progressive civilization, incorporating the new with the old, and readjusting the whole with its several parts, according to the rules of an immutable justice. Human societies, each for itself, but also in company with all others composing the whole race of mankind on the earth, are struggling, consciously and unconsciously, at all times, to organize themselves upon the principle of strict and equal justice. This is their chief business and purpose. To this end they exist. If they fail altogether in its achievement, they necessarily disintegrate, fall into decay, and sink into nothingness. A certain approximation to success in this work is essential to their continued existence. Justice is to them the very element of life. It is what the blood is to the animal body. If it is rich and pure, and flows in its natural courses, it distributes to every tissue and organ of the body it vitalizes, in due and exact proportion, just the nutriment it needs to supply it with health and energy; and every member, receiving satisfaction for its own wants, joins with all the rest to constitute the beauty and strength which come from harmony in nature.

The struggle for justice goes on continually. The strifes between nations and races, between opposing classes and interests in the same people, are blind efforts to obtain it, in which each contestant thinks he is seeking to regain or retain what belongs to him.

And so the world, day by day, learns by its experiences of good and evil its lessons in the science of life, advancing by degrees in an education which first teaching that the highest interest of mankind is universal justice, will eventually lead it into the practical establishment of the institutions by which it may be realized.

It is by its participation in the processes of this education, that perhaps the legal profession renders to society its greatest indirect service. It makes common and introduces into the popular mind and speech the ideas and language of jurisprudence. The daily spectacle of adjusting disputes, composing strife, securing rights, avenging and punishing wrongs, and administering the solemu judgments of the law, is to all participants and spectators, the litigants themselves, their friends, their witnesses, the jury, and the more or less large audience who hear and discuss the matters at issue an impressive exhibition, which represents with striking and permanent effects upon the imagination of men, the majesty and dignity of that justice whose ministrations they witness or share.

This is true of all countries where the people have made considerable advances in intelligence, and take some active part in the work of government. It is especially true in reference to our own country, as was noted by De Tocqueville in his observations upon our institutions. He says:

"The influence of the legal habits which are in common in America extends beyond the limits I have just pointed out. Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate; hence all parties are obliged to borrow the ideas, and even the language usual in judicial proceedings in their daily controversies. As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the affairs of the country. The jury extends their habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that the whole people contract the habits and the tastes of the magistrate."

But the direct and specific function of the profession, in the social and political state, in its progress in civilization, is to formulate its progress into laws and in

stitutions, and superintend the gradual perfection of its organization, according to the idea of justice. That its mission is as yet incomplete and subsisting, we are all, to-day, both witnesses and judges. Time and the occasion forbid my entering upon a discussion of the departments, in which in the near or possible future, we may expect to witness the advance of this work of the law, in the extension and growth of our existing civilization.

It seems Utopian even to hope, much less to look for the adjustment of all international disputes by peaceful arbitration, or the establishment of a confederation of powers, combined for the purpose of declaring and enforcing international obligations. Many people, organized into States-many, indeed, of the most ancient-have not yet recognized any common system of international obligations. Many are yet so little removed from the habits and manners of barbarism as not to understand any mode of asserting claims or resisting demands, except by war, And yet it ought not to be esteemed absurd to suppose it possible that States calling themselves Christian, and who do recognize their allegiance to the principles of a common justice in their necessary mutual intercourse, may find it practicable to adjust all controversies between themselves by amicable arbitrations. The real and only difficulty in the way seems to be the existence of those feelings and passions, allied to and growing out of National pride and race antipathies, which prevent a nation from recognizing its highest interest to be in the satisfaction of justice. Certainly all true National interests would, according to every probable expectation of the outcome in any given case, be far better served by the decision of a tribunal than by the chance of war. Let us suppose, for instance, that the recent war between Prussia and her allied German States, on the one part, and France on the other, having issued as it did in the fall of Napoleon and the second empire, the question of the terms of peace had been submitted by the two parties to some arbitrament of peaceful mediation, having no adverse interests, as surely might have been found-if not in Europe, then on this continent; and the award having been made, had been fulfilled. Does any one doubt that a peace, concluded on that basis, would have been far more useful even to the victorious party, than any indemnity wrested from the humiliation of a proud people by the strong arm? To say the least, both would probably have been spared the necessity and burden of the armaments which policy has required both ever since to maintain.

