JAMES which go much further; so that, whereas under the older decision Negligence-Carriers-Passenger's Baggage. We learn from the charge of the animals and vehicles of those who frequented his house. This is distinctly stated to be the law by Pothier (Du Contrat de Depot, 80), where he states "that stable servants must be judged to be appointed by inn-keepers to take charge of horses and vehicles of travellers," by which the inn-keeper is rendered liable. What difference can there be between such a case and a case where the stable keeper does not provide lodgment for "man and beast," but for "beast" alone? All the cases quoted-both those decided in this country and the dicta of foreign jurists —would seem to indicate that a tolerably wide margin should be allowed by a judge in deciding in the case of what trades a warranty is to be presumed. The case quoted in the judgment from Pothier (Du Contrat de Louage, Nos. 118, 119, 120) is a strong authority on this point. After laying down that where a person, who lets a thing for hire, knows of a defect in the thing which makes it unfit for the purpose for which it is let, he is responsible for damages. And although he does not actually know it, that if the circumstances are such that he ought to have had a suspicion New York papers that in the suit of Thomas E. Fairfax v. The N. J. Central and of it, and make an enquiry about it, and he does not either enquire, or inform the hirer, so that he may enquire for himself, he is liable; but if the plaintiff purchased in Montreal tickets of the Grand Trunk R. R. to New York, Hudson R. R. Company, which was tried in the Superior Court of that city. latter follows a trade which makes it his duty to know whether the thing He left for New York October 8, on the route of the Rensselaer and Saratoga has faults or not, he is liable, without proof that he did not know. He puts line to Albany, and thence by the People's line of steamers to New York. as an example the case of a cooper who supplies wine casks made of bad The tickets were for that route. He had seven pieces of luggage checked wood, so that they leak. Surely, if "the profession of the cooper binds by the same route. The Rensselaer and Saratoga baggage check-master him to know the quality of the goods he used, and to supply none but of delivered them to the Hudson River R. R. at Troy, and the baggage arrived a good quality," it cannot be contended that the profession of a livery sta- at the depot in New York October 9. Plaintiff got to New York October II ble keeper, where a person holds himself out to the public as willing to un- by steamer, and next day demanded his baggage at the Hudson River R. R. dertake the charge of property of a nature requiring the utmost care, does depot, when it was found one piece, a valise, had been stolen. not bind the bailee to know of the quality of shelter which he is bound to brought suit for damage, and the jury decided in his favor on the ground provide to his property. The plaintiff's counsel relied mainly on Redhead that there arrangement by which defendant conveyed his v. Midland Railway Co., L. R. 4, Q. B. 392, and Francis v. Cockrell, L. luggage, and he called for it within a reasonable time, but the general term, R. 5, Q. B. 184, which establishes that a person who lets sittings in a tem-through Judge SPIER, reversed the judgment, on the ground that the relations of carrier and passenger, which is the basis of liability for baggage, did not porary stand, built for the reception of spectators at a race, is under an obexist, and that the Grand Trunk Road, by its agent the Rensselaer, must be ligation as to the sufficiency of the stand. But the court, while intimating a desire not to draw too fine distinctions between the cases, held that that case was clearly distinguishable from the present, and that there was no au thority to establish that a warranty must be applied in the present case. It seems to us that the court being, in its own language, at liberty, so far as authority goes, to apply the principles to the case, and see if any warranty or obligation should be implied, in deciding as it did, rather overlooked the true principles, as laid down by the most eminent of foreign jurists, fortified by the direct dictum of so great an authority as Ulpian.-Irish Law Times. Bona Fide Purchasers Without Notice. The case of Caballero v. Hentz, which came up on appeal on the 11th March, from the master of the rolls, before the lords justices, seems to establish a new principle in relation to the rights of that well protected person, the bona fide purchaser without notice. A brewer sent his agent to bid for property, described as in the possession of certain tenants, and pro ducing £30 a year. At the sale, however, it appears that these tenants were under-tenants of a lessee of the vendor, who held the whole prop was an He held responsible for the deviation of route by the baggage, and that the railroad which carried it were not insurers and had exercised ordinary care, and that the plaintiff ought to have called for the baggage earlier, notwithstanding that his ticket gave him a month to delay en route. Book Notice. THE CASE OF THE VIRGINIUS CONSIDERED WITH REFERENCE TO THE On the first appearance of this interesting pamphlet we were attracted by its title, and have read it in connection with a well-written article on The Virginius Case" in the January number of the Law Magazine and Review, and also in connection with an extremely acute and forcible article on the same subject in the April number of the American Law Review. The English writer argues the American side of