Child v. Eureka Co., 45 N. H. 547. The proper mode of doing this is by supplemental answer or plea puis darrein continuance. Steph. Pl. 611; Hendricks v. Decker, 35 Barb. 298; Butler v. Suffolk Glass Co., 126 Mass. 512; Drought v. Curtis, 8 How. Pr. 56. also, Taylor v. Royal Saxon, 1 Wall. Jr. 333; Hopkins v. Lee, 6 Wheat. 109; Young v. Rummell, 2 Hill, 478; S. C., 5 id. 61. U. S. Dist. Ct., S. D., New York, Nov. 17, 1881. The Tubal Cain. Opinion by Brown, D. J. PATENT STATUTE OF LIMITATION, Where the statute of limitation provides that all actions shall be brought during the term for which the letters-patent shall be granted or extended, or within six years after the expiration thereof, the lapse of six years after the expiration of the original term is a good defense to an action for the recovery of damages for the infringement of a patent-right during such term, though the term has been extended subsequently, and the statute has not yet run as to such extended term. The original term and the extended term are two distinct terms. U. S. Circ. Ct., Kentucky, Nov. 15, 1881; Sayles v. Louisville City Railroad Co. Opinion by Barr, D. J.

See

TITLE TO LANDS SOLD UNDER CONFISCATION LAW.A sale under the confiscation act of Congress, approved August 6, 1881 (12 St. 319), conveys to the purchaser the fee of the property, and not the life-estate only of the owner thereof. It seems, that a pardon does not remit forfeitures where the rights of third persons have intervened. Armstrong's Foundry, 6 Wall. 766, distinguished. See Miller v. United States, 11 Wall. 308; Osborn v. United States, 91 U. S. 477; Bigelow v. Forrest, 9 Wall. 341; Day v. Micon, 18 id. 156; U. S. Circ. Ct., Louisiana, December, 1881. Kirk v. Lewis. Opinion by Billings, D. J.

WISCONSIN SUPREME COURT ABSTRACT. NOVEMBER 22, 1881.*

CONSTITUTIONAL LAW SUIT AGAINST STATE. Under section 27, article 4, of the State Constitution, which declares that "the Legislature shall direct by law in what manner and in what courts suit may be brought against the State,jno action can be maintained directly against the State, in any court thereof, unless it is authorized by some statute. See Bull v. Canroe, 13 Wis. 233. Chicago, Milwaukee & St. Paul Railway Co. v. State of Wisconsin.

DEED-DATE NOT ESSENTIAL TO VALIDITY. A date is not essential to the validity of a deed, but it * Appearing in 53 Wisconsin Reports.

takes effect from its delivery; and where a tax deed did not mention the year of its execution, but the acknowledgment was fully dated and the deed was shown to have been recorded the same day, held, that it should have been received in evidence, and that the statute of limitations began to run thereon from the date of its recording. "The real date of the deed is the time of its delivery." Kent, C. J., in Jackson v. Schoonmaker, 2 Johns. 234. So a deed is good if it has the day of the month, but no year is mentioned. Com. Dig. Fait. B." McMichael v. Carlyle. Opinion by Cole, C. J.

-

DEMAND WHAT AMOUNTS TO REFUSAL. After each of the parties had notified the other to keep off his premises, plaintiff's horses escaped upon defendant's adjoining land, through a defective line fence, which it was defendant's duty to maintain. Plaintiff's servant, sent for the purpose, meeting defendant near the latter's house, inquired if plaintiff's horses were there, stating that they had got out and he was after them. Defendant, knowing that there were horses upon his premises, which he thought might be plaintiff's, answered that there were horses in a certain field, which he pointed out, but he said nothing, and nothing was said, about the servant or plaintiff taking them. Held, that there was a sufficient demand, and defendaut's failure to give plaintiff express license to go upon the premises and take the horses was equivalent to a refusal. Keefer v. Carrier. Opinion by Lyon, J.

FRAUDULENT CONVEYANCE-HUSBAND AND WIFE— BURDEN OF PROOF- In an action between a wife and her husband's creditor's, where she claims property in dispute by purchase from her husband, the burden is upon her to prove, by clear and satisfactory evidence, that such purchase was made in good faith, for a valuable consideration, paid out of her separate estate or by some third person for her; and the same rule applies to one who took from the wife with notice. In such a case a mere recital of a valuable consideration, in the bill of sale from husband to wife, will not support a verdict in her favor. Stanton v. Kirsch, 6 Wis. 338; Horneffer v. Duress, 13 id. 603; Weymouth v. Railroad Co., 17 id. 550; Duress v. Horneffer, 15 id. 195; Beard v. Dedolph, 29 id. 136; Stimson v. White, 20 id. 563; Elliott v. Bently, 17 id. 591; Putnam v. Bicknell, 18 id. 333; Hannan v. Oxley, 23 id. 519; Fenelon v. Hogoboom, 31 id. 172; Hoxie v. Price, id. 82; Carpenter v. Tatro, 36 id. 297. Horton v. Dewey. Opinion by Taylor, J.

