CONGRESS.

See Claims.

CONSTITUTIONAL LAW.

1. Where the city of Rochester had become subscribers to the capital
stock of a railroad, under a special act of Assembly, held, that the contract
was void, as being in violation of the Constitution of New York, the rights
of eminent domain and taxation considered. Freeman Clarke cs. the city
of Rochester, -
289

2. The power to tax property in aid of a private corporation, or for the
purchase of its stock, is not among the ordinary powers of a municipal
government, and requires special legislation to confer it, and this legisla
tion is, in New York, prohibited by the constitution. Per Allen, J. Ibid.
8. A State Legislature, in the absence of any express constitutional
authority, has no power to sell, surrender, alienate, or abridge any of the
rights of sovereignty, such as the right of taxation, so as to bind future
legislatures; and any contract to that effect is void. Henry S. Mott et al.,
Canal Commissioners, zs. the Pennsylvania Railroad Company et al., 623

4. So much of the act of the Legislature of Pennsylvania, passed May
16, 1857, authorizing the sale of the Main Line of the Public Improvements
of that State as provides "that if the Pennsylvania Railroad Company
hall become the purchaser, they shall pay, in addition to the purchase
money at which it (the Main Line) may be struck down, the sum of
$1,500,000, in consideration whereof the said Railroad Company and the
Harrisburg Railroad Company shall be discharged by the Commonwealth
forever" from the payment of all tonnage taxes, and all other taxes what-
ever, "except for school, city, county, borough and township purposes,”
declared unconstitutional and void, and an injunction granted to prevent
the same from forming part of the terms of the sale. Ibid.

5. The act in question provided that the sale should be made by the
Governor; held, that as this was not part of his official duty as the Execu-
five of the State, but merely ministerial, the injunction might issue against
hin. Ibid.

6. The holders of the State loan, whether or not having a specified lien
on the tolls of the public works, have no right to object to a sale thereof
by the State. Ibid.

7. The courts cannot annul an act of the Legislature simply because it
violates the fundamental principle of correct legislation, but may because it
violates the fundamental principles of the Constitution. Judson and Ind.
R. R. Co. v. Whiteneck,

8. A law may be constitutional in part and unconstitutional in part,
hence, a law which enacts that railroads shall fence, as to that provision
is a reasonable regulation, but where it inflicts a penalty upon an appeal,
it is unconstitutional and vɔid. Ibid.

9. The present constitution of New Jersey limits the powers of the Legis-
lature, and separates them from those of the judiciary, and adopts the
prohibitions of the Constitution of the United States against laws impair-
ing the obligation of contracts, and further prohibits the depriving a party
of any remedy for enforcing a contract which existed when the contract
was made. Hence, where the Legislature passed an act for the relief of
the creditors of a manufacturing corporation. providing that certain per-
sons should be authorized to sell all property mortgaged for the payment
of bonds, at public sale to the highest bidder, free from all incumbrances,
and, after paying certain expenses and costs, to distribute the proceeds to
the corporation's creditors according to the priority of their several liens,
it was held that such legislation was unconstitutional by reason of its im
pairing the obligation of the contract between the mortgagors and the

214

mortgagees, and depriving the mortgagees of a remedy which existed at
the time the contract was made. John M. Martin ve, the Somerville Water
Power Company,

CONTRACT.

See Bill of Lading Check. Evidence.

CONVEYANCE.

See Assignment.

CRIMINAL OFFENCE.

See Jurisdiction.

CUSTOM.

See Evidence.

DAMAGES.

See Carrier. Cestui que trust. Riparian Owner.

DELAWARE RIVER.

See Jurisdiction. Mandamus.

DELIVERY.

See Personal Property. Stoppage in transitu.
Bee Admiralty,

DEPOSITOR.

Bee Check.

DISSENTING PART OWNER.

See Admiralty.

ENROLMENT.

See Lien.

EVIDENCE.

See Lien. Seduction.

1. The common law of England, as changed and modified by our statutes,
is part and parcel of the law of Alabama, so far as applicable to her
institutions and government. Barlow vs. Lambert,

2. Evidence of a local custom is admissible, to supply details in a con-
tract, either oral or written, as to which the contract itself is silent; or to
show that provincialism, and technicalities of science and commerce, have
acquired a known, fixed, and definite meaning, different from their ordi-
nary import; or where such technicalities, unexplained, are susceptible of
two or more reasonable constructions; but it cannot be received to contra-
vene any positive requirement of the law, any principle of public policy,
or an express contract, whether oral or written, nor to give to plain and
unambiguous words or phrases a meaning different from their natural
Import; and it is, therefore, inadmissible to show that a stipulation in a
contract of hiring, that the hirer was to "lose the negro's lost time,"
"related to time lost by sickness or running away, and not to time lost in
consequence of the negro's death." Ibid.

