the arbitrators in making an award does not vitiate. Stevens v. Brown. Opinion by Ashe, J.

CONSTITUTIONAL LAW-TAX ON DOGS. A statute empowering town authorities to require the payment of a tax on dogs is constitutional. It is not an ad valorem but a specific tax for the privilege of keeping a dog within the town, and if not paid by the owner, the dog may be treated as a nuisance and killed. Property in dogs is recognized by the law and protected against wanton and needless injury, and a civil action for damages may be maintained by the owner. Dodson v. Mock, 4 Dev. & Bat. 146; Perry v. Phipps, 10 Ired. 259. Yet they are not the subject of larceny. State v. Holder, 81 N. C. 527. The question as to the right to impose a special tax upon dogs is discussed in Blair v. Ferchand, 100 Mass. 136. Gray, J., says: "These statutes have been administered by the courts according to the fair construction of their terms and without a doubt of their constitutionality." Again speaking of an enactment which required the owner of a dog to put a collar about its neck, to be constantly worn with the name and residence of the owner marked thereon, and authorized any person to kill a dog without such collar, when it had been decided that no action would lie for such killing, he adds: "Similar statutes have been held in other States to be reasonable and constitutional regulations of police." Hurd v. Chesley, 55 N. H. 21. Mowery v. Town of Salisbury. Opinion by Smith, C. J.

EQUITABLE ACTION TO RELIEVE FROM USURIOUS CONTRACT. The decisions are numerous and uniform in this State, as elsewhere, that a debtor seeking the aid of a court will be relieved of the usurious element

in his debt, only upon his payment of what is really due. "If indeed the borrower," says Ruffin, C. J., "asks for assistance from equity, it may be refused unless he deal equitably by paying the principal money loaned and legal interest." Ballinger v. Edwards, 4 Ired. Eq. 449; Beard v. Bingham, 76 N. C. 285. Purnell v. Vaughan. Opinion by Smith, C. J.

REMOVAL OF CAUSE- DISTINCTION OF COLOR.- In

an action brought to annul a deed, etc., the defendants applied by petition for a stay of proceedings in the Superior Court in order that the cause might be removed to the Circuit Court of the United States, alleging that the plaintiffs were white persons in whose favor a great partiality existed in that locality, etc., and that the defendants were colored persons against whom there was existing a great prejudice, etc. Held, that the defendants were not entitled to the removal. The act (Rev. Stat. of the U. S., § 641) applies only to cases when the laws or judicial practices of a State recognize

distinctions on account of color, race, etc., and not to cases of mere local prejudice for which the case may be removed to another county. State v. Dunlap, 65 N. C. 491; Capehart v. Stewart, 80 id. 101; Slaughter House cases, 16 Wall. 36; Strauder v. West Virginia, 21 Alb. L. J. 309. Fitzgerald v. Allman. Opinion by Smith, C. J.

CRIMINAL LAW.

FORMER JUDGMENT—WHAT IS NOT SO AS TO BAR NEW TRIAL.-If a judgment in a criminal case is reversed on error, in consequence of an error committed by the trial judge in charging the jury, the first trial will not be a bar to a retrial on the same indictment. The modern English doctrine seems to be that nothing but an existing judgment, either of conviction or acquittal, so that a plea of autrefois convict or autrefois acquit can be pleaded, will have that effect. The Constitution of this State goes no further than to forbid the retrial of a person who has been acquitted. See Vaux's case, 4 Rep. 44; Reg. v. Houston, 2 Craw. & D. 310; Doc. & Stu. C. 52; Rex v. Keite, 1 Ld. Raym. 138;

Kenloch's case, Fost. 22; Ferrars' case, Raym. 84; Rex v. Hayes, 2 Ld. Raym. 1521; King v. Scalbert, 2 Leach's Cas. 706; King v. Stevenson, id. 618; Meadow's case, Fost. 76; Conway v. Queen, 7 Irish L. R. 140; Winsor v. Queen, L. R., 1 Q. B. 289; State v. Jones, 6 Halst. 290; Reg. v. Woodfall, 5 Burr. 2661; Arundell's case, 6 Rep. 14a; Campbell v. Queen, 11 Ad. & El. (N. S.) 835; Gray v. Queen, 11 Cl. & Fin. 490. New Jersey Court of Errors and Appeals, November Term, 1879. Smith v. State of New Jersey. Opinion by Beasley, C. J.

