INTER-STATE EXTRADITION-DUTY OF EXECUTIVE FROM WHOM FUGITIVE

IS DEMANDED.

DISTRICT OF COLUMBIA SUPREME COURT, OCT. 1880.

STATE OF NORTH CAROLINA V. PERRY.

In the rendition of fugitives from justice under the United States laws, the executives of the jurisdiction demanding the fugitive and that where he is found stand coequal, and are to exercise their authority in the protection of the laws of their respective jurisdictions and of the citizens thereof.

The delivering up a fugitive by an executive from whom it is demanded is a discretionary duty to be exercised within authority and right and to be governed by law. An executive from whom a fugitive is demanded can, in determining whether such fugitive shall be delivered up, go no further than to examine whether in the affidavit or indictment transmitted by the demanding executive as a part of the record, a crime is substantially charged.

PPLICATION, under a requisition by the governor

AP

of North Carolina, for the delivering up of defendant charged to be a fugitive from justice from that State. The requisition was made upon the chief justice of the Supreme Court of the District of Columbia, where defendant was found, as chief executive of the jurisdiction. The opinion states the facts.

CARTTER, C. J. If there is nothing more to be presented in this case I will announce the conclusion that I have been forced to with some of the reasons therefor. The governor of North Carolina, as the executive of that State, has made his requisition upon me as the chief magistrate of this jurisdiction, for the delivery of Samuel L. Perry, alleged to be a refugee from justice in that State.

In the discussion here by counsel, which has been conducted with great earnestness and learning, it has been claimed on one side, that in the exercise of the duty of responding to this requisition, the chief magistrate should be permitted the widest discretion; that this is an appeal, under the Constitution, to the executive of this jurisdiction that simply advises his discretion. On the other hand, it has been as earnestly contended that the appeal to this jurisdiction is an appeal to ministerial instrumentality alone, by which the executive of this jurisdiction becomes the minister of the will of the jurisdiction making the requisition.

Now, I think both of these propositions are unallowable. And I have given to this question a great deal of reflection, not only during the past two or three days, but in the discharge of this duty heretofore.

Here are two jurisdictions independent of each other, exercising their respective functions under the Constitution and laws of the United States. The executives of these jurisdictions sustain protective relations to the inhabitants and to the laws of their respective jurisdictions. And so emphatically is this the case, that the Federal sovereignty, either for the want of inherent power or of express power in the Constitution, has failed to affix a sanction to it. The Supreme Court of the United States has declared in effect, in the case of Kentucky v. Dennison, that no sanction exists except a moral one.

Now, if this is evidence of any thing, it is evidence that in this respect the jurisdictions are co-equal in Sovereignty, co-equal in the guardianship which the executor of the law is bound to exercise over its administration, and over the rights of citizenship. These jurisdictions standing co-equal, in a correlative position under the Constitution, are to exercise their authority in the protection of the laws of their respective jurisdictions, and of the citizens thereof.

It will not do to say that it devolves upon the executive of North Carolina to enter the District of Columbia and demand one of its citizens, peremptorily, without advising with the executive officer of the law in the District with reference to the matter. That would be to deliver over an equal jurisdiction into the keeping of another jurisdiction. In the very nature of the case, in the correlative position of the two sovereignties, in subordination to a higher sovereignty, the consultation of the executive will of either jurisdiction is necessarily and unavoidably implied. This cannot be abnegated by the executive called upon to perform the duty, without postponing the power and guardianship of his equally high jurisdiction to the power making the demand. Now, that never entered into the scheme of union between the States-into a scheme of government in which equal jurisdictions occupy correlative positions under the Constitution of the United States. These jurisdictions stand upon an equal plane. Each is charged under the Constitution with the execution of legal power and legal conservation, in precisely the same degree.