8. If evidence is offered as a whole, when a portion of it is illegal, the
court may, on objection, exclude the whole of it. Ibid.

4. When a party calls for a part that was said at an interview of the
parties, it does not follow that the other party may show all that was said.

400

171

He may show so much of the conversation as made a part of the negotia-
tions, or a part of the res gestao. Isaac H. Brown va. Jacob Gold-
smith et al.

6. The court will not grant a new trial, even if the ruling of the judge
was wrong, if upon the whole case justice has been done. Ibid

6. The character of the deceased as a violent, turbulent, blood-thirsty
man, when it qualifies, explains, and gives point and meaning to his con-
duct, and tends to produce in the mind of the slayer a reasonable belief
of imminent danger, is admissible evidence for the defendant; and there
are cases, also, in which it may be looked to, in determining the amount
of provocation, and thus fixing the degree of the homicide; but the
evidence in this case does not justify its admission on either of these
grounds. Franklin vs. the State,

7. The violent character of the deccased cannot be established by proof
of isolated facts. Ibid.

8. T. & M., brokers, employed by H., sold on his account to D., M. &
Co., who were also brokers, ten tons of linseed oil. On the 14th of August,
1855, the following sold note was sent by T. & M. to H.

"Sold to Dale, Morgan & Co., for account of Mt. Charles Humfrey,
ten tons of linseed oil, of merchantable quality, at, &c., (stating the
terms.)

"Thomas & MOORE, Brokers.

"Quarter per cent. brokerage to D., M. & Co., and a half to us."
On the same day the following bought note was sent by D., M. & Co. to
T. & M:

"Sold this day, for Messrs. Thomas & Moore, to our principals, ten
tons of linseed oil, of merchantable quality, at, &c., (stating the same
torms.)

"Quarter per cent. to D., M. & Co."

“Dale, Morgan, & Co., Brokers.

D. M. & Co., afterwards declined to accept the oil; and on the 28th
of February, 1856, they informed H. of the name of their principal for
whom they had purchased.

II. afterwards brought an action against D., M. & Co. for the price
of the oil, and at the trial parol evidence was admitted of a usage of trade
in the city of London, by which a broker making a contract was beld per-
sonally liable as purchaser, if he did not at the time of the contract disclose
the name of his principal: Held, first, that there was clear evidence of a
contract of bargain and sale between the plaintiff as seller and the undis.
closed principal of the defendants. Humfrey vs. Dale,

9. Secondly that the evidence of the usage of trade, whether treated
as explaining the language of the written contract, or adding to it a tacitly
implied incident, was properly admissible, and rendered the defendants
themselves liable under the contract. Ibid.

10. The mother of a child born in wedlock, but begotten before, is not a
competent witness to prove that the child was not begotten by the man who
became her husband before its birth, in the absence of evidence of non-
access. Page vs. Dennison,

11. Where no evidence of non-access at the time of conception was
given, the declarations and acts of the husband and wife at the birth of the
child, and subsequently, were inadmissible to prove it illegitimate. Ibid.

[Per Lowain, J., dissenting—

1. In an inheritance case, where the claimant was begotten before and
born after marriage, the mother is a competent witness to prove that her
deceased husband, whose estate is the subject of the claim, was not the
father of the claimant. Ibid.

2. Where a child was begotten before and born after marriage, and at
the time of its birth both the mother and her husband denied that it was

661

469

his child, and it was, within a few days, sent away from his house and
reared by its maternal grandfather, and never admitted into the family of
the husband, nor reputed as his child, this is evidence, in an inheritance
case, that the child is illegitimate. Ibid.]

8. Presumption on the subject of legitimacy examined historically and
on principle. Ibid.

12. A verbal agreement, to be effectual as a waiver, variation, or change
in the stipulations of a prior written contract between the parties, must
rest upon some new and distinct legal consideration, or must bave been so
far executed and acted upon by the parties that a refusal to carry it out
would operate as a fraud upon one of the parties. Reuben H. Thurston
and Thomas Hays rs. William Ludwig,

13. On a motion for an injunction new matter set up by way of evidence in
the answer responsive to the bill, is to be deemed evidence in favor of the
defendant, as his sworn statement. James Tobin et al. vs. Robert Walkin-
shaw et at.

