expressed. A false pretense is defined to be 'rep- charged by judgment is a subject or citizen of the country where and at the time the proceedings are taken, and when they are in conformity to the statute there, although the person be then absent from the country, and that is put upon the ground that the person domiciled there owes allegiance to the country and submission to its laws. Douglas v. Forrest, 4 Bing. 686; Becquet v. McCarthy, 2 Barn. & Mol. 951; Bank of Australasia v. Nias, 16 Q. B. (Ad. & Ell.) 717; Same v. Harding, 9 C. B. (M. G. & $) 661; Vallee v. Dumergue, 4 Exch. 290; Meeus v. Thellusson, 8 id. 638; Copin v. Adamson, L. R., 9 id. 345; S. C., 10 Moak, 492. And therefore a judgment may in such case be rendered against and charge a defendant in personam, without any personal service upon or actual notice to him, and in his absence from the country. There are only a few reported cases in this country where that proposition has been considered. In the United States Supreme Court a question somewhat analogous was decided in like manner as applied to the United States. Lafayette Insurance Company v. French, 18 How. 404; approved in St. Clair v. Cox, 106 U. S. 356; Pennoyer v. Neff, 95 id. 714, 722, 734, 735. And in this State this proposition is stated, and the English cases cited with apparent approval. Gibbs v. Queen Insurance Company, 63 N. Y. 114, 126; Hunt v. Hunt, 72 id. 218, 238; S. C., 28 Am. Rep. 129; Cassidy v. Leetch, 53 How. Pr. 108, 109. Without stating the principle more at length it may be assumed that by reason of the relation between the State and its citizen, which affords protection to him and his property, and imposes upon him duties as such, he may be charged by judgment in personam, binding on him everywhere as the result of legal proceedings instituted and carried on in conformity to the statute of the State, pre-cerning the quality, value, nature or other incident scribing a method of service which is not personal, and which in fact may not become actual notice to him. And this may be accomplished in his lawful absence from the State." In People v. Jordan, Supreme Court of California, October, 1884, 18 Rep. 713 it was held that an indictment for false pretenses will lie for falsely and fraudulently representing that certain railroad bonds are of a certain market value, whereby a sum of money is obtained on the pledge thereof. The court, Morrison, C. J., said: It is true that the authorities may be somewhat conflicting, and that in many of them very nice and not entirely satisfactory distinctions are drawn between cases that are and cases that are held not to be within the statute; and as was said by Dewey, J., in Common_ wealth v. Norton, 11 Allen, 267: It may be difficult to draw a precise line of discrimination applicable to every possible contingency, and we think it safer to leave it to be fixed in each case as it may occur.' But we have found no case that holds such representations as are charged in this case not indictable. The following principles and authorities may be cited in further support of the views herein of an article offered for sale, whereby a purchaser In Farrell v. Cook, Supreme Court of Nebraska, September, 1884, 18 Rep. 727, an injunction was granted against the use and occupation of premises as a place for putting jacks and stallions to mares, in full view of plaintiff's dwelling, and to the great inconvenience and discomfort of the plaintiff and his family. The court said: "A nuisance may be defined as whatever is injurious, offensive to the senses, indecent or an obstruction to the free use of property, so as materially to interfere with the comfortable enjoyment of life or property. Regina v. Grey, 4 Fost. & F. 73; State v. Purse, 4 McCord, 472; Nolin v. Mayor, 4 Yerg. 163; Pickard v. Collins, 23 Barb. 444-453; Hackney v. State, 8 Ind. 494; State v. Taylor, 29 id. 517; 4 Wait Act. & Def. 727. It is any thing that unlawfully worketh hurt, inconvenience or damage. 3 Bl. Com. 5, 216; 2 Bouv. Law Dict. 245; Commonwealth v. R. Co., 14 Gray, 93; Coker v. Birge, 9 Ga. 425. It is a term applied to that class of wrongs that arise from the unreasonable or unlawful use by a person of his own property, real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction of or injury to the right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt, that the law will presume a consequent damage. Wood Nuis., § 1. There must not only be a violation of a right, but an essential inconvenience, annoyance or discomfort must result therefrom. Id., § 9. A party is entitled to free use and enjoyment of his own property, but he must so use it as not to interfere with the rights of others. Enjoy your property