That being the status of the power appealing, and of the power appealed to, what becomes the duty of the executive in requisition, and in response to requisitions? That duty is very clearly and simply manifested in the Constitution of the United States, and in the law giving effect to it. Where a crime has been committed, treason, felony, or other crime, and the party has been duly accused under the law of the jurisdiction, it becomes the privilege, and is made the duty of the executive against whose laws the offense is perpetrated, where the party has filed from justice, to demand of the authority of the co-ordinate jurisdiction, in which he has taken refuge, his person, to answer for the offense. That is his privilege under the Constitution, his duty under the Constitution and under the laws, according to the mode manifested by the law for the exercise of it.

The Constitution further provides that where a party is charged with crime, and has fled before the process of justice from the jurisdiction in which the crime was committed, and taken refuge in another jurisdiction, the jurisdiction where refuge is sought shall render him up. Here is a correlative duty as much enjoined upon the chief magistrate of the jurisdiction appealed to as the right to demand is guaranteed to the jurisdiction demanding. There will be no difference of opinion how this should be exercised as a practical proposition.

The question made here, and which has been presented with a view to the enlightenment of my action in this matter, has been to work out the limitations on the duty. I repeat, there is no doubt this duty ought to be practically performed in good faith, and in political and executive wisdom. But what instrumentalities may be resorted to to enlighten the understanding under the circumstances, complicates the question.

And that brings me back to what I said before, that neither of the extreme positions in the argument in the case is contemplated by the Constitution. It is said on one side that this is a discretionary duty; and the meaning of that is according to the executive will so should he act.

Now that is so if the proposition means the exercise of a discretion within authority — within right, as well as within power; for I am aware I have the physical power to discharge this man or to hold him; and I am aware that the public would be remediless by the act, temporarily, not ultimately, I hope, in the exercise of such a judgment or determination as that. But the power to do a thing when enlightened by constitutional and legal duty signifies the power to do it within the limitations of that duty, and no higher power, no capricious, no arbitrary power, the exercise of no mere physical power. It is a discretion revolving within the

enlightenment of the law, a discretion which considers the constitutional and legal proprieties of the subject that is being acted upon; that is, power under the Constitution and the law, as it is before the executivo charged with the duty of rendition, or with the duty of requisition.

Now, inasmuch as this power is to be exercised in the light of the Constitution and under tho limitations of the law regulating its exercise, what authorities may the executive consult in its discharge? It is urged on one side that he may look at the seal to the certificate, and if it is the great seal of the State, to the certificate of its chief magistrate, and he should then close his eyes and make the order. That his duty is a mere ministerial duty, the duty of a clerk, and not a duty involving the exercise of judgment and discretion, and the responsibilities that belong to the chief magistrate, and involving the rights of the citizens of his jurisdiction. This cannot be; it matters not what you call it, whether a ministerial duty or a quasi -judicial function, the name under which it is to be recognized is absolutely immaterial to the enlightenment of duty, whether ministerial or quasi judicial, within the limitations of the exercise of executive discretion, surrounded by the restraints of the constitutional provisions and the law; mind is to be exercised, reason is to be brought into employment in the discharge of duty, and you cannot escape from it whether you will or not; and the term ministerial, in this sense, means to investigate as far as an intelligent discharge of the duty requires, to the extent of what is presented by the record at least.

If it is true that the executive may not exercise arbitrary will, with discretion accountable only to the sentiments, or prepossessions, or prejudices, or judgment (the higher quality of the executive), and if he is not, on the other hand, reduced to fingers simply, an instrumentality in the hand of the executive of the demanding jurisdiction, what is he to do? He is to do within the limitations of the subject, just what the exercise of a rational power compels him to do, and to appeal to the Constitution and the law to find out what that is. Then, what does the Constitution and the law say upon the subject, for the one is a repetition of the other? The Constitution provides in substance, that where treason or felony or any other crime is committed within a State, the executive of that State may make requisition upon the executive of the State, or jurisdiction to which the party has fled, to recover him and make him answerable to the law where he has offended.

