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authority, and admitting the duty of the officer of the United States, holding the prisoner under its process, to return the fact and show his warrant, the chief justice continues: "But after the return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus nor any other process issued under State authority can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress." * * No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued, and any attempt to enforce it beyond these boundaries is nothing less than lawless violence." And in Tarble's case, 13 Wall. 397, commenting on this language of Chief Justice Taney in Ableman v. Booth, supra, Mr. JusticeField points out that it was not intended merely to meet cases where the authority of the United States was undisputed, but cases where its validity was questioned, and it appeared that the prisoner was held under claim and color of such authority, in good faith, and not by way of mere pretense and imposition. And the exclusive authority of the court issuing the writ extends, not only to the decisions of all questions affecting its jurisdiction, and the form and force of the writ itself, and the validity of the proceeding in issuing and executing it, but also of all questions affecting the identity of the person or property seized and held under color of its authority, and the right to exempt them from its operation. It does not avail therefore to say that as the writ commands the officer to take the property of the defendant, he cannot under that claim to take and hold the property of another, because the property which he does actually take he takes and holds as the property of the defendant, claiming it to be such, and therefore he has it in his possession uuder color of process and claim of right.

In Lammon v. Feusier, 110 U. S., already cited, it was said by Mr. Justice Gray, in reference to the case of a common-law attachment, that "the taking of the attachable property of the person named in the writ is rightful, the taking of the property of another person is wrongful; but each, being done by the marshal in executing the writ in his hands, is an attempt to perform his official duty, and is an official act." The same is true of a similar levy under an execution, as we have shown that there is no difference relevant to the point between the two writs.

Property thus levied on by the attachment or taken in execution is brought by the writ within the scope of the jurisdiction of the court whose process it is, and as long as it remains in the possession of the officer it is in the custody of the law. It is the bare fact of that possession under claim and color of that authority, without respect to the ultimate right, to be asserted otherwise and elsewhere, as already sufficiently explained, that furnishes to the officer complete immunity from the process of every other jurisdiction that attempts to dispossess him. That was the defense made and relied on by the plaintiff in error in the present case, and to which the Supreme Court of Michigan refused to give its due and conclusive effect. For that error the judgment is reversed, and the cause is remanded, with directions to affirm the judgment of the Circuit Court for the county of Kent in favor of the plaintiff in error, and

It is so ordered.



COVENANT-TO ADVANCE MONEY TO TAKE UP COUPONS RAILROAD LEASE.-By a lease from one railroad corporation of its railroad to another railroad corpora.⚫ tion, subject to a previous mortgage, the lessee covenanted to pay as rent a certain proportion of the gross earnings, and to state accounts semi-annually, and further covenanted, if the rent for any six months should be insufficient to pay the interest due at the end of the six months on the mortgage bonds, then to advance a sufficient sum to take up, and to take up, the balance of the coupons for such interest; and it was agreed that for all sums so advanced the lessee should have a lien before all other liens except the mortgage. Eighteen months later, after the lessee had accordingly paid and taken up some coupons, and had declined to take up others, on account of the refusal of the lessor to accept in payment of rent coupons so taken up, the two corporations executed a supplemental agreement, by which, in lieu of the rent reserved in the lease, and of all advances of money to take up coupons, the lessee covenanted to pay, and the lessor to accept, as rent, larger proportion of the gross earnings, "all accounts being settled exactly, and all liabilities and obligations between the two companies being adjusted and discharged by and upon the semiannual statements provided in said lease;" the lessor released the lessee from any obligation to make future advances of money to take up coupons, and from lia-bility for any previous neglect to make such advances, and from any obligation to pay money in the nature of rent and advances, except the proportion of the gross earnings stipulated in the supplemental agreement; and all the provisions of the lease, except as so modified, were ratified and confirmed, and "all causes of action for breach of any agreement therein contained," which had arisen since its execution, were mutually waived and released. The lessee afterward paid rent computed according to the supplemental agreement. Held, that any claim of the lessee against the lessor, or against the mortgaged property, for money paid to take up coupons, was released and discharged. Stewart v. Hoyt. Opinion by Gray, J. [Decided April 21, 1884.]

