case before it, "should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter." (U. S. vs. Kirby, 7 Wall, 482.) So the judges of England construed the law.which enacted that a prisoner breaking prison should be deemed guilty of felony, holding that it did not apply to one breaking out when the prison was on fire, observing that the prisoner was "not to be hanged because he would not stay to be burnt." And in illustration of this doctrine the construction given to the Bolognian law against drawing blood in the street, is often cited. That law enacted that whoever thus drew blood should be punished with the utmost severity, but the courts held that it did not extend to the surgeon who opened the vein of a person falling down in the street in a fit. The application sought to be made of that law to the surgeon was hardly less absurd than some of the applications, which, without much reflection, are sought to be made of the Act of Congress. The petitioners must be discharged. FIELD, Circuit Justice. NEGLIGENCE-DAMAGES-EVIDENCE. N. Y. COURT OF APPEALS. SCHULTZ, by guardian, respt. v. The Third AVE. RR. Co., applt. May 30, 1882. Where the different counts in a complaint have reference to the same accident and the same injury, and each contains an allegation of the damages incurred, the general prayer for damages must control and such allegations may be disregarded. Where each count contained an allegation of $10,000 damages, but the general prayer was for $20,000, and the court charged that plaintiff could only recover by proving the facts alleged in the first count, Held, That a verdict for $15,000 was not unauthorized. Evidence that a witness for plaintiff, who had been discharged from defendant's employ, had on another occasion tried to procure one of defendant's drivers to make a false statement as to the condition of his car, for the purpose of fixing liability on the company, is competent to prove that he was hostile in his feelings toward defendant and entertained malice towards it. This action was brought to recover damages for injuries received by plaintiff by being knocked down and run over by one of defen-lant's cars. The complaint contained three counts, and alleged first, that on October 30, 1877, plaintiff got upon the rear platform of one of defendant's cars, as a passenger, for the purpose of riding down Third Avenue to his home; that the conductor of the car came to him, and without asking for the fare or giving him an opportunity to pay it, violently pushed and threw him off the platform on to an adjoining track in front of the horses attached to a car coming up the avenue, and that he was knocked down, run over and severely injured, "to his damage $10,000." In the second count, plaintiff alleged that on the same day he was accidentally upon the railway track, and that before he could escape he was knocked down by the horses attached to one of defendant's cars, and run over and injured, because there was a defective brake upon the car, in consequence of which it could not be stopped in time to save him from injury, and the count closes "to his damage $10,000." In the third count he alleges that on the same day he was run over and severely injured upon defendant's railway track, in consequence of the carelessness and unskillfulness of the driver of one of defendant's cars, "to his damage $10,000." The complaint concludes with a prayer for judgment for plaintiff's damages "in the premises to the amount of $20,000." The judge charged the jury that plaintiff could recover only by satisfying them that he was pushed or thrown from the car by the conductor and thus injured, as alleged in the first count of the complaint. A verdict of $15,000 was rendered. Defendant's counsel claimed that as the first count alleged damages for but $10,000, and the recovery was had under that count, a verdict for a larger amount was unauthorized. Held, Untenable; that the general prayer for damages at the conclusion of the complaint must control, the different counts having reference to the same accident and the same injury, the allegation of damages at the end of each count may be disregarded, the general prayer for judgment being sufficient to authorize and uphold the verdict. The variance between the complaint and the verdict is such as "the right and justice" of the matter require should be disregarded or amended. Code of Civil Procedure. § 722. It was also contended that the alleged act of the conductor in pushing and throwing plaintiff from the car was so wilful, reckless and malicious that defendant is not responsible for it. Held, Untenable. 