How is the executive to know whether a party is charged with a crime? He cannot learn it by looking at the great seal of the State. The law-makers knew that. Congress understood that thoroughly well. He was under no obligation to respond to a capricious or sinister demand. The Constitution does not contemplate that.

He is to

The legislative indication is unmistakable. be informed by the indictment or the affidavit which is to be part and parcel of the record, and transmitted under due authentication to the jurisdiction of which the party is demanded. It would be an idle provision of the law to make the indictment a profert to the executive for rendition, if he is not to look into it. It was provided that it should be sent, because it was known by the law-makers that the jurisdiction to which it would be sent would have eyes and brains. That is the reason why it was put there. I have no embarrassment over the question as to my duty to inquire whether the party is indicted, and whether for a crime.

That is not a matter of embarrassment at all in my judgment. The question is, when advised of the crime, how far you may go into its details in pronouncing whether a crime is charged or not. Does it predicate in the executive the right to inspect the

technical requisites of the pleadings, or to inquire into matters of defense under it? I think not; and at this point you do come to the grave proposition in the discharge of executive duty, of entering into a co-ordinate jurisdiction in one sense, a forum in the details of administrative justice. The Constitution never contemplated this. The Constitution never contemplated the transfer of the trial from the venue laid in the indictment.

But you invade another principle; you invade judicial inquiry, when you enter into it in its details; you make an administrative or executive officer discharge functions judicial. Now, while they both exist in the same person, as was claimed yesterday, and while in this instance, and perhaps in all instances in connection with this subject, they may cohere in the same officer, still the message sent to that officer is an executive message performing an executive office, and to be responded to in executive function alone. It appears to me, I repeat, that to descend below the mere ascertainment of whether the crime is substantially charged, and enter into the discussion of its detail, in pleading, or in fact, is invading the jurisdiction where the crime is alleged to have been perpetrated, invading the jurisdiction of judicial inquiry.

I regret that the able jurists who have expended judgment upon the subject, and for whom I have the utmost regard, both the dead and the living, had not brought their minds to the work of this discrimination. These cases have been treated without thorough discussion upon this point, probably because the question was not presented as incisively as it is here.

Now, this being the case, what further may the executive do? He can go no further in the indictment than to ascertain that a crime is substantially charged. I think it is substantially charged in this case-in an executive view of the subject, I think it is. I think it is well certified. The requisition is in the ordinary form, and attested properly, by the seal of the State and the seal of the court in which the indictment was found.

I see in this indictment matter, which if I were charged with administration under the law, I would inspect very closely; but not being charged with that duty, it is sufficient for me to know that the crime is substantially charged. It is certified here that the defendant is a refugee from justice. That is the only information I have on the subject.

I should not hesitate when the case was made, and perhaps it is well enough for me to declare it now, as a rule of my action in that regard, what I have done heretofore, and what I shall do again, unless I am better enlightened than I have been, I must know that the rendition is to be properly made. I will not in trust it to the hands of improper agents, knowingly.

This agent appears to be a gentleman, having taken on the type of the civilization of the age, and I am not to presume that he is a brute.

The requisition comes from the mildest of the old thirteen States, historically distinguished up to the rebellion, as conservative, mild, deliberate and fraternal in its administration. Among all the old thirteen, the North State sustains this reputation, par excellence. I am not to presume that a State is going to lend its seal to outrage. That it cannot do. That would break up the fraternity of States.

I am aware that in the dark places of the Republic men have been manacled and slaughtered by a misguided, reckless mob, but these cases are exceptional. We are not to presume that a man is to be taken and sacrificed under the forms of law; and I, not being permitted to presume it, shall take it for granted he will be kindly transferred, if transferred under this requisition, to his place of trial, and fairly treated after he is there.

The defendant will be ordered into the custody of the agent of North Carolina.

NEW YORK COURT OF APPEALS ABSTRACT.

CORPORATION -LIABILITY OF TRUSTEE-PRESUMPTION AS TO HOLDING OVER-ASSIGNMENT OF STOCK.

