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water opposite their lands. Gould Waters, § 182, and cases cited in note 1; Ang. Water-courses, § 61; Hart v. Hill, 1 Whart. 124; Beckman v. Kreamer, 43 Ill. 447.

The case of Richardson v. Prentis does not conflict with the views I have expressed. Although the case discusses the rights of riparian owners, and refers to them generally in the language of the authorities as extending ad medium filum aquæ, yet the case presented was whether a person, after selling to complainant land bounded by the waters of the lake, could go in front of complainant and appropriate the land under the water. The grantor had no more right to exercise exclusive dominion over the soil under the water in front of the lands of her grantee than an entire stranger; and it is clear upon all the authorities that complainant had certain riparian rights flowing from her, being the owner of the shore, which neither her grantor nor any other person could deprive her of without her consent. The question to be decided was whether the complainant's grantor, after selling the shore to complainant, had riparian rights in front of the lands sold which she could appropriate to her own private and exclusive use, and it was held that she had not, and that the complainant had a right to be protected against the unauthorized appropriation of such land which would deprive her of her access to the water.

I have already cited numerous authorities to show that riparian rights exist on the banks of waters, whether navigable or not navigable, whether subject to ebb and flow of tide or not. The subject is fully discussed and authorities collated in Gould Waters, $$ 124, 140, 149.

defendant in the exclusive right within one mile from
the shore of Sulphur island, but beyond that limit the
right of fishing is common, and the public have equal
rights there. It appears to me that the statute has
protected the defendant to the full extent he can
reasonably ask, and when he went beyond that limit
and pulled out and destroyed plaintiff's stakes, he
was liable to an action for the damages occasioned
thereby.

The judgment is

The State has already taken the subject under its control. There is a permanent board of fish commissioners, and laws have from time to time been passed regulating the time and manner of catching fish. How. St., ch. 63. Section 2172 of this chapter provides: "It shall be unlawful for any person or persons to put into any of the waters fronting or bordering land where fish are taken by the legal owner or occupant of such lands, any vessel or ship ballast, stone, sand, coal cinder, ashes, log slabs, decayed wood, bark, saw-dust, or obstruction or filth of any other description, or to place or drive any pound-net, piles or stakes, or any other piles or stakes, or posts, or build any platforms or piers, or any species of seines, or continuous trapnets, to the extent of the breadth of such legal owner or occupant's lauds so far as the channel banks of the rivers, and to one mile from the beach or shore, at low-water mark, of the lakes, straits, inlets, and bays on said waters fronting such owner or occupant's lands, and it shall subject any boat-owner, or captain of any vessel, to a fine of not exceeding fifty dollars, who shall willfully run into or molest any pound-net, trap, or other stationary nets or fixtures set in the lakes for fishing purposes." This statute protects the

HABEAS CORPUS – DISCHARGE NOT SUBJECT
OF EXCEPTIONS.

VERMONT SUPREME COURT, JANUARY TERM, 1884.

Affirmed.

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There is nothing in the previous decisions of the

State which determines the defendant's exclusive JUDG

right of fishing at the point stated in the declaration. I think that the waters of Thunder bay are public waters, and the right of fishing therein is a common right of all the citizens of this State, subject only to the paramount right of navigation, and is the subject of legislative control. Ang. Tide Waters, §§ 124, 21, 22; McCready v. Virginia, 94 U. S. 391; State v. Company, 49 N. H. 250; Sloan v. Biemiller, 34 Ohio St. 492: 3 Kent. Comm. 418. These fisheries are beginning to assume great commercial importance. The census reports for the year 1880 shows that the capital invested in the fisheries of this State was nearly half a million of dollars, employing 1,781 men, and the value of the product was nearly three-quarters of a million dol

lars.

MATTER OF BARKER.*

When a prisoner is discharged on habeas corpus from the cus
tody of an officer holding him in arrest under a warrant
issued by a justice of the peace, such officer is not entitled
to exceptions; and if exceptions are allowed, they will be
dismissed on motion in the Supreme Court. Ross, J., dis-
senting.

