4. That the Act was repugnant to the in such a defense. And the question of the Constitution of Virginia, for (a.) It is an exercise of arbitrary power, unjust in itself, and contrary to the fundamental principles of the social contract, in taking away a vested and a valuable right. (b.) That in the passage of the law the legislative authority exercised judicial functions. (c.) That the law at the time of the making of the contract entered into the contract, and the right thereby fixed cannot be taken away. policy of the Act, and of its modification or repeal, is with the Legislature. (b.) There was no exercise of judicial functions in the passage of the law. It is a question of the remedy, not of the determination, of the Courts. (c.) There is no right given by the law at the time of the making the contract taken away. The remedy is not destroyed; a defense is removed. That is within the authority of the Legislature. (d.) No injustice is done. The considerations which prompt the Legislature (d.) That the law does gross injustice to defend the needy debtor do not apply to the defendant. to corporations. These sell their securities in the open market, and apply the proceeds for public improvements which are of great and increasing value. Held, 1. That the law applies to any action, which includes all existing suits, It is retroactive. 2. That the Code of 1860, Ch. 16, Sec. 18, expressly declares that the rule of construction laid down by the defendant (below) shall not be adopted if it would be inconsistent with the manifest intention of the Legislature. It is clear that the Act has a retrospective effect. 3. (a.) It has been solemnly settled that the phrase ex post facto law, as used in the Constitution, relates only to criminal and penal laws. (b.) The Act not only does not impair the obligation of a contract, but it does just the contrary thing: it gives validity to a void contract, and it is thus clearly not in contravention of the Constitution of the United States. This is well settled. 4. There is nothing in the Constitution of Virginia which expressly restricts the passage of this law. Does any implied restriction arise here? (a.) It is not competent for the Legislature by retroactive laws to disturb vested rights. But there is no vested right here, for no man can assert a right to do wrong. He cannot complain if he is made to do justice; and it is the clear intent of this law that injustice shall be prevented. The penalty of the forfeiture of a usu. rious loan was created from reasons of public policy. There is no private right Town of Danville v. Pace. 25 Grattan (Virginia Rep.), pp. 1–27. Opinion by Staples, J. CONTRACT. Work out Necessary work on contract. side of contract. Work for future contingency. Action to recover a balance alleged to be due on a contract for regulating and grading First avenue in New York City. The contract simply called for rock excavations to just the width of the avenue, without any slope. The Referee found that it was necessary, to effect the excavations, to slope the sides thereof. The balance sought to be recovered was for sloping the sides of the excavation outside of the line of avenue. Held, That plaintiff was not entitled to recover; that the work was necessary simply as a means to accomplish the work contracted for; that plaintiff could no more charge the city therefor than he could for other means adopted to carry out the contract. That the agreement in the contract to "regulate and grade" did not authorize the work, as these words applied simply to the surface of the ave nue; that the work in question could not have been exacted from him by the city under the contract, nor was it bound by it to pay therefor. Also held, That the claim that the work was necessary to prevent the sliding down of material upon the street did not affect the question, as the contract did not include the keeping the avenue free from obstruction after it was completed. Voorhis, applt., v. The Mayor, etc., of New York, respts. N. Y. Court of Appeals, Sept. 21, 1875. Opinion by Folger, J. 2. The stipulation as to the time of payment, should there be a breach, refers to a breach by the employer. Knutson v. Knapp et al. 35 Wisconsin, 86-93. Opinion by Cole, J. STATUTE OF FRAUDS. Agreement of person who will receive commissions from the sale of another's property to pay a debt of such other person, to prevent proceedings to take the property an original promise. Waiver as to validity of lien. The defendant came into the possession of the personal property of some insolvent lumbermen, under an agreement Employee, on breach of contract by em- that he would realize upon the stock and ployer, may sue at once on a special pay the indebtednes of the insolvents contract for the labor performed. in a certain order, for which services The plaintiff hired himself to the defendants for four months and a half, at $20 a month. The wages were to be paid at the end of the contract. On the back of a contract card, held by the plaintiff, there were printed the "rules" of the establishment of the defendants, one of which was: "In case of breach or non-fulfillment of contract, the time of payment shall not be changed, but balance of account, if any, shall be due and payable at same time and manner as though the term of agreement was fully consummated." After working 77 days plaintiff was discharged. He sued, on the special contract, for his wages for the 77 days, alleging faithful performance, and that he was discharged without just cause. On