« EelmineJätka »
ney, and sentenced Kring to the penitentiary for a (see p. 706, Comp. St.) is as follows: “No offense comterm of twenty-five years.
mitted, and no fine, forfeiture or penalty incurred, unThe case was taken to the Supreme Court of the der existing laws previous to the taking effect of this State; and the sentence was set aside and a new trial Code, shall be affected by the repeal herein of any such granted. When again brought to trial he insisted on existing laws, but tho punishment of said offenses, the his agreement with the prosecutor, but the court still recovery of such fines and forfeitures, shall take place refused to be bound by it. He refused to withdraw as if said laws repealed had remained in force; his plea of guilty, but the court set it aside and en provided that the manner of procedure for the tered a plea of not guilty. A trial was had, and he enforcement or imposition of all such punishments, was found guilty of murder in the first degree and sen and the collection of all such fines and forfeitures tenced to be hung. He appealed to the Supreme Court shall be in accordance, or as nearly in accordance, with of the State, and the judgment of the lower court was the provisions of this ('ode as the nature of the case affirmed, when he appealed to the Supreme Court of will admit; and in any case whatsoever should the the United States, where the judgment was set aside, procedure provided for in this Code be wholly inadethat court holding that as at the time of the commis- | quate the procedure provided for in the laws repealed sion of the offense a judgment of guilty of murder in by this ('ode may be followed so far as necessary to the second degree was a final acquittal of the crime of prevent a failure of justice.” By this section all diffimurder in the first degree, so it must continue to be culty is removed, and it only remains to put the plainso far as that crime was concerned.
tiff in error upon trial for the crime with wbich he is In the opinion of the court Miller, J., says:
charged, in the manner provided by the law as it exare of opiuion that any law passed after the com isted at the time of the alleged commission of the ofmission of an offense which, in the language of Wash fense. ington, J., in United States v. Ilull, in relation to that As another trial will have to be had, it is deemed exoffense or its consequences, alters the situation of the pedient to notice briefly some of the alleged errors preparty to his disadvantage, is an ex post facto law; and in sented by the plaintiff in error in his brief, as some of the language of Denio, J., in Ilartung v. People, no one the questions here presented will in all probability can be criminally puuished in this country except ac bave to be mot in the trial court. cording to a law prescribed for his goverument by the The first question presented for decision by the desovereign authority before the implied offense was fendant in error is that “the evidence shows that the committed, and which existed as a law at the time. alleged crime, for which defendant was couricted,
* * * Tested by these criteria, the provision of was committed, if at all, upon a tract of land set apart the Constitution of the State of Missouri, which des for the sole and exclusive use of the (too and Missouri nies to plaintiff in error the benefit which the previous tribe of Indians, under the laws of Congress and trealaw gave him of acquittal of the charge of murder in ties between the said Indian tribes and the United the first degree, on conviction of murder in the second States, and the District Court of Gage county bad no degree, is as to this case an ex post fucto law, within jurisdiction over tho said offense.” This territory, the meaning of the Constitution of the United States; known as the Otoe reservation, being within the bounand for the error of the Supreme Court of Missouri in daries of this State, is subject to its laws, and it is not holding otherwise, its judgment is reversed and the deemed necessary here to discuss, at any great length, case is remanded to it, with directions to reverse the the legal propositions presented by the plaintiff in erjudgment of the Criminal Court of St. Louis, and for ror, as it has been heretoforo settled, not only by this such further proceedings as are not inconsistent with court, but the courts of various States, as well as the this opinion.”