in such a manner as not to injure that of another person, is the maxim of the law. That the plaintiff in error has violated this rule is clearly shown by the petition, and also that the defendant in error has sustained special injury by such violation. In Hayden v. Tucker, 37 Mo. 214, it was held that the keeping and standing of jacks and stallions within the immediate view of a private dwelling was a nuisance. So too the keeping of a brothel near one's dwelling. Hamilton v. Whitridge, 11 Md. 128. We have no doubt that the plaintiff below is entitled to an injunction as prayed for in his petition." See Anderson v. Doty, 33 Hun, 160; ante, 323; Marsan v. French, 61 Tex. 173; S. C., 48 Am. Rep. 272, and note, 274. In Simmerman v. State, Nebraska Supreme Court, Nov. 18, 1884, 21 N. W. Rep. 387, a murder case, the prisoner, being convicted, complained of misconduct, of the district attorney in speaking of the plaintiff to the jury as Billy the Kid, or Jesse James sort of a cow-boy." The court said: "The plaintiff in his testimony had freely stated that he had been tending stock in New Mexico and on the plains; that he carried two revolvers and a butcherknife; and that his companion, Belmont, carried four revolvers. It is also apparent that the plaintiff displayed his weapons with something approaching braggadocio; and in fact by his conduct justified the district attorney in speaking of him in the way he did. Peaceable and law-abiding men do not find it necessary, in a peaceable community, to load themselves down with deadly weapons, and their conduct is open to criticism when they do so. There was no error therefore in using the words complained of." A very full collection of authori- | ties on improper comments of counsel will be found in a note in 48 Am. Rep. 336, now in press. In Commonwealth v. Keeper of County Prison, Pennsylvania Quarter Sessions, March 28, 1884, 15 W. N. C. 282, it was held that obtaining money upon a false representation that the party obtaining it can produce the spirits of deceased persons tc., is punishable under the statute against false pretenses. The court said: "It has been held in England, under a statute similar to our owat a defendant falsely pretending that he had power to communicate with the spirits of deceased persons, and that he could cause such spirits to be present in a material form, and play upon musical instruments, made a pretension of existing facts, and that obtaining money on such pretenses came within the statute against false pretenses. Regina v. Lawrence, 36 L. T. (N. S.) 404; Regina v. Giles, 11 id. 643. Although the fraudulent misrepresentation of an existing fact was accompanied by an exit was none the less a false pretense. Regina v. West, ecutory promise to do something at a future period, 8 Cox C. C. 12; Regina v. Jennison, 9 id. 158. The lady who testified in this case paid her money on the faith of the representations of the relators, which proved to be false, and thus we have a clear case of obtaining money by false pretenses." See · Bowen v. State, 9 Baxt. 45; S. C., 40 Am. Rep. 71, and note, 75. LAWRENCE'S INTERNATIONAL LAW.* THESE essays contain a great deal of matter in THES teresting to Americans, and for that matter interesting to thoughtful people of all civilized countries. The first essay in the series, "Is there a True International Law," denotes the growing interest in those rules which are assumed to gov ern the external relations of the great powers. Modern science and commerce have done and are doing much to neutralize ancient conceptions of government, and to compel nations to adopt common principles of external action. Professor Lawrence discusses the nature of these rules, and propounds, in substance, the always interesting question, do these rules of international action respond to those conceptions of law formulated by Austin and the analytical jurists? Answering this selfpropounded question in the negative, he then seeks to show that these international rules are nevertheless entitled to be regarded as laws not rules. We quite agree in this conclusion, but we are not prepared to agree with Professor Lawrence that Bantham and Austin fell into great error in their definitions of positive law. External positive law, as we prefer to call international law, is one thing and modern internal positive law is a very distinct * Essays on Some Disputed Questions in Modern International Law. By T. J. Lawrence, M. A., L.L.M., Cambridge. Deighton, Bell & Co., 1884. therefore have to contend that they are not res adjudicatæ. thing from the archaic institution which did duty for positive law at the epochs portrayed by Sir Henry Maine. Why not concede that the analyses of It is