the trial a non-suit was granted, on the ground that the cause of action had not accrued. Leave to amend and set up a quantum meruit was denied. On appeal, he was to receive 2 per cent. commissions, to be charged as expenses. The plaintiff, who was rot present at, and did not consent to this agreement, was a creditor, as a cook to the workmen, or "loggers," for $285.75, and held a duebill therefor, and was about to put a lien on the property, when the defendant persuaded him to relinquish his proceedings and take his endorsement on the due-bill as follows: "This amount to be paid to Wm. B. Young on or before Nov. 15th, 1870. S. B. French, agent for McGilton, Bracklin & Co." The defense was that his promise was to pay the debt of another, and that the agreement was within the Statute of Frauds. And that the plaintiff had no lien on the lumber for his services as a cook to the workmen. Held, 1. That the promise was an original promise, which would have been good if verbal only, for the defendant was interested to the extent of his commissions on the property, and was benefited by the agreement with the plaintiff. Held, 1. On a breach of a contract of hiring by the employer, the employee may sue at once and recover the con- 2. That the question of the lien cannot tract price of his labor already rendered. be raised; for the agreement was made on the assumption that there was such a ant, and plaintiff took his writ of error, lien. Young v. French. 35 Wisconsin, pp. 111-118. Opinion by Cole, J. Payment of freight, under protest, after delivery of the goods by the carrier, a voluntary payment. Action in assumpsit to recover back money paid under protest. a assigning for error the charge of the Court. Held, That the payment was voluntary, though under protest. Thomas v. Philadelphia and Reading Supreme Ct. of Penn., June 8, 1875. CRIMINAL LAW. RIOT. NUISANCE, OBSTRUCTION OF STREETS. Lorful assembly not a riot. Noises not a nuisance unless offensive to the whole community. Incidental obstruction not indictable. Indictment for a riot. The indictment had three counts: 1. For a riot. 2. For a common nuisance by the beating of drums and the blowing of fifes and shouting in the town. 3. For obstructing the streets of the town. Plaintiff finding that the rate of the defendan', per ton, for carrying coal from Tamaqua to Reading was $2.71, and that the rate from Tamaqua through Reading to Sinking Spring, six miles beyond Reading, was only $1.45 per ton, had his coal sent to Sinking Spring. He then made contract with the agent of defendant at Sinking Spring to reship the coal back to Reading at the schedule rate of 25 cents per ton. Before all the coal was delivered at Reading, the agent at Sinking Spring notified plaintiff that he was instructed by the defendant that the charge for reshipping the coal to Reading would be $1.26, making the same rate as when sent directly to Reading. The coal was were mounted, but being told to disdelivered to the parties to whom plaintiff mount, they got down and hitched their had sold it, and the full rate was charged to them, and the coal delivered to them. They refused to pay plaintiff unless he paid the defendant the $2.71 per ton, or consented that they should pay it. Plaintiff then tendered 25 cents per ton to the defendant, which was refused, and he paid the $2.71 under protest. The facts found by the jury were these: "That the defendants and others assembled in the town to celebrate the emancipation proclamation, and, with two drums. and fifes, marched up and down the streets for two or three hours. Some horses. When told by the Mayor to desist, they at first refused, but being notified by the constable to stop, the defendant, Hughes, with the procession, beating the drum, went to the Mayor's, to make up a case to be tried before a magistrate, to test the Mayor's right to forbid the procession. There were no The Court below charged, inter alia, arms in the crowd except the sabres used as follows: "If the money was paid by the officers. No violence, in word or after a demand made fairly and in good deed, was offered to any citizen. faith, and after the surrender of all pos- of the citizens were disturbed by the session and control of the coal by the noise of the drums, and some of the perdefendant, the payment was voluntary, and the plaintiff could not recover the amount, although the payment was accompanied by a protest against the right of the defendants to recover it." The jury thereon found for the defend Some sons were drinking. The streets were obstructed from time to time during the interval, and one horse, hitched in a lot, broke loose." Held, 1. As to the riot-this was not an unlawful assembly,—it is a constit uent and necessary part of the offense of riot that the assembly shall be unlawful. 2. As to the nuisance of the noise of the drums, the fifes and the shouting "to constitute these things a nuisance, they must cause such an inconvenience and disturbance that the whole community will be annoyed, and, to show this, the exceptional facts and circumstances which made these acts, otherwise innocent, a crime, must be set forth particularly, so that the Court can see that, from their very nature, if proved, they are a nuisance to the whole community." 3. As to the obstruction of the streetsif the procession was lawful and the obstruction incidental and without any intention to hinder or permit travel or business, it was not indictable. Held, It was premature and error to decree the sale of the real estate until the Court had ascertained and adjusted the amounts of the liens thereon and their priorities. Moran, applt., v. Brent et al., appellees. 