Federal courts. See Painter v. Iv'e's, 4 Veb. 122; Clay We have quoted from the above case at considerable v. State, 4 Kan. 58; UcCrucken v. Todil, 1 id. 118; length for the double purpose of drawing therefrom as United States v. Yellow Sun, supru; United States v. well as might be the local principles there stated, and Ward, 1 Woolw. 17; Same v. Stahl, id. 192. We think to show that any other doctrine applied by the courts the District Court had jurisdiction, and that plaintiff of the States will be reviewed by that court, and their in error was properly put upon his trial in Gago judgments promptly reversed; so that were this court county inclined to hold otherwise, such a judgment would not The plaintiff in error requested the court to give a be permitted to stand. It is not deemed necessary to number of instructions to the jury, some of which discuss this subject further in this opinion, as it seems were refused, and to the refusal of the court to give to us to be so well settled by the adjudications those he excepted, and now assigns the refusal as of all the courts of this country that the simple statement of the proposition is suflicient. It is evi The elerenth instruction, which reads as follows, was dent that it was an oversight of the court and counsel refused : “(11) The court instructs the jury that it is inrolved in the trial. We cito a portion of the cases an invariable rule of law that to warrant a conviction to be found in the books where the foregoing views for a criminal offense, upon circumstantial evidence are sustained: Slate v. McDonalil, 20 Mimn. (Gil.) 119; alone, such a state of facts and circumstances must be Same v. Johnson, 12 id. 378; Same v. Gut, 13 id. 315; shown as that they are all consistent with the guilt of Same F. Ryan, id. 343; Same v. Terzoy, 25 Minn. 190; the party charged, and such that they cannot, upon Com. F. McDonough, 13 Allen, 581; Isartung v. People, any reasonable theory, be true and the party charged 22 N. Y. 95; Shepherd v. People, 25 id. 106; Green v. be innocent." The instruction states the law correctly Shumicay, 39 id. 418; In re Petty, 22 Kan. 477'; State v. and should have been given had not the jury been alSneed, 23 Tex. Supp. 66; Jliles v. State, 40 Ala. 39. See ready fully instructed upon this point. When it jury also 1 Bish. ('rim. Law, 129 (108); 2 Story Const. 213. has once been instructed upon al point of law, nothing
Notwithstanding the fact that this case must be re can be gained by repeating the instruction. One inFersed for the foregoing reasons, it does not follow struction, full and clear, upon a given point, is suffithat the plaintiff in error cannot be tried for the crime cient. Olive r. Stute, 11 Veb. 30; kopplekom T. II upalleged against him. Ample provision is made by the man, 12 Neb. 100. criminal law which took effect September 1, 1873, for The court also refused to give instruction No. 13, the trial of persons charged with the commission of asked by plaintiff in error, which was that “the concrimes which were mado punishable by the law fessions and admissions of the prisoner out of court thereby repealed. Section 255 of the Repealing Act are a doubtful species of evidence, and should be acted
upon by the jury with great caution." As an abstract There is nothing in this case which lays any foundaproposition of law this instruction is correct, but we tion for such proof whereby it becomes material to the fail to find any thing in this case to which it may ap issue. If competent at all, it is for the purpose of disply, and our attention has not been called to any evi- crediting the testimony of the witness, and thereby dence of confessions or admissions. Instructions destroying its weight with the jury. At common law should be applicable to the case made. Williams V. one who had been convicted of an infamous offense State, 6 Neb. 334.
was not a competent witness in any case; but the recThe same may be said of the fourteeuth instruction ord of that conviction was the only competent proof asked by the plaintiff in error, and refused by the thereof. This disqualification has been removed by court.