ΤΑΧΑΤΙΟΝ

DEDUCTION OF DEBTS NATIONAL

BANK STOCK -The value of stock in a national bank, owned by a tax payer of this State, must be considered a part of the debts due or to become due" him from which he is entitled to deduct the amount of his bona fide and unconditional indebtedness, in listing his property for taxation, under subd. 10, sec. 1038, R. S. The Supreme Court of the United States held in People v. Weaver, 100 U. S. 539, that a statute of New York, which the Court of Appeals of that State had interpreted as prohibiting the deduction of debts owing by any person from the value of national bank shares owned by him, for the purposes of assessment, and taxation, was, because of another statute of that State, in contravention of the above limitation of the power of the State to tax such shares, and therefore void. The statute referred to is similar to section 1038 above mentioned, except that the deduction of debts is to be made from the value of all personal property, including moneyed capital, whereas, under our statute it is only to be made from credits, or what is the same thing, from moneyed capital. This difference in the statutes obviously is of no significance. The ruling would necessarily have been the same had the New

York statute been precisely the same as section 1038. See also Pelton v. Nat. Bank, 101 U. S. 143; Cummings v. Nat. Bank, id. 153; Evansville Nat. Bank v. Britton, 8 Fed. Rep. 867. Ruggles v. City of Fond Du Lac. Opinion by Lyon, J.

KANSAS SUPREME COURT ABSTRACT. FEBRUARY, 1882.*

ATTORNEY AND CLIENT DEALINGS BETWEEN PURCHASE BY ATTORNEY OF CLIENT'S PROPERTY THROUGH AGENT. —(1) The law will not permit an attorney to take advantage of his relations with his client, to make a contract with reference to property in litigation, to the latter's disadvantage. While it is the duty of the attorney to protect the interest of his client, and the client is entitled, while the relation of attorney and client exists, to the fu!! benefit of the best exertions of his attorney, and such attorney cannot bring his own personal interest in any way into conflict with that which his duty requires him to do, or make a gain for himself in any manner whatever, at the expense of his client, in respect to the subject of any transaction connected with or arising out of the relation of attorney and client, beyond the professional remuneration to which he is entitled, yet the law does not prohibit an attorney from purchasing from his client. If however he purchase a client's property, which is the subject matter of the relation of attorneyship, during the existence of such relation, the burden of proof lies upon him to show the transaction has been perfectly fair, and that a just and adequate price has been given to his client therefor. Where an attorney makes a purchase of real estate from his client, through an agent, who does not disclose his principal, and such real estate is the subject-matter of the relation of attorneyship, if such agent acts bona fide, and the attorney has fully informed his client of his legal rights to such real estate, and has taken no advantage of him by virtue of his relation as attorney, and such client receives a just and fair price for the real estate, the mere fact that the land was purchased through an agent does not vitiate or avoid the transaction. On April 24, 1857, one W. settled and filed on a pre-emption claim in Wyandotte county, containing about eighty acres. Afterward, on July 13, 1857, the United States conveyed this with other lands, by patent to one A., W. then employed J. as his attorney to defend his interests, and gave to him a written power of attorney authorizing him to litigate or compromise the questions of title between W. and A. Afterward the attorney employed one L. to purchase the land from his client. Such purchase was made on September 11, 1858, and on December 20, following, L. transferred the deed and property to the attorney. taining the conveyance, L. did not disclose the name of his principal, but his acts at the time of purchase were in good faith, and the attorney took no advantage of his client by virtue of his professional position, and the client received a just and full price for his claim. Held, that as the transaction upon the whole was fair and reasonable, and as the attorney did not use his influence over his client to his prejudice, and as the client was paid a full and fair price for the land, a judgment of the trial court sustaining the conveyance will not be set aside. Where a grantor executes a conveyance of land to a grantee under such circumstances that in a proper action instituted by the grantor, such conveyance may be avoided on account of the fraud of the grantee, yet if such grantor delivers possession of the premises under such conveyance, and permits it to stand, his subsequent grantee cannot * To appear in 27 Kansas Reports.

In ob

question any supposed fraud in the prior conveyance. Yeamans v. James. Opinion by Horton, J.