the paper on the Panama canal, and these different writers are not of universal applica- the Clayton-Bulwer treaty which has the most tion, but relate to different spheres? This done, direct interest for us on this side of the water. the differentia of the definitions are sufficiently The history of the treaty is first given from the noted without convicting any body of error. We British point of view. Then the several contenobserve that nearly all the late international law- tions of the signatory powers, and in the course of yers and text-writers seem to think it incumbent this discussion considerable insight into recent on them to attribute the force of law to custom, British criticisms of Mr. Blaine's supposed policy and to exaggerate the importance of Sir Henry is afforded. The means which the author suggests Maine's critique that Austin's definition of law for the neutralization of the canal are set out at fails to take into consideration very archaic socie- length. Much stress is laid upon what was unties where custom had certain concomitants of law. questionably Mr. Evarts' unfortunate mistake in But this was no discovery of the greater compara- assenting to the Egyptian law of liquidation, with tive jurist. Cicero in his too little read Treatise on the effect of permitting us to conclude that considthe Law noted the same phenomenon, * * erable, or busy lawyers, are not always the best tamen erunt fere in more maiorum qui tum ut lex prime ministers of a great continental power. All valebat. (Lib. II, cap. 10, f. 20.) * Where is the necessity then of postulating that custom is law in order to build up a true international law? Custom may not be lex, and yet the law of nations may have a veritable existence. We think that it has, and that Mr. Justice Stephen and other English lawyers fail to treat it with enough deference in the positions cited by Professor Lawrence. But until the late Oxford revival English lawyers have not been strong on international law. There is a large hiatus between Selden's Mare Clausum and such writers as Westlake, Hall and Twiss, not forgetting Lord Stowell. Positive external law of nations, as we prefer to designate that part of the code which is of universal operation, is positive law enforced by the great modern amphictyonic council. There the resemblance of the law of nations to internal positive law of a particular State stops. The shadowy border land between ethics and law is only law in posse, whether it lies in the domain of the international lawyers or in that of the municipal lawyers. It is no more law in the one case than in the other. The difficulty with Professor Lawrence—one common to most of the late writers on international law is that he overstates his case; he claims too much for the institutes of his science, and is unwilling to recognize that the law of nations is yet in embryo. In two more centuries, such as the nineteenth, the international lawyers will no doubt fill a proud place in the administration of law, for the importance of their vocations will increase with the never-ending advance of science, which goes hand in hand with commerce. But Professor Lawrence fails less in this respect than do others of his school. The essay on the Suez canal becomes of interest here as the Isthmus canals approach completion, for it may be assumed that a canon of international jurisprudence relating to the former will some day be affirmed by the European powers, to be of universal operation. Our National embarrassment is that we have been excluded by our continental policy from aiding to formulate these canons, and will | the author's ingenuity is brought to bear on his argument, and while it contains plenty of food for discussion we prefer not to review at the present time the various positions urged. Before long much more will be written on this subject, and then the mere spectator will be better able to draw for himself correct conclusions. One thing we do however desire to notice, and that emphatically; it is that our distinguished friend, Commander Goodrich, U. S. N., overstepped the bounds of military criticism when he touched in his late book on the propriety of the British occupation of the Suez canal. Soldiers and sailors of all nations think much alike, and are hardly authority on international law, which is founded on that rock-peace to all men. The Of all the essays in this volume we prefer that on the Work of Grotius. The setting is a good picture of Grotius' historical environment, and the reasons why his utterances were immediately potent among nations. This essay also indicates briefly, but sufficiently, the influence of the Stoic philosophy on the Roman ius gentium, and the natural