the case with much vigor and considerable learning, and although we detect in it some slight errors, such as an allusion to Chief Justice STORY and to Dr. Woolsely, yet when we recollect that all that the best writer can hope to do is to reduce such errors to a decent minimum, they do not, on the whole, diminish our respect erty for a lease, of which nine years were unexpired, at a rent of £20. for the writer. It is proper to note, however, that the argument of The lease was read at the sale, but it was not referred to in the abstract sent to the purchaser. A bill was filed for specific performance, but it was held by the master of the rolls, and his decision was affirmed, that the purchaser was not bound by the unauthorized act of his agent, and that he had not received constructive notice of the lease. The two cases most relied on by the plaintiff's counsel were those of Daniels v. Davidson (16 Vesey, 249) and James v. Litchfield (L. Rep. 9 Eq. 51; 21 L. T. Rep N. S. 526); the former of which may be looked upon as much shaken in authority, and the latter overruled. The point decided in Daniels v. Davidson was, that the possession of a tenant is notice to a purchaser of the tenant's interest, created by an agreement to purchase from his landlord; and it was intimated in the judgment of Lord Eldon that generally notice of occupation was notice of the terms of occupation. And the case of James Virginius, it now appears beyond all controversy or shadow of doubt— this writer is almost exclusively devoted to an attempt to show that the enterprises in which the Virginius was engaged were not piratical. But this ar gument assumes that the Virginius was a regularly documented American ship, entitled to fly the American flag, and these premises having been destroyed by subsequent evidence, the whole argument falls to the ground. The only trouble with it is that it was written a few days too soon. Whilst this and other English lawyers have taken up the cudgel in our behalf, the more just but less pleasing task has devolved upon our own jurists of showing that in that memorable controversy, so far as the right of the Spanish admiral to seize the Virginius on the high seas was questioned, Spain was right and we were wrong. v. Litchfield lays down that rule to its full extent. It is true that in the present case complications existed which were absent from the earlier ones. The question of principal and agent was involved, and the statement in the particulars of sale that the property brought in a certain annual rental, whereas it produced, in fact, considerably less, had great influence upon the decision. But there are statements in the judgment of Lord Justice Starting with the question of the ownership and national character of the 1. That she was not, at the time of her seizure, owned, in whole or in part, by any American citizen, but that she was wholly owned and controlled by citizens of Spain, and was used by them for the unlawful purpose of promoting a domestic insurrection in the island of Cuba, a portion of the territory of Spain. 2. That her American register was void for two reasons: (1) because it had been obtained by an American citizen through fraud and perjury; and (2) be cause the bond required by law to entitle her to a registration had not been the offence against that law denominated "piratical aggression," which consists perfected. 3. That her general character and status were well known, not only to the Spanish military and naval authorities in and about Cuba, but also to our own naval officers cruising in those waters, and to our commercial agents in those and adjacent ports. The evidence that her character and status were thus generally and well known, consists in the notorious fact that previously to her capture she had succeeded in landing two hostile cargoes on the shores of Cuba. The second of these successful expeditions is remarkable from the fact that, wholly and notoriously controlled as she was by Spanish subjects, and loaded with arms and munitions of war designed to assist certain Spanish citizens to make war upon the Spanish government and other Spanish citizens, and notified by a Spanish naval officer of her real character, who earnestly solicited that she might be taken to an American port to have her true character adjudicated, the commander of an American gunboat was, nevertheless, not ashamed to convoy her out to sea from a Central American port, thus fairly rescuing her from the clutches of a Spanish cruiser, and sending her out under the sanction and protection of our flag, to land her second hostile expedition upon Spanish territory, which she immediately did. Such a dishonest breach of comity towards a friendly nation is calculated to make every American hang his head in shame, and goes far towards justifying the assertion of the Cuban journals that the final loss of that vessel involved another instance of Punic faith on our part-that instead of succumbing off Cape Hatteras to her own weak condition and the perils of a stormy sea, she was scuttled and sunk to avoid the inevitable consequence which would have followed the determination by an American court of her real character, namely, her re-delivery to Spain. The Cuban insurgents not being recognized by any respectable power as belligerents, the Virginius, though owned by Spanish citizens, was without any national character. She was not entitled to fly the flag of any nation, but was a sort of nullius filia upon the high seas. She was, to all intents and purposes a Spanish vessel, engaged in unlawful enterprises against the Spanish government, and as clearly