for the fans, and were to have a credit of four months. The fans were shipped to the firm on vessels belonging to the defendant company.

The bills of lading were all made out in the name of "A. & E. Wallach, as consignees.

Upon the 18th day of September, 1883, the firm named, made a general assigument for the benefit of their creditors to the defendant, Lewis. Shortly afterward a certain portion of the fans were duly stopped in transitu before they had come into the possession of the firm or its assignee.

At the time said goods were so stopped no entry of any of them had been made in the Custom House; and neither the duties nor the freight upon them had been paid.

Under the law of the United States such entries are allowed to be made only by the consignee or owner, or his agent.

The defendant company claimed a lien for its freight and refused to recognize the rights of the plaintiffs.

Due notice of such stoppages in transitu was given to each of the defendants, and also due notice that plaintiffs were ready and willing to advance the duties and freight.

The firm and Lewis, although duly requested so todo, refused to assist plaintiffs to obtain possession of said fans by passing them through the Custom House in the manner the law requires.

At the time of serving the notice upon the defendaut, Lewis, he was asked to allow the plaintiffs to take possession of said goods and to pass the invoices and bills of lading to them. This he refused to do. Plaintiffs' complainant asked for a receiver; that the firm and assignee make the proper entries in the Custom House, and for other relief including an injunction restraining the disposition of the goods. A temporary injunction was granted, but the court at Special Term refused to continue the injunction or to appoint a receiver, and plaintiffs appealed.

Koones & Goldman, for appellants.
Richard S. Newcombe, for respondents.

J. F. DALY, J. I see no objection to granting the injunction asked for, and none to the form of action which plaintiffs, as vendors of goods, exercising their right of stoppage in transitu, have seen fit to bring, in order to enforce their lien in equity. The bills of lading and invoices which they sent to defendants, Wallach, came into possession of Lewis, the assignee, under the general assignment from Wallach to him, and he refuses to deliver them.

The goods are in the Custom House, where they were sent under general orders, and plaintiffs cannot obtain them without due entry which can only be made by the owner, or consignee, or his agent and

upon production of the bills of lading and the invoices.

U. S. Rev. Stat., § 2785.

It is necessary that the documents should not only be delivered by the assignee, Lewis, but be indorsed or assigned over to the plaintiffs, to enable them to make entry, and the equitable powers of the court should be exercised for the purpose of compelling such transfer.

Au injunction pendente lite against any sale or transfer by the assignee or assignors of the invoices or bills of lading seems to be proper.

Equitable relief will be granted to the vendor in such a case if it be necessary for the protection of the lien and the goods. Schotsman v. Lancashire & Yorkshire R. Co.,L. R., 2 Ch., App. 332-339. See also Goslin v. Schepeler, 5 Daly, 476; Rosenthal v. Dessau, 11 Hun, 49.

The order should be reversed and an order made containing preliminary injunction with $10 costs of

motion to plaintiffs, and $10 costs and also disbursements of appeal to appellants. Ordered accordingly.

NOTE. The question involved in the foregoing case, though important, does not seem to have been heretofore passed upon in this country. Sse as bearing upon it:

Harris v. Pratt, 17 N. Y. 269; Hunterman v. Bock, 1 Daly, 366; Western Transportation Co. v. Hawley, id. 327; Mottram v. Heyer, 5 Denio, 629; Franchieris v. Henriques, 6 Abb. (N. S.) 259; Clapp v. Peck, 55 Iowa, 270; Becker v. Hallgarten, 86 N. Y. 175; Potts v. New York & N. E. R. Co., 131 Mass. 455; Muller v. Pondir, 55 N. Y. 337; Snee v. Prescott, 1 Atk. 245: Schotsman v. Lancashire & Yorkshire R. Co., L. R., 2 Ch. App. 332-339; De Aguilla v. Lambert, 2 Eden. Ch. 75; Rosenthal v. Dessau, 11 Hun, 49; Gosler v. Schepeler, 4 Daly, 479; Wood v. Rowcliffe, 3 Hare, 304; Mickelwaite v. Rhodes, 4 Sandf. Ch. 434; Haggerty v. Palmer, 6 Johns. Ch. 437; Babcock v. Bonell, 80 N. Y. 251; City Bank v. Rome, W. & O. R. Co., 44 id. 141; Howard v. Shepherd, 9 M. & C., & Scott. 296; Tyndal v. Taylor, 4 Ellis & Bl. 219; Lickbarrow v. Mason, 2 T. R. 63; Clark v. Gallagher, 20 How. Pr. 308; Delafield v. State, 2 Hill, 159; Caro v. Metro. Elev. R. Co., 46 N. Y. Sup. 138; Dutscher v. Compton, 14 Alb. L. J. 395; S. C., L. R., 1 Q. B. D. 709; Cowasjee v. Thompson, 5 Moore, P. C. 170, 174; Ware v. Russell (Ala.) 14 Rep. 359; Furniss v. Brown, 8 How. Pr. 59-62; Erpstein v. Berg, 13 id. 91; Hunt v. Mootey, 10 id. 478; Wiseman v. Vanderput, 2 Vern. 203.

