moment may require;" and that for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself." So in Beer Co. v. Massachusetts, 97 U. S. 32: "If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer."

--

It now remains to consider certain questions relat ing particularly to the thirteenth section of the act of 1885. That section - which takes the place of section 13 of the act of 1881 — is as follows: "Sec. 13. All places where intoxicating liquors are manufactured, sold, bartered, or given away in violation of any of the provisions of this act, or where intoxicating liquors are kept for sale, barter or delivery in violation of this act, are hereby declared to be common nuisances, and upon the judgment of any court having jurisdiction, finding such place to be a nuisance under this section, the sheriff, his deputy, or under sheriff, or any constable of the proper county, or marshal of any city where the same is located, shall be directed to shut up and abate such place by takiug possession thereof and destroying all intoxicating liquors found therein, together with all signs, screens, bars, bottles, glasses and other property used in keeping and maintaining said nuisance, and the owner or keeper thereof shall upon conviction be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than $100 or more than $500, and by imprisonment in the county jail not less than thirty days nor more than ninety days. The 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 the State to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required. Any person violating the terms of any injunction granted in such proceeding, shall be punished as for contempt by a fine of not less than $100 nor more than $500, or by imprisonment in the county jail not less than thirty days nor more than six months,for by both such fine and imprisonment, in the discretion of the court."

it to be a common nuisance, and then prescribes the consequences which are to follow inevitably by judicial mandate required by the statute, and involving and permitting the exercise of no judicial discretion or judgment; that the brewery being found in operation, the court is not to determine whether it is a common nuisance, but under the command of the statute, is to find it to be one: that it is not the liquor made, or the making of it, which is thus enacted to be a common nuisance, but the place itself, including all the property used in keeping and maintaining the common nuisance; that the judge having thus signed without inquiry and it may be contrary to the fact and against his own judgment - the edict of the Legislature, the court is commanded to take possession by its officers of the place and shut it up; nor is all this destruction of property, by legislative edict, to be made as a forfeiture consequent upon conviction of any offense, but merely because the Legislature so commands; and it is done by a court of equity, without any previous conviction first had, or any trial known to the law.

This certainly is a formidable arraignment of the legislation of Kansas, and if it were founded upon a just interpretation of her statutes, the court would have no difficulty in declaring that they could not be enforced without infringing the constitutional rights of the citizen. But those statutes have no such scope and are attended with no such results as the defendants suppose. The court is not required to give effect to a legislative "decree" or "edict," unless every enactment by the law-making power of a State is to be so characterized. It is not declared that every establishment is to be deemed a common nuisance because it may have been maintained prior to the passage of the statute as a place for manufacturing in. toxicating liquors. The statute is prospective in its operation, that is, it does not put the brand of a common nuisance upon any place, unless after its passage that place is kept and maintained for purposes declared by the Legislature to be injurious to the community. Nor is the court required to adjudge any place to be a common nuisance simply because it is charged by the State to be such. It must first find it to be of that character; that is, must ascertain in some legal mode, whether since the statute was passed the place in question has been or is being so used, as to make it a common nuisance.

Equally untenable is the proposition that proceed

We are unable to perceive any thing in these regulations inconsistent with the constitutional guarantees of liberty and property. The State having authority to prohibit the manufacture and sale of intoxicating liquors for other than medical, scientific and mechanical purposes, we do not doubt her power to declare that the place kept and maintained for the illegal manufacture and sale of such liquors, shall be deemed a common nuisance, and be abated, and at the same time, to provide for the indictment and trial of the offender. One is a proceeding against the property used for forbidden purposes, while the other is for the punishment of the offender.