liable to seizure by a Spanish cruiser on the high seas as any American merchantman at sea is liable to be overhauled by an American gunboat. In reason and common sense, her fraudulent register and the device of hoisting an American flag, her real character and ownership being known, could no more confer upon her immunity against seizure by a Spanish gunboat than the same devices could con fer immunity upon a pirate cruis ing animo furandi against the commerce of all nations. The utmost obligation which Spain owed us was, her American character having been asserted by our government, to have that character adjudicated by an American court. We cannot, of course, enter into an extended argument to enforce these views. They are amply enforced by Mr. Curtis and by the writer in the American Law Review. The question, then, being one which concerns simply the right of a Spanish man-of-war to seize upon the high seas a vessel owned and controlled by Spanish citizens, and engaged in treasonable and felonious enterprises against the Spanish government and people, it would seem that the right of self-defence does not become an important question in the case. The governing principle of the case relates rather to the right which ev ery sovereign power possesses over its own subjects, whether within its own territories or upon its vessels on the high seas. And it would seem to be only upon the supposition that her fraudulent American register made her, prima facie, an American vessel, that the doctrine of self-defence has any relevancy to the case. Mr. Curtis, however, discusses the question at considerable length with reference to the law of self-defence. After fully explaining the character and ownership of the Virginius, and the personal jurisdiction of a nation over its subjects on the high seas, he says: "If it is true that national jurisdiction over the persons and property of subjects exists, for some purposes, wherever they are--and this is the real basis of the relations between a national vessel at sea and the nation to which it belongs--it follows that a nation which has subjects cruising at sea in a vessel that is wholly under their control, which has no national character, and which those subjects are using to make incipient war upon their sovereign, may have rights of prevention which depend not upon territorial but upon personal jurisdiction. Whether those rights can be exercised on the ocean, or only within the territory of the nation that needs to exercise them, depends upon the character of the ocean, upon the practicability of exercising upon it a right of self-defence without interference with the rights of others, and upon the solid reasons why such a right of self-defence should be admitted rather than denied." Mr. Curtis then proceeds to show that the exercise of the right of self-defence has been con in private war by one vessel against another upon the high seas; and in illustration of this he cites the memorable case of the Marianna Flora. He then calls attention to the case of the Caroline, which is within the memory of many of our readers. It is not a little singular that both Mr. Curtis and the writer in the Law Magazine and Review, while discussing at length the diplomatic controversy which grew out of the destruction of the Caroline, should have overlooked or omitted to cite the important case of The People v. McLeod, (1 Hill, N. Y. 377), which grew out of that affair. This case was determined in the Supreme Court of New York in 1841, before Chief Justice NELSON and Justices BRONSON and COWEN, all able and distinguished judges. It is noteworthy in this connection from the fact that Mr. Justice COWEN, who delivered the opinion of the court, attempted to answer the assertion of the British government that the destruction of the Caroline was a necessary act of selfdefence. The facts of the Caroline case were substantially as follows: In the winter of 1837-8, during McKenzie's rebellion in Canada, and while the United States and Great Britain were at peace with each other, a body of armed men, mostly Americans, took possession of Navy Island, in the Niagara river, an island belonging to Great Britain, and, having fortified their position, kept up for several weeks a frequent bombardment against the position occupied by British forces on the Canadian shore. An American steamer, the Caroline, plied regularly between Navy Island and Schlosser, on the American side of the river, furnishing the armed force on the island with supplies and stores, and keeping up a communication between them and the American shore. About midnight of the night of December 29-30, a party of British troops, under command of Colonel Allen McNabb, proceeded in small boats in search of the Caroline, found her fastened to the dock at Schlosser, in the state of New York, made a hostile attack upon her, expelled her crew, set fire to her, and she floated in full blaze over the great falls. In the skirmish, one Amos Durfee, a person employed on the Caroline, was killed, and for his murder, nearly two years afterward, one Alexander McLeod a British subject, was indicted by a grand jury in Niagara county, New York. McLeod having been arrested and confined in jail, the British minister, Mr. Fox, in a note to Mr. Webster, the American secretary of state (March 12, 1841), demanded his immediate release on the ground that the act in which he was engaged was one of a public character, "planned and executed by persons duly empowered by her majesty's colonial authorities to take any steps or to do any acts which might be deemed necessary for the defence of her majesty's territories