our statute, and a convict is a competent witness; but The next instruction which it is thought necessary it is provided that “facts which havo heretofore to notice is the fifth instruction asked by the State, caused the exclusion of testimony may still be shown and given by the court, which is as follows: “The for the purpose of lessening its credibility." Civil court further instructs the jury that the rule requir- | Code, $ 330. ing the jury to be satisfied of the defendant's guilt be If pleading guilty to a charge of felony can be said yond a reasonable doubt, in order to warrant a con to be a “conviction,” then the question was proper; viction, does not require thać the jury should be sat but if in order to be a conviction there must be a isfied beyond a reasonable doubt of each link in the judgment of the court upon the plea, then the queschain of circumstances relied upon to establish the de tion was improper. There is a conflict of opinions and fendant's guilt ; it is sufficient if, taking tho testimony decisions upon this question, and by some text writers all together, the jury are satisfied beyond a reasonable and courts of last resort it is maintained that the doubt that the State has proved each material fact word “conviction” usually means the judicial ascercharged, and that the defendant is guilty.” The ob tainment of guilt, as by the verdict of a jury or a plea jection to this instruction is based upon that part of guilty; but we have found no case where the word, which informs tho jury that the law does not require as applied to the competency of a witness to testify, that they should be satisfied beyond a reasonable has reference to any thing short of the final judgment doubt of each link in the chain of circumstances re of the court upon a verdict or plea of guilty. lied upon to establish the defendant's guilt. This in In Com. v. Gorham, 99 Mass. 4:20, this question, under struction is copied from Sackett on Instructions to somewhat similar circumstances, was passed upon by Juries, and is sustained by some authorities of re the Supreme Court of that State. There the defendspectability; but yet it seems to us that a jury might ant was indicted for burning a dwelling-house. On be misled thereby. What is meant by the word “link' the trial he testified in his own behalf; and to affect his as used therein ? If the jury were given to under-credibility as a witness, the prosecuting attorney ofstand that it referred only to evidentiary facts fered in evidence an original indictment for forgery, which might add force or weight to other facts from found against him at a previous term of the same which the inference of guilt could be drawn, then the court, and the record of the clerk noted on the back instruction might be said to be correct. But if by the thereof that “the defendant pleads guilty ; after use of the word is meant such criminativo facts which which plea that indictment was put on file, but afterof themselves form the chain of evidence from which ward brought forward, entered on the docket, and the inference of guilt is to be drawn, then the instruct was pending at the time of the trial under the indicttion does not state the law correctly. No chain can ment for burning. The evidence was admitted orer be stronger than its weakest link. If the link is gone the objection of the defendant, who was found guilty, it is no longer a chain. If the word “link "hero re and alleged exceptions. In the Supreme ('ourt the atfers to those circumstances which are essential to the torney-general presented an exhaustivo argument conclusion, it is not a correct statement of the law. seeking to show that the term “conviction," as used Whilo in view of other instructions which were given, with reference to witnesses, did not necessarily imply and which more definitely stated the law, a new trial the judgment of a court upon a verdict or plea of might not be given in this case, yet we cannot recom guilty, but that it was used in the sense of the estabmend this instruction as worded, and think it should lishment of guilt; and many authorities
were not be thus given.
cited by him, most of which were upon the word There are over 500 objections to evidence presented as generally used with reference to) by the motion for a new trial and petition in error, ceedings of courts; but the Supreme Court many of which seem to have been made more from held otherwise. In the opinion of the court, written habit and out of abundant cantion than from any | by Cobh, J., the following language is used: “We thing contained in the questions to which the objec- think the obvious purpose of the Legislature was to retions were made. With the exceptions of those here. store the competency of a witness against whom the after particularly noticed, we will dismiss them all by record of a judgment for crime was produced, but to saying that while our attention has not been particu- permit the same evidence to be used as affecting his larly called to any, wo have examined them all, and fail credibility in all cases requiring the same complete to detect any error.
record of the whole case, and that the word 'convioBut our attention is particularly called to question tion'is hero used in the broader and less technical No. 3,116, which was in the cross-examination of the sense, and implies the judgment of the court. It could plaintiff in error whilo on the witness stand. The ques not have been the purpose of the law-makers to permit tion is as follows: “I will ask you this, ‘Did you plead evidence of moral guilt, as distinguished from guilt leguilty to a penitentiary offense down there in Kansas, gally established, to be produced against a witness." just before the sheriff brought you up here ?!" This The exceptions were sustained. Wo think the rule question was objected to by plaintiff in error, his ob adopted in that case was the correct one, and that in jection overruled, exception taken, and ho was com
order to render the evidence proper for the purpose pelled to answer, which ho did by answering “yes.” sought, there must be a judgment of conviction. In support of the right of the State to ask this ques It follows that the question was improper, and the tion and insist upon an answer, we are cited to section objection should have been sustained. 338 of the ('iril Code, which is as follows: “A witness The judgment of the District Court is vacated, the may be interrogated as to his previous conviction for decision on the motion for a new trial is reversed, and a felony, but no other proof of such conviction is oom the causo is remanded for further proceedings. potent except the record thoroof.”
