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moment may require;” and that “for this purpose, it to be a common nuisance, and then prescribes the the largest legislative discretion is allowed, and the consequences which are to follow inevitably by judidiscretion cannot be parted with any more than the cial mandate required by the statute, and involving power itself." So in Beer Co. v. Massachusetts, 97 U. and permitting the exercise of no judicial discretion S. 32: “If the public safety or the public morals re- or judgment; that the brewery being found in operaquire the discontinuance of any manufacture or traffic, tion, the court is not to determine whether it is a the haud of the Legislature cannot be stayed from commou nuisance, but under the command of the providing for its discontinuance by any incidental in- statute, is to find it to be one; tbat it is not the liquor couvenience which individuals or corporations may made, or the making of it, which is thus enacted to suffer."

be a common nuisance, but the place itself, including It now remains to consider certain questions relat. all the property used in keeping and maintainiug the ing particularly to the thirteenth section of the act of common nuisance; that the judge having thus signed 1885. That section - which takes the place of section without inquiry - and it may be contrary to the fact 13 of the act of 1881 - is as follows:

and against his own judgment -- the edict of the “Sec. 13. All places where intoxicating liquors are Legislature, the court is commanded to take possesmanufactured, sold, bartered, or given away in viola- sion by its officers of the place and shut it up; nor is tion of any of the provisions of this act, or where in- all this destruction of property, by legislative edict, to toxicating liquors are kept for sale, barter or delivery be made as a forfeiture consequent upon conviction of in violation of this act, are hereby declared to be any offense, but merely because the Legislature so common nuisances, and upon the judgment of any commands; and it is done by a court of equity, with. court having jurisdiction, finding such place to be a out any previous conviction first had, or any trial nuisance under this section, the sheriff, his deputy, or known to the law. under sheriff, or any constable of the proper county, This certainly is a formidable arraignment of the or marshal of any city where the same is located, shall legislation of Kansas, and if it were founded upon a be directed to shut up and abate such place by takiug just interpretation of her statutes, the court would possession thereof and destroying all intoxicating have no difliculty in declaring that they could not be liquors found therein, together with all signs, screens, enforced without infringing the constitutional rights bars, bottles, glasses and other property used in keep- of the citizen. But those statutes bave no such scope ing and maintaining said nuisance, and the owner or and are attended with no such results as the defendkeeper thereof shall upon conviction be adjudged ants suppose. The court is not required to give effect guilty of maintaining a common nuisanco, and shall to a legislative “decree” or “edict,'' unless every be punished by a fine of not less than $100 nor more enactment by the law-making power of a State is to than $500, and by imprisonment in the county jail not be so characterized. It is not declared that every less than thirty days nor more than ninety days. The establishment is to be deemed a common nuisance beattoruey-general, county attorney, or "any citizen of cause it may have been maintained prior to the pasthe county where such nuisance exists, or is kept, or sage of the statute as a place for manufacturing in. is maintaiued, may maintain an action in the name of toxicating liquors. The statute is prospective in its the State to abate and perpetually enjoin the same. operation, that is, it does not put the brand of a comThe injunction shall be granted at the commencement mon nuisance upon any place, unless after its passage of the action, and no bond shall be required. Any that place is kept and maintained for purposes deperson violating the terms of any injunction granted clared by the Legislature to be injurious to the comin such proceeding, shall be punished as for contempt munity. Nor is the court required to adjudge any by a fine of not less than $100 nor more than $500, or place to be a common nuisance simply because it is by imprisonment in the county jail not less than thirty charged by the State to be such. It must first find it days nor more than six months,for by both such fine to be of that character; that is, must ascertain in some and imprisonment, in the discretion of the court.” legal mode, whether since the statute was passed the