And we may be certain that sooner or later, if civilization keeps its promise to future ages, the burdens of war and of constant preparation for war must some day cease. They are in Europe almost intolerable today. The taxation necessary for the support of the immense armaments, kept up, either as menace or for defense, is grinding the faces of the poor, and driving starving men and women by millions annually to more peaceful shores. It will bankrupt the people and destroy the governments whose policy maintains them. Surely we may expect the reason and conscience of men, most interested, soon to make themselves heard, and to find a way, through peace, for the more perfect administration of justice in international relations. Perhaps in the sphere of our own public law there may be room and need for amendment and reform.

We have from the beginning, though not always with perfect consistency, recognized in our public law the right of expatriation, and made liberal provision for the naturalization of foreigners. This policy no doubt has been in the line both of our interest and our duty. But a revision of our definitions seems to be called for. Unfortunately some who have availed themselves of the privileges of our citizenship seem to have conceived the idea that by forswearing allegiance to the sovereign of their nativity, and subscribing the oath of fidelity

to that of their adoption, they have become entitled to the privileges of a double citizenship, without the responsibilities of either; and that they have changed their domicile merely that they might promote insurrection in a foreign country from a distant and safe base. These of our fellow-citizens should learn that they have discharged their whole duty to the cause of liberty in the protest they have recorded in their voluntary escape from oppression. And especially that if humanity requires us to sympathize with every people struggling to be free, nevertheless the asylum of neutral territory provided against political persecution must never be desecrated by becoming the harbor and cover for murderers and assassins.

It may be also that we shall realize that advanced justice desired by our first Chief Justice, John Jay, when he said, in the case of Chisholm's Ex'rs v. Georgia, 2 Dall. 378:

"I wish the state of society was so far improved and the science of government advanced to such a degree of perfection as that the whole nation could in the peaceable course of the law be compelled to do justice and be sued by individual citizens."

Our National government is and always has been, and very properly, exceedingly jealous of its commercial credit, and at every cost has maintained its faith with public creditors. But this has reference mainly to its public and negotiable debt. In almost all other cases of claims against its treasury, it insists upon being judge in its own cause. The Supreme Court of the United States has decided, in the case of Langford, 101 U. S. Rep. 341, that the maxim that "the king can do no wrong," as applicable to our government or any of its officers, has no place in our system of constitutional law; but has refused to imply an enforceable promise against the government for indemnity, in a case where its officers, in its name and for its use, have unlawfully taken private property, the government claiming title in itself. So that Judge Nott, of the Court of Claims, in the case of Brown v. The United States, 6 Ct. Claims Rep. 171, said:

"The laws of other nations have been produced and proved in this court, and the mortifying fact is judicially established that the government of the United States holds itself, of nearly all governments, the least amenable to the law."

The example of a submission of disputed claims to the judgment of an independent judicial tribunal, in that high quarter, might reasonably be expected to find imitation on the part of State governments, several of whom, unfortunately, refuse to recognize the duty of paying portions of their public debt, or what is claimed legally to be such. In all these instances there are, of course, pretexts, if not reasons, urged in justification of an apparent repudiation; and the institution of judicial tribunals for the adjudication of the question of liability, even if they were powerless to do more than declare their judgments, would reinforce, by a strong moral support, all honest claims and just debts.

But beyond all, and above all, are many social and political questions and problems, of momentous import, which sooner or later, must emerge into the sphere and jurisdiction of the expanding law. Among them may be noted that relating to the regulation of the rules and rates of transportation by common carriers, for the protection of the public against undue discriminations; the question of monopolies, involving the problem of formulæ by which associated capital can be made most efficient for good, with the least power of mischief, and how the power of unlimited combination can be reconciled with that of unlimited competition, and the advantages of both be retained; and the fundamental and radical question of the true economic relations between the three elements which directly enter into production, labor, skill and capital.