(1) In this action plaintiff sought to hold defendant liable for a debt contracted by a manufacturing corporation organized under the general act, on the ground that he was a trustee of such corporation when such debt was contracted, and that the corporation failed to file and publish the annual report required by section 12 of the act (Laws 1848, chap. 40, etc). The debt was contracted in 1874. The certificate of incorporation was filed in 1871, in which defendant was named as one of the trustees "for the first year." There was no proof that defendant held over or acted as trustee after the expiration of this term. Held, not sufficient to make him liable for debts contracted after the expiration of this term. There is no presumption that the trustee holds over after the expiration of his term. Van Amburgh v. Baker, 21 Alb. L. J. 354. (2) In this case defendant offered to show that in 1873 he filed a petition in bankruptcy, including in his assets his stock in the corporation named, that he was adjudged a bankrupt, and that he assigned and delivered this stock to the assignee in bankruptcy, which the assignee continues to hold, that he was discharged in bankruptcy, and that since that time he has had nothing to do with the corporation. Held, admissible as showing that defendant was not in 1874 trustee, and that the offer was not too broad. Judgment reversed and new trial ordered. Philadelphia and Reading Coal and Iron Co. v. Hotchkiss et al., appellants. Opinion by Finch, J. [Decided Nov. 9, 1880.]

COUNTER-CLAIM ·

-WHEN ADMISSION OF PLAINTIFF'S CLAIM DOES NOT SHUT OUT — CARRIER - LIABILITY

FOR DAMAGE TO GOODS CARRIED.-(1) In an action for freight upon beans carried by plaintiff for defendants, the answer admitted that the amount claimed in the complaint was due for freight, and set up as a counterclaim injury to the beans by reason of negligence on the part of plaintiff in transporting them, to a larger amount than the freight, and claimed judgment for the difference. To this a reply was interposed. After the trial the defendants requested the referee to find the facts defendants deemed established and the conclusions of law they supposed would follow, "and each and every of the same and each and every part thereof." The proposed conclusions of law were; "First, that the plaintiff is entitled to recover of the defendants $159.77; second, that the defendants are entitled to recover damages of the plaintiff, in the sum of $1452.10; third, the defendants are entitled to judgment against the plaintiff in a balance $992.33 and their costs." The referee found, first, that plaintiff was entitled to recover the amount agreed for freight, stating it; and, second, that defendants were not entitled to recover for injury to their property. Defendants excepted to the conclusions of law in the report and to the referee's refusal to find the second and third requests of defendants. Upon appeal the General Term held that the finding of the referee upon the first clause in accordance with the request of the defendant, and the omission of the latter to except thereto, entitled the plaintiff to maintain the judgment. Held, erroneous. Take defendants' requests together and they asked that they should have judgment for the balance. And an exception to the conclusions of the referee was sufficient. The admission by defendants that plaintiff was entitled to freight did not preclude their defense. The cases precluding a defense when the claim is allowed, such as Davis v. Tallcott, 12 N. Y. 184; Bellinger v. Craigue, 31 Barb. 534; Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 id. 150, rest upon a principle that if defendants'

claim was well founded it would defeat plaintiff's. Such is not the case here. To the owner of goods injured in transportation several ways are open. He may pay the freight and sue for damages, or, refusing to pay, submit to suit, set up his damages by way of counter-claim or bring a cross action. Gillespie v. Torrance 25 N. Y. 309; Spalding v. Vandercook, 2 Wend. 432; Batterman v. Pierce, 3 Hill, 171; Dunham v. Bower, 77 N. Y. 80. And a payment of freight or a submission to judgment therefor would afford the carrier no answer to the counter-claim or to the action. 1 Parsons' Marit. Law, 215; 3 Kent's Com. 225; Griswold v. New York Ins. Co., 3 Johns. 321. (2) Plaintiff agreed to carry on the deck of his canal boat beans for defendants from one port to another, and to furnish sufficient material to cover them. He was warned by defendants' agent that if wet the beans would be injured. He neglected to furnish covering although it rained during the time the beans were on his boat's deck being transported, and the beans were injured by being wet. The consignees of the beans refused to receive them by reason of their damaged condition, and they were stored on account of the boat. Thereafter, at the joint request of plaintiff and defendants, the consignees took the beans and sold them as they best could. Held, that the defendants were entitled to recover for damages sustained by the injury done to the beans, less the freight. Judgment reversed and new trial granted. Schwinger v. Raymond et al., appellants. Opinion by Danforth, J. [Decided Dec. 14, 1880.]