It is contended by counsel in the case of Kansas v. place in question has been or is being so used, as to Ziebold & Hagelin, that the entire scheme of this sec- make it a common nuisance. tion is an attempt to deprive persous who come within Equally untenable is the proposition that proceedits provisious of their property and of their liberty ings in equity for the purposes indicated in the thir. without due process of law; especially when taken in teeuth section of the statute are inconsistent with due connection with that clause of section 14 (amendatory process of law. “ In regard to public unisances,” Mr. of section 21 of the act of 1881) which provides that Justice Story says, “the jurisdiction of courts of “in prosecutions under this act, by indictment or equity seems to be of a very ancient date, and has otherwise, * it shall not be necessary in the been distinctly traced back to the reign of Queen first instance for the State to prove that the party Elizabeth. The jurisdiction is applicable not only to charged did not have a permit to sell intoxicating public uuisauce, strictly so called, but also to purpresliquors for the excepted purposes."

tures upon public rights and property.

In We are unable to perceive any thing in these regula- case of public nuisances, properly so called, an indicttions inconsistent with the constitutional guarantees ment lies io abate them, and to punish the offenders. of liberty and property. The State having authority But an information also lies in equity to redress to prohibit the manufacture and sale of intoxicating the grievance by way of injunction.” 2 Story's Eq., liquors for other than medical, scientific and mechani- SS 921, 9:22. The ground of this jurisdiction in cases of cal purposes, we do not doubt her power to declare purpresture, as well as of public vuisances, in the that the place kept and maintained for the illegal ability of courts of equity to give a more speedy, manufacture and sale of such liquors, shall be deemed effectual and permanent remedy, than cau be had at a common nuisance, and be abated, and at the same law. They cannot only prevent nuisances that are time, to provide for the indictment and trial of the threatened, and before irreparable mischief ensues, offender. One is a proceeding against the property but arrest or abate those in progress, and by perpetused for forbidden purposes, while the other is for the ual injunction, protect the public against them in the punishment of the offender.

future; whereas courts of law can only reach existing It is said that by the thirteenth section of the act of nuisances, leaving future acts to be the subject of new 1885, the Legislature finding a brewery within the State prosecutions or proceedings. This is a salutary jurisin actual operation, without notice, trial, or hearing, diction, especially where a nuisance affects the health, by the mere exercise of its arbitrary caprice, declares / morals, or safety of the commuity. Though not fre




quently exercised, the power undoubtedly exists in privilege, or immunity secured to him by the Consticourts of equity thus to protect the public against in- tution of the United States, and its judgment in each jury. District Attorney v. Lynn and Boston R. Co., case is accordingly affirmed. We are also of upinion 16 Gray, 245; Atty-Gen'l v. N. J. Ruilroad, 3 Green's that the Circuit Court of the United States erred in Ch. 139; Atty. Gen'l v. Tudor Ice Co., 104 Mass. 244; dismissing the bill of State v. Ziebold & Hagelin. The State v. Mayor, 5 Porter (Ala.), 279, 294; Hoole v. Atly- decree in that case is reversed, and the cause remanGen'l, 22 Aia. 194; Atty-Gen'l v. Hunter, 1 Dev. Eq. 13; den, with directions to enter a decree granting to the Atty-Gen'l v. Forbes, 2 Mylne & Craig, 123, 129, 133; State such relief as the act of March 7, 1885, authorizes. Atty-Gen'l v. Great Northern Railway Co., 1 Dr. & Sm. It is so ordered. 161; Eden Injunc. 259; Kerr Injunc. (2d ed.), 168.