The officer holding the relator was in no legal sense a party to
the cause in which the relator was arrested, and had no
right involved. That was a criminal cause prosecuted in
the name of the State.

The statute (Rev. Stat., § 1385) allowing exceptions has refer-
ence to civil cases only. The allowance of exceptions to
the officer when a prisoner is discharged is inconsistent
with the object of the writ of habeas corpus.

In re Cooper, 32 Vt. 253, distinguished, the prisoner being the
excepting party in that case.

UDGMENT that the relator be discharged; to which

decision R. R. Mead, the constable of Rutland
having the relator in custody, excepted. The case was
heard ou a motion to dismiss the exceptions.

W. C. Dunton and James Barrett, for Mead.
Prout & Walker, for the relator.

POWERS, J. The questions presented for considera tion arise upon the relator's motion to dismiss the exceptions filed in the cause.

In the County Court the relator was discharged from the custody of Mead, the officer holding him in arrest under the warrant issued by Justice Cain, and to this judgment of the County Court Mead filed exceptions. The relator now insists that Mead had no right to file exceptions to said judgment; and secondly that nobody can file them in a case where the relator is dis charged.

By section 1385, Rev. L., "issues of law and questions of law, arising upon the trial of an issue of fact, by the court or jury, and placed upon the record by the agreement of the parties or the allowance of the court, determined by a County Court, may pass to the Supreme Court for final decision; but execution shall not of course be stayed, but may be stayed by order of the court on consideration of the difficulty and importance of the question."

This section obviously relates to civil cases inter partes. The last paragraph, relating to a stay of execution, can have no appropriate meaning in any other view.

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tor was arrested. That was a criminal cause prosecuted in the name of the State by an informer. If Mead could file exceptions to the order discharging the relator from custody, then every tipstaff lucky enough to hold a criminal warrant could trot his prisoner seeking liberty from court to court interminably, notwithstanding the wish of the prosecuting officers to end the proceedings.

It was to remedy delays of this character that the Habeas Corpus Act of Charles II was enacted; and if the doctrine now contended for is to prevail we are compelled to go back in history two hundred years, and to embrace the principles of personal liberty as expounded by the Stuart kings. This act of May 26, 1679, did not create this writ; it merely swept away the subterfuges adopted to delay and make it ineffectual. It provided for a speedy deliverance of prisoners, and is a part of the common law of Vermont. The subsequent legislation in England, and the whole course of legislation and judicial exposition in America, disclose the most jealous anxiety to make the writ a quick and summary proceedure for relief from imprisonment.

The inquiry in the County Court was whether the process under which the relator was held was valid. Mead had no personal interest in the custody of the relator, and no right involved in such inquiry.

It is suggested that Mead should have the right to exceptions, as he may be liable for a false imprisonment if the relator is discharged. This suggestion goes upon the ground that the judgment in the County Court would be conclusive upon him as an estoppel; but it is a fundamental doctrine that an estoppel must be mutual. If the judgment remanding the prisoner to his custody would bar a suit for false imprisonment it follows that one discharging him would ex vi termini fix his liability. This however is not the law. The warrant under which Mead holds the relator was issued by a court of competent jurisdiction, and is regular on its face. The fatality, if any existed in the case, is found in the proceedings antedating the warrant, and for which the officer is not answerable. Mead then had no right to the exceptions allowed in this

case.