STATE MAY PROHIBIT SALE OF PATENTED

ARTICLE.

OHIO SUPREME COURT, JANUARY TERM, 1883.

PALMER V. STATE OF OHIO.*

Section 7090 of the Revised Statutes provides for the punishment, by fine or imprisonment, or both, of persons who knowingly sell, or offer for sale, any substance purporting to be butter or cheese, or having semblance of butter or cheese, which substance is not made wholly from pure cream or pure milk, unless each package of such substance have distinctly and durably painted, stamped, or marked thereon, the name of each article used or entering into the composition of such substance. Held: 1. The fact that the article sold was manufactured under letters patent issued by the United States, constitutes no defense to an information or indictment for violating the provisions of this section. 2. For the purpose of promoting the public welfare the Legislature has power to regulate, or forbid the sale of patented articles to the same extent as articles not patented, if no discrimination is made.

E. Sowers, for plaintiff in error.

D. A. Hollingsworth, attorney-general, for State. UPSON, J. John Palmer was convicted, in the police court of the city of Cleveland, of selling twentyseven packages of a substance having the semblance of butter, but not made wholly from pure cream or pure milk, and the packages not having painted, stamped, or marked thereon, the name of each article used or entering into the composition of the substance thus sold in violation of the provisions of section 7090 of the Revised Statutes. Upon this conviction Palmer was sentenced to pay a fine of fifty dollars and costs. The To appear in 39 Ohio State Reports.

judgment of the police court was, on error, affirmed by the Court of Common Pleas, and the judgment of the latter court was affirmed by the District Court. Palmer now asks leave to file a petition in error to reverse the judgment of the District Court.

The defense made in the police court was founded upon the fact, which is shown by the record, that the substance sold by Palmer was manufactured under letters patent issued by the United States, and it is claimed that the section under which Palmer was convicted, so far as it applies to articles protected by such letters patent, is in conflict with the Constitution and laws of the United States, and is therefore void.

The Constitution of Ohio provides that private property shall ever be held inviolate, but subservient to the public welfare, and in vesting the legislative power of the State in the Genera Assembly, full power is given, by the Constitution, to enact such judicious and reasonable laws as in the judgment of the Legislature, may be necessary for the purpose of preventing any person from using his own property or rights in such a way as to injure the community, or individuals. This general power is subject only to the limitations imposed by the Constitution of the State, or that of the United States, and within it is clearly included the right to regulate, or forbid, the sale of property to any extent that may be necessary to promote the public welfare.

It was therefore within the undoubted power of the Legislature to prohibit the sale of substances having the semblance of butter or cheese, but not wholly made from pure cream or milk, unless each package of such substance should have painted, stamped, or marked thereon, in the manner prescribed by the statute, the name of each article used in, or entering into the composition of such substance; and this power is possessed by the Legislature over the sale of articles protected by letters patent as well as of those not thus protected.

The patent laws of the United States give to inventors the exclusive right to their inventions, but do not give to them the right to disregard laws enacted to promote the welfare of the whole people. The State cannot discriminate against patented articles by imposing upon their sale conditions and restrictions not placed upon the sale of other similar articles; but the sale of all articles like those now under consideration, whether patented or not, may be restricted, regulated or forbidden, whenever the public good requires such restriction, regulation, or prohibition.

These principles have been recognized and illustrated in a number of cases decided by this court, and by the Supreme Court of the United States. Among the leading cases are Jordan v. Overseers of Dayton,4 Ohio, 295; State ex rel.v.Telephone Co.,36 Ohio St.296; Patterson v. Kentucky, 97 U. S. 501; and Webber v. Virginia, 103 id. 344.

It is claimed however that laws regulating the sale of patented articles can be sustained only when they come fairly within the police powers of the State; that those powers extend only to regulations relating to the health, morals, good order and comfort of the people, and that the provisions of section 7090 are merely intended to prevent fraud. The language of the act supplementary to section 7090, passed April 26, 1881, shows very plainly that the design of the Legisla ture in passing section 7090, as well as the supplementary section, was to prevent the sale of impure and unwholesome food, and that both sections therefore come within the most narrow definition of police regulations. If it were conceded however that none of the substances described in section 7090 are positively injurious to health, we hold that the law is within the general powers possessed by the State. Those who buy food have a right to know what they buy, and to

have the means of judging for themselves as to its quality and value. Motion overruled.

UNITED STATES SUPREME COURT AB-
STRACT.
JANUARY 7, 1884.

ATTORNEY-STIPULATION BY GUARDIAN AS TO FEE FOR SERVICES HELD VALID AS TO INFANT WARD.