47 N. Y., 275; 64 id., 137; 12 Hun, 435, affirmed, 76 N. Y., 593; 87 N. Y., 25. Upon the trial, plaintiff and R. and M., two car drivers who had been discharged by defendant, testified that the conductor threw plaintiff off directly in front of the horses attached to a car going up the avenue, and that he was injured in that way. The conductor and another witness testified that plaintiff was not pushed or thrown off, but that he jumped off the car and ran in front of the horses and was thus injured without any fault or misconduct of the conductor. R.. on cross-examination, was asked if he recollected a conversation with P., one of defendant's drivers, in which he endeavored to get such driver to say his brakes were out of order, in order to fix the company with liability. R. testified that he had never had such a conversation with P. P. was called by defendant and testified that he recollected R. approached him and had a conversation with him in reference to the brakes of his car. P. was then asked what that conver sation was. This was objected to by plaintiff's counsel. Defendant's counsel then offered to prove that on another occasion, not distant from the present accident, R. tried to procure P. to mike a false statement in regard to the condition of a car on defendant's road, for the proposed purpose of fixing the liability on the company, he having been discharged from its employ, to show malice and ill feeling on the part of R. This was objected to as immaterial, irreleand collateral. The objection was sustained. Held, Error; that it was competent to prove that R. was hostile in his feelings toward defendant and entertained malice towards it. 5 Denio, 106; 6 N. Y., 345; 5 Hun, 91; 24 id., 178; 9 Cush., 365; 8 Gray, 441; 26 N. H., 363; 35 Vt., 340; 7 Conn., 71., 76 N. Y., 595; 1 Greenl. Ev. (Redf. Ed.), § 450. Judgment of General Term, affirming judgment on verdict for plaintiff, reversed, and new trial ordered. Opinion by Earl, J. All concur. Digest of Decisions. CALIFORNIA. (Supreme Court.) PEOPLE, RESPONDENT, v. MESSERSMITH, APPEL- "Preponderance of evidence" is the equivalent of "satisfactory proof." Where a person accused of crime relies on the defense of insanity, he is bound to establish it by such a preponderance of evidence that if the question were submitted to the jury in a civil case they would find him insane. ince of the jury. It, however, withdrew from that position by immediately telling them that as a fact it was a matter for their consideration, in connection with all the other facts and circumstances of the case. Thus qualified, the fact was properly left as partial evidence of the fact in dispute to the determination of the jury; and there was no error in the instruction as an entirety to the prejudice of the defendant. An instruction, otherwise unobjectionable, is not erroneous if the fact is assumed in it was not controverted by the evidence. It is not error for the court to assume the existence of an admitted or uncontroverted fact in a case, and instruct the jury as to its legal effect. As the point whether the fact assumed was controverted or uncontroverted by the evidence, did not affirmatively appear, as the evidence was not in the record, it would be presumed that it was an uncontroverted or admitted fact in the case, and therefore not error to assume its existence. As to the other instruction called in question, held, while it is not by any means couched in such clear and unequivocal terms as should characterize a legal charge to a jury, in the performance of a solemn duty, it must be construed as declaring that it was the duty of the jury to determine from the evidence, whether defendant committed the homicidal act under, or in the absence of "such motives as would naturally influence the mind of a depraved man to acts of violence;" and that if the defendant committed the act with his mind under influence of "motives of anger, jealousy, or hate, that circumstance would add great strength to the proof of his insanity." But if actual insanity at the time of the act was not made out to their minds by the testimony, and they believed, from the strong motives of revenge or other passions, they evidence that the defendant was "actuated by had the right to infer that it was under the influence of those motives that he commttted the deed, and not under the influence of insanity, unless they were satisfied by the evidence that he was insane." So construed, the instruction where t verges on error was favorable to the defennt." AUGUST 24, 1882. The Court also instructed that "a tendency to commit suicide does not prove insanity, but is one of the symptoms of insanity which it is entirely competent for the jury to take into con- LAPHAM, APPELLANT, v. CAMPBELL, RESPONDENT. sideration with all the other symptoms which have been proved, and with all the facts and circumstances of the case." Held, where a Court Equity- Fraud-Judgment-Motion-Remedy. unqualifiedly tells a jury as matter of law that Per McKee, J: Proceeding in equity for relief an assumed fact does not prove a fact in dispute, against a judgment obtained by fraud. In Janit is error. Such a charge should not be given uary, 1880, judgment by default was entered in when it is neceesary to draw an inference of the Superior Court of Placer county, upon an affact. An inference of fact, where it does not fidavit of proof of service, made by a person arise as a presumption of law, must be drawn qualified in law to serve process. The affidavit by the jury, whose duty it is to pass upon the showed that service had been made upon the sufficiency or insufficiency of evidence. So defendant in the action, by delivery to him perwhen the court below, in the first part of its in-sonally, on the 18th of November, 1879, of a copy struction, told the jury as matter of law that the of the summons and complaint, at Hot Springs, fact which was the subject-matter of the instruc- Placer County, California. The complaint heretion, did not prove the fact in dispute, i. e., the in admitted that the judgment was fair and reg: insanity of the defendant, it invaded the prov- ular on its face, but alleged that it was obtained upon a false cause of action and upon false proof of a service of process in the case, which the then plaintiff fraudulently procured to be made on the defendant, who at the time of the alleged service, was a citizen of the State of Nevada, and not subject to process issued out of the Courts of California. Held, independent of Sec. 473, C. C. P., a court of record, may, by virtue of its inherent power over its own records, so long as it has physical control of the same, set aside, on motion or otherwise, a judgment procured by fraud; or such a judgment may be set aside by the original action in a court of equity, when by reason of the fraud, the court that rendered the judgment had not acquired jurisdiction of the person of the defendant. Before the code, the rule was that a decree gained by fraud might be set aside by petition, and a judgment at law by motion; and a fortiori might such decree or judgment be set aside by bill. If a party has been deprived of his rights by a fraud, which was unknown to him at the time it was perpetrated, and for not knowing which he is not chargeable with negligence, and he has no remedy at law, a court of equity will grant him relief by an original action. laches, or want of diligence is imputable to a party, there is nothing in reason or propriety preventing the interference of equity. If no As against the judgment under consideration, the then defendant had no available remedy at law by motion under the code. For as he was, according to the allegations of the complaint, a citizen of the State of Nevada and beyond the territorial jurisdiction of the courts of California, at the time of the alleged service of process, the court that rendered the judgment had no juris it at his peril, and the party against whom it is taken is not bound to apply, within a year after its rendition, to set it aside and be allowed to answer the complaint, for, as he was beyond the territorial jurisdiction of the court, and never had been served with process at all, he is not bound to voluntarily submit himself to a foreign jurisdiction. Nor was the defendant bound to resort to the remedy by motion to set aside a judgment taken against him in an action in which there was no service of summons upon him, or in which the affidavit of service of summons was false. Instead of waiting to be sued on such judgment in his own state, a party may come into the courts of this state and obtain relief against such a judgment by original action. Myrick, J., and McKinstry, J., concurring: The case presented by the plaintiff in his complaint shows that there was no service of summons in the action referred to-on the contrary, a false affidavit of service was made and filed, and upon such false affidavit the judgment was rendered. Assuming that under Section 473, C. C. P., the defendant in that action (plaintiff here) could have obtained relief if he had applied within six months, it is enough to say that he states sufficient reasons why the application was not made within the time. The case stated in the complaint is clearly within the rules governing courts of equity in such cases, and the demurrer to the complaint should have been overruled. NEW YORK. (Court of Appeals.) RR. Co., respt. May 2, 1882. diction over his person; and the fact is alleged | The PEOPLE, applts., v. The BROOKLYN, F. & C, I. that he had no knowledge that the judgment had in fact been taken against him, upon a false affidavit of service of process upon him, in the State of California, until more than six months after the rendition of the judgment. Where judgment is taken without due process of law, or upon false proof of