LIQUIDATION

--

PARTNERSHIP DISSOLUTION WHEN PARTY DEALING WITH FIRM BOUND RY AGREEMENT OF DISSOLUTION VESTING ONE PARTNER WITH CONTROL OF FACTOR. It is well settled that while a factor to whom goods are sent for sale, without instructions as to the terms of the sale, is at liberty to sell at such time and upon such terms as he may deem proper in the exercise of a sound discretion, yet he is bound to obey the subsequent instructions of his principal as to the sale, although he has made advances, unless the principal, after reasonable notice, fail to pay such advances. Marfield v. Goodhue, 3 N. Y. 62. Upon the dissolution of a firm it is competent for the partners to constitute one of their number a special agent for winding up the firm's affairs, and when this is done, parties who with notice of the arrangement deal in matters connected with the liquidation with the partners not thus intrusted, are subject to the equitable rights of the other partners. Robbins v. Fuller, 24 N. Y. 572. If the arrangement made comes to the knowledge of the parties dealing with the firm, it is sufficient to put them on guard, and if they act in disregard of such knowledge, they must be held responsible for consequences which ensue. In the case at bar, the firm of U. & Co. dissolved; defendant V., who was solvent, by arrangement between the partners taking charge of the liquidation and assuming the payment of all the debts. U., another partner, who was insolvent, had nothing to do with the liquidation. Of these facts plaintiffs, who had as factors of the firm goods on sale, had knowledge. After the dissolution, V. notified plaintiffs not to sell the goods they held as factors, below a specified price. In spite of this notice plaintiffs, without notice to V., upon consultation with U., who was employed by them as clerk, sold the goods at a less price than the one specified. Held, that such sale was without lawful authority. The cases of Napier v. McLeod, 9 Wend. 120; Gram v. Cadwell, 5 Cowp. 489, and Porter v. Taylor, 6 M. & S. 156, distinguished. Judgment reversed and new trial granted. Hilton et al. v. Vanderbilt et al., appellants. Opinion by Miller, J.; Rapallo, Earl, and Finch, JJ., concurred; Folger, C. J., and Andrews and Danforth, JJ., dissented. [Decided Nov. 30, 1880.]

PRACTICE-ORDER FOR PUBLICATION UNDER OLD CODE, § 135 — WHAT SUFFICIENT TO AUTHORIZE. — TO authorize a judge to grant an order for the service of a summons on an absent defendant, by publication under the 135th section of the old Code, it was sufficient if the affidavit presented to him contained allegations tending to show that efforts had been made to find the defendant within the State, and that he was not there. In such a case the judge was vested with jurisdiction to pass upon the sufficiency of the proof of the facts submitted to him, and if the proof satisfied him, neither his order nor the judgment based thereon could be impeached collaterally. Affidavits upon which such an order was granted showed that plaintiff placed in the hands of the sheriff of New York county a summons in the action, and received from him an official return that he had used due diligence to find defendants in his county, but was unable to do so. The affidavit further alleged that plaintiff's attorney had himself made inquiries to find defendants, which resulted in information from a reliable source that they resided in another State. Such was in fact the case. Held, that there was sufficient to sustain the order. Order affirmed. Belmont v. Coenen et al., appellants. Opinion by Rapallo, J.; Folger, C. J., and Danforth, J., dissented.