There is however a broader doctrine applicable to the case which calls for exposition. Allusion has already been made to the office of the writ of habeas corpus. It is a common-law writ; but the Legislature of this and other States has regulated the procedure under it. The court or judge to whom application is made must issue the writ without delay, and on its return must examine the cause of imprisonment without delay; and may, in a summary way, hear the evidence pro and con relating to the imprisonment. The writ may be issued by the Supreme Court in session, or a judge thereof in vacation, or the County Court in session; and the hearing is the same before either tribunal. If the prisoner is remanded to custody by either he may apply to the other. Indeed, as Baron Parke says, in Ex parte Partington, 13 M. & W. 678, he may renew his application to every court in the kingdom having jurisdiction until he obtains his liberty. It is not a controversy between parties, but an inquisition by the government at the instance of the prisoner to determine whether the right of personal liberty has been invaded. If controverted matters between individuals arise in the course of the inquiry, they arise only collaterally. Hurd on Habeas Corpus, 152. In this view of the purposes of the writ, it is clear that it is not a proceeding in which exceptions will lie to a judgment discharging the relator from custody; and so are the authorities.

Wyeth v. Richardson, 10 Gray, 240 (1857), was habeas corpus before a single judge at chambers. On hearing, the relator was discharged; and exceptions were filed.

Shaw, C. J., in dismissing the exceptions, says: "The general principles of law are opposed to the allowance of exceptions in this case. The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty. The allowance of exceptions would be inconsistent with the object of the writ. The consequence of allowing exceptions would be either that all further proceedings be stayed, which would be wholly inconsistent with the purpose of the writ; or that the exceptions must be held frivolous, and judgment rendered non obstante for the discharge of the party; in which case the exceptions would be unavailing. The allowance of exceptions being thus inconsistent with the very purpose of the writ, the conclusion must be that the exceptions do not lie."

This case is cited to show the ground on which the proceedings rest, which is the same whether they are instituted before a judge at Chambers or in court. Shaw, C. J., further declares that the Massachusetts statute, which provides that "in any trial or other proceeding either of a civil or criminal nature, at law or in equity," before this court when held by one justice, may be reserved and reported for the consideration of the full court, applies to another class of cases. The reasoning of this case shows that exceptions would not lie had the case been pending in court instead of before a judge at Chambers. In Knowlton v. Baker, 72 Me. 202 (1881), this precise question arose in a case pending in the court.

Walton, J., says: 'Exceptions do not lie to the discharge of a prisoner on habeas corpus. The object of the writ is to secure the right of personal liberty; and this can only be accomplished by prompt action and a speedy trial. To allow exceptions to the order of the court in term time, or to the order of a judge in vacation, discharging a prisoner, would necessarily result in considerable delay, and thus defeat one of the principal purposes of the writ, namely, a speedy release. True, errors may result from such hasty action, and parties interested in the imprisonment of the person released may thereby suffer. But the history of the writ shows that greater evils are liable to result from the want of speedy action." The statutes of Massachusetts and Maine relating to the allowance of exceptions are in substance like

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ours.

In the Federal courts the same doctrine prevails, although those courts have no common-law jurisdiction. Am. Law Rev., vol. 18, No. 1. And it is the rule in all the States except as changed by statute. In State v. Everett, Dudley Law Rep. (S. C.), 295, appealed by the attorney-general, the court say: "No decision that can be made by this court will recapture the defendant and bring him to justice." The prisoner had been discharged by the lower court, and the court very forcibly express the futility of their revisory power over that judgment. Vide remarks of Shaw, C. J., supra.

The case of Ex parte Cooper, 32 Vt. 353, is claimed to be in conflict with this doctrine, and seems to give color to the claim. But it is to be noticed that the exceptions in Cooper's case were taken by the relator, and the court remark that "justice to the person imprisoned requires that he should have the opportunity of having the decision of the County Court revised, when the decision remands him to jail, and the question involved is one merely of law."

The court clearly recognize the doctrine advanced by Baron Parke, supra, that the doors of another court should be open to a relator if the lower court refuse to release him. If the exceptions in Cooper's case had been filed by the State, or the sheriff having them in custody, we cannot believe in the light of authority or principle that they would have been sustained. There, as here, the commitment of the relator was in a crim

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SLAUGHTER HOUSE Co. v. SLAUGHTER HOUSE Co.
A legislature, in regard to matters affecting the public health
and public morals, the preservation of which is so neces-
sary to the best interests of social organization, that a wise
policy forbids the legislative body to divest itself of the
power to enact laws for the preservation of health and the
repression of crime, cannot by contract limit the exercise
of its police power, but such a contract is subject to mod-
ification or repeal by future legislatures, or even the
granting body.
By an act of the General Assembly of Louisiana, approved
March 8, 1869, "The Crescent City Live-Stock Lauding
and Slaughter-House Company" became a body corpo-
rate, and by said act were given the exclusive right to
have all such stock landed af their stock landing-place and
butchered at their slaughter-house.

