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ney, and sentenced Kring to the penitentiary for a term of twenty-five years.

The case was taken to the Supreme Court of the State, and the sentence was set aside and a new trial granted. When again brought to trial he insisted on his agreement with the prosecutor, but the court still refused to be bound by it. He refused to withdraw his plea of guilty, but the court set it aside and entered a plea of not guilty. A trial was had, and he was found guilty of murder in the first degree and sentenced to be hung. He appealed to the Supreme Court of the State, and the judgment of the lower court was affirmed, when he appealed to the Supreme Court of the United States, where the judgment was set aside, that court holding that as at the time of the commission of the offense a judgment of guilty of murder in the second degree was a final acquittal of the crime of murder in the first degree, so it must continue to be so far as that crime was concerned.

In the opinion of the court Miller, J., says: "We are of opinion that any law passed after the commission of an offense which, in the language of Washington, J., in United States v. Hull, in relation to that offense or its consequences, alters the situation of the party to his disadvantage, is an ex post facto law; and in the language of Deuio, J., in Hartung v. People, no one can be criminally puuished in this country except according to a law prescribed for his government by the Sovereign authority before the implied offense was committed, and which existed as a law at the time. ***Tested by these criteria, the provision of the Constitution of the State of Missouri, which denies to plaintiff in error the benefit which the previous law gave him of acquittal of the charge of murder in the first degree, on conviction of murder in the second degree, is as to this case an ex post facto law, within the meaning of the Constitution of the United States; and for the error of the Supreme Court of Missouri in holding otherwise, its judgment is reversed and the case is remanded to it, with directions to reverse the judgment of the Criminal Court of St. Louis, and for such further proceedings as are not inconsistent with this opinion."

We have quoted from the above case at considerable length for the double purpose of drawing therefrom as well as might be the local principles there stated, and to show that any other doctrine applied by the courts of the States will be reviewed by that court, and their judgments promptly reversed; so that were this court inclined to hold otherwise, such a judgment would not be permitted to stand. It is not deemed necessary to discuss this subject further in this opinion, as it seems to us to be so well settled by the adjudications of all the courts of this country that the simple statement of the proposition is sufficient. It is evident that it was an oversight of the court and counsel involved in the trial. We cite a portion of the cases to be found in the books where the foregoing views are sustained: State v. McDonald, 20 Minn. (Gil.) 119; Same v. Johnson, 12 id. 378; Same v. Gut, 13 id. 315; Same v. Ryan, id. 343; Same v. Herzog, 25 Minn. 490; Com. v. McDonough, 13 Allen, 581; Hartung v. People, 22 N. Y. 95; Shepherd v. People, 25 id. 406; Green v. Shumway, 39 id. 418; In re Petty, 22 Kan. 477; State v. Sneed, 25 Tex. Supp. 66; Miles v. State, 40 Ala. 39. See also 1 Bish. Crim. Law, 129 (108); 2 Story Const. 213. Notwithstanding the fact that this case must be reversed for the foregoing reasons, it does not follow that the plaintiff in error cannot be tried for the crime alleged against him. Ample provision is made by the criminal law which took effect September 1, 1873, for the trial of persons charged with the commission of crimes which were made punishable by the law thereby repealed. Section 255 of the Repealing Act

(see p. 706, Comp. St.) is as follows: "No offense committed, and no fine, forfeiture or penalty incurred, under existing laws previous to the taking effect of this Code, shall be affected by the repeal herein of any such existing laws, but the punishment of said offenses, the recovery of such fines and forfeitures, shall take place as if said laws repealed had remained in force; provided that the manner of procedure for the enforcement or imposition of all such punishments, and the collection of all such fines and forfeitures shall be in accordance, or as nearly in accordance, with the provisions of this Code as the nature of the case will admit; and in any case whatsoever should the procedure provided for in this Code be wholly inadequate the procedure provided for in the laws repealed by this Code may be followed so far as necessary to prevent a failure of justice." By this section all difficulty is removed, and it only remains to put the plaintiff in error upon trial for the crime with which he is charged, in the manner provided by the law as it existed at the time of the alleged commission of the offense.

As another trial will have to be had, it is deemed expedient to notice briefly some of the alleged errors presented by the plaintiff in error in his brief, as some of the questions here presented will in all probability have to be met in the trial court.