It may be that the science of political economy may hereafter discover and announce some rule of justice, founded in the nature of things, whereby to determine, in every given case, the share of produce, to which each of these agents in production is entitled, and some organization of productive industry may appear, through the voluntary action of those directly interested, which will furnish the machinery for the application of such rules and computations. If that should ever be realized, then jurisprudence will be ready to incorporate these methods and instruments into the system of its legal institutions, determine the relations which will spring from them, and ascertain and enforce the obligations of justice, which will then have the form and efficiency of law.

In the distant though delightful prospect of that consummation, we may adopt as our pæan and apostrophe, the memorable sentence of the judicious Hooker-none the less eloquent because familiarand say:

"Of law, there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempt from her power; both angels and men, and creatures of what condition soever, though each in different sort and manner, yet all with uniform consent admiring her as the mother of their peace and joy.”

STATE TAX ON INCOME FROM UNITED STATES SECURITIES.

PENNSYLVANIA SUPREME COURT, JUNE 13, 1880.

PHILADELPHIA CONTRIBUTIONSHIP INSURANCE V. COMMONWEALTH OF PENNSYLVANIA.

A State tax upon a corporate franchise, measured by the net earnings of the corporation, is valid and collectible, though a portion of those net earnings are derived from interest on United States Securities.

PROCEEDING to determine the validity of a tax

imposed by the Commonwealth of Pennsylvania, the plaintiff below, upon the defendant below, a corporation.

The plaintiff claims the right to assess and collect from the defendant a tax upon its annual net earnings or income, under a statute of Pennsylvania authorizing such tax. The defendant corporation claims immunity from taxation upon so much of said net earnings or income as is made up of interest received from United States and State bonds.

A judgment in favor of plaintiff was rendered below and defendant took a writ of error.

W. W. Montgomery, for plaintiff in error.

Lyman D. Gilbert, Deputy Attorney-General, and Henry W. Palmer, Attorney-General, for defendant in

error.

STERRETT, J. By the 10th section of the Revenue Act of 1879, which is substantially a re-enactment of the 6th section of the act of May 1, 1868, certain individuals, companies and corporations therein mentioned are required to make report to the auditor-general, setting forth the entire amount of net earnings or income received by them from all sources during the preceding year, and pay a tax of three per centum thereon for the use of the Commonwealth. P. L. 118.

The corporation, plaintiff in error, being clearly within the provisions of the act, made its return of earnings or income for the tax year ending October 31, 1879, and included therein $28,615.73 interest on United States bonds, and $15,375 interest on Pennsylvania

bonds; both of which items however it claimed were exempt from taxation. It was also claimed, that in ascertaining its net earnings or income, the difference between the par value of $307,000 United States bonds which were called in and paid during the year, and the price at which they were purchased several years before, should be treated as a loss, and deducted from its gross receipts. The accounting officers having refused to allow any abatement on account of either of these three items, the tax thereon amounting to $2,068.19 was paid under protest, and an appeal taken from the settlement. The decision of the court below was also adverse to the plaintiff in error on the points in controversy. The questions thus presented by the record are, whether the income derived from either class of bonds is exempt from taxation; and whether the difference between the price paid for the United States bonds and their par value should be regarded as a loss and deducted from the gross receipts.

It may be conceded that the bonds as such are not taxable by the Commonwealth; but the tax in question is not laid on the bonds. It is a tax on the corporate franchise of the plaintiff in error, measured by its net earnings. The right of the State to impose a tax on the franchise of any corporation that is indebted to it for existence and protection is too clear for argument. If the right exists, as it undoubtedly does, the manner of its exercise must be left to the wisdom of the Legisla ture; and perhaps no standard or measure of taxation can be adopted that will operate more justly and equitably than a per centum on net earnings or in

come.

The interest received by the company on the bonds undoubtedly formed a part of its income, and while the bonds themselves are exempt from taxation by virtue of the laws under which each class respectively was issued, it does not follow that the same immunity adheres to the money paid from time to time in discharge of the interest due on the securities. When so paid it loses the non-taxable characteristic of the bond on which it accrued, and should thenceforth be treated as any other species of income derived from other sources. But as already intimated the tax is not laid on the money and other receipts of the company. Its net earnings or income is resorted to, simply as a just measure of the tax to be paid for the enjoyment of its corporate franchise.