In the year 1879 the State of Louisiana adopted a new Con-
stitution, art. 258 of which provides: "The monopoly fea-
tures in the charter of any corporation now existing in
the State, save such as may be contained in the charters
of railroad companies, are hereby abolished."
Held, that said article, and the ordinances enacted under au-
thority thereof, which opened the business to general com-
petition,did not impair the obligation of the contract en-
tered intered into by the act of 1869.

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MILLER, J. This is an appeal from the Circuit Court for the Eastern District of Louisiana.

The appellee brought a suit in the Circuit Court to obtain an injunction against the appellant forbidding the latter from exercising the business of butchering or receiving and handling live stock intended for butchering within certain limits in the parishes of Orleans, Jefferson and St. Bernard, and obtained such injunction by a final decree in that court.

The ground on which this suit was brought and sustained is that the plaintiffs had the exclusive right to have all such stock landed at their stock-landing place and butchered at their slaughter-house by virtue of an act of the General Assembly of Louisiana, approved March 8, 1869, entitled "An act to protect the health of the city of New Orleans, to locate the stock-landing and slaughter-houses, and to incorporate the Crescent City Live-Stock Landing and Slaughter House Company." An examination of that statute, especially of its fourth and fifth sections, leaves no doubt that it did grant such an exclusive right.

The fact that it did so and that this was conceded was the basis of the contest in this court in the Slaughter-House Cases, 16 Wall. 36, in which the law was assailed as a monopoly forbidden by the thirteenth and fourteenth amendments to the Constitution of the United States, and these amendments, as well as the fifteenth, came for the first time before this court for

construction. The constitutional power of the State to enact the statute was upheld by this court.

This power was placed by the court in that case expressly on the ground that it was the exercise of the police power which had remained with the States in the formation of the original Constitution of the United States, and had not been taken away by the amendments adopted since.

Citing the definition of this power from Chancellor Kent, it declares that the statute in question came within it. "Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead may all (he says) be interdicted by law in the midst of dense masses of population, on the general and rational principle that every person ought so to use the property as not to injure his neighbors; and that private interests must be made subservient to the general interest of the community." 2 Kent Com. 340; 16 Wall. 62. In this latter case it was added that "the regulation of the place and manner of conducting the slaughtering of auimals, and the business of butchering within a city, and the inspection of the animals to be killed for meat, and of the meat afterward, are among the most necessary and frequent exercises of this power."

But in the year 1879 the State of Louisiana adopted a new Constitution, in which were the following articles:

"Article 248. The police juries of the several parishes, and the constituted authorities of all incorporated municipalities of the State, shall alone have the power of regulating the slaughtering of cattle and other live stock within their respective limits; provided no monopoly or exclusive privilege shall exist in this State, nor such business be restricted to the land or houses of any individual or corporation, provided the ordinances designating places for slaughtering shall obtain the concurrent approval of the board of health or other sanitary organization." "Article 258. * * * The monopoly features in the charter of any corporation now existing in the State, save such as may be contained in the charters of railroad companies, are hereby abolished."

Under the authority of these articles of the Constitution the municipal authorities of the city of New Orleans enacted ordinances which opened to general competition the right to build slaughter-houses, establish stock-landings, and engage in the business of butchering in that city under regulations established by those ordinances, but which were in utter disregard of the monopoly granted to the Crescent City Company, and which in effect repealed the exclusive grant made to that company by the act of 1869.