service of process upon a defendant who was, at the time of the alleged service, beyond the territorial jurisdiction of the court, he is not chargeable with knowledge of the rendition of the judgment. No one is called to act in a judicial proceeding in which jurisdiction over his person has not been obtained. And although he be a party named in the proceeding, yet if jurisdiction over him be not obtained, he has no duty to perform in relation to the proceeding, for the non-performance of which he is chargeable with mistake, inadvertence, surprise, or excusable neglect; and, as he is not chargeable with any of those things, he is not called upon to avail himself of any of them as ground for a motion to set aside the judgment; nor is he chargeable with laches or want of diligence for not knowing of the proceedings or judgment. The party procuring a judgment against another without due process of law, or by fraud, takes Railroads-Constitutional Law-Nuisance- The authority given by statute to the purchaser of the franchises of a railroad corporation on a sale by virtue of a mortgage to create a new corporation was not intended to prevent a sale or transfer by him to a corporation already existing and capable of holding the property and executing the franchises. Where such corporation purchases a road already constructed and in existence it not necessary to file a map. Section 18, Art. 3. of the Constitution of 1875, did not affect past legislation which, at the time, was entirely lawful and, therefore, does not apply to Ch. 218, Laws of 1839. The rapid transit act of 1875 did not repeal or affect the general act of 1850 as to railroads running under, over to, &c., streets, avenues and places. By defendant's charter its terminus was "at or near Atlantic Avenue." Its line on the map stopped south of the avenue. To reach the tracks of a road leased by it defendant built tracks to the center of the avenue. Held, That these connecting curves constituted a part of the chartered and authorized line of defendant's road. The map required to be filed is sufficient if it shows the alignment and profile without showing all the connections, turnouts and switches. Chap. 187, Laws of 1876, is not unconstitutional and does not grant an exclusive privilege, immunity or franchise. In an action by the Attorney-General to abate a public nuisance the only question he can raise, is as to a public wrong and not as to a contract between individuals. RIGGS ET AL., respts., v. PURSSELL, IMPL'D, applt. May 5, 1882. Mortgage-Defense-Plaintiffs loaned moneys to P. to aid him in erecting a theatre to be leased to S. To secure said loan a mortgage was made to one B., who assigned it to plaintiffs and guaranteed its payment and also gave a declaration that he had no defense, &c., thereto. At the same time P. assigned to plaintiffs all the rents. reserved in the lease to S. to apply on the mortgege until it was paid. A tripartite agreement between B., P. and S. was also executed, by which it was agreed that S. should pay the rents to plaintiffs and also that if S. failed to pay P. should assign his claim therefor to B. who should endorse the amount thereof on the mortgage. In an action to foreclose the mortgage it was claimed that certain unpaid rents should have been endorsed. Held, That plaintiffs did not occupy the position of assignees in such a sense that they took subject to any equities or defenses P. had at the time of the assignment; that as plaintiffs had no knowledge of the tripartite agreement it furnished no defense to the action. LENT ET AL., respts., v. HowARD ET AL., EXRS., applts. May 30, 1882. Wills-Executors-Trusts-Testator, by his will, directed his executors to sell all his real estate, except the homestead, at such time as they should think it best, and invest the proceeds, and pay the same to his wife and daughter after a specified time. Held, That the executors were vested simply with a power of sale, and the title to the lands and possession thereof descended to the heirs of the testator, subject to the execution of the power; but that there was a conversion of the real estate into personalty as of the time of testator's death, and a gift of the converted fund, together with the intermediate income, to the wife and daughter, and that the executors were chargeable with such income. MINNESOTA. (Supreme Court.) CULBERTSON v. Cox, Adm'r, and another. July 19, 1882. Fire Insurance-Loss to go with the realty.