The first question presented for decision by the defendant in error is that "the evidence shows that the alleged crime, for which defendant was convicted, was committed, if at all, upon a tract of land set apart for the sole and exclusive use of the Otoe and Missouri tribe of Indians, under the laws of Congress and treaties between the said Indian tribes and the United States, and the District Court of Gage county had no jurisdiction over the said offense." This territory, known as the Otoe reservation, being within the boundaries of this State, is subject to its laws, and it is not deemed necessary here to discuss, at any great length, the legal propositions presented by the plaintiff in error, as it has been heretofore settled, not only by this court, but the courts of various States, as well as the Federal courts. See Painter v. Ives, 4 Neb. 122; Clay v. State, 4 Kan. 58; McCracken v. Todd, 1 id. 148; United States v. Yellow Sun, supra; United States v. Ward, 1 Woolw. 17; Same v. Stahl, id. 192. We think the District Court had jurisdiction, and that plaintiff in error was properly put upon his trial in Gage

county.

The plaintiff in error requested the court to give a number of instructions to the jury, some of which were refused, and to the refusal of the court to give those he excepted, and now assigns the refusal as

error.

The eleventh instruction, which reads as follows, was refused: "(11) The court instructs the jury that it is an invariable rule of law that to warrant a conviction for a criminal offense, upon circumstantial evidence alone, such a state of facts and circumstances must be shown as that they are all consistent with the guilt of the party charged, and such that they cannot, upon any reasonable theory, be true and the party charged be innocent." The instruction states the law correctly and should have been given had not the jury been already fully instructed upon this point. When a jury has once been instructed upon a point of law, nothing can be gained by repeating the instruction. One instruction, full and clear, upon a given point, is sufficient. Olive v. State, 11 Neb. 30; Kopplekom v. Huffman, 12 Neb. 100.

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upon by the jury with great caution." As an abstract proposition of law this instruction is correct, but we fail to find any thing in this case to which it may apply, and our attention has not been called to any evidence of confessions or admissions. Instructions should be applicable to the case made. Williams v. State, 6 Neb. 334.

The same may be said of the fourteenth instruction asked by the plaintiff in error, and refused by the court.

The next instruction which it is thought necessary to notice is the fifth instruction asked by the State, and given by the court, which is as follows: "The court further instructs the jury that the rule requiring the jury to be satisfied of the defendant's guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt; it is sufficient if, taking the testimony all together, the jury are satisfied beyond a reasonable doubt that the State has proved each material fact charged, and that the defendant is guilty." The objection to this instruction is based upon that part which informs the jury that the law does not require that they should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt. This instruction is copied from Sackett on Instructions to Juries, and is sustained by some authorities of respectability; but yet it seems to us that a jury might be misled thereby. What is meant by the word "link" as used therein? If the jury were given to understand that it referred only to evidentiary facts which might add force or weight to other facts from which the inference of guilt could be drawn, then the instruction might be said to be correct. But if by the use of the word is meant such criminative facts which of themselves form the chain of evidence from which the inference of guilt is to be drawn, then the instructtion does not state the law correctly. No chain can be stronger than its weakest link. If the link is gone it is no longer a chain. If the word "link" here refers to those circumstances which are essential to the conclusion, it is not a correct statement of the law. While in view of other instructions which were given, and which more definitely stated the law, a new trial might not be given in this case, yet we cannot recommend this instruction as worded, and think it should not be thus given.

There are over 500 objections to evidence presented by the motion for a new trial and petition in error, many of which seem to have been made more from habit and out of abundant cantion than from any thing contained in the questions to which the objections were made. With the exceptions of those hereafter particularly noticed, we will dismiss them all by saying that while our attention has not been particularly called to any,we have examined them all, and fail to detect any error.

But our attention is particularly called to question No. 3,116, which was in the cross-examination of the plaintiff in error while on the witness stand. The question is as follows: "I will ask you this, 'Did you plead guilty to a penitentiary offense down there in Kansas, just before the sheriff brought you up here?'" This question was objected to by plaintiff in error, his objection overruled, exception taken, and he was compelled to answer, which he did by answering "yes." In support of the right of the State to ask this question and insist upon an answer, we are cited to section 338 of the Civil Code, which is as follows: "A witness may be interrogated as to his previous conviction for a felony, but no other proof of such conviction is competent except the record thereof."

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There is nothing in this case which lays any foundation for such proof whereby it becomes material to the issue. If competent at all, it is for the purpose of discrediting the testimony of the witness, and thereby destroying its weight with the jury. At common law one who had been convicted of an infamous offense was not a competent witness in any case; but the record of that conviction was the only competent proof thereof. This disqualification has been removed by our statute, and a convict is a competent witness; but it is provided that "facts which have heretofore caused the exclusion of testimony may still be shown for the purpose of lessening its credibility." Civil Code, § 330.