TION

OF BROKER

BROKERAGE-SALE OF REAL ESTATE-COMPENSAEMPLOYMENT OF SEVERAL BROKERS. — In an action brought by a real estate broker to recover the compensation for selling a certain piece of land, it was shown that the defendant had previously owned the land; that he put it into the hands of this broker, and also into the hands of another broker, for sale; that the land was sold, and that the plaintiff in the action was the primary efficient and procuring cause of the sale, and that the defendant had full notice of this fact, but that the defendant on the trial claimed that the plaintiff had not made the sale but that it was made by the other broker, and asked the court to instruct the jury as follows: Where several brokers are openly employed to effect the sale of the same property, the entire duty of the seller is performed by remaining neutral between them, and he has the right to make the sale to a buyer produced by either or any of them, without being called upon to decide between these several agents, as to which of them was the primary cause of the purchase," and the court refused to give the instruction. Held, that although said instruction may be good law for some cases, yet that under the circumstances of this case, it is not good law for this case, and that the court below did not err in refusing to give it. Eggleston v. Austin. Opinion by Valentine, J.

CONSTITUTIONAL LAW BILL CONTAINING SUBJECT NOT IN TITLE-KANSAS LIQUOR LAW.-The Kansas Constitution provides thus: No bill shall contain more than one subject, which shall be clearly expressed in its title." An act of the legislature bore this title: "An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes." Section 19 of the act read thus: "It shall be unlawful for any person to get intoxicated, and every person found in a state of intoxication shall, upou conviction thereof before any justice of the peace, be fined in the sum of five dollars, or be imprisoned in the county jail not exceeding ten days." Defendant was prosecuted on a complaint which read as follows: "S. S. K., county attorney, of lawful age, being duly sworn, on his oath says: "That at the county of Wilson and State of Kansas on, to wit: the 9th day of June, A. D. 1881, one J. J. B. did then and there unlawfully and wrongfully get intoxicated, and was found in a state of intoxication, contrary to the statute in such cases made aud provided, and against the peace and dignity of the State of Kansas." Held, that said section in so far as it had any application to the case, was unconstitutional and void, being enacting in contravention of the above mentioned provision of the Constitution. The action of the law-making power must in all cases be upheld, unless its action is manifestly in contravention of the Constitution. No slight difference of opinion will authorize the judiciary to set aside the action of the law-making power, or to nullify an act of the Legislature. But where an act of the Legislature, or a portion of the act, is clearly unconstitu tional, it is the duty of the courts to so declare, and to hold the unconstitutional provision or provisions null and void. Under the provision mentioned of the Constitution, the title of an act may be as broad and comprehensive as the Legislature may choose to make it; or it may be as narrow and restricted as the Legisla ture may choose to make it It may be so broad and comprehensive as to include innumerable minor subjects, provided all these minor subjects are capable of being so combined and united as to form only one grand and comprehensive subject; or it may be so

narrow and restricted as to include only the smallest and minutest subject. And while the title to an act may include more than one subject, provided all can be so united and combined as to form only one single, entire, but more extended subject; yet neither the title to the act nor the act itself, can contain more than one subject, unless all the subjects which it contains can be so united and combined as to form only one single subject. In construing the title to an act as well as the act itself, reference must be had to the object of the act, and to the evil sought to be remedied by it. It is not necessary that the title to an act should be a synopsis or abstract of the entire act in all its details; it is sufficient if the title indicates clearly, though in general terms, the scope of the act. Where the title to an act is not broad enough to include everything contained in the act, that which is not included within the title must be held to be invalid, for such is evidently the manifest intention of the Constitution, and the courts have no power to enlarge or extend or amplify the title to the act, any more than they have to enlarge or diminish or modify or change the act itself. Where an act contains two separate and independent subjects, having no connection with each other, and the title to the act is broad enough to cover both probably, as a general rule the act is unconstitutional and void. State of Kansas v. Barrett. Opinion by Valentine, J.

NEGLIGENCE-ACTION AGAINST OWNER OF CATTLE STRAYING ON UNFENCED RAILROAD TRACK. - Plain

tiff's intestate was a fireman employed on the L. L. & G. R. R., and while engaged in running a freight train the train struck a steer belonging to defendant which had strayed on the track; the engine and tender were thrown from the track and plaintiff's intestate so injured that he died. The right of way at the place of the injury was owned in fee simple by the railroad company, who had obtained a deed therefor from the defendant, the latter owning the land on both sides of the right of way. The railroad was unfenced. Defendant was in the habit of turning his cattle loose on his own lands, and they frequently strayed on and across the railroad track; held, that plaintiff had no cause of action against the defendant. Sherman v. Anderson. Opinion by Brewer, J.