There is an obvious difference between a direct tax on the property of a corporation and a franchise tax measured by its earnings, which, proximately at least, represent either the value of the franchise granted or the extent of its exercise. The distinction has been repeatedly recognized by both Federal and State courts. In Society for Savings v. Coite, 6 Wall. 594, corporations of the class to which the plaintiff in error in that case belonged were required to pay annually a sum equal to three-fourths of one per cent on the total amount of their deposits; and it was held that this was a valid franchise tax and not a tax on property, and that the society had no right to claim exemption therefrom to the extent of its deposits invested in non-taxable securities of the United States. Under a similar law in Massachusetts it was held that a savings institution having a portion of its deposits invested in Federal securities was liable to a tax on account of such deposits as fully as on account of other deposits, notwithstanding the securities were declared by the act of Congress under which they were issued to be exempt from taxation under State authority. Provident Institution v. Massachusetts, 6 Wall. 611.

A distinction somewhat similar in principle is made in the cases of State Freight Tax and State Tax on Railway Gross Receipts, 15 Wall. 232 and 284, in the latter of which it is held that a statute imposing a tax on the gross receipts of railway companies is not repugnant to the Constitution of the United

States, though the receipts are made up in part of the freights received from inter-State transportation of merchandise.

The difference between the amount paid for the United States bonds and their par value cannot in any proper sense be regarded as a loss, but if it were otherwise the plaintiff in error is not entitled to the deduction claimed. A decrease of capital does not necessarily diminish the annual net earnings. It is the latter that has been adopted as a just measure of the tax imposed on the franchise. The contention of the plaintiff in error on this point has been so fully answered by the learned judge of the Common Pleas in the concluding portion of his opinion that further comment is unnecessary.

Judgment affirmed.

VALIDITY OF STATUTE TO ASCERTAIN QUALIFICATION OF VOTERS.

RHODE ISLAND SUPREME COURT, APRIL 13, 1881.

IN RE THE POLLING LISTS.

The Constitution of Rhode Island gives to citizens possessing certain specified qualifications a right to vote. It confers upon the Legislature power to pass a registry law and to prescribe in what manner the right of any person to vote shall be determined. Held, that a statute providing for a certified list of those qualified to vote in any town, and the rejection of the vote of a person whose name did not appear in the list, was valid, and that the vote of such person might be rejected at an election though he possessed the qualifications of a voter.

THE

HE Constitution of the State of Rhode Island, of November, 1842, article 2, section 1, provides: "Every male citizen of the United States, of the age of twenty-one years, who has had his residence and home in this State for one year, and in the town or city in which he may claim a right to vote, six months next preceding the time of voting, and who is really and truly possessed in his own right of real estate in such town or city of the value of one hundred and thirtyfour dollars over and above all incumbrances, or which shall rent for seven dollars per annum over and above any rent reserved or the interest of any incumbrances thereon, being an estate in fee-simple, fee-tail, for the life of any person, or an estate in reversion or remainder, which qualifies no other person to vote, the conveyance of which estate, if by deed, shall have been recorded at least ninety days, shall thereafter have a right to vote in the election of all civil officers and on all questions in all legal town or ward meetings so long as he continues so qualified. And if any person hereinbefore described shall own any such estate within this State out of the town or city in which he resides, he shall have a right to vote in the election of all general officers and members of the General Assembly in the town or city in which he shall have had his residence and home for the term of six months next preceding the election, upon producing a certificate from the clerk of the town or city in which his estate lies, bearing date within ten days of the time of his voting, setting forth that such person has a sufficient estate therein to qualify him as a voter; and that the deed, if any, has been recorded ninety days."

And article 2, section 6, provides:

"The General Assembly shall have full power to provide for a registry of voters, to prescribe the manner of conducting the elections, the form of certificates, the nature of the evidence to be required in case of a dispute as to the right of any person to vote, and generally to enact all laws necessary to carry this article into effect, and to prevent abuse, corruption, and fraud in voting."