It is said that by the thirteenth section of the act of 1885, the Legislature finding a brewery within the State in actual operation, without notice, trial, or hearing, by the mere exercise of its arbitrary caprice, declares

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In

teenth section of the statute are inconsistent with due process of law. "In regard to public unisances," Mr. Justice Story says, "the jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisance, strictly so called, but also to purprestures upon public rights and property. * * case of public nuisances, properly so called, an indictment lies to abate them, and to punish the offenders. But an information also lies in equity to redress the grievance by way of injunction." 2 Story's Eq.. $$ 921, 922. The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual and permanent remedy, than can be had at law. They cannot only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the commuity. Though not fre

quently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury. District Attorney v. Lynn and Boston R. Co., 16 Gray, 245; Atty-Gen'l v. N. J. Railroad, 3 Green's Ch. 139; Atty- Gen'l v. Tudor Ice Co., 104 Mass. 244; State v. Mayor, 5 Porter (Ala.), 279, 294; Hoole v. AttyGen'l, 22 Ala. 194; Atty-Gen'l v. Hunter, 1 Dev. Eq. 13; Atty-Gen'l v. Forbes, 2 Mylne & Craig, 123, 129, 133; Atty-Gen'l v. Great Northern Railway Co., 1 Dr. & Sm. 161; Eden Injunc. 259; Kerr Injunc. (2d ed.), 168.

As to the objection that the statute makes no provision for a jury trial in cases like this one, it is sufficient to say that such a mode of trial is not required in suits in equity brought to abate a public nuisance. The statutory direction that an injunction issue at the commencement of the action is not to be construed as dispensing with such preliminary proof as is necessary to authorize an injunction pending the suit. The court is not to issue an injunction simply because one is asked, or because the charge is made that a common nuisance is maintained in violation of law. The statute leaves the court at liberty to give effect to the principle that an injunction will not be granted to restrain a nuisance, except upon clear and satisfactory evidence that one exits. Here the fact to be ascertained was not, whether a place kept and maintained for purposes forbidden by the statute was per se a nuisance that fact being conclusively determined by the statute itself - but whether the place in question was so kept and maintained. If the proof upon that point is not full or sufficient the court can refuse an injunction, or postpone action until the State first obtains the verdict of a jury in her favor. In this case it cannot be denied that the defendants kept and maintained a place that is within the statutory definition of a common nuisance. Their petition for the removal of the cause from the State court, and their answer to the bill admitted every fact necessary to maintain this suit, if the statute under which it was brought was constitutional.

Touching the provision that in prosecutions by indictment or otherwise the State need not in the first instance prove that the defendant has not the permit required by the statute, we may remark that if it has any application to a proceeding like this, it does not deprive him of the presumption that he is innocent of any violation of law. It is only a declaration that when the State has proved that the place described is kept and maintained for the manufacture or sale of intoxicating liquors - such manufacture or sale being unlawful except for specified purposes, and then only under a permit the prosecution need not prove a negative, namely, that the defendant has not the required license or permit. If the defendant has such license or permit, he can easily produce it, and thus overthrow the prima facie case established by the State.

A portion of the argument in behalf of the defendants is to the effect that the statutes of Kansas forbid the manufacture of intoxicating liquors to be exported, or to be carried to other States, and upon that ground are repugnant to the clause of the Constitution of the United States, giving Congress power to regulate commerce with foreign nations and among the several States. We need only say upon this point, that there is no intimation in the record that the beer which the respective defendants manufactured was intended to be carried out of the State or to foreign countries. And without expressing an opinion as to whether such facts would have constituted a good defense, we observe that it will be time enough to decide a case of that character when it shall come before us.

For the reasons stated, we are of opinion that the judgments of the Supreme Court of Kansas have not denied to Mugler, the plaintiff in error, any right,

privilege, or immunity secured to him by the Constitution of the United States, and its judgment in each case is accordingly affirmed. We are also of opinion that the Circuit Court of the United States erred in dismissing the bill of State v. Ziebold & Hagelin. The decree in that case is reversed, and the cause remanden, with directions to enter a decree granting to the State such relief as the act of March 7, 1885, authorizes. It is so ordered.