JURISDICTION-FEDERAL QUESTION MUST APPEAR. -From the beginning it has been held that to give us jurisdiction in this class of cases it must appear affirmatively on the face of the record, not only that a Federal question was raised and presented to the highest court of the State for decision, but that it was decided, or that its decision was necessary to the judgment or decree rendered in the case. Murdock v. Memphis, 2 Wall. 636. The judgment in the State court was a bar to this action, and precluded the court below as well as this court from reopening the original litigation and considering again the questions that were put at rest between the parties by the decision in their former suit. It is apparent therefore that no Federal question which there may have been in the case was decided by the State court, and that the decision of such a question was not necessary to the final decree rendered. Choteau v. Gibson. Opinion by Waite, C. J. [Decided March 31, 1884.]



AUTHORITY.—A policy of life insurance, issued by a company incorporated in one State, payable to the assured, his executors or administrators, is assets for the purpose of founding administration upon his estate in another State, in which the corporation, at and since the time of his death, does business, and as required

by the statutes of that State, has an agent on whom process against it may be served. The general rule is that simple contract debts, such as a policy of insurance not under seal, are for the purpose of founding administration, assets where the debtor resides, with⚫ out regard to the place where the policy is found, as this court has recently affirmed in Wyman v. Halstead, 109 U. S. 654. But the reason why the State which charters a corporation is its domicil in reference to debts which it owes, is that there only can it be sued or found for the service of process. This is now changed in cases like the present; and in the courts of the United States it is held that a corporation of one State doing business in another is suable in the courts of the United States established in the latter State, if the laws of that State so provide, and in the manner provided by those laws. Lafayette Ins. Co. v. French, 18 How. 404; Railroad Co. v. Harris, 12 Wall. 65; Ex parte Schollenberger, 96 U. S. 369; Railroad Co. v. Koontz, 104 id. 5, 10; see also Bowdoin v. Holland, 10 Cush. 17; Memphis R. Co. v. Alabama, 107 U. S. 581. This case is not governed by the decision in Insurance Co. v. Lewis. 97 U. S. 682. The question there was as to the authority of a public administrator in Missouri, under a statute of that State, to bring an action on the policy. It appeared affirmatively that the intestate resided in Wisconsin wheu he died, and died there, and that there was already an administrator appointed in Wisconsin, so that the defendant could not be protected against a future suit by a proper representative of the estate. Under section 18, chapter 3, of the Revised Statutes of Illinois, of 1874, a husband is entitled to administration on the estate of his wife, if she left property in Illinois. Letters of administration, which state that the intestate had at the time of death personal property in the State, are sufficient evidence of the authority of the administrator to sue in that State, in the absence of proof that there was no such property. Life Insurance Co. v. Woodworth. Opinion by Blatehford, J.

[Decided March 31, 1884.]

ABATEMENT-PLEA IN-ACTION PENDING-APPEALUSURY-SET OFF.-The plea of another action pending is a plea in abatement (Bac. Abr. Abatement M; Com. Dig. Abatement H,24; 1 Chitty's Pl. [10th Am.ed.] 453; 3 id. 903, note y), and by section 1011 of the Revised Statutes, which is a re-enactment of a similar provision in the Judiciary Act of September 24, 1789, ch 20, § 22, 1 Stat. 84, 85, it is expressly provided that there shall be no reversal in this court or the Circuit Court for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court. Under this statute, it was held in Piquignot v. Pennsylvania R. Co., 16 How. 104, which came from the same district as this case, that the Judgment of the Circuit Court, on precisely such a plea as that contemplated by this affidavit of defense, was "not subject to our revision on a writ of error." The defense is one which merely defeats the present proceeding, and does not conclude the plaintiff forever, either as to his right to sue in the Circuit Court of the United States, or as to the merits of the matter in dispute. All the other defenses are covered by the decision of this court in Barnet v. Nationa! Bank, 98 U. S. 555 The only difference between that case and this is that there the defendant was the maker of the note who actually paid the usurious interest, and here the defendant is the surety of the maker. It is difficult to see how the surety stands, as to the question now presented, in any better position than his principal. The ground of that decision was, that as without the statute there could be no recovery from the bank for usurious interest actually paid, and as the statute which created the right to such a recovery also prescribed the remedy, that remedy was ex

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clusive of all others for the enforcement of that right. Farmers & Mechanics' National Bank v. Dearing, 91 U. S. 29. The surety has not any more than his principal the right to recover back the interest without the aid of a statute. Consequently, if his principal could not make this defense, he cannot. The forfeiture and the remedy are creatures of the same statute, and must stand or fall together. The defense as stated in the affidavit is not that interest stipulated for has been included in the note, but that interest actually paid at the time of the discount and the several renewals should be applied to the discharge of the principal. In this particular, the case presents the same facts substantially as Driesbach v. National Bank, 104 U. S. 52. To entitle the defendant to such relief as was given in Farmers' & Mechanics' Bank v. Dearing, cited above, it should be made to appear by distinct averment that the note sued on includes interest stipulated for and not paid, as well as principal. Stephens v. Monongahela National Bank. Opinion by Waite, C. J. [Decided March 31, 1884.]