[Seo 45 Am. Rep. 531; 29 Alb. L. J. 336.]
NEW YORK COURT OF APPEALS ABSTRACT.
NEGLIGENCE JOINT LIABILITY — DRIVER AND OWNER OF TEAM-PARTNERSHIP.-Defendant and one McC. entered into an agreement by which the former agreed to furnish team and wagon, for the purpose of carrying passengers, the latter was to gather the passengers, collect the fares and the avails of the business as such was to be divided between them. Plaintiff, while walking in a public street, was knocked down and run over by the team and wagon furnished by defendant under the agreement. Through the negligence of the driver the accident happened. Defendant was not present. In an action to recover damages, helil, tbat as to third parties, each of the parties to the agreement became the agent of the other in the prosecution of a common enterpriso and so liable for the other's negligence in relation thereto, and that defendant was liable. It is clear that there was a contract relation between the two defendants. They undertook to engago together in a money.inaking oc. cupation, to which one contributed as capital tho horses, harness and wagon, and food and care for the team, and the other his personal services. The reward of each was to be derived from the avails of the business as such, and not by way of compensation either for services or use of property. As to third persons therefore, within rules too well settled to permit discussion, each became the agent of the other in the prosecution of the common enterprise, and liable for his omissions and faults in regard thereto. (hampion v. Bostwick, 18 Wend. 175; Leggett v. Hyde, 58 N. Y. 272; 17 Am. Rep. 241; Roberts v. Johnson, 58 N. Y. 613. Strober v. Elting. Opinion by Danforth, J. [Decided Oct. 21, 1884.]
TAXATION CORPORATION NOT AGENCY.-A corporation organized under the act proriding for the formation of water-works companies in the towns and villages of the State (Act of 1873, ch. 7:37; Act of 1876, ch. 418, and Act of 1877, ch. 171), which has contracted with the town or village to furnish it with specified water facilities, for an agreed compen: sation, is not thereby constituted a governmental agency, and its property is subject to taxation. In the City of Rochester v. Rush, 80 N. Y. 308, the property involved belonged to the city—had been purchased by it under the compulsion of a legislative act for a public purpose only, and was so retained by it. It was therefore thought to be exempt from taxation. The doctrine of that case has no application here. The village of Mt. Morris has no interest in, or concern with, the property sought to be taxed. It has simply the obligation of its owners, and they, and not tho municipality, are the tax payers. Whether the tax is imposed or not, the obligation will remain. People v. Forrest. Opinion by Danforth, J. [Decided Oct. 21, 1881.]