FIELD, J. I concur in the judgment rendered by this court in the first two cases, those coming from the Supreme Court of Kansas. I dissent from the judgment in the last case, the one coming from the Circuit Court of the United States.

I agree to so much of the opinion as asserts that there is nothing in the Constitution or laws of the United States affecting the validity of the act of Kansas prohibiting the sale of intoxicating liquors manufactured in the State, except for the purposes mentioned. But I am not prepared to say that the State can prohibit the manufacture of such liquors within its limits if they are intended for exportation, or forbid their sale within its limits, under proper regulations for the protection of the health and morals of the people, if Congress has authorized their importation, though the act of Kansas is broad enough to include both such manufacture and sale. The right to import an article of merchandise, recognized as such by the commercial world whether the right be given by act of Congress or by treaty with a foreign country-would seem necessarily to carry the right to sell the article when imported. In Brown v. Maryland, 12 Wheat. 447, Chief Justice Marshall, in delivering the opinion of this court, said as follows: "Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importation, but to authorize the importer to sell."

If one State can forbid the sale within its limits of an imported article, so may all the States, each selecting a different article. There would then be little uniformity of regulations with respect to articles of foreign commerce imported into different States, and the same may be also said of regulations with respect to articles of inter-State commerce. And we know it was one of the objects of the formation of the Federal Constitution to secure uniformity of commercial regulations against discriminating State legislation. The construction of the commercial clause of the Constitution, upon which the License cases in the 7th of Howard were decided, appears to me to have been substantially abandoned in later decisions. Hall v. De Cuir, 95 U. S. 485; Welton v. State of Missoari, 91 id. 275; County of Mobile v. Kimball, 102 id. 691; Transportation Co. v. Parkersburgh, 107 id. 691; Gloucester Ferry Co. v. Pennsylvania, 114 id. 196; Wabash, St. Louis & Pacific Railway Co. v. Illinois, 118 id. 557. I make this reservation that I may not hereafter be deemed concluded by a general concurrence in the opinion of the majority.

I do not agree to what is said with reference to the case from the United States Circuit Court. That was a suit in equity brought for the abatement of the brewery owned by the defendants. It is based upon clauses in the 13th section of the act of Kansas, which are as follows:

"All places where intoxicating liquors are manufactured, sold, bartered, or given away in violation of any of the provisions of this act, or where intoxica. ting liquors are kept for sale, barter, or delivery in

erty or rights of individuals. Thus if the nuisance consists in the use to which a building is put, the remedy is to stop such use, not to tear down or to demolish the building itself, or to destroy property found within it. Babcock v. City of Buffalo, 56 N. Y. 268; Chenango Bridge Co v. Paige, 83 id. 189. The decision of the court, as it seems to me, reverses this principle. It is plain that great wrong will often be done to manufacturers of liquors, if legislation like that em

ing and maintaining said nuisance; and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than $100, nor more than $500, and by imprisonment in the county jail not less than thirty days, nor more than ninety days. The 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 the State to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required."

By a previous section all malt, vinous, and fermented liquors are classed as intoxicating liquors, and their manufacture, barter, and sale are equally prohibited. By the 13th section, as is well said by counsel, the Legislature, without notice to the owner or hearing of any kind, declares every place where such liquors are sold, bartered, or given away, or kept for sale, barter, or delivery-in this case a brewery where beer was manufactured and sold, which up to the passage of the act, was a lawful industry-to be a common nuisance; and then prescribes what shall follow, upon a court having jurisdiction, finding one of such places to be what the Legislature has already pronounced it. The court is not to determine whether the place is a common nuisance in fact, but is to find it to be so if it comes within the definition of the statute, and having thus found it, the executive officers of the court are to be directed to shut up and abate the place by taking possession of it; and as though this were not sufficient security against the continuance of the business, they are to be required to destroy all the liquor found therein, and all other property used in keeping and maintaining the nuisance. It matters not whether they are of such a character as could be used in any other business, or be of value for any other purposes. No discretion is left in the judge or in the officer.