As to the objection that the statute makes no pro- FIELD, J. I concur in the judgment rendered by vision for a jury trial in cases like this one, it is suf- this court in the first two cases, those coming from ficient to say that such a mode of trial is not required the Supreme Court of Kansas. I dissent from the in suits in equity brought to abate a public nuisance. judgment in the last case, the one coming from the The statutory direction that an injunction issue at the Circuit Court of the United States. commencement of the action is not to be construed as I agree to so much of the opinion as asserts that there dispensing with such preliminary proof as is necessary is nothing in the Constitution or laws of the United to authorize an injunction pending the suit. The States affecting the validity of the act of Kansas procourt is not to issue an injunction simply because one hibiting the sale of intoxicating liquors manufactured is asked, or because the charge is made that a com- in the State, except for the purposes mentioned. But mon puisance is maintained in violation of law. The I am not prepared to say that the State can prohibit statute leaves the court at liberty to give effect to the the manufacture of such liquors within its limits it principle that an injunction will not be granted to re- they are intended for exportation, or forbid their sale strain a nuisance, except upon clear and satisfactory within its limits, under proper regulations for the proevidence that one exits. Here the fact to be ascer- tection of the health and morals of the people, if Contained was not, whether a place kept and maintained gress has authorized their importation, though the act for purposes forbidden by the statute was per se a of Kansas is broad enough to include both such manu. nuisance - that fact being conclusively determined by facture and sale. The right to import an article of the statute itself - but whether the place in question merchandise, recognized as such by the commercial was so kept and maintained. If the proof upon that world – whether the right be given by act of Congress point is not full or sufficient the court can refuse an or by treaty with a foreign country-would seem neces. injunction or postpone action until the State first sarily to carry the right to sell the article when imobtains the verdict of a jury in her favor. In this case ported. In Brown v. Maryland, 1:2 Wheat. 447, Chief it camnot be denied that the defendants kept and Justice Marshall, in delivering the opinion of tbis maintained a place that is within the statutory defi- court, said as follows: “Sale is the object of importanition of a common nuisance. Their petition for the tion, and is an essential ingredient of that intercourse removal of the cause from the State court, and their of which importation constitutes a part. It is as answer to the bill admitted every fact necessary to essential an ingredient, as indispensable to the exismaintain this suit, if the statute under which it was tence of the entire thing, then as importation itself. brought was constitutional.

It must be considered as a component part of the Touching the provision that in prosecutions by in- power to regulate commerce. Congress has a right, dictment or otherwise the State need not in the first not only to authorize importation, but to authorize instance prove that the defendant has not the permit the importer to sell.” required by the statute, we may remark that if it has If one State can forbid the sale within its limits of any application to a proceeding like this, it does not an imported article, so may all the States, each selectdeprive him of the presumption that he is innocent of ing a different article. There would then be little any violation of law. It is ouly a declaration that uniformity of regulations with respect to articles of when the State has proved that the place described is foreign commerce imported into different States, and kept and maintained for the manufacture or sale of the same may be also said of regulations with respect intoxicating liquors — such manufacture or sale being to articles of inter-State commerce. And we know it unlawful except for specified purposes, and then only was one of the objects of the formation of the Federal under a permit - the prosecution need not prove a Constitution to secure uniformity of commercial regunegative, namely, that the defendant has not the re- lations against discriminating State legislation. The quired license or permit. If the defendant has such construction of the commercial clause of the Constitulicense or permit, he can easily produce it, and thus tion, upon which the License cases in the 7th of Howoverthrow the prima facie case established by the ard were decided, appears to me to have been substanState.

tially abandoned in later decisions. Hull v. De Cuir, A portion of the argument in behalf of the defend- 95 U. S. 485; Welton v. State of Missouri, 91 id. 275; ants is to the effect that the statutes of Kausas forbid County of Mobile v. Kimball, 102 id. 691 ; Transportathe manufacture of intoxicating liquors to be ex- tion Co. v. Parkersburgle, 107 id. 691; Gloucester Ferry ported, or to be carried to other States, and upon that Co. v. Pennsylvania, 114 id. 196; IFabush, St. Louis & ground are repugnant to the clause of the Constitution Pacific Railway Co. v. Illinois, 118 id. 557. I make this of the United States, giving Congress power to regulate reservation that I may not hereafter be deemed concommerce with foreign nations and among the several cluded by a general concurrence in the opinion of the States. We need only say upon this point, that there majority. is no intimation in the record that the beer which the I do not agree to wbat is said with reference to the respective defendants manufactured was intended to case from the United States Circuit Court. That was be carried out of the State or to foreign countries. a suit in equity brought for the abatemeut of the And without expressing an opinion as to whether brewery owned by the defendants. It is based upon such facts would have constituted a good defense, we clauses in the 13th section of the act of Kansas, which observe that it will be time enough to decide a case of are as follows: that character when it shall come before us.