[Decided Oct. 5, 1880.]

UNITED STATES SUPREME COURT ABSTRACT.

FRANCHISE ΤΑΧΑΤΙΟΝ - RAILROAD.-A decree in chancery ordered in case another sale should not be made that commissioners might sell "all the property and franchises of" a railroad company. M., for himself and others, made an offer for the railroad, in which he said, "I expect a full and perfect title to the road, including the State's interest, franchises and privileges." This proposition was accepted by the commissioners and the sale reported to the court, was confirmed by decree, which treated the sale as one of the "property and franchises of the company, and directed the commissioners, "in conformity with the previous decrees," to "make title to the purchasers according to the terms of the contract and former decrees of this court." Held, that the purchasers acquired title only to the property and franchises of the company, and that an immunity from taxation would not, under the rule in Morgan v. Louisiana, 93 U. S. 217, pass to the purchasers. The term "franchises" is not synonymous with "rights, privileges and franchises," "rights, powers and privileges" and the like. This case is distinguishable from Humphrey v. Pegues, 16 Wall. 244, where it was held that an immunity from taxation did pass under a transfer of all the powers, rights and privileges" of a railway corporation. Judgment of Tennessee Sup. Ct. affirmed. East Tennessee, Virginia and Georgia Railroad Co., plaintiff in error, v. Hamblin County. Opinion by Waite, C. J. [Decided Nov. 29, 1880.]

-- DOES NOT INCLUDE IMMUNITY FROM

"

MUNICIPAL BONDS ISSUE IN EXCESS OF CONSTITUTIONAL LIMIT OF MUNICIPAL LIABILITY - RECITALS IN BONDS-BONA FIDE HOLDER- ESTOPPEL.-Bonds issued by a city in Illinois each contained this recital: "This bond is issued under authority of an act of the general assembly of the State of Illinois, entitled 'An act authorizing cities, incorporated towns, and villages to construct and maintain water-works,' approved April 15, 1873, and in pursuance of an ordinance of the said city of Litchfield, No. 184, and entitled 'An ordinance to provide for the issuing of bonds for the construction of the Litchfield water-works,' approved December 4th, 1873." The act referred to was a gen

eral statute conferring upon cities, etc., authority to erect and maintain water-works and to that end to borrow money. The Constitution of Illinois provides that " no county, city, town, township, school district, or other municipal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of taxable property therein, to be ascertained by the last assessment for State and county taxes previous to incurring such indebtedness." At the time the bonds were issued the debt of the city named was five per cent of the assessed value of the property in the city as ascertained by the last assessment. The proceeds of the bonds were used in erecting city water-works. Held, that the bonds were not valid against the city even in the hands of a bona fide holder for value without notice, and even if it was not practicable at the time they were issued for a purchaser to ascertain what was the assessed value of the property of the city at the last assessment. This case differs from those cases where the bonds recited that they were issued in conformity with a statute which legally authorized them. See Town of Colona v. Eaves, 92 U. S. 490; Orleans v. Pratt, 99 id. 682, where it is said that "where the bonds on their face recite the circumstances which bring them within the power, the corporation is estopped to deny the truth of the recital." Knox v. Aspinwall, 21 How. 542; Kinnicut v. Supervisors, 16 Wall. 464; County of Moultrie v. Savings Bank, 92 U. S. 631; Marcy v. Township of Oswego, 92 id. 637. A recital that the bonds were issued under the authority of the statute, and in pursuance of the city ordinance, did not, necessarily, import a compliance with the Constitution. Judgment of U. S. Circ. Ct., S. D. Illinois, affirmed. Buchanan, plaintiff in error, v. City of Litchfield. Opinion by Harlan, J. [Decided Nov. 22, 1880.]