confusion of ius naturale with ius gentium, an error which greatly influenced the founders of the modern law of nations. It may be thought that this paper will have only a special interest to the international lawyers, but this is erroneous. The law of nations possesses a singular interest to our own jurisprudence in New York. struggle of feudality with the ius naturale tinges our entire colonial epoch, during which the foundations of our jurisprudence and government were laid. When a complete history of American law comes to be written the influence of the so-called "law of nature" will have to be profoundly considered, for it plays a great role in the destruction of the feudal system which our English princes at one time struggled to perpetuate among us. In short, the thinking municipal lawyer who glances observedly through this volume will find much suggested, much to ponder over in the enlarged horizon it presents to him. The little volume is well done, well printed, and an agreeable variation from the ponderous tomes which formerly were thought appropriate to weighty subjects. It is in such little volumes libelli they may be called that the best modern thought finds its fittest medium of expression, and they foreshadow the day when law shall be no longer a law of technicalities, but as it was in the best days of Rome, a science and a part of the complement of every gentleman's and every scholar's education. We may close our little notice of this book with the hope of its author repeated, tha some day the evolution of juristic science will lead to perpetual peace. J. S. Nave, B. F. Hegler, W. S. Potter and 4. A. Rice, for appellants. T. F. Davidson, for appellee. ELLIOTT, C. J. The appellee was a warehouseman and it was his custom to receive wheat on deposit, and to place it in a common bin with wheat bought by him, and it was also his custom to sell wheat from this bin, but of this custom the appellants had no knowledge. In August, 1882, the appellant, Victoria Rice, deposited with the appellee 210 bushels of wheat; this was thrown into the common bin in accordance with the custom of the appellee, and with it was mingled wheat bought by him and wheat stored by other depositors, and from this bin wheat was sold from time to time, but there was always in the bin wheat enough to supply all depositors, and at any time before the destruction of the warehouse by an accidental fire the appellant could have received from the bin all the wheat she had deposited. Some time after the storage of the wheat the warehouse and all its contents were destroyed by fire, but the fire was not attributable to the wrong or negligence of the appellee. No demand was made for the wheat until after its destruction. The wheat was stored with the appellee, and there was no agreement that the bailor should have an option to demand the grain or its value in money. There are cases in which the bailee is responsible for the loss of goods where he commingles them with his own, but this principle does not apply where a warehouseman receives grain to be stored for the owner. Articles of such a character can be separated by measurement, and no injury results to the owner from the act of the warehouseman in mingling them with like articles of his own. This doctrine is older at least than Lupton v. White, 15 Ves. Jr. 432, for there Lord Eldon said: "What are the cases in the old law of a mixture of corn or flour? If one man mixes his corn or flour with that of an. other, and they were of equal value, the latter must *To appear in 97 Indiana Reports. have the given quantity; but if articles of different value are mixed, producing a third value, the aggregate of both, and through the fault of the person mixing them the other party cannot tell what was the original value of his property, he must have the whole." Chancellor Kent takes a like view of the question, and his last editor, Judge Holmes, cites a great many cases upon the subject. 2 Kent Com. (12th ed.) 365, 590. This is the view taken by the textwriters and courts generally in cases where the deposit is made with a warehouseman. Story Bail., §40; Bis. & Sim. Law of Prod. Ex., § 152; 2 Schouler Pers. Prop. 46; 6 Am. Law Rev.457; 2 Black.Com. (Cooley's ed.) 404, note. There is however, as shown by the cases cited, some conflict of opinion, but as said in a late work, the great weight of authority is that the contract is one of bailment, and not of sale, the warehouseman and the depositor becoming owners as tenants in com. mon. Bis. & Sim. Law of Prod. Ex., § 154, auth. note 9. To the authorities cited by the authors referred to may be added Ledyard v. Hibbard, 48 Mich. 421; S. C., 42 Am. Rep. 474; Nelson v. Brown, 44 Iowa, 