All places where intoxicating liquors are manuFor the reasons stated, we are of opinion that the factured, sold, bartered, or given away in violation of judgments of the Supreme Court of Kansas have not any of the provisions of this act, or where intoxica. denied to Mugler, the plaintiff in error, any right, ting liquors are kept for sale, barter, or delivery in

violation of this act, are hereby declared to be com- erty or rights of individuals. Thus if the nuisance mon nuisances: and upon the judgment of any court consists in the use to which a building is put, the having jurisdiction finding such place to be a nuisance remedy is to stop such use, not to tear down or to de. under this section, the sheriff, his deputy, or under molish the building itself, or to destroy property fouud sheriff, or any constable of the proper county, or mar- within it. Babcock v. City of Buffalo, 56 N. Y. 268 ; sbal of any city where the same is located, shall be Chenango Bridge Co v. Paige, 83 id. 189. The decision directed to shut up and abate such place by taking of the court, as it seems to me, reverses this principle. possession thereof and destroying all intoxicating It is plain that great wrong will often be done to liquors found therein, together with all signs, screens, manufacturers of liquors, if legislation like that embars, bottles, glasses and other property used in keep- bodied in this 13th section can be upheld. The suing and maintaining said nuisance; and the owner or preme Court of Kansas admits that the Legislature of keeper thereof shall, upon conviction, be adjudged the State, in destroying the values of such kinds of guilty of maintaining a common nuisance, and shall property, may have gone to the utmost verge of conbe punished by a five of not less than $100, nor more stitutional authority. In my opinion it has passed than $500, and by imprisonment in the county jail not beyond that verge, and crossed the line which sepaless than thirty days, nor more than ninety days. The rates regulation from confiscation. attorney-general, county attorney, or any citizen of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of NEW YORK COURT OF APPEALS ABSTRACT. the State to abate and perpetually enjoin the same. The injunction shall be granted at the commence

APPEAL-LIMITATION OF TIME.- Where the notice ment of the action, and no bond shall be required.”

of an order aud its entry fails to show, by indorsement By a previous section all malt, vinous, and fer

or otherwise, the office, address or place of business of mented liquors are classed as intoxicating liquors, and

the attorney serving it, it is ineffectual to limit the their manufacture, barter, and sale are equally pro

time of appeal. Oct. 25, 1887. Forstmann v. Schulting. hibited. By the 13th section, as is well said by counsel, the Legislature, without notice to the owner or CRIMINAL LAW —LARCENY - FALSE REPRESENTAhearing of any kind, declares every place where such TIONS-INDICTMENT-PROVINCE OF JURY-EVIDENCE liquors are sold, bartered, or given away, or kept for --REVIEW OF ACTION OF GRAND JURY-DESCRIPTION sale, barter, or delivery-in this case a brewery where OF PROPERTY-VARIANCE-INSTRUCTIONS-CORRECTbeer was manufactured and sold, which up to the pas- NESS AS A WHOLE-EVIDENCE-DOCUMENTARY-COMsage of the act, was a lawful industry - to be a com- PLAINT IN FORMER SUIT.-(1) The defendant was inmon nuisance; and then prescribes what shall follow, dicted for grand larceny, the charges being that as upon a court having jurisdiction, finding one of such agent for an insurance company, he had reinsured the places to be what the Legislature has already pro- cargo of a vessel in the company after being notified nounced it. The court is not to determine whether of its loss, and by his false representations he had the place is a common nuisance in fact, but is to find obtained from the company a large sum of money in it to be so if it comes within the definition of the stat. payment of the loss. IIeld, that it was not necessary ute, and having thus found it, the executive officers to allege in the indictment the precise peril against of the court are to be directed to shut up and abate the which the defendant represented the company had place by taking possession of it; and as though this insured. It was sufficient to charge that the represenwere not sufficient security against the continuance of tation was of valid insurance, and that a loss had octhe business, they are to be required to destroy all the curred which imposed liability on the company. (2) liquor found therein, and all other property used in In the first count the crime was charged to bare been keeping and maintaining the nuisance. It matters not committed by means of false pretenses and represenwhether they are of such a character as could be used tations; and in the second count the same crime is in any other business, or be of value for any other charged to have been committed by drawing the purposes. No discretion is left in the judge or in the money by means of a draft which the defendant knew officer.