If pleading guilty to a charge of felony can be said to be a "conviction," then the question was proper; but if in order to be a conviction there must be a judgment of the court upon the plea, then the question was improper. There is a conflict of opinions and decisions upou this question, and by some text writers and courts of last resort it is maintained that the word "conviction" usually means the judicial ascertainment of guilt, as by the verdict of a jury or a plea of guilty; but we have found no case where the word, as applied to the competency of a witness to testify, has reference to any thing short of the final judgment of the court upon a verdict or plea of guilty.

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In Com. v. Gorham, 99 Mass. 420, this question, under somewhat similar circumstances, was passed upon by the Supreme Court of that State. There the defendant was indicted for burning a dwelling-house. Ou the trial he testified in his own behalf; and to affect his credibility as a witness, the prosecuting attorney offered in evidence an original indictment for forgery, found against him at a previous term of the same court, and the record of the clerk noted on the back thereof that "the defendant pleads guilty;" after which plea that indictment was put on file, but afterward brought forward, entered on the docket, and was pending at the time of the trial under the indictment for burning. The evidence was admitted over the objection of the defendant, who was found guilty, and alleged exceptions. In the Supreme Court the attorney-general presented an exhaustive argument seeking to show that the term conviction," as used with reference to witnesses, did not necessarily imply the judgment of a court upon a verdict or plea of guilty, but that it was used in the sense of the establishment of guilt; and many authorities were cited by him, most of which were upon the word as generally used with reference to the proceedings of courts; but the Supreme Court held otherwise. In the opinion of the court, written by Cobb, J., the following language is used: think the obvious purpose of the Legislature was to restore the competency of a witness against whom the record of a judgment for crime was produced, but to permit the same evidence to be used as affecting his credibility in all cases requiring the same complete record of the whole case, and that the word 'conviotion' is here used in the broader and less technical sense, and implies the judgment of the court. It could not have been the purpose of the law-makers to permit evidence of moral guilt, as distinguished from guilt legally established, to be produced against a witness." The exceptions were sustained. We think the rule adopted in that case was the correct one, and that in order to render the evidence proper for the purpose sought, there must be a judgment of conviction.

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It follows that the question was improper, and the objection should have been sustained.

The judgment of the District Court is vacated, the decision on the motion for a new trial is reversed, and the cause is remanded for further proceedings. [See 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 aud 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 de. fendant under the agreement. Through the uegligence of the driver the accident happened. Defendant was not present. In an action to recover damages, held, that as to third parties, each of the parties to the agreement became the agent of the other in the prosecution of a common enterprise 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 engage together in a money-making occupation, to which one contributed as capital the 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. Champion v. Bostwick, 18 Wend. 175; Leggett v. Hyde, 58 N. Y. 272; 17 Am. Rep. 244; Roberts v. Johnson, 58 N. Y. 613. Strober v. Elting. Opinion by Danforth, J. [Decided Oct. 21, 1884.]

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CORPORATION NOT GOVERNMENTAL

AGENCY.-A corporation organized under the act providing for the formation of water-works companies in the towns and villages of the State (Act of 1873, ch. 737; 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 the 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, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.

CITIZENSHIP-FOURTEENTH AMENDMENT-INDIANALLEGATION OF PETITION.-(1) An Indiau, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily 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

the meaning of the first section of the fourteenth arti. cle of amendment 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 Indians, unless so expressed as to clearly manifest an intention to include them. Const., art. 1, §§ 2, 8; art. 2, § 2; Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 id. 515; United States v. Rogers, 4 How, 567; United States v. Holliday, 3 Wall. 407; Case of the Kansas Indians, 5 id. 737; Case of the New York Indians, id. 761; Case of the Cherokee Tobacco, 11 id. 616; United States v. Whisky, 93 U. S. 188; Pennock v. Commissioners, 103 id. 44; Crow Dog's case, 109 id. 556; S. C., 3 Sup. Ct. Rep. 396; Goodell v. Jackson, 20 Johns. 693; Hastings v. Farmer, 4 N. Y. 293. The alien and dependent condition of the members of the Indian tribes could not be put off at their own will 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 Congress shall have power to establish a uniform rule of naturalization." Const., 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 had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes (Scott v. Sandford, 19 How. 393), and to put it beyond doubt 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 United States and of the State in which they reside. Slaughter House cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U. S. 303, 306. In the case of United States v. Elm, 23 Int. Rev. Rec. 419, decided by Judge Wallace in the District 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 had ceased to exist as a tribe in that State; and by a statute of the State it had been enacted that any native Indian 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 manner and to the same extent as a citizen. N. Y. St. 1843, ch. 87. 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 Cranch, 87, 146, that they "have totally extinguished their national fire, and submitted themselves to the laws of the States; " and which Mr. Justice McLean had in view when he observed in Worcester v. Georgia, 6 Pet. 515, 580, that in some of the old States "where small remuants of tribes remain, surrounded by white population, and who by their reduced numbers had lost the power of selfgovernment, the laws of the State have been extended