the meaning of the first section of the fourteenth article of aniendment of the Constitution. Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any State. General acts of Congress did not apply to Indiang, unless so expressed as to clearly manifest an intention to include them. Const., art. 1, 3, 8; art. 2, $ 2; Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 id. 515; United States v. Rogers, 4 How, 267; Cnited States v. Ilolliday, 3 Wall. 107; Case of the Kansas Indians, 5 id. 7.37'; ('ase of the New York Indians, id. 761; ('ase of the Cherokee Tobacco, 11 id. 616; l'uited States v. Whisky, 93 U. S. 188; Pennock r. ('ommissioners, 103 id. 14; Crow Dog's case, 109 id. 556; S. ('., 3 Sup. ('t. Rep. 396; Goodell v. Jackson, 20 Johns. 69:3; Ilastings v. Farmer, 4 N. Y. 293. The allen and dependent condition of tho inembers of the Indian tribes could not be put off at their own vill without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization and satisfactory proof of fitness for civilized life. The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which“
no person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president;” and “the ('ongress shall have power to establish uniform rulo of naturalization." ('onst., art. 2, § 1; art. 1, $8. By the thirteenth amendment of the Constitution slavery was prohibited. The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there hard been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes í Scott v. Sandford, 19 Ilow. 393), and to put it beyond sloubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the,l nited States and of the State in which they reside. Slaughter blouse cases, 16; Wall. 36, 73; Strauder v. West Virginia, 100 Ľ. S. 303, 306. In the case of United States 1. Elm, 23 Int. Rev. Rec. 419, decided by Judge Wallace in the Disirict Court of the United States for the Northern District of New York, the Indian who was held to have a right to vote in 1876 was born in the State of New York, one of the remnants of a tribe which hard caseal to exist, as a tribo in that State; and by a statute of the State it had been enacted that any natire Iulian might purchase, take, hold, and convey lands, and whenever he should have become a freeholder to the value of $100, should be liable to taxation, and to the civil jurisdiction of the courts, in the same mamer and in the same extent as a citizen. N. 1. St. 19%, ch.7. The condition of the tribe from which he derived his origin, so far as any fragments of it remained within the State of New York, resembled the condition of those Indian nations of which Mr. Justice Johnson said in Fletcher v. Peck, 6 (franch, 6i, 116, that they “hare totally estinguished their national fire', and submitted themselves to the laws of the States; "and which Mr. Justice McLean hal in view when he observed in Worcester v. Georgia, 6 Pet. 515, 580, that in some of the old States “where small remnants of tribes remain, surrounded by white population, and who by their reduced numbers had lost the power of selfgorerument, the laws of the State have been extended
UNITED STATES SUPREJE COURT AB
CITIZENSIIIP-FOURTEENTILAMENDMENT-INDIANALLEGATION OF PETITIOX:-(1) An Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the gorernment of the United States, who has roluntarily separated himself from his tribe, and taken up his residence among the white citizens of a State, but who has not been naturalized or taxed or recognized as a citizen, either by the United States or by the State, is not a citizen of the United States, within
over them for the protection of their persons and prop not to regulato transportation; that it was not the erty.” See also as to the condition of Indians in Mass purpose of the law, but its effect, which was to be conachusetts, remuants of tribes never recognized by the sidered. The fundamental proposition on the subject treaties or legislative or executive acts of the United was expressed by Mr. Justice Miller, delivering the States as distinct political communities. Danzell v. opinion of the court in Crandall v. Nevada, 6 Wall. 35Webquish, 108 Mass. 133; l'ells v. Webquish, 129 id. 45, in this comprehensive language: “ The question 469; Mass. St. 1862, ch. 184; 1869, ch. 463. The law upon of the taxing power of the States, as its exercise has the question before us has been well stated by Judge affected the functions of the Federal government, bas Deady in the District Court of the United States for been repeatedly considered by this court; and the the District of Oregon. In giving judgment against right of the States in this mode to impede or embarthe plaintiff in a case resembling the case at bar, be rass the constitutional operations of that government, said: “Being born a member of an independent po or the rights which its citizens hold under it, bas been litical community'—the Chinook-he was not born l'uniformly denied.” Otherwise unrestrained by the subject to the jurisdiction of the United States-not authority of the Federal Constitution, the taxing born in its allegiance." McKay v. Campbell, 2 Sawy. power of the States extends to and embraces the per118, 134. And in a later case he said: “But an In Bons, property, and pursuits of their people; although dian cannot make himself a citizen of the United it is not always easy, in particular cases, to draw the States without