455; Sexton v. Graham, 53 id. 181: Nelson v. Brown, id. 555; Irons v. Kentner, 51 id. 88; S. C., 33 Am. Rep. 119, where the rule is carried much farther than is necessary in the present instance. The rule which we accept as the true one is required by the commercial interests of the country, and is in harmony with the cardinal principle that the intention of contracting parties is always to be given effect. It is not unknown to us, nor can it be unknown to any court, for it is a matter of great public notoriety and concern, that a vast part of the grain business of the country is conducted through the medium of elevators and warehouses, and it cannot be presumed that warehousemen in receiv ing grain for storage, or depositors in intrusting it to them for that purpose, intended or expected that each lot, whether of many thousand bushels or of a few hundred, should be placed in separate receptacles; on the contrary, the course of business in this great branch of commerce, made known to us as a matter of public knowledge and by the decisions of the courts of the land, leads to the presumption that both the warehouseman and the depositor intended that the grain should be placed in a common receptacle and treated as common property. This rule secures to the deposi tor all that in justice he can ask, namely, that his grain shall be ready for him in kind and quantity whenever he demands it. Any other rule would impede the free course of commerce, and render it prac tically impossible to handle our immense crops. It is reasonable to presume that the warehouseman and his depositor did not intend that the course of business should be interrupted, and that they did not intend that the almost impossible thing of keeping each lot, small or great, apart from the common mass should be done by the warehouseman. If the warehouseman is not bound to place grain in a separate place for each depositor, then the fact that he puts it in a common receptacle with grain of his own and that of other depositors, does not make him a purchaser, and if he is not a purchaser then he is a bailee. In all matters of contract the intention of the parties gives character and effect to the transaction, and in such a case as this the circumstances declare that the intention was to make a contract of bailment and not a contract of sale. The duties, rights and abilities of warehousemen are prescribed by the law as declared by the courts and the Legislature, and as matter of law it is known to us that a warehouseman, by placing grain received from a depositor in a common receptacle, and treating it as the usages of trade warrant, does not become the buyer of the grain, unless indeed there is some stipulation in the contract imposing that character upon him. The cases in our own reports, cited by counsel for the appellants, do not oppose the conclusion here reached. In Pribble v. Kent, 10 Ind. 325, the defendants received of the plaintiff 132 bushels of wheat, and on demand failed to deliver the grain, and it was held that an action would lie, but the contract was held to be one of bailment and not of sale. It is plain therefore that in the case cited there was no such ruling as that asked by the appellants in the present case; on the contrary, the ruling overturns their theory. In Ewing v. French, 1 Blackf. 353, and Carlisle v. Wallace, 12 Ind. 252, the wheat was delivered to a miller to be ground into flour, and this was held to be a sale, on the ground that the character of the article was to be entirely changed, and a new and different article was to be given by the miller to his customer in return for the wheat. In the last of the cases cited the option of demanding wheat, flour or money was vested in the depositor, so that he had the option of making the contract one of bailment or one of sale, and he exercised that option by treating the transaction as a sale. In the case under examination there was no option, for it is expressly found that the wheat was received by the warehouseman for storage. The case of Ashby v. West, 3 Ind. 170, holds that one who delivers wheat to be manufactured into flour is the owner of the flour, aud may maintain replevin, the court saying: "We are clearly of the opinion that that contract is one of bailment, and not of sale," and this is against the contention of the appellants. In deciding that the contract was one of bailment, and not of sale, we determine the only debatable question in the case, for it has been long settled that where property in the custody of a bailee is destroyed by an accidental fire, and there has been no fault or negligence on his part, he is not liable. We have examined the rulings on the demurrers to the answers and think they were correct, but if we were wrong in this there could be no reversal, because the special finding clearly shows the ground on which the judgment rests, and from this it appears that if the rulings were erroneous the errors were harmless. KANSAS SUPREME COURT, NOVEMBER 28, 1884. HARDY V. ATCHISON, TOPEKA & SANTA FE R. Co.