These clauses appear to me to deprive one who owns a brewery and manufactures beer for sale, like the defendants, of property without due process of law. The destruction to be ordered is not as a forfeiture upon conviction of any offense, but merely because the Legislature has so commanded. Assuming, which is not conceded, that the Legislature, in the exercise of that undefined power of the State, called its police power, may without compensation to the owner deprive him of the use of his brewery for the purposes for which it was constructed under the sanction of the law, and for which alone it is valuable, I cannot see upon what principle, after closing the brewery, and thus putting an end to its use in the future for manufacturing spirits, it can order the destruction of the liquor already manufactured, which it admits by its legislation may be valuable for some purposes, and allows to be sold for those purposes. Nor can I see how the protection of the health and morals of the people of the State can require the destruction of property like bottles, glasses, and other utensils, which may be used for many lawful purposes. It has heretofore been supposed to be an established principle, that where there is a power to abate a nuisance, the abatement must be limited by its necessity, and no wanton or unnecessary injury can be committed to the prop

preme Court of Kansas admits that the Legislature of the State, in destroying the values of such kinds of property, may have gone to the utmost verge of constitutional authority. In my opinion it has passed beyond that verge, and crossed the line which separates regulation from confiscation.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL LIMITATION OF TIME.-Where the notice of an order and its entry fails to show, by indorsement or otherwise, the office, address or place of business of the attorney serving it, it is ineffectual to limit the time of appeal. Oct. 25, 1887. Forstmann v. Schulting.

CRIMINAL LAW-LARCENY - FALSE REPRESENTATIONS-INDICTMENT-PROVINCE OF JURY-EVIDENCE -REVIEW OF ACTION OF GRAND JURY-DESCRIPTION OF PROPERTY-VARIANCE-INSTRUCTIONS-CORRECTNESS AS A WHOLE-EVIDENCE-DOCUMENTARY-COM

PLAINT IN FORMER SUIT.-(1) The defendant was indicted for grand larceny, the charges being that as agent for an insurance company, he had reinsured the cargo of a vessel in the company after being notified of its loss, and by his false representations he had obtained from the company a large sum of money in payment of the loss. Held, that it was not necessary to allege in the indictment the precise peril against which the defendant represented the company had insured. It was sufficient to charge that the representation was of valid insurance, and that a loss had occurred which imposed liability on the company. (2) In the first count the crime was charged to have been committed by means of false pretenses and representations; and in the second count the same crime is charged to have been committed by drawing the money by means of a draft which the defendant knew he was not entitled to draw. Held, that the indictment charges the same crime, though by different means, and falls within the provisions of Code Crim. Proc. N. Y., §§ 278, 279, relating to the allegations in an indictment. (3) When the charge is that the defendant obtained money by false and fraudulent representations, it is a question of fact for the jury whether the representations alleged in the indictment were such as were calculated to deceive. (4) It was charged that as agent for several insurance companies he had placed the reinsurance of a vessel with one company, and afterward, after notice of the loss of the vessel, he had transferred the reinsurance to another company; that he had represented to the second company that it was a valid insurance for which it was liable, and by means of these false representations had obtained a large sum of money. On the trial the State put in evidence to show that the defendant had on several other occasions made such transfers in order to save the first company from loss. Held, that such evidence was admissible to show the evil motive and fraudulent intent of the defendant in changing the insurance in the present case. (5) Where the grand jury has inquired and determined that a crime had been committed within the jurisdiction of the court, there is no way to review this determination except by motion to quash the indict