and for the protection of her majesty's subjects, and that consequently those subjects of her majesty who engaged in that transaction were performing an act of public duty, for which they cannot be made personally and individually answerable to the tribunals of any foreign country." In the meantime McLeod was brought before the Supreme Court of New York, under a writ of habeas corpus. Here the prisoner brought to the notice of the court, by affidavits and exhibits, the character of the Caroline, and of the expedition which destroyed her, as well as the demand of the British government for his release. The case was argued with great ability by counsel, and many precedents and authorities were cited. The judgment of the court was finally pronounced by Mr. Justice CoWEN, who argued the question involved at great length, displaying throughout his opinion the clearness of intellect for which he was distinguished, and the exhaustive research which was his habit. Referring to the demand of the British government for the surrender of the prisoner, he said: "She puts herself, as we have seen, on the law of defence and necessity; and nothing is better defined, nor more familiar in any system of jurisprudence, than the juncture of circumstances which alone can tolerate the action of that law. A force which the defendant has a right to resist, must itself be within striking distance. It must be menacing, and apparently able to inflict physical injury, unless prevented by the resistance which he opposes. The right of self-defence and the defence of others, standing in certain relations to the defender, depend upon the same ground; at least they are limited by the same principle. It will be sufficient, therefore, to enquire of the right so far as it is strictly personal. All writers concur in the language of Blackstone (3 Black. Com. 4), that to warrant its exertion at all, the defender must be forcibly assaulted. He may then repel force by force, because he cannot say to what length of rapine or cruelty the outrage may be carried, unless it were admissible to oppose one violence with another. But,' he adds, 'care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become the aggressor.' 'The condition upon which this right is thus placed, and the limits to which its exercise is confined by this eminent writer, are enough of themselves, when commies of all mankind. And finally, to show the "very great prominence which pared with McLeod's affidavit, to destroy all color for saying the case is within that condition or those limits. The Caroline was not in the act of making an ceded by civilized states to each other in the case of pirates, the extirpation of whom is referred by him solely to this right. He then cites the somewhat analogous case of slave traders, who may be said in a qualified sense to be ene the law of nations assigns to the right of self-defence," he calls attention to assault upon the Canadian shore; she was not in a condition to make one; she had returned from her visit to Navy Island, and was moored in our own waters for the night. Instead of meeting her at the line and repelling force by force, the prisoner and his associates came out under orders to seek her wherever he could find her, and were, in fact, obliged to sail half the width of the Niagara river, after they had entered our territory, in order to reach the boat. They were the assailants; and their attack might have been legally repelled by Durfee, even to the destruction of their lives." Further on Mr. Justice COWEN quotes from Puffendorf the rule applicable to cases of private or mixed war, as follows: If the adversary be a foreigner. we may resist him and repel him any way, at the instant he comes violently upon us; but we cannot, without the sovereign's command, either assault him while his mischief is only in machination, or revenge ourselves upon him after he hath performed the injury against us." Puff. b. 2, chap. 5, 7. "The sovereign's command must," adds the learned justice, "in order to warrant such conduct in his subject, be a denunciation of war." McLeod was accordingly remanded to take his trial in the ordinary course of law, and was tried and acquitted, having proved an alibi. Nothwithstanding the deference which is to be paid to the opinion of so eminent a judge, it is believed that the grounds taken by him, in the language above quoted, are to a great extent fallacious. 1. In the first place it is to be observed that the juncture of circumstances which can alone tolerate the action of the law of self-defence, is by no means as clearly defined—at least in the United States-as the learned justice states it to be. It is true that, on the one hand, we find the rule stated in many cases, that the danger which alone will warrant a person in striking in his defence must be impending and about to fall at the time the act of defence is resorted to, or, at least, this must be apparent to the comprehension of a reasonable man. (People v. Sullivan, 3 Selden, 396; Harrison v. State, 24 Ala. 67; Creek v. State, 24 Ind. 151; Shorter v. People, 2 Comst. 