the consent and co-operation of the line which separates the two jurisdictions; as may be government. The fact that he has abandoned his seen by comparing the cases of State Freight Tax, 15 nomadic life or tribal relations, and adopted the hab Wall. 232, and of State Tax on Railway Gross Receipts, its and manners of civilized people, may be a good rea id. 284, and as was said in Osborne v. Mobile, 16 id. son why he should be made a citizen of the United 479. And it is undoubtedly true, as it has often been States, but does not of itself make him one. To be a judicially declared, that vessels engaged in foreign or citizen of the United States is a political privilege inter-State commerce, and duly enrolled and licensed which no one, not born to, can assume without its under the acts of Congress, may be taxed by State auconsent in some form. The Indians in Oregon, not thority as property; provided the tax be not a tonnage being born subject to the jurisdiction of the United duty, is levied only at the port of registry, and is valStates, were not born citizens thereof, and I am not ued as other property in the State without unfavoraware of any law or treat y by which any of them have able discrimination on account of its employment. been made so since.” United States v. Osborne, Transportation Co. v. Wheeliug, 99 U. S. 273; Morgan Sawy. 406, 409. (pon the question whether any ac v. Parham, 16 Wall. 471; Ilays v. Pacific Nail Steamtion of a State can confer rights of citizenship on In ship ('0., 17 How. 596; Wiggins Ferry Co. v. East St. dians of a tribe still recognized by the United States Louis, 107 L'. S. 365. But the license feo in the presas retaining its tribal existence, we need not, and do ent case is not a tax upon the boats as property, acnot express an opinion, because the State of Nebraska cording to any valuation. The very law authorizing is not shown to have taken any action affecting the its imposition declares that it shall not be construed condition of this plaintiff. See (hirac v. Chirac, 2 to be a tax on property. It is said however to be a Wheat. 279; Fellows v. Blacksmith, 19 How. 366; tas on an occupation, and for that reason not a reguUnited States v. Holliday, 3 Wall. 107, 120; United lation of commerce. If it were a tax upon the income States v. Joseph, 94 ('. S. 614,618; Ex parte Reynolds, 5 derived from the business, it might be justified by the Dill. 391; Ex parte Kenyon, id. 38.5; United States v. principle of the decision in the case of State Tax on Crook, id. 15:3, distinguished. (2) A petition alleging | Railway (ross Receipts, 15 Wall. 284, which shows the that the plaintiff is an Indian, and was born within the distinction between a tax on transportation and a tax United States, and has severed his tribal relation to upon its fruits, realized and reduced to possession, so the Indian tribes, and fully and completely surren as to have become part of the general capital and dered himself to the jurisdiction of the United States, property of the tax payer. But here it is not a tax on and still so continues subject to the jurisdiction of the the profits and income after they have been realized United States, and is a bona fide resident of the State from the business. It is a charge explicitly made as of Nebraska and city of Omaha, does not show that he the price of the privilege of navigating the Mississippi is a citizen of the United States under the fourteenth river between New Orleans and the Gulf, in the coastarticle of amendment of tho Constitution. Elk v. Il’il wise trade; as the condition on which the State of kins. Opinion by Gray, J.
Louisiana consents that the boats of the plaintiff in [Decided Nov. 3, 1881.]
error may be employed by him according to the terins
of the license granted under the authority of ConTAXATION-NAVIGATION OF RIVER-CONFLICT WITII gress. The sole occupation sought to be subjected to FEDERAL LAWS.- A city cannot make a charge as the the tax is that of using and enjoying the license of the price of the privilege of navigating a river in accord United States to employ these particular ressels in ance with the terms of the party's license from the the coasting trade; and the State thus seeks to burden United States. The present case would seem to fall with an exaction, fixed at its own pleasure, the very directly within the rule of the decisions, of Sinnot v. right to which the plaintiff in error is entitled under, Davenport, 22 Ilow. 2:27; Gibbons v. Ogien, 9 Wheat. and which he derives from the ('onstitution and laws 210-211; Foster v. Davenport, 22 Ilow. 211, uwless the of the United States. The Louisiana statute declares fact that the ordinance of the city of New Orleans is expressly that if he refuses or neglects to pay the lithe exercise of the taxing power of the Stato can be cense tax imposed upon him for using his boats in this supposed to make a material difference. But since way, he shall not be permitted to act under and avail the case of Brown v. Maryland, 1:2 Wheat. 419, it has himself of the licenso granted by the United States been repeatedly decided by this court that when a law but may be enjoined from so doing by judicial process. of a State imposes a tax, under such circumstances The conflict between the two authorities is direct and and with such effect as to constituto it a regulation of express.