The General Statutes of Rhode Island, chapter 9, section 1, provide:

"The moderator or warden of any town, ward, or district meeting, shall receive the votes of all persons whose names are upon the list of voters, certified and delivered to him by the town clerk, and shall reject the votes of all persons claiming to vote, whose names are not on said list; provided, that if any voter whose name is upon any ward list in the cities of Providence or Newport, or upon any district list in any town, shall have removed to another ward or district, after the making out of the ward or district list, or if the name of any voter shall have been placed upon the wrong ward or district list, every such voter shall be admitted to vote in the ward or district in which he resides, upon producing the certificate of the town clerk, that his name is upon another ward or district list, duly prepared for the election at which he claims to vote."

March 23, 1881, the Senate of Rhode Island, acting under article 10, section 3, of the Constitution of the State, which provides that “ the judges of the Supreme Court shall give their written opinion upon any question of law, whenever requested by the governor, or by either house of the General Assembly," adopted the following resolution:

section 1 of chapter 9, are prepared and authenticated by the boards of canvassers of the several towns. In' making up these lists the canvassers are in our opinion required to proceed in a manner which is well calculated to insure the listing of all qualified voters, and which affords to every person claiming a right to vote a fair opportunity to establish his right, if he can, and have his name duly enrolled. It follows that in the absence of fraud which may be practiced, or of accident which may happen under the wisest laws, no name of any qualified voter is likely to be omitted from the proper list, except through his own negligence or in consequence of some error of adjudication on the part of the canvassers. Now, if the name be omitted through the negligence of the voter, there is no good reason why he should not suffer the loss of his vote for it. If it be omitted in consequence of an erroneous adjudication by the canvassers, then, though the voter may have some reason to complain of the want of any ulterior remedy, yet it is perfectly evident that a moderator, while holding an election, is not a fit tribunal to afford him such a remedy. And even if the name be accidentally omitted, still it is manifest that it cannot be wisely left to a moderator to supply the omission on election day; for he cannot properly supply it without an investigation, and he cannot investigate without a

"Has a person, having the qualifications described in section 1, article 2, of the Constitution, the right to have his vote received by the moderator and counted if his name be not found on the list of voters, as prescribed by section 1, chapter 9, of the General Statutes?

"If the court shall answer this question in the affirmative, what evidence shall the moderator require of the right of such person to vote?"

OPINION OF THE COURT.

To the Honorable the Senate of the State of Rhode Island and Providence Plantations:

We have received from your honorable body a resolution requesting our written opinion on the two following questions, to wit:

"Has a person, having the qualifications described in section 1, article 2, of the Constitution, the right to have his vote received by the moderator and counted if his name be not found on the list of voters, as prescribed by section 1, chapter 9, of the General Statutes?

"If the court shall answer the question in the affirmative, what evidence shall the moderator require of the right of such person to vote?"

Section 1 of chapter 9 is unambiguous, and clearly directs the moderator to reject the votes of all persons claiming to vote whose names are not on the list, subject to certain plain exceptions in favor of the cities of Providence and Newport. No one can doubt the meaning. We suppose therefore that the object of the first question is to ascertain whether, in our opinion, the direction to reject the unlisted votes is constitutonal. We have carefully considered the question in that light, and are clearly of opinion that the direction is constitutional, being fully authorized by section 6, of article 2, of the Constitution, which gives the General Assembly full power" to prescribe the manner of conducting the elections," and "the nature of the evidence to be required in case of a dispute as to the right of any person to vote, and generally to enact all laws necessary to carry this article," i. e., the article in relation to the qualifications of voters and their right to vote "into effect, and to prevent abuse, corruption and fraud in voting.' In pursuance of the power so given various laws have been enacted, and among them the laws under which the lists of voters, mentioned in

controversies which will inevitably endanger the orderly conduct of the election, and which may altogethedefeat it.

We therefore answer the first question in the negative. The first question being answered in the negative, the second requires no answer.

THOMAS DURFEE,
W. S. BURGES,
ELISHA R. POTTER,
CHARLES MATTESON,
JOHN H. STINESS.

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

CORPORATION LIABILITY OF STOCKHOLDER WHERE LESS THAN PAR PAID FOR STOCK.