193; Logue v. Com., 2 Wright, 265; State v. Scott, 4 Ired. 409; Dyson v. State, 26 Miss. 362; Cotton v. State, 31 Miss. 504; Wesley v. State, 37 Miss. 327; Evans v. State, 44 Miss. 762; Head v. State, 44 Miss. 731; Rippy v. State, 2 Head, 217; Williams v. State, 3 Heiskell, 376; Lander v. State, 12 Tex. 462.) These cases state the general rule, and the application of it is, of course, in criminal trials, left to the jury. So, it has been said that the right of attack for the purpose of defence does not arise until the person defending has done everything in his power to avoid its necessity. (People v. Sullivan, supra; State v. Shippey, 10 Minn. 223.) On the other hand, the doctrine of these last two cases is distinetly repudiated in three cases in Kentucky, where it is held that a person who has once escaped from assassination at the hands of a desperate and persevering enemy, may kill such enemy whenever and wherever he may chance to meet him, so long as such enemy gives evidence that his murderous purpose continues. (Philips v. Com., 2 Duvall, 328; Carico v. Com., 7 Bush, 124; Bohannon v. Com., 8 Bush, 481.) And in three other wellconsidered judgments, it has been declared that no general rule on the subject applicable to all cases can be laid down, but that each case must depend to a great extent upon its own exigencies. Cotton v. State, supra; Patterson v People, 18 Mich. 330, 334; Jackson v. State, Supreme Court Term, 1873. 2. If no settled rule can be laid down in advance which shall determine the exigencies in which a person will be permitted to strike in his private defence, the attempt to apply to a state of private or mixed war, the rules which are supposed to be settled in regard to private defence, must be entirely fallacious. Thus, in a state of civil society, we say, as was said by Mr. Justice COWEN in the case we are considering, that the right to strike in one's defence does not arise while the threatened danger exists in machination only; because, at this stage of the danger, it is always possible to appeal to the preventive arm of the law. But a state of war, be it public, private or mixed, brings with it an accumulation of mischief which the civil law is utterly powerless to prevent; and hence, in such cases the defender must be supposed to be remitted to a state of nature in respect of his right of defence; and in a state of nature, where there is no law to which the defender can appeal for prevention, it cannot be possible that he is obliged to sit passively and watch his enemy while he compasses his destruction, instead of attacking that enemy during his work of preparation. The principle laid down by Dr. RUTHERFORTH, as applicable to defence of life in a state of nature, would seem to be the reasonable and consistent rule to apply to such cases. He says: "This law [i. e., the law of nature] cannot be supposed to oblige a man to expose his life to such dangers as may be guarded against, and to wait till the danger is just coming upon him, before it allows him to secure himself." But he shows that in state of civil society he is obliged first to appeal to the civil magistrate before he can lawfully strike in defence against a mischief which is only in preparation. Ruth. Inst. b. 1, chap. 16, 25. The principles insisted on by Mr. Justice COWEN would have required Col. McNabb to attack the Caroline in his open boats in the middle of the Niagara river, or while moored under the guns of Navy Island, and to capture her, if at all, at a useless expenditure of the lives of his men; and this to satisfy a punctilious rule of supposed law, devised by some casuist in his library! Applying these views to the case of the Virginius, if the Spanish admiral, though aware of her hostile character, could not, because of her American flag and register, seize her on the high seas, he could not, of course, pursue her into a friendly port and blockade her there; but would be obliged to allow her to steam quietly away, to run into some creek or bay under cover of night, and land her hostile expedition on the territory he was cruising to defend. Such a conclusion opposed to all our ideas of the right of self-defence. But if it were practicable to draw any illustrations from the principles of the common law applicable to defence by private persons which would be applicable to public defence against such an expedition as that of the Virginius, we should suppose that Americans would be content to rest the case upon that celebrated declaration of law by Sir MICHAEL FOSTER, which has always been a favorite rule with our jurists. That eminent judge thus laid down the principle of law applicable to defence against felonious assaults and attempts: "In the case of justifiable self-defence the injured party may repel force with force, in defence of his person, habitation or property, against one who manifestly intendeth and endeavoreth with violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he findeth himself out of danger; and if, in a conflict between them, he happeneth to kill, such killing is justifiable." Foster Crown Law, 273. This declaration of law has been frequently recognized by English and American jurists, and we believe has never been questioned. (See 1 East P. C. 271-2; Whart. Crim. Law, 7th ed. ? 1019; 1 Bish. Crim. Law, 5th ed. 853; Carroll v. The State, 23 Ala. 28; United States v. Mingo, 2 Curt. C. C. I; Com. v. Selfridge, 1 Self-Defence Cases, 1; The State v. Thompson, 9 lowa, 188; The State v. Kennedy, 20 Iowa, 569; The State v. Collins, 32 Iowa, 36; Com. v. Riley & Stewart, Thacher's Crim, Cases, 471; Bohannon v. Com. 8 Bush, Ky. 481; United States v. Wiltberger, 3 Wash. C. C. 515; Pond v. The People, 8 Mich. 150.) Now, applying this rule and the nomenclature of the common law to the case of the Virginius, it cannot be, and never has been, doubted that the persons on board that vessel at the time of her capture "manifestly intended and endeavored with violence or surprise to commit a known felony" against the government and citizens of Spain. At the moment of their being sighted by the Spanish admiral they were "manifestly intending and endeavoring to