REMOVAL OF CAUSE — UNDER ACTS of 1866 and 1867 WHAT IS FINAL TRIAL OR HEARING.-In an action in a State court begun in 1868 for rents and profits, and a reconveyance of real estate held by appellants here, there was but a single issue between the parties, to wit, whether the appellants were the absolute owners of the property in dispute, or whether they held the title in trust for the appellee here. This issue was heard and decided in favor of the appellants in the common pleas where the action was brought. The suit was then taken by appeal to the Supreme Court of the State, where it was again heard and a decision rendered in favor of the appellee here, and the cause was remanded with a direction to take an account between the parties. In accordance with this decision the case was referred to a master, but before his report was filed, so as to enable the court of Common Pleas to make a final decree, appellants, in 1874, filed a petition for a removal to the Federal court under the act of 1866, U. S. R. S., § 639, subd. 2. Subsequently they filed a petition for removal under the act of 1867, U. S. R. S., § 639, subd. 3. In both these acts it is provided that the petition shall be filed "before the trial or final hearing of the suit." Held, that the petition for removal was not in time. The hearing of this case, originally begun in the Common Pleas, was transferred by the appeal to the Supreme Court. That court, on the appeal, had the right to re-examine what had been done in the Common Pleas. In effect, it took up the case on the hearing begun below. If on the appeal the decree below had been reversed and the cause sent back for a rehearing, then the final hearing, for the purposes of the statutes under consideration, would not have begun until the court below had again entered upon the determination of the cause. Then the reversal would have perfected the right to a second hearing in the court of original jurisdiction, and, under the rule stated in

Vannever v. Bryant, 21 Wall. 43, a demand for the transfer might properly be made. Here, however, the Supreme Court granted no new hearing. It reversed what had been done below, and then proceeded, under the original submission, to decree on the merits. It thus continued the hearing under the original submission, decided the controversy so for as the primary rights of the parties were concerned, and through the Common Pleas sent the case to a master to settle the details of the final decree. No power was given the court below to rehear the case, but only to proceed in due course with the hearing that had been begun until the inquiry as to the whole subject-matter was completed. Judgment of U. S. Circ. Ct., W. D. Pennsylvania, affirmed. Jifkins v. Sweetser. Opinion by Waite, C. J.

[Decided Nov. 22, 1880.]

NEW JERSEY SUPREME COURT ABSTRACT. JUNE TERM, 1880.*

CONSTITUTIONAL LAW-ACT EMBRACING LIMITED DISTRICT WHEN NOT LOCAL-FISHERIES.-The Constitution of New Jersey provides that "no general law shall embrace any provision of a private, special or local character." Held, that a statute regulating the fisheries throughout the State was not unconstitutional with respect to a provision making penal the use of nets at certain times in particular counties, such counties embracing all the waters within the jurisdiction of the State. A law is not necessarily of a special or local character because it prohibits the doing of a thing in a certain locality. If this were so, a law regulating the use of the public roads of the State, and

Wall. 636; Hannah v. Swarner, 8 Watts, 11. The question of delivery must be left as a question of fact to the jury upon the whole evidence in the cause. The court may instruct the jury to find a delivery, when the whole testimony shows a state of facts from which delivery is a positive inference of law. But where there is conflicting testimony, the case should be left to the jury, with proper instructions. Lindsay v. Lindsay, 11 Vt. 621; Murray v. Starr, 2 B. & C. 82. Jones v. Swayze. Opinion by Van Syckel, J.

MUNICIPAL CORPORATION · -IRREGULAR EXERCISE OF POWER IN ISSUING BONDS DOES NOT INVALIDATE BONDS -RECITALS IN DEED DO NOT ESTABLISH DEED.