EQUITY.

See Agreement.

The fixed rule in equity is, that where the rights of a person not before
the court will be affected by the decree asked, the court will not make it;
but the general rule is to be applied to each case as it arises, by the aid of
precedent cases. Ibid.

FAULT.

See Collision.

FORFEIT.

See Pledge.

GUARDIAN.

See Attorney.

606

106

An infant of the age of ten years was brought up on habeas corpus upon
the application of the mother who was surviving parent, the father, who
was a marine, having died without appointing a guardian. The object of
the mother, who was a Roman Catholic, was to remove the infant from a
school under the Commissioners of the Royal Patriotic Fund, at which she
had placed her in 1855, and to have her educated in a Roman Catholic
school. Held, that the mother, as guardian for nurture, was entitled to the
custody of the person of the child; that the court could not examine the
infant as to her wishes or religious belief; that the mother was not bound
to educate her in the Protestant faith, nor had she lost her right over her
by committing her to the care of the Commissioners of the Royal Patriotie
Fund; and therefore the court was bound to order her to be delivered to
her mother. Reg. ve. Maria Clarke in re Alicia Race.
537

HABEAS CORPUS.

See Judgment.

1. A return to a writ of habeas corpus issued by a judge of the United
States, under the judiciary act of 1789, showing an imprisonment under
process, legal and valid on its face, is conclusive, and precludes further
inquiry into the cause of imprisonment. Ex Parte Sifford, marshal et al. 669
2. But the seventh section of the Act of Congress of the 2d of March,
1883, expressly confers on a judge of the United States, the power to issue
the writ of habeas corpus, in all cases of imprisonment by any authority of
law, for any act done or omitted, in obedience to a law of the United
States; and where such imprisonment is for an alleged violation of a State
law, and by State authority, the judge or court issuing the habeas corpus

may inquire into the circumstances under which the alleged crime was
committed, with a view to the question whether the act complained of was
done or omitted in the proper discharge of official duty, and under the au-
thority of the United States: and, if it appears the act was so done or
omitted, the judge or court is authorized to discharge the party from such
imprisonment. Ibid.

3. A marshal having a person in custody under lawful process, is bound
to retain such custody, and in so doing may use such force as is necessary;
and in the proper use of such force, is not guilty of a crime against the
law of the State in which the transaction occurred. Ibid.

4. A State judge has no jurisdiction to issue a habeas corpus for a pri-
soner in the lawful custody of an officer of the United States, with the
knowledge that he is so beld; and if, on the return of the writ, it appears
the imprisoned party is held by an officer of the United States under legal
process, the jurisdiction of the State judge ceases, and all further proceed-
ings by him will be coram non judice. Ibid.

8. A sheriff, or other State officer, having a so-called writ of habeas
corpus, under the Ohio statute of 1856, and having knowledge that the pri-
soner named in the writ is in the custody of an officer of the United States,
under legal process, is under no obligation to serve or attempt to serve
such writ; and his return of the facts is a sufficient justification for not
serving it. Ibid.

6. A marshal, baving custody of a prisoner under the authority of the
United States, is not bound to surrender such prisoner upon the demand of
a State officer, having a writ issued under the said Ohio statute, requiring
him to take the prisoner from such custody. Ibid.

7. But if the habeas corpus in the hands of the State officer is issued in
good faith, and is the well known writ of that name, requiring the officer
of the United States having the custody to bring the prisoner before the
judge or court issuing the writ, with the cause of the caption and detention,
it is the duty of such officer to obey such writ, as thereby he does not part
with the custody of the prisoner; and such obedience will not be in con-
fict with his duty. Ibid.

8. It is well settled by the adjudications, both of the courts of the Union
and the States, that, in case of concurrent jurisdiction, the tribunal er
court to which jurisdiction first attaches shall retain it; and neither has a
right to interfere with the other. Ibid.

HIGH WATER MARK.

See Riparian Owner.

NOMICIDE.

See Evidence.

ILLEGITIMACY.

See Evidence.

IMPROVEMENT.

Bee Negligence.

INSOLVENT.

Bee Btoppage in transita.

INTOXICATION.

See Assignment.

JUDGMENT.

See Lion.

1. The record of a judgment obtained in a Probate Court of Ohio in a