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over them for the protection of their persons and property." See also as to the condition of Indians in Massachusetts, remnants of tribes never recognized by the treaties or legislative or executive acts of the United States as distinct political communities. Danzell v. Webquish, 108 Mass. 133; Pells v. Webquish, 129 id. 469; Mass. St. 1862, ch. 184; 1869, ch. 463. The law upon the question before us has been well stated by Judge Deady in the District Court of the United States for the District of Oregon. In giving judgment against the plaintiff in a case resembling the case at bar, he said: "Being born a member of an independent political community'-the Chinook-he was not born subject to the jurisdiction of the United States-not born in its allegiance." McKay v. Campbell, 2 Sawy. 118, 134. And in a later case he said: "But an Indian cannot make himself a citizen of the United States without the consent (and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form. The Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since." United States v. Osborne, 6 Sawy. 406, 409. Upon the question whether any action of a State can confer rights of citizenship on Indians of a tribe still recognized by the United States as retaining its tribal existence, we need not, and do not express an opinion, because the State of Nebraska is not shown to have taken any action affecting the condition of this plaintiff. See Chirac v. Chirac, 2 Wheat. 259; Fellows v. Blacksmith, 19 How. 366; United States v. Holliday, 3 Wall. 407, 420; United States v. Joseph,94 U. S. 614,618; Ex parte Reynolds, 5 Dill. 394; Ex parte Kenyon, id. 385; United States v. Crook, id. 453, distinguished. (2) A petition alleging that the plaintiff is an Indian, and was born within the United States, and has severed his tribal relation to the Indian tribes, and fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States, and is a bona fide resident of the State of Nebraska and city of Omaha, does not show that he is a citizen of the United States under the fourteenth article of amendment of the Constitution. Elk v. Wilkins. Opinion by Gray, J. [Decided Nov. 3, 1884.]

TAXATION-NAVIGATION OF RIVER-CONFLICT WITH FEDERAL LAWS.-A city cannot make a charge as the price of the privilege of navigating a river in accordance with the terms of the party's license from the United States. The present case would seem to fall directly within the rule of the decisions, of Sinnot v. Davenport, 22 How. 227; Gibbons v. Ogden, 9 Wheat. 210-214; Foster v. Davenport, 22 How. 244, unless the fact that the ordinance of the city of New Orleans is the exercise of the taxing power of the State can be supposed to make a material difference. But since the case of Brown v. Maryland, 12 Wheat. 419, it has been repeatedly decided by this court that when a law of a State imposes a tax, under such circumstances and with such effect as to constitute it a regulation of commerce, either foreign or inter-State, it is void on that account. Telegraph Co. v. Texas, 105 U. S. 460, and cases there cited. In the State Freight Tax cases, 15 Wall. 232-276, it was said that it could not make any difference that the legislative purpose was to raise money for the support of the State government, and