(1) Where a municipal corporation had the right to borrow money for a specific purpose on bonds running for twenty years, and by mistake issued bonds for the same purpose under another grant of authority, such bonds running for a less period, held, that the bonds so issued were legal obligations. An irregularity in the exercise of a granted authority will not illegalize the transaction. If the city officials were mistaken with respect to the mode in which the power was to be exercised, the mistake was of no consequence if they had the right to effect the same end in another mode. In Township of Rock Creek v. Strong, 6 Otto, 271, it was decided that provisions respecting the rate of interest to be paid by town bonds, and the length of time which they are to run, are directory and not of the essence of the power. For illustrations of the application of the same rule, see also, Gilchrist v. Little Rock, 1 Dill. 261; Mott v. United States Trust Co., 19 Barb. 569; Northwestern Mut. Ins. Co. v. Overholt, 4 Dill. 287. In De Voss v. Richmond, 18 Gratt. 338, the city council were authorized to borrow money and issue bonds, and it was ordered to insert the considera

mate, as such a law would be local, in the sense that it

prohibited the doing of certain acts in particular localities, to wit, within the bounds of the public highways. One cannot see how a law can be said to have a special or local character, that does not confer either a particular benefit, or does not impose a particular burthen upon the inhabitants of a designated place or district. It is plain that the law in question is free from such characteristics. Its purpose is to regulate throughout the State a public interest. The operation of the statute is as broad as the subject to be regulated, for it extends its adjustments to all the waters under the dominion of the State, and when it imposes the restrictions in the clause under criticism, such burthens are laid not only upon the inhabitants of the two counties that are mentioned, but upon all the citizens of the State. Doughty v. Connover. Opinion by Beasley, C. J.

DEED DELIVERY OF, TO THIRD PERSON FOR USE OF GRANTEE WHEN EFFECTIVE-WHEN QUESTION FOR JURY.-A delivery of a deed to a third person for the use of the party in whose favor a deed is made, where the grantor parts with all control over the deed, makes the deed effective from the instant of such delivery; the law will presume, if nothing appear to the contrary, that a man accepts what is for his benefit. Garnons v. Knight, 5 B. & C. 671; Zenos v. Wickham, 106 E. C. L. 381; S. C., on appeal, 108 id. 435, and on final appeal, id. 861; Church v. Gilman, 15 Wend. 656; Ernst v. Reed, 49 Barb. 367; Brown v. Austen, 35 id. 342. The statement in 2 Washb. Real Prop., 581, that "the better opinion seems to be that no deed can take effect as having been bona fide delivered until such act of delivery has been assented to by the grantee," is not supported by the authorities cited, viz.: Maynard v. Maynard, 10 Mass. 458; Jackson v. Dunlop, 1 Johns. Cas. 114; Stephens v. Buff. & N. Y. R. Co., 20 Barb. 332. See, also, Young v. Guilbeau, 3 * To appear in 13 Vroom's (42 N. J. Law) Reports.

but the instruments nevertheless were held valid, the

court saying that such direction was not a limitation

on the power granted. (2) A recital in a bond is not au estoppel to the obligor setting up that it is not his deed. The legal rule that makes the statements of a sealed instrument incontestable by the party to it, grows out of the circumstance that such statements are the deliberate utterances of such party, and consequently such rule has no place until it is settled whether the given instrument be his deed. The recitals, as against adverse proofs, cannot help to establish the legal existence of the specialty. If a married woman should execute a conveyance declaring in it in never so solemn a form that she was a feme sole, no one would pretend that the fact of her coverture could not be shown. The question is settled in Hudson v. Inhabitants of Winslow, 6 Vroom, 437, where it was directly ruled with respect to the doctrine of estoppel by reason of recitals in sealed instruments, that "the principle is applicable only where the existence of the deed as the act of the party is admitted." See, also, in accord with this ruling: Chisholm v. Montgomery, 2 Wood's C. C. 594; Starin v. Genoa, 23 N. Y. 439; Fairtitle v. Gilbert, 2 T. R. 169; Bigelow on Estop., 283; New York and Oswego R. Co. v. Van Horn, 57 N. Y. 474; Shapley v. Abbott, 42 id. 443. Singer Manufacturing Co. v. City of Elizabeth. Opinion by Beasley, C. J.