he was not entitled to draw. Held, that the indiotThese clauses appear to me to deprive one who owns ment charges the same crime, though by different a brewery and manufactures beer for sale, like the means, and falls within the provisions of Code Crim. defendants, of property without due process of law. Proc. N. Y., $S 278, 279, relating to the allegatione in The destruction to be ordered is not as a forfeiture an indictment. (3) When the charge is that the deupon conviction of any offense, but merely because the fendant obtained money by false and fraudulent repLegislature has so commanded. Assuming, which is resentations, it is a question of fact for the jury not conceded, that the Legislature, in the exercise of whether the representatious alleged in the indictment that undefined power of the State, called its police were such as were calculated to deceive. (4) It was power, may without compensation to the owner de charged that as ageut for several insurance companies prive him of the use of his brewery for the purposes he had placed the reinsurance of a vessel with one for which it was constructed under the sanction of the company, and afterward, after notice of the loss law, and for which alone it is valuable, I cannot see of the vessel, he had transferred the reinsurance to upon what principle, after closing the brewery, aud another company; that he had represented to the thus putting an end to its use in the future for manu- second company that it was a valid insurance for facturing spirits, it can order the destruction of the which it was liable, and by means of these false repliquor already manufactured, which it admits by its resentations had obtained a large sum of money. On legislation may be valuable for some purposes, and the trial the State put in evidence to show that the allows to be sold for those purposes. Nor can I see defendant had on several other occasions made such how the protection of the health and morals of the transfers in order to save the first company from loss. people of the State can require the destruction of prop- Held, that such evidence was admissible to show the erty like bottles, glasses, and other utensils, which evil motive and fraudulent intent of the defendant may be used for many lawful purposes. It has hereto- in changing the insurance in the present case. (5) fore been supposed to be an established principle, that Where the grand jury has inquired and determined where there is a power to abate a nuisance, the abate- that a crime had been committed within the jurisdioment must be limited by its necessity, and no wantou tion of the court, there is no way to review this deor unnecessary injury can be committed to the prop- termination except by motion to quash the indict


ment or to arrest judgment. (6) The property alleged MUNICIPAL CORPORATIONS--STREET have been obtained was described : “ The sum of (1) The New York District Railway Company petifive thousand dollars in money, of a kind and de- tioned for the appointment of commissioners to description to the grand jury unknown, of the value of termine whether their proposed road should be built, $5,000." Held, sufficient. (7) The proof showed that said commissioners to be appointed under the provisthe defendant drew on the company, and the draft ions of Laws of New York, 1880, ch. 582. Held, that was paid by check. Held, that this was a substantial said act is unconstitutional, in that the powers by agreement with the allegation in the indictment. (8) it vested in the commissioners exceed the limitations The judge charged the jury to the effect that whether prescribed by the constitutional amendment of 1874, the insurance was legal or illegal, the reinsurance by art. 3, § 18, which provides that no law shall authorthe company is of no consequence. The whole charge ize the construction of a street railway, except on conhowever showed clearly that the jury must find the dition of the consent of the property owners and city insurance was illegal before they could convict. authorities, and that the determination of the comHeld, that even if a single phrase is erroneous, the missioners, confirmed by the court, may be taken in judgment could not on that account be reversed if lieu of the consent of the property owners only. (2) the whole charge properly instructed the jury, and it An underground railway in a city of village, followcan be seen with reasonable certainty that the errone- ing the line of the streets, is to be deemed a street ous portion did not mislead the jury nor influence railway within the meaning of that phrase as used in the verdict. (9) The prosecuting witness was