Where defendants subscribed and agreed to pay certain sums of money toward the increased capital stock of a corporation, with the understanding that they were to receive stock therefor at 66 2-3 cents upon the dollar, and this arrangement was carried out, and certificates for the stock delivered to them, held, that the assignee in bankruptcy of the corporation might still collect the remaining one-third of the par value of the stock for the benefit of its créditors. Cases commented upon and referred to: Hawley v. Upton, 102 U. S. 314; Sturgis v. Stetson, 1 Bissell, 246; Parker v. North C. M. R. Co., 33 Mich. 24; Cutter v. Powell, 6 T. R. 324; Pittsburgh & C.¡R. Co. v. Stewart, 41 Penn. St. 54; Currie's case, 3 De G. J. & S. 367; Carling's case, L. R. 1, Ch. D. 115; De Ruvigne's case, 5 id. 386; Anderson's case, 7 id. 94; Foreman v. Bigelow, 18 N. B. R. 457; Upton v. Tribilcock, 91 U. S. 45; Chubb v. Upton, 95 id. 666; Pullman v. Upton, 96 id. 328; Hatch v. Dana, 101 id. 205. U. S. Dist. Ct., E. D. Michigan, June 27, 1881. Flinn v. Bagley. Opinion by Brown, D. J.

AUTHORITY OF OFFICERS TO ACT FOR - ACKNOWLEDGMENT OF MORTGAGE IN ANOTHER STATE.(1) Where the general management and control of the property, business and affairs of a corporation were vested in the board of directors and president; and the corporation was given power by the charter to issue and sell bonds and execute a mortgage to secure the same; and the charter required the concurrence of the stockholders to authorize a different measure (consoli

* Appearing in 7 Federal Reporter.

dation with another company), held, that the board of directors and president had the power, without the concurrence of the stockholders, to authorize the issue of bonds and the execution of a mortgage upon the property of the company to secure them. (2) The con poration was organized under the laws of Kentucky, and its property located there. Held, that a mortgage of its property could be legally acknowledged by the president of the company in Ohio. Jones Rail. Sec., §§ 84, 86; Kelly v. Calhoun, 95 U. S. 710; Marlin v. Mobile & Ohio R. Co., 7 Bush, 177; 11 Wall. 476. U. S. Circ. Ct., June, 1881. Hodder v. Kentucky & Great Eastern Railway Co. Opinion by Barr, D. J.

MARITIME LAW
TAINABLE BY PART OWNER AGAINST HIMSELF

LIBEL IN PERSONAM NOT MAIN

-CO

OWNERS. - Repairs were put upon a domestic vessel by a firm of ship-builders, of which one of the part owners was a member. Libel in personam was instituted by the firm against all the part owners to obtain a decree against them in solido for the repairs. Held, that such a libel in personam, in which the same person is one of the libellants and also one of the respondents, could not be maintained. Maclachlan, 108, 117; 2 Conk. Adm. 23; Benedick Adm., § 387; Parsons Shipp. 102; Revens v. Lewis, 2 Paine, 202; Jenks v. Lewis, 1 Ware, 51; Thomas v. Lane, 2 Sumner, 1. Courts of admiralty have no general jurisdiction to administer relief as courts of equity, and will not assume jurisdiction in matters of account between part owners. The Larch, 2 Curtis, 434; Davis v. Child, 1 Davis, 80; Andrews v. Ins. Co., 3 Mason, 16; Ward v. Thompson, 22 How. 330; Orleans v. Phoebus, 11 Pet. 175. U. Dist Ct., Maryland, May 20, 1881. The Brothers. Opinion by Morris, D. J.

OFFICER OFFICIAL ACTS ULTRA VIRES.-Suit being brought against the members of the board of supervisors of Marion county for a reward publicly offered "by order of the board of supervisors. H. D. Lucas, chairman," held, (1) that the offer clearly appeared to have been made by the defendants in their official capacity, and not as individuals. (2) That their authority to make contract being a matter of law, plaintiffs had notice of their want of authority, and could not therefore hold the defendants personally liable. Hawk v. Marion County, 48 Iowa, 472. It has been frequently decided that where a public officer makes a contract ultra vires the party contracting with him cannot hold the public officer responsible as an agent acting without authority. This doctrine has been laid down upon the express ground of the third contracting party's knowledge when entering into the contract of the public agent's want of authority. McCurdy v. Rogers, 21 Wis. 197; Birchard v. Wrrren County, 31 Iowa, 389; Boardman v. Hayne, 29 id. 339. U. S. Circ. Ct., Iowa, May 11, 1881. Huthsing v. Bousquet. Opinion by McCrary, C. J.