What the one declares may be done without commerce, either foreign or inter-State, it is void on the tax, the other declares shall not be done except that account. Telegraph ("o, v. Texas, 105 U'. S. 160,
upon payment of the tax. In such an opposition, the and cases there cited. In the State Freight Tax cases, only question is, which is the superior authority? and 15 Wall. 232-270, it was said that it could not make any reduced to that, it furnishes its own answer. Doran difference that the legislativo purpose was to raise v. City of New Orleans. Opiniou by Matthews, J. money for the support of the Stato governmout, and [Decided Nov. 3, 1884.]
CONSTITUTIONAL LAW-CONSPIRACY — PROTECTION been intentional, Roscoe v. Halo, before cited. “An OF CITIZENS--Rev. STAT., § 5508—INFORMATION.- (1) acknowledgment of an existing liability, debt, or Section 5508 of the Revised Statutes, making amenable claim,” withing the meaning of the Kansas statute, to penalty “any two or more persons who may con implies a meeting of minds, the right of the creditor spire to injure, oppose, threaten, or intimidate any to take what is written as an acknowledgment to him citizen in the free exercise or enjoyment of any right of the existence of the debt, as well the or privilege secured to him by the Constitution and intention of the debtor, as deduced from the laws of the United States, etc., is constitutionally | contents of the writing and all the facts valid. Yarbrough's cuse, 110 U. 5. 651; 29 Alb. L. J. companying it, to make such acknowledgment. 329. (2) By the original entry upon public land, a party In Wetsell v. Bussard, 11 Wheat. 309, 315, Chief Jusacquires the inchoate but well-defined right to the tice Marshall said: "An acknowledgment which will land and its possession, which can only be perfected by revive the original cause of action must be unqualified continued residence, possession, and cultivation for and unconditional. It must show positively that the five years. His right to continue this possession for debt is due in whole or in part.” To the same effect five years for that purpose is dependent upon the act are Bell v. Morrison, 1 Pet. 351, 362, and Moore v. of Congress. His right to the patent after this is done Bank of Columbia, 6 id. 86, 92. In Barlow v. Barner, rests exclusively upon the same foundation. When- | 1 Dill. 418, this statute of Kansas was under considerever two or more persons combine to commit acts of ation by Mr. Justice Miller and Judge Dillon, and the a character to throw obstruction in the way of such court said: “ Courts by their decisions as to the effect party's exercising this right, and for the purpose and of loose and unsatisfactory oral admissions and new with the intent to prevent it, or to injure or oppress promises, had almost frittered away the statute of him because he bas exercised it, they render them. | limitatious, and to remedy this, statutes similar to selves liable to prosecution for conspiracy, under Rev. the one in force in this State have been quite generally Stat. 5508. (3) Whether a prosecution, the success of enacted. City of Fort Scott v. Hickman. Opinion by which would entail upon the prisoner the loss of his | Blatchf., J. (See 30 Eng. R. 206. ] right “to hold any office or place of honor or trust [Decided Nov. 3, 1881.] created under the Constitution and laws of the United States," can under the fifth amendment to the Con
NEGOTIABLE INSTRUMENT-ALTERATION — ADDING stitution, be commenced by information, quære. SURETY—MAKER LIABLE.—The addition of the signaUnited States v. IVaddell. Opinion by Miller, J.
ture of a surety to a promissory note is not such a [Decided Nov. 3, 1881.]