the Constitution. The Legislature seems to have examined in regard to the allegations in a complaint deemed it wise to make the underground road a part made by him in a civil suit against the defendant. of the streets, and its operation a street use, by direct The State offered the whole complaint in evidence, to enactment. The railway in return reaps its own bene. which the defense objected. The court ruled that it fit from this connection with the streets. It follows might be put in evidence for the purpose of showing them, because the assent of the authorities once what the witness testified to, but not in any other gained, it is obliged to buy or condemn no land for point. Held, that within the limit indicated the com- its line, since usually the city owns the fee; and it plaint was properly admitted in evidence. Oct. 4, more readily finds its passengers and patronage from 1887. People v. Dimick. Opinion by Earl, J.

its location on the streets. If now we turn to its

manner of construction we observe that it proposes to EXECUTORS AND ADMINISTRATORS-APPOINTMENT remove the present surface of the street, and makes OF PUBLIC ADMINISTRATOR-CITATION-APPEARANCE its own roof that surface in the future. Not merely -APPOINTMENT-WHEN MADE-REVOCATION-COSTS. is the easement of the public affected temporarily by :-(1) The intestate was a citizen of Vermont, and died the process of construction, but permanently by within that State, leaving effects within the county of changing wholly the support of that surface. We have New York, where some of his creditors resided. often held that the right of the public in the streets Held, that a citation to the widow and next kin, of a city extends to and embraces, besides the supinforming them of the intended application for let- port of the surface, the necessary sewerage and room ters of administration by the public administrator, for water and gas pipes and the like, and the right to and of the place, day and hour when it would be lay and maintain these is an important part of the made, was necessary to give the surrogate jurisdic- public easement. All of these the petitioner proposes tion. (2) Ou the day and hour named in a citation, to remove, and place them in a new position more counsel for the widow and next of kin appeared for convenient for its purpose. It is estimated that this the purpose of opposing the applicatiou for letters of one interference with the street will cost the comadministration. The public administrator did not pany $750,000 a mile. Not only that, but openings appear, and no application was made on that day. are to be made in the street for purposes of ventilaSubsequently, and without notice to the widow's tion, which must permanently remain, and other counsel, and in his absence, application was made for openings for access must be constructed and continue the issuance of letters to the public administrator, to exist. When the work is all done, the street will and the same was granted. Held, that in the absence consist of two stories or surfaces; one carrying the of due service of another citation, or the voluntary ordinary traffic and movement lessened by so much appearance of the widow and next of kin, the surro- as is diverted to the swifter transit of the other, and gate had lost jurisdiction. (3) Held, that the pro- both together will do what one alone did to the exceeding was not brought within either exception of tent of its capacity. Such a road is to be deemed a gection 220 of the New York Consolidation Act, which street railway, not only because it subserves street provides that the publio administrator shall not have

purposes, and reaps ne benefit of street easements, authority, * * uuless the intestate shall have and occupies and modifies tbe street surface, but also landed within the city and county of New York, or at because it is fully within the mischiefs which the conthe quarantine near said city; or unless the effects of stitutional provision was designed to redress and presuch person, or some of them, shall have been so vent. That evil was indicated by the character of the