ment or to arrest judgment. (6) The property alleged to have been obtained was described: "The sum of five thousand dollars in money, of a kind and description to the grand jury unknown, of the value of $5,000." Held, sufficient. (7) The proof showed that the defendant drew on the company, and the draft was paid by check. Held, that this was a substantial agreement with the allegation in the indictment. (8) The judge charged the jury to the effect that whether the insurance was legal or illegal, the reinsurance by the company is of no consequence. The whole charge however showed clearly that the jury must find the insurance was illegal before they could convict. Held, that even if a single phrase is erroneous, the judgment could not on that account be reversed if the whole charge properly instructed the jury, and it can be seen with reasonable certainty that the erroneous portion did not mislead the jury nor influence the verdict. (9) The prosecuting witness was crossexamined in regard to the allegations in a complaint made by him in a civil suit against the defendant. The State offered the whole complaint in evidence, to which the defense objected. The court ruled that it might be put in evidence for the purpose of showing what the witness testified to, but not in any other point. Held, that within the limit indicated the complaint was properly admitted in evidence. Oct. 4, 1887. People v. Dimick. Opinion by Earl, J.

EXECUTORS AND ADMINISTRATORS-APPOINTMENT OF PUBLIC ADMINISTRATOR-CITATION-APPEARANCE

-APPOINTMENT-WHEN MADE-REVOCATION-COSTS.

(1) The intestate was a citizen of Vermont, and died within that State, leaving effects within the county of New York, where some of his creditors resided. Held, that a citation to the widow and next of kin, informing them of the intended application for letters of administration by the public administrator, and of the place, day and hour when it would be made, was necessary to give the surrogate jurisdiction. (2) On the day and hour named in a citation, counsel for the widow and next of kin appeared for the purpose of opposing the application for letters of administration. The public administrator did not appear, and no application was made on that day. Subsequently, and without notice to the widow's counsel, and in his absence, application was made for the issuance of letters to the public administrator, and the same was granted. Held, that in the absence of due service of another citation, or the voluntary appearance of the widow and next of kin, the surrogate had lost jurisdiction. (3) Held, that the proceeding was not brought within either exception of section 220 of the New York Consolidation Act, which provides that the public administrator shall not have authority, * unless the intestate shall have landed within the city and county of New York, or at the quarantine near said city; or unless the effects of such person, or some of them, shall have been so anded. (4) Held, that the public administrator could apply for letters of administration, if no application should be made by the widow or next of kin within a reasonable time; and if after proper service of the notice of application, it appeared on the hearing that there was a widow, or relative, competent and willing and qualified, letters should be granted to such widow and relative, and if not, then to the public administrator. (5) Void letters of administration were granted to the public administrator. The General Term and the surrogate had refused to revoke them, and the good faith of the public administrator was unquestioned. Held, that he was entitled to his taxable costs out of the estate. Nov. 29, 1887. In re Estate of Page. Opimon by Peckham, J.

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MUNICIPAL CORPORATIONS-STREET RAILROADS.— (1) The New York District Railway Company petitioned for the appointment of commissioners to determine whether their proposed road should be built, said commissioners to be appointed under the provisions of Laws of New York, 1880, ch. 582. Held, that said act is unconstitutional, in that the powers by it vested in the commissioners exceed the limitations prescribed by the constitutional amendment of 1874, art. 3, § 18, which provides that no law shall authorize the construction of a street railway, except on condition of the consent of the property owners and city authorities, and that the determination of the commissioners, confirmed by the court, may be taken in lieu of the consent of the property owners only. (2) An underground railway in a city of village, following the line of the streets, is to be deemed a street railway within the meaning of that phrase as used in the Constitution. The Legislature seems to have deemed it wise to make the underground road a part of the streets, and its operation a street use, by direct enactment. The railway in return reaps its own benefit from this connection with the streets. It follows them, because the assent of the authorities once gained, it is obliged to buy or condemn no land for its line, since usually the city owns the fee; and it more readily finds its passengers and patronage from its location on the streets. If now we turn to its manner of construction we observe that it proposes to remove the present surface of the street, and makes its own roof that surface in the future. Not merely is the easement of the public affected temporarily by the process of construction, but permanently by changing wholly the support of that surface. We have often held that the right of the public in the streets of a city extends to and embraces, besides the support of the surface, the necessary sewerage and room for water and gas pipes and the like, and the right to lay and maintain these is an important part of the public easement. All of these the petitioner proposes to remove, and place them in a new position more convenient for its purpose. It is estimated that this one interference with the street will cost the company $750,000 a mile. Not only that, but openings are to be made in the street for purposes of ventilation, which must permanently remain, and other openings for access must be constructed and continue to exist. When the work is all done, the street will consist of two stories or surfaces; one carrying the ordinary traffic and movement lessened by so much as is diverted to the swifter transit of the other, and both together will do what one alone did to the extent of its capacity. Such a road is to be deemed a street railway, not only because it subserves street purposes, and reaps the benefit of street easements, and occupies and modifies the street surface, but also because it is fully within the mischiefs which the constitutional provision was designed to redress and prevent. That evil was indicated by the character of the remedy applied, which was to forbid all such constructions except with the consent of the authorities, and also of the adjoining owners to the extent of onehalf of the abutting values, or an order of the court as a substitute for such last consent. An ordinary railway, terminating in or passing through the streets of a city or village, would occupy them but slightly, and be concentrated in a single limited iocality; and yet since even such partial occupation might work injury to the public right, the consent of the city authorities is made requisite as a guard and protection. But street railways may occupy every street in a city, and iron the whole surface, or spin their webs in the air over every avenue, or undermine the entire system of city streets. To authorize such is to inflict