change in the terms of the contract as will discharge the
maker. A mortgage executed by husband and wife of STATUTE OF LIMITATIONS - AKNOWLEDGMENT her land, for the accommodation of a partnership of KANSAS STATUTE-MUNICIPAL DEBT.-The statute of which the husband is a member, and as security for the State of Kansas (Gen. Stat. Kans., ch. 80, art. 3, § the payment of a negotiable promissory noto made by 24, p. 634), providing , that in a caso founded on con the husband to his partner and indorsed by the parttract, when “an ackuowledgment of an existing lia ner, for the same purpose, and to which note the partbility, debt, or claim,” shall hare been made, an action ner before negotiating it, ad is the wife's name as a may be brought within the period proscribed for the maker, without the consent or knowledge of herself or samo, after such acknowledgment, if such acknowl- | her husband, is valid in the hands of one who, in ignoedgment was in writing, signed by the party to be rance of the alteration, lends money to the partnership charged thereby, requires as interpreted by the Su upon the security of the note and mortgage. An premo Court of Kansas, that the ackuowledgment to erasure of the name of one of several obligors is a mabe effective, be made not to a stranger, but to the cred terial alteration of the contract of the others, because tor, or to some one acting for or representing him. Si it increases the amount which each of them may be bert v. Wilder, 16 Kans. 176; Schmueker v. Sibert, 18 held to contribute. Martin v. Thomas, 24 low. 315; id. 104; Clawson v. JcC'une, 20 id. 337; Elder v. Dyer, Smith v. United States, 2 Wall. 219. And the addi26 id. 604. A committee of a city council, appointed tion of a new person as a principal maker of a promisto consider the city indebtedness, made a report con sory note, rendering all the promisors, apparently, taining a statement of tho assets and liabilities of the jointly and equally liable, not only to the holder, but city, and including among the latter a certain issue of also as between themselves, and so far tending to lesbonds called M. bonds. The report further proposed sen the ultimate liability of the original maker or a plan of compromise to be made with the holders of makers, has been held in the courts of some of the city bonds, the proposal being made in the form of a States to be a material alteration. Shipp v. Suggett, 9 circular, which the committee recommended “to be B. Mon. 5; Ileury v. Coats, 17 Ind. lol; Wallace F. sent to each person holding city bonds, except M. | Jewell, 21 Ohio St. 16:3; Hamilton v. Hooper, 46 Iowa, bouds, as to which we make no report.” The circular, 515. IIowerer that may be, yet where the signature by its terms, purported to be addressed “to each per- added, although in form that of a joint promisor, is in son holding bonds of the city," and requested "each fact that of a surety or guarantor only, the original bondholder to express his views fully:" The city coun maker is, as between himself and the surety, exclucil adopted the report of the committeo and ordered sirely liable for the whole amount, and his ultimate the circular to bo sont to the holders of the city bonds; liability to pay that amount is neither increased n0r and it was so sent to holders of bonds other than JI. diminished; and according to the general current of bonds, but not to holders of the latter. IIeld, that the American authorities, the addition of the name of neither the note nor the circular was an acknowledg a surety, whether before or after the first negotiation meut of the M. bonds as a debt of the city, so as to of tho note, is not such an alteration as discharges ibe take them out of the statute of limitations. The set maker. Montgomery R. ('o. v. Hurst, 9 Ala. 513, 518; tled doctrine in Kansas, and the weight of authority Stone v. White, 8 Gray, 589; McCaugher r. Smith, 27 elsewhere, is that statutes of limitation are statutes of N. Y. 39; Brownell v. Windie, 29 id. 400; Wallace v. repose, and not merely statutes of presumption of pay- Jewell, 21 Ohio St. 172; Miller v. Finley, 26 Mich. 249. ment. Therefore to deprive a debtor of the benefit of The English casses afford no suflicient ground for a such a statute by an acknowledgment of indebtedness, different conclusion. In the latest decision at law inthere must be an acknowledgment to the creditor as deed Lord ('ampbell and Justices Erle, Wightman and to the particular claim, and it must be shown to have | Crompton held that the signing of a note by an addi