land with a cargo of warlike material on the coast of Cuba for the purpose of engaging in private war against the government of Spain and those adhering to it. Viewed according to the common law, the attempt was in the highest degree felonious as to all engaged in it; for private war being unlawful and unauthorized war, or war waged by one without jurisdiction, as Grotius expresses it, it necessa ily involves the violent felonies which the common law denominates murder and mayhem, and generally carries in its train those others which it respectively denominates rape, robbery, burglary and arson. Besides, all Spanish citizens on board were involved in an attempt to commit treason, a crime to which the common law assigns a higher degree and a more heinous dye than to any mere felony. Such being the nature of the attempt, the Spanish admiral might, according to this settled principle of the common law," repel force by force," nor was he "obliged to retreat," but might lawfully "pursue his adversary" until he found himself, or the territory he was cruising to defend, "out of all danger." Of course, what is here said has no reference to the summary execution of a portion of those found on board the Virginius, nor does Mr. Curtis or the other two writers to whom we have alluded speak of it except to condemn it. That question is supposed to depend upon other and distinct grounds of law. We may be permitted to suggest, however, that while our government has been swift to demand redress for an insult to its flag which had not been committed, it has been slow to demand reparation for the murder of its citizens by the authorities of Santiago de Cuba. We say murder, because it is believed that there can be no law--certainly none that Americans ought to recognizewhich can sanction the putting to death by another nation of our citizens found on the high seas, upon the mere supposition, however well grounded it may be, that they intend to commit a crime against the municipal laws of such nation and within its territory. Notes and Queries. LITTLE ROCK, June 6, 1874. EDITORS CENTRAL LAW JOURNAL :-Section 9, article 1, of the con* * * "And stitution of Arkansas contains the following provision : no person, after having been once acquitted by a jury, for the same offence shall again be put in jeopardy of life or liberty." The constitution of Missouri contains a similar provision. In construing this section our supreme court held (GREGG and MCCLURE dissenting) that "where the indictment is sufficient in form and substance, and the defendant is arraigned, pleads, and the jury is empanelled and sworn to try the issue," a dismissal of the indictment without the consent of the defendant operates as an acquittal. Lee v. The State, 26 Ark. 260; McKenzie v. The State, ib. 334. Has the Supreme Court of Missouri ever passed upon this clause in the constitution? Several volumes of the Missouri reports are missing from our library, or I would not trouble you with the question. G. ANSWER. We think there is no Missouri case in point. We have been unable to find any. Legal News and Notes. -HON. LUTHER S. DIXON, Chief Justice of the Supreme Court of Wisconsin, has resigned. He has held the office for fifteen years, and resigns it now to return to the practice of law, which he expects to find much more lucrative. -CHIEF JUSTICE AGNEW, Henry W. Williams, of Tioga county, exAttorney-General Benjamin Harris Brewster, Hon. William A. Wallace, of Clearfield, Hon. W. H. Playford, of Fayette county, Attorney-General Samuel E. Dimmick, and Hon. A. T. McClintock, have been appointed by Governor Hartranft commissioners to propose amendments to the new constitution of Pennsylvania, under an act of the late legislature. the state is valid, yet the mere mention of the proposition to tax railroad property for general purposes at a higher rate ad valorem than other property is taxed for like purposes, conveys an idea of injustice so obvious as to shock the conscience; and the fact that it was deemed necessary to make a speech against such a measure of taxation is one of the remarkable signs of the times. To tax one man's property at a higher rate than another's for the same purpose is not a whit better than highway robbery. —THERE has been a conflict of authority between the civil and military authorities at Salt Lake. To appreciate the difficulty it should be understood that the civil authorities are Mormons. The telegraph states: A soldier from Camp Douglas was arrested for disorderly conduct. This morning General Morrow demanded the surrender of the soldier, to be tried by the military authorities. The surrender was refused, and Gen. Morrow ordered Captain Gordon, with a detachment of cavalry, to the city with orders to ask for the surrender of the soldier, and in case of refusal to release him by force. The surrender was refused, and the Captain proceeded to break open the jail and released the man, who is now in confinement at the military post. General Morrow some time since presented the subject of arrests by the civil authorities of soldiers to the war department, claiming that, under the articles of war, soldiers are to be tried by the military, and not by the civil authorities. The judge advocate general of the army approved of this view, and the secretary of war directed General Mor---IT appears from the preamble of the Tichborne and Doughty estates row to act accordingly. No resistance was made by the city authorities. The bill, recently introduced in the British parliament, that the expenses of the instructions from Washington in regard to the arrest and detention of sollitigation