FORGERY -INTENT TO DEFRAUD PERSON NAMED MUST BE PROVED-EVIDENCE-FLIGHT NOT EVIDENCE

--

OF GUILT. (1) It is necessary to prove, on the trial of one indicted for forgery, an intent to defraud the person named in the indictment as intended to be defrauded. This intent may be clearly shown by uttering the forged instrument, and if not passed, circumstantial evidence. Evidence of statements or admissions in reference to the note for the forgery of which the person accused is being tried are admissible, but what he has said of another note said to have been forged is not admissible to prove the charge on which he is being tried. Regina v. Cooke, 8 C. & P. 582. Forgery has been defined by law writers as "a false making; a making malo animo of any written instrument for the purpose of fraud and deceit." One of the accepted meanings of the word "forge," is to falsely make, without any regard to the intent. But the statute requires an intent to defraud to be shown, and the mere making and possession do not necessarily prove an intent to defraud. Rex v. Shukard, Russ. & Ry. 200. That is clearly shown when the forged instrument is uttered, or it may be inferred from circumstances. But mere making and possession is evidence, it is true, but it cannot be said, as a legal proposition, that it proves a fraudulent intent. (2) Flight is not evidence of guilt. It is only evidence tending to prove guilt. And an instruction to the jury is erroneous that states that if flight was proved, it must be satisfactorily explained consistently with the innocence of the accused. Illinois Sup. Ct., May 18, 1880. Fox v. People of Illinois. Opinion by Walker, C. J.

RECENT ENGLISH DECISIONS.

CONFLICT OF LAW-DOMICILE - FOREIGN DIvorce. -Two domiciled English subjects married in England, and subsequently the husband went to the United States and resided in the State of Kansas. He during the time of such residence wrote letters to his wife

expressing his intention to return to England and live. After a year's residence in Kansas he presented a petition to the courts of that State for and obtained a divorce on the ground of his wife's desertion. He then married again. The wife had received no notice of the petition. Held, that his domicile at the time of the divorce was English, and consequently that the American divorce was invalid, and that he had committed bigamy. Quare, whether the domicile of the wife follows the domicile of the husband so as to compel her to become subject to the jurisdiction of the tribunals of any country in which the husband may choose to acquire a domicile. Probate Div., May 11, 1880. Briggs v. Briggs. Opinion by Hannen, Pres., 42 L. T. Rep. (N. S.) 662.

INTEREST ON MORTGAGE AFTER DUE NOT AT CONTRACT BUT AT USUAL RATE.- - By an indenture of mortgage reciting an agreement for a loan of ten per cent, the mortgagor covenanted for payment of the principal at the expiration of twelve months, and for the payment of interest in the mean time at the rate of ten per cent per annum; but there was no covenant as to payment of interest in the event of the principal or

any portion of it remaining unpaid after the day named for payment. The principal was not paid at the expiration of twelve months, but interest at ten per cent was paid for several years. After the death of the mortgagor a judgment was given for the administration of his estate, and the mortgagee proved as a creditor for the principal and interest. Held, that interest was recoverable only as damages, and ought to be limited to five per cent (the usual commercial value of money), that being the amount which a jury would be recommended to give in an action at law for nonpayment of money on a day certain. Ct. of Appeal, March 10, 1880. Goodchap v. Roberts. Opinion by Jessel, M. R., 42 L. T. Rep. (N. S.) 666.

MARITIME LAW-AVERAGE.- Where a vessel has put into port to repair an injury occasioned by a general average sacrifice, the expenses of warehousing and reloading goods necessarily unloaded for the purpose of repairing the injury, aud expenses incurred for pilotage and other charges on the vessel leaving the port, are the subject of general average. The practice of British average adjusters for the last seventy years dissented from. Judgment of the Queen's Bench Division affirmed. Court referred to Plummer v. Wildman, 3 M. & S. 482; Power v. Whitmore, 4 id. 141; Hallett v. Wigram, 9 C. B. 580, 607; Abb. Ship. (8th ed.) 478; Benecke Mar. Ins. 191; Stev. Av. 22; Bailey's Av. 119; Hall v. Janson, 4 E. & B. 24; The Copenhagen, 1 C. Rob. 289; Lowndes' Gen. Av. (3d ed.) 107; Job v. Langton, 7 E. & B. 779; Walthew v. Marojani, L. Rep., 5 Ex. 116. Ct. of Appeals, March 24, 1880. Atwood v. Sellar. Opinion by Thesiger, L. J., 42 L. T. Rep. (N. S.) 644.