not to regulate transportation; that it was not the purpose of the law, but its effect, which was to be considered. The fundamental proposition on the subject was expressed by Mr. Justice Miller, delivering the opinion of the court in Crandall v. Nevada, 6 Wall. 3545, in this comprehensive language: "The question of the taxing power of the States, as its exercise has affected the functions of the Federal government, has been repeatedly considered by this court; and the right of the States in this mode to impede or embarrass the constitutional operations of that government, or the rights which its citizens hold under it, has been uniformly denied." Otherwise unrestrained by the authority of the Federal Constitution, the taxing power of the States extends to and embraces the persons, property, and pursuits of their people; although it is not always easy, in particular cases, to draw the line which separates the two jurisdictions; as may be seen by comparing the cases of State Freight Tax, 15 Wall. 232, and of State Tax on Railway Gross Receipts, id. 284, and as was said in Osborne v. Mobile, 16 id. 479. And it is undoubtedly true, as it has often been judicially declared, that vessels engaged in foreign or inter-State commerce, and duly enrolled and licensed under the acts of Congress, may be taxed by State authority as property; provided the tax be not a tonnage duty, is levied only at the port of registry, and is valued as other property in the State without unfavorable discrimination on account of its employment. Transportation Co. v. Wheeling, 99 U. S. 273; Morgan v. Parham, 16 Wall. 471; Hays v. Pacific Mail Steamship Co., 17 How. 596; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365. But the license fee in the present case is not a tax upon the boats as property, aocording to any valuation. The very law authorizing its imposition declares that it shall not be construed to be a tax on property. It is said however to be a tax on an occupation, and for that reason not a regulation of commerce. If it were a tax upon the income derived from the business, it might be justified by the principle of the decision in the case of State Tax on Railway Gross Receipts, 15 Wall. 284, which shows the distinction between a tax on transportation and a tax upon its fruits, realized and reduced to possession, so as to have become part of the general capital aud property of the tax payer. But here it is not a tax on the profits and income after they have been realized from the business. It is a charge explicitly made as the price of the privilege of navigating the Mississippi river between New Orleans and the Gulf, in the coastwise trade; as the condition on which the State of Louisiana consents that the boats of the plaintiff in error may be employed by him according to the terms of the license granted under the authority of Congress. The sole occupation sought to be subjected to the tax is that of using and enjoying the license of the United States to employ these particular vessels in the coasting trade; and the State thus seeks to burden with an exaction, fixed at its own pleasure, the very right to which the plaintiff in error is entitled under, and which he derives from the Constitution and laws of the United States. The Louisiana statute declares expressly that if he refuses or neglects to pay the license tax imposed upon him for using his boats in this way, he shall not be permitted to act under and avail himself of the license granted by the United States but may be enjoined from so doing by judicial process. The conflict between the two authorities is direct and express. What the one declares may be done without the tax, the other declares shall not be done except upon payment of the tax. In such an opposition, the only question is, which is the superior authority? and reduced to that, it furnishes its own answer. Moran v. City of New Orleans. Opinion by Matthews, J. [Decided Nov. 3, 1884.]

PROTECTION

been intentional. Roscoe v. Hale, before cited.

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CONSTITUTIONAL LAW-CONSPIRACY OF CITIZENS—REV. STAT., § 5508-INFORMATION.- (1) | acknowledgment of an existing liability, debt, or Section 5508 of the Revised Statutes, making amenable to penalty "any two or more persons who may conspire to injure, oppose, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution and laws of the United States," etc., is constitutionally valid. Yarbrough's case, 110 U. S. 651; 29 Alb. L. J. 329. (2) By the original entry upon public land, a party acquires the inchoate but well-defined right to the land and its possession, which can only be perfected by continued residence, possession, and cultivation for five years. His right to continue this possession for five years for that purpose is dependent upon the act of Congress. His right to the patent after this is done rests exclusively upon the same foundation. Whenever two or more persons combine to commit acts of a character to throw obstruction in the way of such party's exercising this right, and for the purpose and with the intent to prevent it, or to injure or oppress him because he has exercised it, they render them. selves liable to prosecution for conspiracy, under Rev. Stat. 5508. (3) Whether a prosecution, the success of which would entail upon the prisoner the loss of his right "to hold any office or place of honor or trust oreated under the Constitution and laws of the United States," can under the fifth amendment to the Constitution, be commenced by information, quære. United States v. Waddell. Opinion by Miller, J. [Decided Nov. 3, 1884.]

claim," withing the meaning of the Kansas statute, implies a meeting of minds, the right of the creditor to take what is written as an acknowledgment to him of the existence of the debt, as well as the intention of the debtor, as deduced from the contents of the writing and all the facts accompanying it, to make such acknowledgment. In Wetsell v. Bussard, 11 Wheat. 309, 315, Chief Justice Marshall said: "An acknowledgment which will revive the original cause of action must be unqualified and unconditional. It must show positively that the debt is due in whole or in part. To the same effect are Bell v. Morrison, 1 Pet. 351, 362, and Moore v. Bank of Columbia, 6 id. 86, 92. In Barlow v. Barner, 1 Dill. 418, this statute of Kansas was under consider| ation by Mr. Justice Miller and Judge Dillon, and the court said: Courts by their decisions as to the effect of loose and unsatisfactory oral admissions and new promises, had almost frittered away the statute of limitations, and to remedy this, statutes similar to the one in force in this State have been quite generally enacted. City of Fort Scott v. Hickman. Opinion by Blatchf., J. [See 30 Eng. R. 206.] [Decided Nov. 3, 1884.]