occasioned by the claimant's proceedings, and which are payable diers by the Mormon authorities was printed in the papers here a day or by the present baronet, or, in the event of his death during minority, by two ago, and it is supposed a test case is intended to be made of the occurthe family, out of the estates, have already amounted to nearly £92,000.rence to-day, and that the surrender of the soldier was refused for that reaThese are exclusive of the expenses of the prosecution for perjury, which son. The soldiers were cheered loudly by the assemblage of citizens witwere borne by the country. nessing the release." - -A CORRESPONDENT writes from Georgia that the bankrupt business in that state is flourishing. Everybody who is indebted seems eager to have all the property in his own possession, and in the possession of his friends, "assured" to himself, through the machinery of the bankrupt court. Our correspondent adds that the bankrupt law in Georgia is, in many respects, akin to the common recovery of old. -IN the United States Circuit Court, at Portland, Maine, before Mr. Justice CLIFFORD, the case of Bradish Johnson v. Neal Dow was argued a few days ago. This was an action upon a judgment recovered by Johnson, who was a Union man, against Dow, in the sixth district of New Orleans, for sugar, silver spoons, knives, forks and a silver water pitcher, taken by a military expedition sent by Gen. Dow to the plantation of JohnThe question was whether or not a Louisiana court had jurisdiction in the case. son. -Gov. BAXTER, of Arkansas, has made the following apppointments: E. H. English, chief justice, vice John McClure, impeached and suspended; Wm. M. H. Trapon, associate justice, vice M. L. Stephenson, resigned John T. Rearden, F. W. Compton, associate justices, vice Searle and Bennett,; impeached and suspended; John J. Clenden, circuit judge, vice John Whytock, resigned; J. C. Davis, circuit judge, vice W. H. S. Clayton, resigned; Robert S. Fuller, circuit judge, vice George A. Kingston, resigned; J. N. Smithee, commissioner of immigration and state lands, vice Wm. H. Gray, imperched and suspended. -THERE is no divinity that hedges a judge about and protects him from the catastrophes which are liable to befall other men. Some years ago Judge HARRIS, one of the most promising jurists on the supreme bench of Tennessee, lost his life by a steamboat explosion. More recently Judge PECKHAM, of the New York Court of Appeals, found a watery grave with the ill-fated Ville du Havre. And now we are obliged to add to the painful list Hon. CHARLES II. DOOLITTLE, of Utica, New York' one of the justices of the Supreme Court of that state, who was lost at sea from the steamship Abyssinia, on the 21st of May. When his death occurred, he had been at sea but one day, the steamship having sailed on the 20th. -SENATOR ROZIER recently delivered an argument before the Missouri state board of equalization, which is composed of the members of the state senate, in favor of assessing railroad property for taxation at the same rate at which other property is assessed. While it has been decided by the highest court in the Union that a special tax laid on railroad earnings for the purpose of liquidating the indebtedness of such railroad company to -AN interesting suit has been on trial in the Fourth District Court of New Orleans, brought under the Louisiana civil rights law of 1869. The suit was brought by Capt. Peter Josephs, a colored police officer, who purchased a ticket of admission and presented it at the door of a theatre, and was refused admission unless he would consent to go to a part of the theatre other than the dress circle. The act in question gives to all parties a right of action for damages against the keepers of public establishments like hotels, theatres, steamboats, railroads, etc., who have excluded them from the legal enjoyment of the privileges of such establishments on account of race, color, or previous condition. This is the first tried of a number of suits which have been brought under the new law. The ticket expressed on its face the right of the proprietor to exclude the holder at his discretion, and assign him to a certain circle or part of the theatre different from that which he insisted on occupying. The court limited the plaintiff to proofs of breach of contract or claim for damages ex contractu. Theatre licenses, under the act in question, express the condition that the holders shall make no distinction of color, race or previous condition in the conduct of his business. Under the rulings of the court the plaintiff can only obtain such damages as he proves he actually incurred. -THE manner in which the English courts keep the members of their bar in the straight and narrow path is aptly illustrated by what befell a soicitor the other day, as it is related by a leading English journal. If our own courts would be as strict in watching the members of their bar, the standard of the profession in this country would be greatly raised: “A motion was made before the Master of the Rolls to strike Mr. Greenhill off the rolls, on the ground that he had made alterations in an affidavit after it had been sworn. Mr. Greenhill's counsel admitted that he had done wrong, but as it was not done from any corrupt motive, but through excessive zeal for his client, it was hoped the court would not inflict a severe punishment. The Master of the Rolls said Mr. Greenhill was a solicitor of twenty years' standing, and therefore what he had done could not be attributed to want of experience. Although it was a case of excess of zeal, it could not be passed over. The