-C., in his life-time, effected an insurance against loss by fire upon a dwelling-house owned by him, and occupied by himself and family as a homestead. The policy of insurance ran to himself and his personal representa tives. Upon his death the plaintiff, his widow, was entitled to hold the premises as a homestead during her natural life. After his death, and during the life of the policy, and while the plaintiff continued to occupy the premises as such homestead, the dwelling-house was destroyed by fire. Held, that the interest in the policy devolved upon those beneficially interested in the real estate, and in case of loss the damages accrued to them. That if the administrator collected or received the proceeds of the policy he would not hold them as a part of the general personal estate of C., but as trustee for the widow, creditors and heirs, in accordance with their respective interests in the real estate itself. That therefore the plaintiff, being entitled to hold the real estate for the period of her natural life, was entitled to the use for life of the insurance money. BOARD OF COUNTY COM'RS OF SCOTT COUNTY, MINNESOTA, v. KING and others. August 28, 1882. Bond of Public officer-How far suretics liable.-R. was elected and qualified as county treasurer for a term commencing March 1, 1878. In November, 1879, R. was re-elected to the office for the term to commence March 1, 1880, but did not qualify for such second term, as required by statute, on or before January 15, 1880. He continued to hold the office uutil June 21, 1880. Held, construing the statutes, that the office became vacant, in respect to such second term, in such a sense that R. was not entitled to administer it, and that it became the duty of the board of county commissioners, in accordance, with the statutory requirements, after the failure of R. to re-qualify by the fifteenth day of January, to appoint a person to the office for a period to commence March 1, 1880. The liability of the sureties upon the official bond of R. (given upon his first election) for the delinquencies of their principal after March 1, 1880, is to be determined by a construction of the bond read in connection with the statute relative to the term of office, and prescribing conditions respecting the tenure of the incunibent. The statute, in legal effect, forms part of the contract. So considered, it is held not to have been contemplated that R., after his failure to qualify for the second term should remain in the office; but rather that the office should be filled by appointment. Hence, the obligation of the sureties did not extend to a period subsequent to the end of the first term, unless under some circumstances for such further time as might be reasonably necessary for the purpose of filing the office by appointment, notwithstanding the fact that the statute provided that the term of office should "continue for two years, and until a successor is elected and qualified." Sureties upon the official bond of a county treasurer are not liable for the conduct of that office in respect to moneys paid to him on account of principal or interest from the sales of state school lands. Such moneys having been indistinguishably mingled with the funds in the county treasury, upon proof only of subsequent defunds, so that the balance remaining was not sufficient falcation, loss, or shortage from the whole commingled to meet the demand upon both funds, the sureties upon the county treasurer's bond cannot be charged with the whole of the deficiency. incor STATE OF MINNESOTA v. LANGDON. August 28, 1882. Selling Liquor under village ordinance.-The porating act of the village of Worthington enacts that no license shall be granted for the sale of malt, spirituous or intoxicating liquors as a beverage. It forbids (as construed) all sales for such purpose, and imposes the penalty of fine or imprisonment for violation of such prohibitory provision. It gives authority to the common council of the village, by ordinance, to restrain any person from selling such liquors, "unless duly licensed by the common council." Held, (1) that the power of the board of county commissioners, conferred by the general statutes, to grant licenses within the village, is not taken away, but is so limited that license can be granted only for sales for other purposes than as a beverage. With the same limitation the village council may also grant licenses. (2) That the general law making it a crime to sell liquor in less quantity than five gallons without license is not abrogated by the special act, but for such unlicensed sales one may be indicted and punished under the general law. PUGH v. WINONA & ST. PETER R. Co. August 24, 1882. Practice-General and indefinite allegations.