LIMITATIONS

AKNOWLEDGMENT

STATUTE OF KANSAS STATUTE-MUNICIPAL DEBT.-The statute of the State of Kansas (Gen. Stat. Kans., ch. 80, art. 3, § 24, p. 634), providing, that in a case founded on contract, when "an acknowledgment of an existing liability, debt, or claim," shall have been made, an action may be brought within the period proscribed for the same, after such acknowledgment, if such acknowledgment was in writing, signed by the party to be charged thereby, requires as interpreted by the Supreme Court of Kansas, that the acknowledgment to be effective, be made not to a stranger, but to the credtor, or to some one acting for or representing him. Sibert v. Wilder, 16 Kans. 176; Schmueker v. Sibert, 18 id. 104; Clawson v. McCune, 20 id. 337; Elder v. Dyer, 26 id. 604. A committee of a city council, appointed to consider the city indebtedness, made a report containing a statement of the assets and liabilities of the city, and including among the latter a certain issue of bonds called M. bonds. The report further proposed a plan of compromise to be made with the holders of city bonds, the proposal being made in the form of a circular, which the committee recommended "to be sent to each person holding city bonds, except M. | bonds, as to which we make no report." The circular, by its terms, purported to be addressed "to each person holding bonds of the city," and requested "each bondholder to express his views fully." The city council adopted the report of the committee and ordered the circular to be sent to the holders of the city bonds; and it was so sent to holders of bonds other than M. bonds, but not to holders of the latter. Held, that neither the note nor the circular was an acknowledgment of the M. bonds as a debt of the city, so as to take them out of the statute of limitations. The settled doctrine in Kansas, and the weight of authority elsewhere, is that statutes of limitation are statutes of repose, and not merely statutes of presumption of payment. Therefore to deprive a debtor of the benefit of such a statute by an acknowledgment of indebtedness, there must be an acknowledgment to the creditor as to the particular claim, and it must be shown to have

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NEGOTIABLE INSTRUMENT-ALTERATION— ADDING SURETY-MAKER LIABLE.-The addition of the signature of a surety to a promissory note is not such a change in the terms of the contract as will discharge the maker. A mortgage executed by husband and wife of her land, for the accommodation of a partnership of which the husband is a member, and as security for the payment of a negotiable promissory note made by the husband to his partner and indorsed by the partner, for the same purpose, and to which note the partner before negotiating it, adds the wife's name as a maker, without the consent or knowledge of herself or her husband, is valid in the hands of one who, in ignorance of the alteration, lends money to the partnership upon the security of the note and mortgage. An erasure of the name of one of several obligors is a material alteration of the contract of the others, because it increases the amount which each of them may be held to contribute. Martin v. Thomas, 24 How. 315; Smith v. United States, 2 Wall. 219. And the addition of a new person as a principal maker of a promissory note, rendering all the promisors, apparently, jointly and equally liable, not only to the holder, but also as between themselves, and so far tending to lessen the ultimate liability of the original maker or makers, has been held in the courts of some of the States to be a material alteration. Shipp v. Suggett, 9 B. Mon. 5; Henry v. Coats, 17 Ind. 181; Wallace v. Jewell, 21 Ohio St. 163; Hamilton v. Hooper, 46 Iowa, 515. However that may be, yet where the signature added, although in form that of a joint promisor, is in fact that of a surety or guarantor only, the original maker is, as between himself and the surety, exclusively liable for the whole amount, and his ultimate liability to pay that amount is neither increased nor diminished; and according to the general current of the American authorities, the addition of the name of a surety, whether before or after the first negotiation of the note, is not such an alteration as discharges the maker. Montgomery R. Co. v. Hurst, 9 Ala. 513, 518; Stone v. White, 8 Gray, 589; McCaughey v. Smith, 27 N. Y. 39; Brownell v. Winnie, 29 id. 400; Wallace v. Jewell, 21 Ohio St. 172; Miller v. Finley, 26 Mich. 249. The English casses afford no sufficient ground for a different conclusion. In the latest decision at law indeed Lord Campbell and Justices Erle, Wightman and Crompton held that the signing of a note by an addi

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