injury upon adjoining lot owners in greater or less degree, and hence the consent of a due proportion of such was required by the Constitution, or instead the order of selected commissioners confirmed by the court. Where the railway runs under the streets the adjoining owners are as much and as dangerously affected as where it runs on their surface or above them. Whether the new surface is safe and sufficient, or weak and perilous, and invites or frightens away passage; whether the openings obstruct or hinder access to the abutter, or pour out through the ventilators smoke and steam upon his premises; whether his vaults and foundations will remain safe and secure, or be undermined or weakened by vibration; whether his gas and water supply will continue ample and convenient, and the new sewerage work him no injury-all these are to him questions of vital importance, affecting his comfort and convenience, the success of his business and the value of his property. The same reasons which dictated a constitutional protection against roads on or above the surface of the streets, apply to those which are built beneath in the manner here contemplated, and these should justly be deemed street railroads within the meaning of that phrase as used in the Constitution. The Rapid Transit Act, passed very soon after the constitutional amendment, applies its provisions to roads under as well as on or above the surface, and so tends to support our conclusion. (3) The theory that only so much of the act of 1880 is invalid as makes the order confirming the commissioners stand for the consent of the public authorities, and that the order may be granted and stand for the consent of the property owners alone, is erroneous. Oct. 4, 1887. In re dpplication of New York District Ry. Co. Opinion by Finch, J.

SALE-DELIVERY-TENDER OF PAYMENT-ENTIRETY -AUCTION SALES-BREACH OF CONTRACT OF SALE

VALUE.-(1) Defendant sold certain property at auction to plaintiff. By the terms of the sale, plaintiff was to pay for and remove the goods before May 1. Held, that up to the date named, on payment being made, defendant was under an obligation to deliver the goods on the premises to plaintiff when he called for them. (2) An incorrect bill was furnished, and plaintiff repeatedly endeavored, before May 1, to have it corrected, and expressed a willingness to pay the right amount. On May 2 the bill was corrected, and defendant accepted payment. Held, that defendant was not released from his obligation to deliver the goods on May 1. (3) Plaintiff bid off two washing-machines at $50, but they were charged in the bill at $100. He repeatedly called for a corrected bill, and expressed his willingness to pay the true amount. Held, that a tender was not necessary to entitle him to a delivery of the goods. (4) At an auction sale plaintiff bought of defendant distinct articles on separate bids that were treated by the parties as parts of one transaction. Held, that the purchases constituted an entire contract. Mills v. Hunt, 17 Wend. 333; 20 id. 431. (5) Held, that the purchase-price might be considered, but it was not the only evidence, nor even strong evidence, of their value. Campbell v. Woodworth, 20 N. Y. 499; Gill v. McNamee, 42 id. 46; Hoffman v. Conner, 76 id. 124. Oct. 28, 1887. Gray v. Walton. Opinion by Andrews, J.