-An order refusing to require a pleading, indefinite and uncertain in its allegations of fact, to be made definite and certain, is an appealable order. It appearing, upon a motion to have a complaint made definite and certain in some particulars, that the plaintiff had pleaded specifically all the facts within his knowledge, and upon which he proposed to rely upon the trial, and that he was possessed of no knowledge or information to sustain the general and indefinite allegations objected to, held, that such general and indefinite allegations should be stricken out. Damages by fire from the negligence of railroad company. -An owner of land near a railroad, whose property on his land is destroyed through negligence of the company in burning dry grass on its right of way is not guilty of negligence merely by failing to anticipate and provide aginst the negligence of the company. A trespasser who cuts grass growing on land is not, as to the owner of the land, the owner of the hay made from the grass, and cannot recover for its destruction by the negligence of such owner. A trespasser who sows and gathers crops is, after they are gathered, the owner of them, even as against the owner of the land. ANDERSON v. MUNCH. August 31, 1882. County Commissioners taking other than statutory Bona -The owner of a sluice-dam across a stream, erected, maintained, and operated under a license granted by the board of county commissioners, pursuant to title 8, c. 32, Gen. St. 1878, is not required by statute to perform the labor of conducting or driving logs, timber, or lumber through the sluice way. This is no part of the "operation" of the dam within the meaning of the statute. The statute gives the board of county commissioners no authority to take a bond from the licensee requiring him to conduct or drive logs, timber, or lumber through the sluice-way; and if they should take a bond containing such a condition, it would not be a statutory condition, and hence would be void, and would not inure to the benefit of third persons, or give them any right of action for its non-performance. SUPREME COURT RECORD. [New cases filed since our last report, up to Sept. 27, 1882.] 1300. Andrew H. Kesicher v. John B. Zimmerman. Error to the District Court of Seneca County. N. L. Brewer for plaintiff; Cronise & Sams for defendant. 1301. Mary Jane Veazie et al v. William Hawn. Error to the District Court of Knox County. Dunbar & Wood for plaintiffs; J. D. Critchfield and Samuel Israel for defendant. 1302. Lincoln & Rea, trustees v. William Curtain et al. Appeal-Reserved in the District Court of Madison County. Harrison, Olds and Marsh for plaintiffs; Ramsey and O'Donald for defendants. Error 1303. Horatio Page v. Daniel Thomas et al. to the District Court of Franklin County. E. L. & H. C. Taylor for plaintiff; C. N. Olds for defendants. 1304. William Whalen v. A. Montpelier. Error to the District Court of Cuyahoga County. J. K. Hord and W. S. Kerruish for plaintiffs; Wm. Robison for defendant. 1305. Jonathan C. Rittenhouse et al v. Ezra Bailey et al. Error to District Court of Hamilton County. D. Thew Wright and Champion & Williams for plaintiffs; Bateman & Harper for defendants. SUPREME COURT OF OHIO. JANUARY TERM 1882. Hon. JOHN W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges. Tuesday, September 26, 1882. GENERAL DOCKET. Judgnient affirmed, 1137. Robert L. Lindsay vs. The State of Ohio. Error to the Court of Common Pleas of Jefferson County. JOHNSON, J., Held: 1. On a charge of uttering and publishing a forged instrument with intent to defraud (R. S. 27091), the place where the instrument was uttered and published, and not the place where the forgery was committed, determines the jurisdiction of the court over the accused. 2. If the forged instrument has been uttered and published in this state with intent to defraud, by means of an innocent agent here, it is no defense to an indictment in the proper county in this state, to show, that the accused was never within the state, or that he owes allegiance to another state or government. 3. On the trial of a person accused of uttering and publishing a forged deed for the conveyance of real estate with intent to defraud, other forged deeds for the conveyance of real estate, including deeds of trust, made to a trustee to secure the payment of promissory notes or bonds, found in his possession, or proved to have been uttered and published by him, are competent testimony to show the guilty knowledge of the accused. Judgment affirmed. 1183. H. C. Rutter, Superintendent of the Hospital for the Insane at Columbus, Ohio, and others, v The State of Ohio, on the relation of James Gatrel. Error to the District Court of Franklin County. No. 126. Austin Davis v. State of Ohio. leave to file a petition in error to the Court of Common Pleas of Morgan County. LONGWORTH, J., Held: An indictment charging that the accused burglariously broke and entered into a certain dwelling house, to wit: the Infirmary of Morgan County," is not insufficient as failing to aver the fact of ownership, or as charging the offense to have been committed in a place other than those enumerated in section 6835, of the Revised Statutes. Motion overruled, |