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NEGLIGENCE-RAILROAD--EVIDENCE TO SHOW.-A portion of the evidence introduced on the trial tended to show that the plaintiff's intestate, who was a yard switchman in the employ of the defendant railroad company, and whose duty it was to couple cars, and who was a new man in the yard, and had but little knowledge of the same, while attempting to couple a flat car, loaded with projecting bridge timbers, and a box car, properly went in between them to couple them, and stepped into a ditch made by the railroad company, of which ditch he did not have previous knowledge, and slipped, and in recovering himself so raised his head that it came between the projecting timbers and the box car, and was so crushed that he immediately died. Held, that such evidence tended to show negligence on the part of the railroad company and did not necessarily show negligence on the part of the plaintiff's intestate. Brown v. Atchison. Opinion by Valentine, J.



In a chattel mortgage of certain neat cattle and other property the descriptions of the neat cattle were generally correct, except that it described one of such cattle as "dark red," when in fact it was dark red, with some white spots on it; and described another as light red," when in fact it had some white on its belly and a little white on its back; and described two others as "two spring heifer calves," when in fact one of them, in addition to the description given in the mortgage, was a roan heifer with an enlarged knee; but taking the entire descriptions of such cattle, with the inquiries which the mortgage itself would suggest, any person could have ascertained the cattle that were mortgaged; therefore held, that the descriptions are sufficient, and the mortgage itself is valid. Adams v. Hill, 10 Kans. 627; Brown v. Holmes, 13 id. 482; Shaffer v. Pickrell, 22 id. 619; King v. Aultman, 24 id. 246, Miller v. Kansas Lumber Co., 26 id. 574. Griffith v. Wheeler. Opinion by Valentine, J.

TITLE-TAX SALE-WHAT PURCHASER MAY RECOVER IF DEFECTIVE.-A purchaser at a tax sale whose title in an ejectment action is adjudged defective, is entitled to a recovery of all taxes paid by him and interest thereon, whether paid within three years before Smith v. the commencement of the action, or not. Smith, 15 Kans. 290; Hoffmire v. Rice, 22 id. 749; Jef

*To appear in 31 Kansas Reports.

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fries v. Clark, 23 id. 454; Fairbanks v. Williams, 24 id. 16; Morgan v. Comm'rs of Miami Co., 27 id. 89; Russell v. Hudson, 28 id. 99; Flint v. Douglass, id. 414; Myers v. Coonradt, id. 211. A tax purchase is not primarily a purchase of the lien, but a purchase of a title. Upon the payment of taxes by a tax purchaser he acquires no lien which he can foreclose as an ordinary lien. Corbin v. Young, 24 Kans. 198. (2) A party is not entitled to the benefit of the occupying-claimant act, or to a recovery for the value of improvements made by him, unless at the time of such improvements he has the full and actual possession. He may not go upon land in the possession of another, and make improvements and receive compensation therefor, but must first acquire full and actual possession. Coonradt v. Myers. Opinion by Brewer, J.

JUDICIAL SALE-VOIDABLE-NO COLLATERAL ATTACK.-The great weight of authority would seem to be that neither a sheriff's deed nor a sheriff's sale is void, but at most only voidable; and that in order to defeat either the sale or the deed, it must be attacked by some direct and appropriate proceeding. See Johnson v. Hovey, 9 Kans. 65; Paine v. Spratley, 5 id. 525; Bunker v. Rand, 19 Wis. 271; Raymond v. Pauli, 21 id. 531; Raymond v. Holborn, 23 id. 57; Tillman v. Jackson, 1 Miun. 183; San Francisco v. Pixley, 21 Cal. 56; Williams v. Allison, 33 Iowa, 279; Cunningham v. Cassidy, 17 N. Y. 276; Mohawk Bank v. Atwater, 2 Paige's Ch. 54; Van Valkenburg v. Trustees,66 Ill. 103; Evans v. Wilder, 5 Mo. 313; Rector v. Hartt, 8 id. 448; Winters v. Heirs, etc., 6 Coldw. 328. See also Paine v. Spratley, 5 Kans. 525; Freeman on Exec., §§ 311 and 343; Rorer on Judic. Sales, § 1059. In Michigan and Indiana, the decisions are the other way under local statutes, though the following decisions in Indiana are in accordance with the general rule: West v. Cooper, 19 Ind. 1; Patten v. Stewart, id. 233. See also upon this subject, Freeman on Exec., § 296; Rorer, on Judic. Sales, § 749, et seq. The proper way to attack a sheriff's sale for irregularities is by motion, in the same case and before confirmation of the sale, to set aside the sale. There may be other proper modes of defeating irregular sheriff's sales and sheriff's deeds, but we do not think it is necessary now to refer to them. Pritcnard v. Madren. Opinion by Valentine, J.