* Under article 1, section 8 of the Constitution of the United States, the power of Congress to regulate commerce among the States-inter-State commerce-which consists, among other things, in the transportation of goods from one State to another, is exclusive. The fact that Congress has not seen fit to prescribe any specific rules to control or regulate the transportation of goods from a place in one State to a place in another-interState commerce-does not empower the States of the Union to regulate such commerce. Its inaction on the subject, when considered with reference to its other legislation, is equivalent to a declaration that inter-State commerce shall be free and untrammeled. *To appear in 32 Kansas Reports. Query: Has not Congress legislated upon inter-State commerce by the act of June 15, 1866, authorizing all railroad companies to transport passengers and freight from State to State and empowering them to receive and accept compensation therefor? Rev. Stat. of United States (1879), § 5258. Section 57, chapter 23, Comp. Laws of 1878, known as the • Maximum Freight Rate Law" of 1868, had no application to fix or limit the charges for transportation of freight from another State into this State, because if it was intended to apply to such inter-State commerce, it was in violation of article 1, section 8 of the Constitution of the United States, and therefore void. ERRO RROR from Reno county District Court. The opinion of the court sufficiently states the case. James McKinstry, for plaintiff in error. A. A. Hurd, Robert Dunlap and John Reid, for defendant in error. HORTON, C. J. It appears from the agreed statement of facts that while the Maximum Freight Rate Law of 1868 was in force in this State, the goods and merchandise mentioned in plaintiff's bill of particulars were shipped from St. Louis, Mo., under a contract made there for transporting the same from St. Louis, Mo., to Hutchinson, Kans., upon the usual through rates charged upon such class of goods; that on the shipments of the goods only one receipt or bill of lading was issued to the plaintiff; that the through rate for the freight charged and collected was in every instance the same as charged by mutual arrangements of all the railroads connecting with the defendant's railroad for similar shipments from St. Louis to Hutchinson; that in the division of the freight among the railroad companies transporting the goods, the Atchison, Topeka & Santa Fe Railroad Company received an amount thereof in excess of its ordinary local freight rates, and an amount in excess of that authorized by the Maximum Freight Rate Law of Kansas at that time in force. $ 57, ch. 23, Comp. Laws of 1879. Plaintiff claims to recover the alleged overcharges paid by him for the transportation of his goods. It is admitted, if he is entitled to recover any thing, he shall recover an amount equal to that received by the defendant or its proportion of the through rate on the shipments, less the amount of its local rates from the point where the goods and merchandise were delivered to it by the connecting line to Hutchinson. On the part of the railroad company it is contended that § 57, ch. 23, Comp. Laws of 1879, had no application to the transportation of freight from another State into this State. Section 57 is as follows: "Every such railway shall arrange and classify all property usually carried by them over their roads, and shall affix thereto the rates respectively at which the same shall be transported between the several stations, or points of connection or intersection of other roads, which rate shall be per one hundred pounds, and shall not exceed, for distance less than fifty miles, twenty cents per tou per mile, fifteen cents per ton for second class, and ten cents per mile per ton for third class articles; for distances of fifty miles and over, but less than one hundred miles, fifteen cents per ton per mile for second class, and seven cents per mile for third class articles; for distances of one hundred miles or more, ten cents per mile per ton for first class, eight cents per ton per mile for second class, and five cents per ton per mile for third or other classes." The contention is that any statute fixing or limiting the charges for transportation of goods from a place in one State to a place in another is an attempt to regulate commerce between the States, and that |