The appellant here, the Butchers' Union SlaughterHouse Company, availing themselves of this repeal, entered upon the business, or were about to do so, by establishing their slaughter-house and stock-landing within the limits of the grant of the act of 1869 to the Crescent City Company.

Both of these corporations, organized under the laws of Louisiana, and doing business in that State, were citizens of the same State, and could not, in respect of that citizenship, sue each other in a court of the United States.

The Crescent City Company however, on the allegation that these constitutional provisions of 1879 and the subsequent ordinances of the city, were a violation of their contract with the State under the act of 1869, brought this suit in the Circuit Court as arising under the Constitution of the United States, art. 1, § 10. That court sustained the view of the plaintiff below, and held that the act of 1869 and the acceptance of it by the Crescent City Company, constituted a contract

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for the exclusive right mentioned in it for twenty-five
years; that it was within the power of the Legislature
of Louisiana to make that contract, and as the consti-
tutional provisions of 1879 and the subsequent ordi-
nances of the city impaired its obligation, they were to
that extent void.

No one can examine the provisions of the act of 1869 with the knowledge that they were accepted by the Crescent City Company, and so far acted on, that a very large amount of money was expended in a vast slaughter-house, and an equally extensive stock-yard and landing-place, and hesitate to pronounce that in form they have all the elements of a contract on sufficient consideration.

It admits of as little doubt that the ordinance of the city of New Orleans, under the new Constitution, impaired the supposed obligation imposed by those provisions on the State, by taking away the exclusive right of the company granted to it for twenty-five years, which was to the company the most valuable thing supposed to be secured to it by the statutory contract.

are not prepared to say that the Legislature can make valid contracts on no subject embraced in the largest definition of the police power, we think that in regard to two subjects so embraced it cannot by any contract limit the exercise of those powers to the prejudice of the general welfare. These are the public health and public morals. The preservation of these is so necessary to the best interests of social organization that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the repression of crime.

It cannot be permitted that when the Constitution of a State, the fundamental law of the land, has imposed upon its Legislature the duty of guarding, by suitable laws, the health of its citizens, especially in crowded cities, and the protection of their person and property by suppressing and preventing crime, the power which enables it to perform this duty can be sold, bargained away, under any circumstances, as if it were a mere privilege which the legislator could dispose of at his pleasure.

This principle has been asserted and repeated in this court in the last few years in no ambiguous terms.

The first time it seems to have been distinctly and clearly presented was in the case of Boyd v. Alabama, 94 U. S. 646. That was a writ of error to the Supreme Court of Alabama, brought by Boyd, who had been convicted in the courts of that State of carrying on a lottery contrary to law. In his defense he relied upon a statute which authorized lotteries for a specific purpose, under which he held a license. The repeal of this statute, which made his license of no avail against the general law forbidding lotteries, was asserted by his counsel to be void and as impairing the obligation of the contract, of which his license was evidence, and the Supreme Court of Alabama had in a previous case held it to be a contract.

We do not think it necessary to spend time in demonstrating either of these propositions. We do not believe they will be controverted.

The appellant however insists that so far as the act of 1869 partakes of the nature of an irrepealable contract, the Legislature exceeded its authority, and it had no power to tie the hands of the Legislature in the future from legislating on that subject without being bound by the terms of the statute then enacted. This proposition presents the real point in the case.

Let us see clearly what it is.

It does not deny the power of that Legislature to
create a corporation, with power to do the business of
landing live-stock and providing a place for slaughter-
ing them in the city. It does not deny the power to
locate the place where this shall be done exclusively. In Boyd's case however that court held the law under
It does not deny even the power to give an exclusive which his license was issued to be void, because the
right for the time being to particular persons or to a object of it was not expressed in the title as re-
corporation to provide this stock-landing and to estab-quired by the Constitution of the State. This court
lish this slaughter-house.
followed that decision, and affirmed the judgment ou
that ground.