AGENCY-DECLARATIONS TO PROVE AUTHORITY TO RELEASE DEBT.-It is a general rule that the declarations or admissions of one who assumes to be agent for another, are not of themselves admissible to prove such agency, but such declarations, or admissious, when taken in connection with other facts tending to establish the agency, are admissible. Latham Pledge, 11 Tex. 440. Ordinarily an agent having authority to collect a debt, has no authority to compound or release it, and when such authority is claimed for the agent it devolves upon the party so claiming it to prove it. Wheeler & Wilson Co. v. Crossland. Opinion by Hurt, J.

[Decided Dec., 1883.]

LANDLORD AND TENANT-RENT-SUB-TENANT.-It is well settled that a sub-tenant is not responsible to the landlord for the rent due by the tenant, nor can the crop of the sub-tenant be taken for the payment or the same. W. & W.'s Con. Rep., 3 607; Hewey v. McGrew, 44 Tex. 412. Knight v. Old. Opinion by Hurt, J.


PARTNERSHIP-RIGHT TO USE PATENT GRANTED BEFORE DISSOLUTION-RIGHT TO SHARE OF ROYALTIES.A. and B. entered into a copartnership, the former to furnish $1,000, and the latter, as his capital, his patent for the manufacture and sale of "incased glass vessels," the articles of copartnership providing that the profits of the business and the proceeds arising from either the sale or leasing of any territory should be equally divided between them, either one of the partDers having the right to sell or lease, and that the partnership might be dissolved by either, on giving notice thereof, at any time. The contract also provided that a division of the assets should be had in case of a dissolution "without a sale of the business," in which event each partner was to take back what he put into the business. Prior to the dissolution of the firm and notice thereof, B., the patentee, granted to C. the exclusive right to manufacture and sell wares under the patent, and all reissues of the same, for the entire term it might run, reserving a certain royalty or li cense fee on all wares manufactured and sold by C. Held, that as the transfer of the exclusive right under the patent to C. was the same as a sale, and was made prior to the dissolution, A. was entitled to one-half of the royalty or license fees thereafter to be paid by C. to B., and that if it was a mere leasing to C. the same result would follow. Norris v. Rogers. Opinion by Scott, J.

TAXATION-WHEN COLLECTION ENJOINED-OWNER PERMITTING SALE OF LAND-TENDER TO HOLDER OF CERTIFICATE.-(1) A court of equity will never interfere to enjoin the collection of taxes unless they are void or levied without authority on the part of the officers executing the revenue laws. As long as such officers are acting under the law in imposing and collecting taxes the courts will not interfere, except where they transcend their powers and act without legal warrant. Ottawa Glass Co. v. McCaleb, 81 Ill. 556. Nor for the reason that the assessment is not strictly according to the letter of the law. Chicago, B. & Q. R. Co. v. Siders, 88 Ill. 320. Numerous other cases in this court announce the same doctrine. (2) If the owner of land lies by and permits judgment to go against his land for taxes, and the same to be sold and paid for, it is the settled law of this court that he must tender or offer to pay the holder of the certificate the purchasemoney and all taxes he has paid, with interest thereon, before he can have relief. Reed v. Tyler, 56 Ill. 288; Reed v. Reber, 62 id. 240; Farwell v. Harding, 96 id. 32; Barnett v. Cline, 60 id. 205. Other cases announcing the same rule might, if necessary, be cited. It is based on the fundamental rule that he who seeks equity must do equity. Moore v. Wayman. Opinion by Walker, J.