court could not help feeling that Mr. Greenhill had no corrupt motive in making the alteration, but it was made in support of the affirmative of the main issue raised between his client and another party. That was a serious matter; and although he (the Master of the Rolls) did not intend to strike Mr. Greenhill off the roll, yet for the purpose of marking clearly his disapproval of Mr. Greenh ill's conduct, he would order that he should be suspended from practicing as a solicitor for six months, and that he should pay the costs of this motion." Hon. JOHN F. DILLON, Editor. ST. LOUIS, THURSDAY, JUNE 25, 1874. Phase of the Macoupin Case. SUBSCRIPTION: $8 PER ANNUM, in Advance Municipal Debts - Mode of Enforcement Latest fully from another. There, every turning of the cock to let the water flow is a new nuisance. Beswick v. Camden, Cro. Eliz. 520. In M'Donough v. Gilman, 3 Allen, 264, it was held that in order to render a lessee liable as for a nuisance to a passageway for refitting a privy, the refitting must have rendered the privy more of a nuisance than it was before. In Roswell v. Prior, 12 Mod. 635, the plaintiff recovered against the defendant for erecting a building which obstructed ancient lights. The defendant had leased the ground with the nuisance, and contended that the action should be against But the court said: the lessee. "Surely this action is well brought against the creator, for before his assignment over he was liable for all consequential damages, and it shall not be in his power to discharge himself by granting it over, and more especially here where he grants over, reserving rent, whereby he agrees with the grantee that the nuisance should continue, and has a recompense, viz., the rent for the same; for thereby, when one erects a nuisance and grants it over in that manner, he is a continuer with an interest." The Macoupin (Ill.) county bond troubles threaten to become as famous in legal history as those which have attracted attention originating in Wisconsin and Iowa. On the 18th inst. the United States Circuit Court (a full bench) granted a mandamus to compel the county board to levy a tax of one and three-fourth per cent. to pay the interest and principal of the court-house debt. Last year a similar mandamus was issued from the same court, which the board did not obey. At the last January term the supervisors, seventeen in number, were declared in contempt, were arrested and brought here by the United States marshal. They were fined $1,000 each, and the money was paid in to the clerk of the court. Afterwards the attorneys for the holders of the judgment against the county asked that the $17,000 be divided among the judgment-holders, alleging that the money was paid out of the county treasury. These facts were reported in the order of their occurrence, and it is reported that Judge DRUMMOND recently ordered that the money be so divided. He said the payment of the fine out of the funds of the county was not a satisfaction It is held that the lessor of premises for the purpose of carof the judgment for contempt, and that a capias would issue rying on a business necessarily injurious to the adjacent ownagainst the supervisors on that judgment, which he held to beers is liable as the author of the nuisance. Fish v. Dodge, 4 still unsatisfied, so long as the allegation that the money was paid out of the public funds was not contradicted. The judgment for $1,000 now stands as a lien against the property of each of the supervisors, which can only be discharged by a personal payment of the amount. Since the Watertown (Wis.) case decided by the Supreme Court of the United States (CENTRAL LAW JOURNAL, ante, 161), more than unusual interest attaches to attempts to compel reluctant municipalities to levy and collect taxes by force of mandamus proceedings, and the above presents the latest phase of the Macoupin case. Author and Continuer of Nuisance. In the law of nuisance a question of very frequent discussion and somewhat variable decision has been, against whom an action is proper to be brought, where the property causing the nuisance has, since the creation of the nuisance, passed into new hands; in other words, whether the creation or the continuance of the nuisance is the substantial ground of ac tion. The question has arisen alike with regard to the respective or concurrent liabilities of grantor and grantee, and of landlord and tenant. In an old case the declaration alleged that the defendant kept and maintained a bank by which a brook was caused to flow around the plaintiff's land. The court said "there is not been any offence committed by the defendant, for he allegeth that he kept and maintained a bank, which is that he kept it as he found it, and it is not any offence done by him, for he did not do anything; and if it were a nuisance before his time, it is not any offence in him to keep it." The case is distinguished from those in which every using is a new nuisance, as the using of an aqueduct which takes water wrong Denio, 311. See Brady v. Weeks, 3 Barb. 157; Kint v. and because it was in derogation of the demise to the plain- If the The remedy for a nuisance, however, is concurrent. owner of land on which a nuisance is created lets the land, or if a tenant, after creating a nuisance, underlets, and the nuisance is continued, an action lies at the option of the party injured, either against landlord or tenant. Rex v. Pedly, I Ad. & Ell. 822; Staple v. Spring, 10 Mass. 72; Plumer v. Harper, 3 N. H. 88. The action lies for the continuance of a nuisance, though the plaintiff has accepted money paid into court in full satis |