But it does deny the power of that Legislature to
continue this right so that no future Legislature, nor
even the same body, can repeal or modify it, or grant
similar privileges to others. It concedes that such a
law, so long as it remains on the statute book as the
latest expression of the legislative will, is a valid law
and must be obeyed, which is all that was decided by
this court in the Slaughter-House Cases. But it asserts
the right of the Legislature to repeal such a statute or
to make a new one inconsistent with it, whenever in
the wisdom of such Legislature it is for the good of
the public it should be done.

Nor does this proposition contravene the established principle that the Legislature of a State may make contracts on many subjects which will bind it, and will bind succeeding Legislatures for the time the contract has to run, so that its provisions can neither be repealed nor its obligation impaired. The examples are numerous where this has been done and the coutract upheld.

The denial of this power in the present instance rests upon the ground that the power of the Legislature intended to be suspended is one so indispensable to the public welfare that it cannot be bargained away by contract. It is that well-known but undefined power called the police power. We have not found a better definition of it for our present purpose than the extract from Kent's Commentaries in the earlier part of this opinion. "The power to regulate unwholesome trades, slaughter-houses, operations offensive to the senses," there mentioned, points unmistakably to the powers exercised by the act of 1869 and the ordinances of the city under the Constitution of 1879. While we

But in the concluding sentences of the opinion by Mr. Justice Field, the court, to repel the inference that the contract would have been irrepealable if the statute had conformed to the special requirement of the Constitution, said:

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We are not prepared to admit that it is competent for one Legislature, by any contract with an individual, to restrain the power of a subsequent Legislature to legislate for the public welfare, and to that end to suppress any and all practices tending to corrupt the public morals," citing Moore v. State, 48 Miss. 147, and Metropolitan Board of Erie v. Barrie, 34 N. Y. 663.

This cautionary declaration received the unanimous concurrence of the court, and a year later the principle became the foundation of the decision in the case of The Beer Co. v. Massachusetts, 97 U. S. 28.

In that case the plaintiff in error, the Boston Beer Company, had been chartered in 1828 with a right to manufacture beer, which this court held to imply the right to sell it. Subsequent statutes of a prohibitory character seemed to interfere with this right, and the case was brought to this court on the ground that they impaired the obligation of the contract of the char

ter.

But the court, speaking by Justice Bradley, held that on this subject the Legislature of Massachusetts could make no irrepealable contract. "Whatever difference of opinion," said the court, " may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory | definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and

property of the citizens, and to the preservation of good order and public morals. The Legislature cannot by any contract divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, Salus populi suprema lex, and they are to be attain and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself."

In the still more recent case of Stone v. Mississippi, 101 U. S. 814, the whole subject is reviewed in the opinion delivered by the chief justice. That also was a case of a chartered lottery, whose charter was repealed by a Constitution of the State subsequently adopted. It came here for relief, relying on the clause of the Federal Constitution against impairing the obligation of contracts.

"The question is therefore presented," says the opinion, "whether in view of these facts the Legislature of a State can, by the charter of a lottery company, defeat the will of the people authoritatively expressed in relation to the further continuance of such business in their midst. We think it cannot. No Legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself."

But the case of the Fertilizing Company v. Hyde Park, 97 U. S. 659, is perhaps more directly in point as regards the facts of the case while asserting the same principle. The fertilizing company was chartered by the Illinois Legislature for the purpose of converting by chemical processes the dead animal matter of the slaughter-houses of the city of Chicago into a fertilizing material. Some ordinances of the village of Hyde Park, through which this dead matter was carried to their chemical works, were supposed to impair the rights of contract conferred by the charter. The opinion cites the language of the court in Beer Co. v. Massachusetts, already copied here, and numerous other cases of the exercise of the police power in protecting health and property, and holds that the charter conferred no irrepealable right for the fifty years of its duration to continue a practice injurious to the public health.

These cases are all cited, and their views adopted in the opinion of the Supreme Court of Louisiana in a suit between the same parties in regard to the same matter as the present case, and which was brought to this court by writ of error and dismissed before a hearing by the present appellee.