STATUTE OF LIMITATIONS-NOTE PAYABLE THREE

title, commits an injury to land situated in a foreign State, jurisdiction should be, and has heretofore been, rightfully refused. But if, on the other hand, the case is one of which the courts should, ought, may, or can take cognizance, and no real difficulty or objection exists in the particular case, and no principle of law is violated or any constitutional provision broken downin other words, if the doctrine under consideration is founded and depends solely and principally for its support upon the common-law rules of venue, with all their technicalities and formal distinctions, it falls with the abrogation of those rules and is no longer sustainable, unless it can be placed upon a foundation of solid and substantial reasons. I agree, therefore, with Mr. Cowles that the Code only applies to actions of which the courts can take jurisdiction. The question then is, whether the courts of this State should, ought, may, or can take cognizance in any case of an action for injuries to land situated in a foreign State. If a rich man should come over from Jersey City to New York, and in a careless and negligent manner set fire to and destroy Mr. Cowles' house, he concedes it would be a hardship, indeed, but not so great by any means if the courts of New Jersey should, contrary to the law sanctioned by the wisdom of ages, compel the rich man to pay for the damages. If the injury was willfully done, the person who committed

it could be extradited to this State and a civil action

might also be maintained against him here. But where the injury was negligently committed, Mr. Cowles would be without remedy, unless the party should be sued in this State. I do not presume to say, that jurisdiction of actions of trespass to land should in every case be entertained, but I do say that, upon principle and reason (assuming my own reason to be the standard) if not upon authority, jurisdiction can be entertained without any real difficulty where the defendant cannot set up an apparent title either in himself or in a third party. I leave it to the courts to determine in each case as it arises whether the action should be sustained or dismissed. But that there are some cases in which jurisdiction may be entertained, seems clear beyond all doubt. Though it has been repeatedly held for many years that jurisdiction of such cases could not be taken, that is no reason why the courts should not hold the other way. Where the reason of the rule ceases, the rule itself should cease to prevail, for the reason is, as it is said, the life of the law. The princi

659.

CORRESPONDENCE.

ACTION FOR INJURY TO LAND IN ANOTHER STATE. To the Editor of the Albany Law Journal:

As your correspondent, Mr. Cowles, seems to misunderstand the scope and meaning of my article, in which I endeavored to show that the common-law rule, that the venue of an action for injuries to land situated in a foreign State cannot be laid in any county in this State, has been abrogated by the Code, I avail myself of the opportunity of defining my position and making myself more clearly understood.

If the case is one of which, upon principles of general jurisprudence, upon grounds of public policy, or for sound and substantial reasons, the courts of this State should not, ought not, or cannot take cognizance, then I admit that the doctrine in question is not abrogated, since the Code does not confer, or purport to confer jurisdiction in such cases, but merely regulates and prescribes the place of trial of actions of which the courts can or may take cognizance. If there is any inherent difficulty in or objection to awarding damages against a person, who, without a shadow or color of

tions and limitations. It cannot be invoked for the protection of a person, who, without color of right or authority, commits an injury to property situated in another State or country. Notwithstanding the principle of stare decisis, great innovations have been made upon the common law by the courts, as well as by the Legislature. The fallacy that judges do not make law, but only declare it as it previously existed, has long since been exposed. Austin speaks of the "childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges." "Where the introduction of a new rule would interfere with interests and expectations which have grown out of established ones, it is clearly incumbent on the judge stare decisis, since it is not in his power to indemnify the injured parties. But it is much to be regretted that judges of capacity, experience and weight have not seized every opportunity of introducing a new rule (a rule beneficial for the future), whenever its introduction would have no such effect. This is the reproach I should be inclined to make against Lord Eldon," and Kenyon.

Mr. Cowles says that the rule in question is approved or sanctioned by Lord Mansfield and Chief Justice

Marshall, upon whose great names I relied for support, and from whose opinions I quoted as sustaining my position. Lord Mansfield held, that as there were no regular courts of judicature in Nova Scotia, and "as Capt. Gambier might never go there again," the venue could be laid in England, notwithstanding the action was local. So, it may be argued, that as Mr. Middleton or Mr. De Courcy might never again go to New Jersey, jurisdiction should be taken of the case. But he went further and said, that in respect to the question of jurisdiction, the real and substantial distinction was between actions in rem and actions for damages merely; but he said there was also a formal distinction, arising out of the different modes of trial, between actions transitory and local. The doctrine in question arose out of this formal technical distinction, and not out of a real and substantial distinction. Chief Justice Marshall, after passing a high encomium upon the great judicial abilities of Lord Mansfield, admits the soundness of his argument, and says that he himself could never perceive any reason for this doctrine, other than a technical one, but that sitting there upon the Circuit, he could not venture to disregard it.

Mr. Cowles says, that the Court of Appeals and the Supreme Court have settled the law upon this subject. This I concede, but the question is, whether those decisions are founded upon principle and sustained by reason whether they are founded upon a rock or upon the sand. I hope Mr. Cowles does not approve of the decision made by the former court in Telegraph Co. v. Middleton; that an injury to telegraph poles situated in a public highway can only be committed by an entry upon the "realty," and that an action of trespass quare clausum is the proper form of action when forms of action prevailed. It is too much to expect of an overburdened court to perform, not only its own duties, but also the duties of counsel.