anded. (4) Held, that the public administrator could remedy applied, which was to forbid all such conapply for letters of administration, if no application structions except with the consent of the authorities, should be made by the widow or next of kin within a and also of the adjoiving owners to the extent of onereasonable time; and if after proper service of the no- half of the abutting values, or an order of the court tice of application, it appeared on the hearing that as a substitute for such last consent. An ordinary there was a widow, or relative, competent and willing railway, terminating in or passing through the streets and qualified, letters should be granted to such widow of a city or village, would occupy them but slightly, and relative, and if not, then to the public adminis- and be concentrated in a single limited locality; and trator (5) Void letters of administration were yet since even such partial occupation might work granted to the public administrator. The General injury to the public right, the consent of the city auTerm and the surrogate had refused to revoke them, thorities is made requisite as a guard and protection. and the good faith of the public administrator was But street railways may occupy every street in a city, unquestioned. Held, that he was entitled to his tax- and iron the whole surface, or spin their webs in the able costs out of the estate. Nov. 29, 1887. In re Es- air over every avenue, or undermine the entire systate of Page. Opinion by Peckham, J.

tem of city streets. To authorize such is to inflict

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injury upon adjoining lot owuers in greater or less D. C., $$ 727, 728, provide that the separate property degree, and hence the consent of a due proportion of of a married woman shall not be liable for the debts such was required by the Constitution, or instead the of her husband. Held, that by a deed voluntarily exorder of selected commissioners confirmed by the ecuted by a husbaud and wife ber separate real estate court. Where the railway runs under the streets the might be couveyed to secure the payment of his debt. adjoining owners are as much and as dangerously af- (2) A notary public took the acknowledgment to a fected as where it runs on their surface or above them. deed of a married woman, in th form given by the Whether the new surface is safe and sufficient, or statute. In an action to set the deed aside, she testiweak and perilous, and invites or frightens away pas- fied that it was her signature, and that she did not sage; whether the openings obstruct or hiuder access recollect acknowledging or executing it, and denied to the abutter, or pour out through the ventilators that it was explained to her. Held, that her signature smoke and steam upon his premises; whether his being admitted, and there being no proof of fraud or vaults and foundations will remain safe and secure, duress in taking or procuring tho acknowledgment, or be undermined or weakened by vibration; whether extrinsic evidence was incompetent to impeach his gas and water supply will continue ample and the certificate of the notary as to the manner in which conveuient, and the new sewerage work him no in- he bad performed his duty. The conveyance of the jury-all these are to him questious of vital import- estates of married women by deed, with separate exance, affecting his comfort and convenience, the suc- amination and acknowledgment, has taken the place cess of his business and the value of his property. of the alienation of such estates by fine in a court of The same reasons which dictated a constitutional record under the law of England, though different in protection against roads ou or above the surface of some of its effects, owing to the diversity in the nathe streets, apply to those which are built beneath in ture of the two modes of proceeding. A fiue was in the manner here contemplated, and these should form of a judgment of a court of record, at first in an justly be deemed street railroads within the meaning actual, and afterward in a fictitious, suit by the conuof that phrase as used in the Constitution. The Rapid see against the conusors to recover possession of the Transit Act, passed very soon after the constitutional land; and derived its very name from its putting an amendment, applies its provisions to roads under as end to that suit, and to all other controversies conwell as on or above the surface, and so tends to sup- cerning the same matter. 2 Bl. Comm. 349; Co. Lit. port our conclusion. (3) The theory that only so 262a. A party could not therefore impeach it at law, much of the act of 1880 is invalid as makes the order even for infancy, except for writ of error sued out confirming the commissioners staud for the consent while still under age, or for insanity. Bac. Abr. of the public authorities, and that the order may be “Fines and Recoveries,” “Fines," C; 5 Cruise Dig., granted and stand for the consent of the property tit. 35, ch. 5, S$ 41-54; Murley v. Sherren, 1 Perry & D. owners alone, is erroneous. Oct. 4, 1887. In re dp- 126; 8 Adol. & El. 754. Yet if any fraud and undue plication of New York District Ry. Co. Opinion by practice was used in obtaining the fino the Court of Finch, J.