MASTER AND SERVANT-RISKS OF EMPLOYMENTSERVANT MUST USE ORDINARY CARE.-A railroad company does not owe to its employees the duty of having its side tracks perfect, and the risk of imperfections there is one of the risks of the employment. The company has a right to expect that every brakeman will use ordinary care in examining his footing and surroundings, and cannot be held liable for not guarding against an occurrence likely to happen in any place where the ground was uneven. It is not true, as often imagined, that as between the employer and employee all mishaps arising from defects of appliances or prem

*To appear in 107 Illinois Reports.

ises are taken out of the category of accidents. In our opinion the case comes within the same principle with Mich. Cent. R. Co. v. Austin, 40 Mich. 247. (2) Where railroads consolidate the new company is subject to the duties and liabilities of its predecessor as if originally incurred by it. Batterson v. Chicago, etc. Opinion by Campbell, J.

[Decided March, 1884.]

MORTGAGE-FORECLOSURE BY ADVERTISEMENT-NOTICE-ESTOPPEL.-Where a party procures an assignment of a mortgage to himself, and by advertising it in a newspaper, not circulated in the neighborhood, succeeds in foreclosing without the knowledge of a half-owner of the land, who is its occupant, such partowner has an equitable claim to have the mortgage set aside; but if with a knowledge of the fraud perpetrated upon him, he purchases the equity of redemption or accepts half of the surplus money paid at such sale, he is not in position to be entitled to the relief asked for, nor will any tender less than the whole amount which was paid at the foreclosure sale be effectual, Norton v. Sharp. Opinion by Champlin, J. [Decided March, 1884.]

TAXATION-CONSOLIDATION OF CORPORATIONS ORGANIZED IN DIFFERENT STATES-STATUS.-It is familiar law that every corporation has its existence and residence, so far as the term can be applicable to the artificial person and within the territory of the sovereignty creating it (Marshall v. Baltimore, etc., R. Co., 16 How. 314; Chicago, etc., R. Co. v. Whitton, 13 Wall. 270; Miller v. Dows, 94 U. S. 444; Vose v. Reed, 1 Woods, 647; Allegheny Co. v. Cleveland, etc., R. Co., 51 Penn. St. 228; Lake Shore, etc., Ry. Co. v. People, 46 Mich. 193; 9 N. W. Rep. 249), it comes into exist ence there by an exercise of sovereign will; and though it may be allowed to exercise corporate functions within another sovereignty, it is impossible to conceive of one joint act, performed simultaneously by two sovereign States, which shall bring a single corporation into being except it be by compact or treaty. There may be separate consent given for the consolidation of corporations separately created; but when the two unite they severally bring to the new entity the powers and privileges already possessed, and the consolidated company simply exercises in each jurisdiction the powers the corporation there chartered had possessed, and succeeds there to its privileges. It may well happen, as indeed it often has, that the consolldated company will be a corporation possessing in one State very different rights, powers, privileges and immunities from those possessed in another, and subject to very different liabilities. Del. Railroad Tax, 18 Wall. 206, 228; Lake Shore, etc., Ry. Co. v. People, supra. And after the consolidation each State legislates in respect to the road within its own limits, and which was constructed under its grant of corporate power the same as it did before. Peik v. C. & N. W. Ry. Co., 94 U. S. 164. And it cannot follow the new organization with its legislation into another] State. Chicago & N. W. R. Co. v. Whitton, 13 Wall. 283. It has been said that the consolidated company exists in each State under the laws of that State alone (Miller v. Dows, 94 U. S. 444, 447), and this is the effect of the decision in Delaware Railroad Tax, 18 Wall. 206, and in many other cases. It also follows necessarily from the doctrine maintained by the Federal Supreme Court in respect to the citizenship of corporations. That doctrine is that a corporation is deemed to be a citizen of the State which has created it, and an organization of members who are citizens of that State. When therefore two corporations created in different States consolidate, though for most purposes they are not thereafter to be separately regarded, yet in each State the consolidated company is deemed to stand in the place

of the corporation to which it there succeeded, and of its members, and consequently to be a citizen of that State for many purposes, while in the other State it would stand in the place of the other corporation in respect to citizenship there. Ohio, etc., R. Co. v. Wneeler, 1 Black, 286; C. & N. W. R. Co. v. Whitton, supra; Allegheny Co. v. Cleveland, etc., R. Co., supra; Texas, etc., R. Co. v. McAllister, 12 Am. & Eng. Ry. Cas. 289. Chicago, etc., v. Auditor-General. Opiniou by Cooley, C. J. [See 5 Am. Rep. 344.] [Decided March, 1884.]