I may say, with entire truth, and without claiming extraordinary intelligence, that I knew, or supposed I knew, the intent with which Mr. Throop made the provision for the place of trial of actions relating to real property situated in a foreign State. It was to provide for the place of trial of certain equitable actions relating to real property, of which the Court of Chancery claimed jurisdiction.

The question whether an action is local or transitory is to be determined, not by the common-law rules of venue, but by the rules prescribed by the Code. An action for injury to real property (other than waste or nuisance) must be tried in the county in which one of the parties resided at the commencement of the action, and is not required to be tried in the county wherein the land is situated; it is therefore a transitory action; and being an action transitory, it makes no difference whether the land is situated in this or in another State, if the case is one of which jurisdiction can be taken. Besides, the Code expressly provides, that where the land is situated without the State, the action must be tried in the county where one of the parties reside-that is, if it can. But I lay no stress upon the mere words of the Code. For that would be a strange doctrine to hold, that because no place of trial has been designated, no jurisdiction or cognizance can be taken of an action.

Lord Mansfield's broad and comprehensive mind saw the question in its true light; he met it fairly, and made a precedent which deserves to be followed.

let, with a request to notice, which from motives of gallantry we cannot pass over. It is entitled: "National Citizen Tract, No. 1. Who planned the Tennessee Campaign of 1862? or Anna Ella Carroll vs. Ulysses S. Grant: a few generally unknown facts in regard to our Civil War. By Matilda Joslyn Gage." The substance of this pamphlet is that the plan and suggestion of that campaign, executed by Gen. Grant, were made by Anna Matilda, then "a young girl of Maryland." Her "bright wit" and "transcendent military genius" taught it to her, and she laid it before the war department, and they foully adopted it without giving her credit, and Gen. Grant jumped into fame on the execution of it. Pity that Anua Matilda was too modest to sign her name to the original communication. Here is a second Joan d'Arc, and a conclusive answer to the Evening Post's standing query whether woman ever invented any thing. Anna Matilda prints firstclass recommendations. Chief Justice Chase thanks her for her "great and patriotic services," without specifying them. Gerritt Smith calls her the country's "wise and faithful and grandly useful servant," without saying in what employment. Reverdy Johnson "never heard it doubted" that she was "the first to advise the campaign on the Tennessee." Nor more did we. Ben Wade says her services were so great as to "throw a shadow over the reputation of some of our would-be-great men." No doubt, if she did any thing at all. Cassius M. Clay says her case stands out unique, for she "towered above all our generals in military genius." But Ben Wade is her right bower, for she has five testimonials from him. Old Ben never could resist a woman. As for the rest, we know of no similar tributes to genius, except in the case of the newspaper press on the "Sweet singer of Michigan." But why is all this thus? Why, Matilda Ann wants a pension, and Congress is so mean it will not grant it. Now our advice to Matilda Ann is to drop the pension notion and to strike for the presidency. We hereby nominate her for 1884. (N. B. We shall not expect any thing more than the attorney-generalship.)

The Ohio Law Journal is a new legal periodical, published at Columbus, weekly, in quarto of eight pages. Our neighbor starts out robustly in the matter of legal criticism, announcing that the conclusions reached in Ducker v. State, ante, 182, Davis v. Clinton Water Works, ante, 124, and Kincaid v. Hardin County, 21 Alb. L. J. 462, "are epochs in the law, to say the least,” and that the first is wrong. We fail to see any thing novel or startling in the last two, and think them right. The first is certainly debatable. We wish the new enterprise all the success imaginable, but it must "go light" on the judiciary at the outset. The Ameri

can Law Review for September contains a leading article by William Green, on Stare Decisis, and one on American Civil Code, by George Merrill. The Virginia Law Journal for September has a leading article on Patrick Henry Aylett.

Mr. Lillivick did not think much of the French "langwidge." We do not entertain a similar contempt for the Italian, and the struggles of our learned and esteemed contemporary, the Rivista Penale, of Florence, with our language, are entitled to praise. We said, some time ago, "In the New Jersey Legislature there is a spasm concerning capital punishment." The Rivista translates this thus: "Che nel Corpo Legislativo dello Stato di New Jersey v'e grande fervore (spasm.")-- A lawyer in Connecticut has discovered a new and neat way of avenging himself on an editor who published offensive articles against him. He did not cane, cowhide, shoot, stab, challenge, or sue him, but he invaded his printing shop and pi'd his forms and

cases.