Chancery would relieve against it, as against any SALE-DELIVERY-TENDER OF PAYMENT- ENTIRETY

other conveyance. 5 Cruise Dig., tit. 35, ch. 14, SS

68–77; Bulkley v. Wilford, 2 Clark & F. 102; Conry v. -AUOTION SALES-BREACH OF CONTRACT OF SALE

Caulfield, 2 Ball & B. 255. On the other hand, the VALUE.--(1) Defendant sold certain property at auc

alienation of land by deed of husband and wife, with tion to plaintiff. By the terms of the sale, plaintiff was to pay for and remove the goods before May 1.

her separate examination and acknowledgment, is in

form as well as in fact a conveyance by the parties, Held, that up to the date named, on payment being

and therefore does not, even if the acknowledgment made, defendant was under an obligation to deliver

is certified by a magistrate in the form prescribed by the goods on the premises to plaintiff when he called for them. (2) An incorrect bill was furuished, and

statute, and recorded, bind a wife, who by reason of

infancy or insanity is incapable of conveying. Sims plaintiff repeatedly endeavored, before May 1, to have

v. Everhardt, 102 U. S. 300; Williams v. Baker, 71 it corrected, and expressed a willinguess to pay the right amount. On May 2

Penn. St. 476; Priest v. Cum vnings, 16 Wend. 617, 631,

the bill rected, and defendant accepted payment.

aud 20 id. 338, 349; Jackson v. Schoonmaker, 4 Johns.

Held, that defendant was

161. In any case of fraud or duress also it may be uot released from his obligation to deliver the goods May 1. (3)

impeached by bill in equity, or in soine States in an Plaintiff bid off two washing machines at $50, but they

action at law. Bank v. Copeland, 18 Md. 305; Schra

der v. Decker, 9 Penu. St. 14; Louden v. Blythe, 16 were charged in the bill at $100. He repeatedly called

id. 532, and 27 id. 22; Hall v. Patterson, 51 id. 289; for a corrected bill, and expressed his willingness to

Jackson v. Hayner, 12 Jobus. 469; Fisher v. Meister, pay the true amount. Held, that a tender was not

24 Mich. 447; Wiley v. Prince, 21 Tex. 637. The stat. necessary to entitle him to a delivery of the goods.

ute of 18 Edw. I, De Modo Levandi Fines, enacted (4) At an auction sale plaintiff bought of defendant

that if a feme covert should be one of the parties to a distinct articles on separate bids that were treated by

fine, then she must first be examined by certain justhe parties as parts of one transaction. Held, that

tices; and if she did not asseut to the fiue it should the purchases constituted an entire contract. Mills

not be levied. Yet this was always understood to v. Hunt, 17 Wend. 333; 20 id. 431. (5) Held, that the

mean that the fine ought not to be received without purchase-price might be considered, but it was not the

her examination and free consent; but that if it was only evidence, nor even strong evidence, of their

received and recorded, neither she nor her heirs could value. Campbell v. Woodworth, 20 N. Y. 499; Gill v. McNamee, 42 id. 46; Hoffman v. Conner, 76 id. 124.

be permitted to aver that she was not examined, and

did not consent; “for this,” says Lord Coke, "should Oct. 28, 1887. Gray V. Walton. Opinion by An

be against the record of the court, and tending to the drews, J.

weakening of the general assurances of the realm.” 2

Inst. 510, 515; Bac. Abr. ubi supra. The object of a UNITED STATES SUPREME COURT AB- statute like that now before us, requiring the separate STRACT.

examination of the wife to be taken by a judicial offi

cer or notary public, to be certified by him in a parMARRIAGE-SEPARATE ESTATE-JOINDER IN CON- ticular form, and to be recorded in the registry of VEYANCE – ACKNOWLEDGMENT - IMPEACHMENT OF deeds, is twofold: not only to protect the wife by -RECEIVER-LIABILITY TO ACCOUNT.-(1) Rev. Stat. making it the duty of such an officer to ascertain and




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