NORTH CAROLINA SUPREME COURT AB

CARRIER

STRACT.*

OCTOBER TERM, 1881.

WHAT IS DELIVERY OF GOODS TO CONSIGNEE-NEGLIGENCE-PROXIMATE CAUSE. - In an action for damages against a railway company to recover the value of goods lost by the alleged negligence of the defendant, it appeared that after the arrival of the goods they were placed on a platform at the depot for the convenience of delivery to consignees, and remained there for nearly two days; notice of their arrival was given the plaintiff, who paid the freight charges with full knowledge of the place of deposit, but failed to remove them on account of his inability at the time to procure the services of city draymen for that purpose, and in the afternoon of the second day they were destroyed by fire, together with much of defendant's property: Held, (1) that there was a delivery in law of the goods to the plaintiff consignee, which exonerated the defendant company from liability as warehousemen, and (2) that the fact that the fire originated in a steam cotton compress, erected on the company's premises with its permission but not under its control, does not constitute negligence in the defendant, the permission to erect the same not being the proximate cause of the injury sustained by the * Appearing in 85 North Carolina Reports.

plaintiff. Chalk v. Charlotte, Columbia & Augusta Railroad Co. Opinion by Smith, C. J.

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STATUTE OF LIMITATIONS-PARTIAL PAYMENT — NEW PROMISE. (1) The obstruction of the statute of limitations may be removed by an act of partial payment, proved to have been made at a time commencing from which the prescribed limitation would not have expired at the beginning of the action; but the burden is upon the plaintiff to show that the partial payment was made at such a time as to save the debt from the operation of the statute. An unaccepted offer to discharge the bond by a conveyance of land is not such a recognition of a subsisting liability as in law will imply a promise to pay the debt. Lord Ellenborough instructed the jury: "You ought to be satisfied that the defendant made a distinct, unequivocal promise to pay before he is placed again in the responsible situation from which the law has discharged him." Fleming v. Hayne, 1 Starkie, 370. See also Green v. Greensboro, 83 N. C. 449; Fraley v. Kelly, 67 id. 78; Henly v. Lanier, 75 id. 172; Faison v. Bowden, 72 id. 405. (2) The new promise which will revive a debt extinguished by bankruptcy must be distinct and specific; and a mere acknowledgment of the debt, though implying a promise to pay, is not sufficient. It was held by the Supreme Court of Massachusetts, that even a payment of interest or principal indorsed on the note by the debtor himself, is insufficient to warrant a jury in inferring a new promise to pay the residue of the debt. Merriam v. Bayley, 1 Cush. 77; Savings Inst. v. Littlefield, 6 id. 210. See also 1 Pars. on Cont. 381; 1 Chit. on Cont. 263. Biggs v. Roberts. Opinion by Smith, C. J.

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ADVERSE

TITLE TO ROYAL GRANT. (1) The actual title to land will draw to it such a constructive possession as will ripen. by lapse of time, into an independent title, in the absence of evidence of an adverse possession by some other party. (2) A royal grant of land, issued prior to the revolution, will, in North Carolina, be presumed to be in fee, though the abstract of such grant contains no words of inheritance. (3) When both the plaintiff and the defendant in ejectment derive their title from the State, but under grants of different dates, it is competent for the defendant to show title out of the plaintiff by establishing a prior valid grant from the State to another party, though he fail in an effort to connect himself with such elder title. Clarke v. Diggs, 6 Ired. 159; McLenan v. Chisholm, 64 N. C. 323; Taylor v. Shuford, 4 Hawks. 116. Tolson's Heirs v. Mainor. Opinion by Ashe. J.

POSSESSION- PRESUMPTION AS

MICHIGAN SUPREME COURT ABSTRACT. JANUARY 16, 1882.

EMINENT DOMAIN

COMPENSATION - OCCUPATION OF STREET BY RAILROAD - RIGHTS OF ABUTTING LAND OWNER-MEASURE OF DAMAGES.-The dedication of a street to the public does not authorize it to be used for an ordinary railroad track; and the municipal representatives cannot authorize it to be so used without

compensation to adjacent owners. Those who have dedicated or platted lands and sold lots, streets or other public spaces, cannot thereafter withdraw or change the use of them to their grantee's detriment and the destruction of their rights on the street or public grounds on which their lots abut. An entirely unauthorized interference with any recognized right whatever is a good ground of action. Where a railroad track has been laid in a public street without authority to use the street for that purpose, any adjacent proprietor who has not consented to such use is entitled to damages for such injury as he may have