SPECIFIC PERFORMANCE-WHEN NOT DECREEDEQUITABLE MORTGAGE FOR MONEY ADVANCED.-G. having purchased with his own money a vacant lot of ground, conveyed the same to his wife, who had no property of her own before marriage, and acquired none afterward, except what she received from her husband. Desiring to build a house on the vacant lot, G., by the authority of his wife, applied to a building association to borrow money for that purpose, agreeing to mortgage the property to secure the same. Finding that he could obtain the money from his sister, who was then unmarried and living with him, negotiation with the building association was discontinued. The sister had a mortgage of $3,325, not due, which was paying her seven per cent interest. To accommodate her brother, she sold this mortgage at considerable loss, and out of the proceeds paid to him the sum of $2,965, all of which was applied to the building of the house. The sister with her husband filed a bill to have the lot with the improvements thereon made responsible for and charged with the payment of whatever was due and owing to her. The testimony showed that the wife of G. knew the money was borrowed from his sister; that it was borrowed for the purpose of building a house on the lot, and that it was so applied. It also showed that she knew the money was borrowed on the faith of the property. Held (1st), that the agreement to give a mortgage, as alleged in the bill, was not so satisfactorily established by the proof as to authorize a decree for specific execution; (2d) that inasmuch as the money was borrowed for the improvement of the wife's property, with her knowledge, and was so applied, the sister was entitled to be compensated to the extent of the amount actually abvanced, and the property was answerable therefor, but not for the loss she sustained on the sale of the mortgage. The well-considered cases of Bowie v. Stonestreet, 6 Md. 418; Green v. Drummond, 31 id. 71; and Powell v. Young, 45 id. 494, fully establish that where specific performance cannot be decreed, because of uncertainty in the terms of the agreement, insufficiency of proof to clearly establish the precise contract alleged or by reason of the statute of frauds being relied on in defense, a court of equity will, when there is no remedy at law, render relief by way of compensation to the extent of money actually paid upon the alleged contract. An unreported case in this court, decided in July, 1858, Jacob Eackle v. George W. Smith et al., also maintains this doctrine. We agree with the Circuit Court that it is perfectly competent for a husband and wife to make a binding agreement for the improvement of the wife's estate; and if it is performed by the other party the money actually advanced ought to be charged to the wife's estate. To justify a court of equity in so charging the estate it is not indispensably necessary that the intention to charge the separate estate should be evidenced in writing. It may appear aliunde. Koontz v. Nabb, 16 Md. 549; Jackson v. Cole, 29 id. 71. Girault v. Adams. Opinion by Irving, J.

*To appear in 61 Maryland Reports.

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JUROR-EXEMPTION Exemption from jury duty is not a disqualification to act as juryman. It is a personal privilege which may be claimed or waived. This, so far as we know, is the opinion which has always prevailed in this court as a matter of practice, although there is no reported decision. The opinion is however in accordance with the reported decisions of other States. Munroe v. Brigham, 19 Pick. 368; State v. Forshner, 43 N. H. 89; State v. Wright, 53 Me. 328; Davis v. People, 19 Ill. 74; Murphy v. People, 37 id. 447. Sup. Ct. Rhode Island. State v. O'Brien. Opinion per Curiam. (To appear in 14 R. I. Rep.)

ASSAULT PISTOL WILLFUL OR ACCIDENTALEVIDENCE-DOLI CAPAX.-A boy some twelve years of age was indicted for an assault with a pistol. He testified at the trial that he thought the pistol was unloaded when he fired it. Held, that the State in crossexamination could inquire into his knowledge and experience of the weapon and hence could ask him how many times he had fired it before that day. Two other boys testified that the defendant had fired at them the day before the assault charged. Held, that the evidence was admissible as tending to show the assault to be willful, not accidental, and as tending to affect the defendant with knowledge of the criminal nature of his act. Regina v. Dossett, 2 Carr. & K. 306; Rex v. Voke, R. & Ry. 531. We think it was also admissible for the purpose of showing, in connection with the other testimony, that the defendant was doli capax, or had such a knowledge of the nature of the act as would make him criminally responsible. Roscoe 'Crim. Ev. 92-98; Wharton Crim. Ev., § 46; Rex v. Mogg, 4 Carr. & P. 364; Bottomley v. United States, 1 Story, 135, 144. The prosecution called a witness who after stating his acquaintance with the defendant testified that the defendant was an "intelligent boy." Held, that this testimony, though vague and of not much value, was still admissible. A defendant under fourteen years of age is presumably incapable of crime; the presumption is not conclusive unless he is under seven; if over seven his capability when evidence is adduced to prove it becomes a question of fact for the jury. Sup. Ct. Rhode Island. State v. McDonald. Opinion by Durfee, C. J. (To appear in 14 R. I. Rep.)