WHEN NOT LIABLE PERSONALLY FOR

MARYLAND COURT OF APPEALS ABSTRACT.*

BURIAL PLACE — RIGHT IN LOT IN GROUNDS ACQUIRED BY VOLUNTARY ASSOCIATION EXCLUSIVE TO OWNER OF LOT-TRESPASS QUARE CLAUSUM.-A voluntary association, of which plaintiff was a member, acquired ground and set apart a portion of it for burial purposes, assigning separate lots, clearly defined and bounded, to the individual members as separate burial places for such members, for which certificates were given, and the members took possession. Held, that by these acts each member acquired the privilege and To appear in 55 Maryland Reports.

right to make interments in his lot, to the exclusion of others, so long as the ground remained a burying ground or cemetery, and that for an invasion or disturbance of this right either by a member of the society or any one else, he could maintain an action of trespass quare clausum. Looking to the peculiar nature of this privilege and knowing how highly it is esteemed, and how sacred it is held by mankind in all civilized communities, the court would so decide were the question a new one; but the right to maintain the action under such circumstances is sustained by this court in Partridge's case, 39 Md. 631, and by the decisions in Kincaid's Appeal, 66 Penn. St. 411, and Meagher v. Driscoll, 99 Mass. 281. Smith v. Thompson. Opinion by Miller, J.

DAMAGES-MEASURE OF, FOR BREACH OF CONTRACT FOR MANUFACTURING ARTICLE.—A contract was made between E. and the C. company whereby the company was to manufacture for him at a specified price a specified amount of phosphate. When the time came to manufacture the article E. refused to receive any phosphate, although the company was ready to and offered to manufacture the same for him. Held, that the company had a right of action against E. and the measure of damages was the difference between the cost of manufacturing the article according to the contract, and the price E. agreed by that contract to give for it. It may now be regarded as settled law, both in England and in this country, that where there is a contract for the manufacture and delivery of goods at a definite future period, and before the time of perfermance arrives the purchaser repudiates the contract and declares he will not be bound by it, or accept the goods if manufactured, and notifies the vendor to that effect, such refusal and notice is a breach of the contract which excuses the vendor from manufacturing the goods, and furnishes him a good cause of action provided he shows himself to have been ready, willing and able to perform on his part; and for such breach he may sue, if not at once, as soon as the period of performance fixed by the contract has elapsed. Coit v. Ambrogate, etc., R. Co., 17 Ad. & El. (N. S.) 117; Black v. Woodrow, 39 Md. 194. As to damages, Masterson v. Mayor of Brooklyn, 7 Hill, 61; Dugan v. Henderson, 36 Md. 567. Eckenrode v. Chemical Company of Canton. Opinion by Miller, J.

PENNSYLVANIA SUPREME COURT ABSTRACT.

AND

DEFINITIONS MEANING OF FIRST MORTGAGE SECOND MORTGAGE."-The words "first mortgage imply a lien prior to all other liens. When a party gives such a mortgage, or sells a bond secured thereby, showing the facts on its face, or when he induces another to guarantee it, as such, unless there be some qualifications expressed, he shall not afterward set up a lien against the guarantor and holders of the bonds. This meaning of first mortgage is so thoroughly grounded as to lead to the sequence that a second mortgage is understood to be one without intervening liens between it and the first. Rice's Appeal, 29 P. F. S., 168. There, Ahl had a covenant for certain bonds. The master said: "The contract was that he should have $80,000 in second mortgage bonds, which meant that there was to be no intervening incumbrance, and the confessing of the two judgments and then tendering to him the second mortgage bonds was not a compliance with the contract." Agnew, C. J., characterized the act of placing on the property an intervening incumbrance as a breach of good faith; and Paxson, J., said: "The bonds offered were not such a security as under