25 Grattan (Virginia Rep.), pp. 104– 106. Opinion by Anderson, J. EJECTMENT. When all the tenants in common, or their heirs, must be joined in ejectment. Practice. This is an action of ejectment brought by fourteen tenants in common. One tenant in common was made defendant, having refused to join as plaintiff. Upon the trial it appeared that, "In popular governments the laws allow great latitude to all public demonsince the commencement of the action, strations, political, social or moral; and if four of the plaintiffs had died. Defendthe acts found by the jury are to be construed to be indictable, the doctrine that the action could not be maintained ants moved for a non-suit, on the ground of riots and nuisances would be extended without making the heirs and legal reprefar beyond the limits heretofore circum-sentatives of the deceased plaintiffs parscribing them, and would put an end to ties; that all the tenants in common must all public celebrations, how innocent or be joined. This motion was denied. or commendable the purpose." State v. Hughes et al. 72 North Carolina, pp. 25-28. Opinion by Bynum, J. DECREE. It is premature and error to decree sale of real estate until the liens and their pri orities are ascertained. Defendants then gave in evidence a deed from all the plaintiffs to one P., executed prior to the commencement of the action. Plaintiffs in reply gave evidence tending to show that, at the time of the execution of the deed, defendants B. and D. were in possessionholding adversely. Defendant renewed his motion for a non suit, which was denied, and the surviving plaintiffs obtained judgment for their portion of the premises. The appellant was the owner of cer- Held, error; that the action could only tain real estate on which there were two be maintained either by each of the tenliens under two deeds of trust. The ants in common separately, or by all amounts due on these liens, payments on jointly; at least in this case a joint acthem having been made, were not certain. tion could not be maintained, save by all The trustee under the second deed of the tenants in common, as it was only trust advertised the property for sale maintainable on the ground that the deed under the deed, when appellant filed his to B. was void by reason of adverse posbill to enjoin the sale, and for an inquiry session, in which case the right of action. to ascertain the liens upon the property. to recover possession is conferred upon Held, 1. Under the deed the defendant had a clear title, and his possession was adverse against the grantor, and all the world. It would have been so if his title was bad, if he held by color or claim of title. the grantee, to be brought, however, in defendant excepted, and sued out his the name of the grantor, and where there writ. are several grantors all must be joined, or their heirs be representatives; that if the defect of parties had existed at the commencement of the action it would have been waived by failure to take the objection in proper form, but having occurred thereafter the only mode in which it could be presented was by objecting to the cause proceeding without bringing or executed was for the jury. in the representatives of the deceased parties, and this objection should have been sustained. Hasbrouck et al., respt., v. Bunce, applt. 2. The evidence is admissible. 3. Whether the contract was executory Nowlin v. Reynolds. 25 Grattan (Virginia Rep.), pp. 137 145. Opinion by Boulton, J. Adverse possession. Evidence. This was an action in ejectment. The appellant, bought from his father, in 1845 or 1846, sixty-four acres of land, EQUITY. Will relieve against a forfeiture under a covenant in a lease to pay taxes and Lessee may have his ro assessments. lief in a new action. This was a suit in Equity brought by paid for it in full and took a deed. He a lessee for relief from forfeiture under entered into possession, erected a dwell- a lease, incurred by a failure to pay taxes ing-house and other buildings. Shortly afterwards the father conveyed the tract of land in suit, with other real and personal property, in trust, to pay his creditors, and the trustee sold the land in controversy to the appellee. The and assessments. Plaintiff having omit- In 1869 the grantee under the deed of trust brought ejectment. On the trial the appellee put in evidence his deed, proved the value of the rents and rested. The appellant then proved the sale to him, the making of the deed, the loss of the deed, which had not been recorded, the improvement of the property, and that he immediately went to work on the place. And he offered to prove that he had been in actual adverse and peaceable possession of the land for more than twenty years before the bringing of the suit. This testimony was excluded, the Court holding" that adversary possession, without title, could be shown before the execution of the deed of trust from Nowlin to Staples, but not afterwards." The had been joined in that suit, as he had Held, that conceding that Secs. 150 and 274 of the Code required the setting up of such a claim for equitable relief by answer in the ejectment suit, under penalty of losing it, that penalty would only follow where defendant had an absolute right to set it up, and not where it was in the discretion of the Court; and it appearing here that he was not in a condition to claim such relief until after issue |