D. C., §§ 727, 728, provide that the separate property of a married woman shall not be liable for the debts of her husband. Held, that by a deed voluntarily executed by a husband and wife her separate real estate might be conveyed to secure the payment of his debt. (2) A notary public took the acknowledgment to a deed of a married woman, in the form given by the statute. In an action to set the deed aside, she testified that it was her signature, and that she did not recollect acknowledging or executing it, and denied that it was explained to her. Held, that her signature being admitted, and there being no proof of fraud or duress in taking or procuring the acknowledgment, extrinsic evidence was incompetent to impeach the certificate of the notary as to the manner in which he had performed his duty. The conveyance of the estates of married women by deed, with separate examination and acknowledgment, has taken the place of the alienation of such estates by fine in a court of record under the law of England, though different in some of its effects, owing to the diversity in the nature of the two modes of proceeding. A fine was in form of a judgment of a court of record, at first in an actual, and afterward in a fictitious, suit by the conusee against the conusors to recover possession of the land; and derived its very name from its putting an end to that suit, and to all other controversies concerning the same matter. 2 Bl. Comm. 349; Co. Lit. 262a. A party could not therefore impeach it at law, even for infancy, except for writ of error sued out while still under age, or for insanity. Bac. Abr. "Fines and Recoveries," "Fines," C; 5 Cruise Dig., tit. 35, ch. 5, §§ 41-54; Murley v. Sherren, 1 Perry & D. 126; 8 Adol. & El. 754. Yet if any fraud and undue practice was used in obtaining the fine the Court of Chancery would relieve against it, as against any other conveyance. 5 Cruise Dig., tit. 35, ch. 14, §§ 68-77; Bulkley v. Wilford, 2 Clark & F. 102; Conry v. Caulfield, 2 Ball & B. 255. On the other hand, the alienation of land by deed of husband and wife, with her separate examination and acknowledgment, is in form as well as in fact a conveyance by the parties, and therefore does not, even if the acknowledgment is certified by a magistrate in the form prescribed by statute, and recorded, bind a wife, who by reason of infancy or insanity is incapable of conveying. Sims v. Everhardt, 102 U. S. 300; Williams v. Baker, 71 Penn. St. 476; Priest v. Cummings, 16 Wend. 617, 631, and 20 id. 338, 349; Jackson v. Schoonmaker, 4 Johns. 161. In any case of fraud or duress also it may be impeached by bill in equity, or in some States in an action at law. Bank v. Copeland, 18 Md. 305; Schrader v. Decker, 9 Penn. St. 14; Louden v. Blythe, 16 id. 532, and 27 id. 22; Hall v. Patterson, 51 id. 289: Jackson v. Hayner, 12 Johns. 469; Fisher v. Meister, 24 Mich. 447; Wiley v. Prince, 21 Tex. 637. The statute of 18 Edw. I, De Modo Levandi Fines, enacted that if a feme covert should be one of the parties to a fine, then she must first be examined by certain justices; and if she did not asseut to the fine it should not be levied. Yet this was always understood to mean that the fine ought not to be received without her examination and free consent; but that if it was received and recorded, neither she nor her heirs could be permitted to aver that she was not examined, and did not consent; "for this," says Lord Coke, "should be against the record of the court, and tending to the weakening of the general assurances of the realm." 2 Inst. 510, 515; Bac. Abr. ubi supra. The object of a statute like that now before us, requiring the separate examination of the wife to be taken by a judicial officer or notary public, to be certified by him in a particular form, and to be recorded in the registry of deeds, is twofold: not only to protect the wife by making it the duty of such an officer to ascertain and