The result of these considerations is that the Constitution of 1879 and the ordinances of the city of New Orleans, which are complained of, are not void as impairing the obligation of complainant's contract, and that the decree of the Circuit Court must be reversed, and the case remanded to that court with directions to dismiss the bill.

UNITED STATES SUPREME COURT AB-
STRACT.

EVIDENCE-PLEADINGS AS-EXCLUSION, WHEN NOT ERROR - RESERVATION IN DEED-PAROL INADMISSIBLE. The decree having been put in evidence it was clearly erroneous to exclude the pleadings upon which

this decree was based. Even parol evidence is admis-
sible when necessary to show what was tried in a suit,
the record of which is offered in a subsequent action
between the same parties. Campbell v. Rankin, 99 U. •
S. 261. But in order to sustain the exception to the
exclusion of the pleadings in the case of Gallagher v.
Basey, it was necessary that the exception should
show what the excluded testimony was, in order that
it might appear whether the evidence was material or
not. Dunlap v. Monroe, 7 Cranch, 242, 270; Reed v.
Gardner, 17 Wall. 409; Montville v. American Tract
Society, 123 Mass. 129. If it appear that this exclu-
sion did not prejudice the case of those offering the
testimony, the decree subsequently passed will not be
reversed for such an error. When a reservation is
made in a deed, it is not necessary in order to give it
effect that the grantor should, when he executes the
deed, assert verbally his right to the property excepted
from the conveyance. Evidence that he made no such
assertion is clearly incompetent and inadmissible. We
are of opinion therefore that neither of the grounds
upon which appellants ask the reversal of the decree
is well founded. Other exceptions were taken during
the course of the jury trial, but no assignments of
error are founded upon them. Upon an examination
of the whole record, we are convinced that the decree
of the District Court, which was affirmed by the Su-
preme Court of the Territory of Montana, was accord-
ing to "the right of the cause and matter of law."
Hornbuckle v. Stafford. Opinion by Woods, J.
[Decided April 21, 1884.]

REMOVAL OF CAUSE-TRIAL ON DEMURRER-NOT AL-
LOWABLE AFTER.-By the New York Code of Civil
Procedure, issues are of two kinds: 1, of law; 2, of
fact. Section 963. An issue of law arises only on a
demurrer. Section 964. A demurrer to a complaint
may be, among other things, because "the complaint
does not state facts sufficient to constitute a cause of
action." Section 488. Upon the decision of a de-
murrer, either at a General or Special Term, or in the
Court of Appeals, the court may, in its discretion, al-
low the party in fault to plead anew or amend on such
terms as may be just. Section 497. An issue of law
in the Supreme Court must be tried at a term held by
one judge. Section 976. At any time after the join-
der of issue either party may serve a notice for trial.
Section 977. A demurrer to a complaint because it
does not state facts sufficient to constitute a cause of
action, is equivalent to a general demurrer to a dec-
laration at common law, and raises an issue, which
when tried will finally dispose of the case as stated in
the complaint, on its merits, unless leave to amend or
plead over is granted. The trial of such an issue is the
trial of the cause as a cause, and not the settlement of
a mere matter of form in proceeding. There can be
no other trial except at the discretion of the court, and
if final judgment is entered on the demurrer, it will
be a final determination of the rights of the parties
which can be pleaded in bar to any other suit for the
same cause of action. Under such circumstances, the
trial of an issue raised by a demurrer which involves
the merits of the action is, in our opinion, a trial of
the action within the meaning of the act of March 3,
1875. To allow a removal after such a trial would be
to permit "a party to experiment on his case in the
State court, and if he met with unexpected difficul-
ties, stop the proceedings, and take the suit to another
tribunal." This as was said in Removal cases, 100 U.
S. 473, could not have been the intention of Congress.
In effect, when this case was heard on the demurrer,
the issue made by the pleadings, and on which the
rights of the parties depended, was submitted to the
court for judicial determination. This issue the court
decided, but before entering final judgment, granted a

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