ATTEMPT TO COMMIT CRIME-LOCUS PENITENTIÆ.Defendant having made preparations for burning a building, left his supposed accomplice at the building, saying he would go and get some matches, but did not return, and an hour or so afterward was arrested, held, that his failure to return was not proof that he had abandoned his purpose. Anywhere between the conception of the intent and the overt act toward its commission there is room for penitence, and the law in its beneficence extends the hand of forgiveness. But when the evil intent is supplemented by the requisite act toward its commission, the offense is complete. Sup. Ct. Mo. State v. Hayes. Opinion by Philips, Com. (To appear in 78 Mo.)

EVIDENCE-RES GESTE.-The moment after a shot was fired resulting in death, defendant's right hand fell to his side and he struck out with his left at the deceased, when a bystander exclaimed, "Don't strike him, for you have shot him now." Held, that such exclamation was admissible in evidence as part of the res gesta; that it was called out by, and was illustrative of, the affray while still in progress. 1 Wharton Ev., § 259; Newton v. Ins. Co., 2 Dill. 154; Insurance Co. v. Mosley, 8 Wall. 397; Parker v. Steamboat Co.,

109 Mass. 449; Mobile R. Co. v. Ashcraft, 48 Ala. 15; Galena R. Co. v. Fay, 16 Ill. 558; People v. McCrew, 32 Cal. 98; State v. Reed, 62 Me. 129; Martin v. State, 39 Ala. 523. Sup. Ct. Missouri. State v. Walker. Opinion by Sherwood, J. (78 Mo.) [See 28 Eng. Rep. 592; 31 id. 741.-ED.]



(F. J. Parmenter, Troy Press, June 28, 1884.) A lawyer one day stalking into the court Weighted with precedents, papers and port, Marched up to the table, and casting thereon His burden-or all save the heaviest one, That would not be laid like the rest at his side, How eager soever the counsellor triedAnd then with the lofty and dignified air That gentlemen placed in such circumstance wear, Proceeded to say to his Honor: May't please Y'onor!"-but ere he could steady his knees Or hammer his thought into speech, the rude bar Roared with a laughter was echoed afar.

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The judge-if I may be permitted to write Somewhat of his weakness, somewhat of his might

So intent to be just, hesitating too long,
He oft missed the right through his fear of the


Endowed with a temper so even 'twould take
Earth's aggregate evils its balance to shake;
And while too complaisant his foe to offend,
Too weak in the back to stand firm by a friend;
Poring over all matters with patience and care,
Most active, obliging, refined, debonair;
Now hearing the hubbub convulsing the court,
Nor fully aware what occasioned the sport,
Looked up with his pleasantest smile: "Pray pro-

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And let there be order in court." The bruis'd reed, Though bent, was not broken; from which you'll conclude

The counsellor, stung by the laughter so rude, Struck back with a vengeance. He possibly might, For he turned not the left cheek when smote on the right;

Yet he did nothing vulgar

unless you should

think Refinement and graces inconsistent with drinkAnd he looked an archangel-aye, “ruined," you'll


But I cannot subscribe to a judgment so sad,
For he had great virtues, and eke was a man,
Albeit immoderately fond of the can,
Retained our respect even when he had grown
So lost to himself as to forfeit his own.
His head, in its fine classic contour sat well
On his athletic shoulders; and, quick to repel
Any insult or sneer when occasion arose,
He spared not his friends, but he tortured his foes,
His thin, bloodless face, full of character, drew
Attention at once, and your sympathy, too;
His greatest tormentor, and weakness-aside
From the one I have mentioned was family

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He never forgot that ancestral renown
More bright from the distance, o'ershadowed his


This spurring his ardent ambition, he made
Such efforts at times as were rarely displayed
In the brilliant arena that lies far away,
And can only be seen by the mind's eye to-day.

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