A widow having a claim in behalf of herself and her minor childreu, for whom she had been appointed tutrix by a Louisiana court, against the United States government, offered certain attorneys at law fifty per cent of the claim, if they would successfully prosecute the same. The offer was accepted and she agreed to pay the percentage named. The case was a difficult and complicated one and the attorneys attended to it vigorously, and gave it much time and attention, and it was in court a considerable time. The prosecution was successful, and the sum recovered was $27,000, one-half of which was paid by the treasury to the attorneys, and the other half to the claimant. The attorneys paid two-fifths of the amount received to other attorneys also employed by claimant in the matter. Held, that the contract of the widow bound the children, she having authority as tutrix to make such a contract, and that a court of equity would not declare it void after it had been fully executed. It was decided in Stanton v. Embry, 93 U. S. 548, that contracts by attorneys for compensation in prosecuting claims against the United States were not void because the amount of it was made contingent upon success, or upon the sum recovered. And the well-known difficulties and delays in obtaining payment of just claims which are not within the ordinary course of procedure of the auditing officers of the government, justify a liberal compensation in successful cases, where none is to be received in case of failure. Any other rule would work much hardship in cases of creditors of small means residing far from the seat of government, who can give neither money nor personal attention to securing their rights. Taylor v. Bemis. Opinion by Miller, J.

COPYRIGHT—ACTION FOR PENALTIES FOR INFRINGEMENT ABATES BY DEATH OF DEFENDANT.-An action for penalties and forfeitures under the Federal copyright law cannot be prosecuted against the personal representatives of the one liable for such penalties after his death, even though State statutes where the action is brought allows suits for penalties to be prosecuted after the death of the offender. The personal representatives of a deceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action, on account of which the suit was brought, is one that survives by law. U. S. Rev. Stat., $955. At common law actions on penal statutes do not survive, Com. Dig. Tit. Administration, B. 15, and there is no act of Congress which establishes any other rule in respect to actions on the penal statutes of the United States. Matter of Schrieber. Opinion by Waite, C. J.

MORTGAGE-TO SECURE ACCOMMODATION INDORSER -RIGHTS OF ASSIGNEE-ATTORNEY'S FEE STIPULATION VOID.-(1) The maker of a promissory note executed to one, who, for his acommodation, signed his name on the back of the note before its delivery to the payee, a mortgage of real estate to indemnify him against all costs and charges arising from his contract, with a power of sale in case of the mortgagor's default in paying the note. The mortgagor failing to pay the note at maturity, the mortgagee paid the amount thereof to the payee, and entered it upon his books in

general account against the mortgagor, and the payee iudorsed the amount as a full payment on the note, and delivered up the note to the mortgagee. The mortgagee afterward assigned to a third person the mortgage and the obligation therein mentioned. Held, that the assignee might maintain a bill in equity against the mortgagor for foreclosure and sale of the and under the mortgage, and for payment by the mortgagor personally of so much of the amount of the note as the proceeds of the sale under the foreclosure were insufficient to satisfy. Good v. Martin, 95 U. S. 90; Rothschild v. Grix, 31 Mich. 150. (2) A stipulation in a mortgage of real estate, that in case of foreclosure the mortgagor shall pay an attorney's or solicitor's fee of one hundred dollars, is unlawful and void by the law of Michigan, as declared by the Supreme Court of the State; and therefore cannot be enforced in the Circuit Court of the United States upon a bill in equity to foreclose a mortgage, made and payable in that State, of land therein. Bullock v. Taylor, 39 Mich. 137; Myer v. Hart, 40 id. 517; Vosburgh v. Lay, 45 id. 455; Van Marter v. McMillan, 39 id. 304; Botsford v. Botsford, 49 id. 29; Brine v. Insurance Co., 95 U. S. 627; Connecticut Ins. Co. v. Cushman, 108 id.

; Equator Co. v. Hall, 106 id. 86. Bendry v. Townsend. Opinion by Gray, J.

MUNICIPAL BONDS-VALIDITY OF TOWNSHIP RAILROAD AID BONDS--STATE LAW IMPAIRING CONTRACT. -After bonds of a township were authorized by vote, a subscription of the bonds made as provided by law, but before the bonds passed into the hands of bona fide holders, or had been issued, a law requiring the registration of bonds in order to make them valid was passed by the State Legislature. Held, that the law did not impair the obligation of a contract, and that the bonds must be registered to make them valid obligations. In Anthony v. County of Jasper, 101 U. S. 693, it is said: "It matters not that when the bonds were voted the registration law was not in force. Before they were issued it had gone into effect. It did not change in any way the contract with the railroad company. The company was just as much entitled to its bonds when it complied with the conditions under which they were voted after the law, as it could have been before. All the Legislature attempted to do was to provide what should be a good bond when issued. There was nothing changed but the form of the execution." Hoff v. County of Jasper. Opinion by Waite, C. J.

REMOVAL OF CAUSE FEDERAL QUESTION -CONSTITUTIONALITY OF STATE LAW.-In an action commenced in a State court for trespass in entering plaintiff's premises and seizing upon and carrying away his property; defendant justified by a plea in bar, setting forth that he seized such property in payment of a tax due from plaintiff to the State. Plaintiff by replication, alleged that he had tendered in payment of such taxes, coupons cut from State bonds which were by law made receivable in payment of taxes due the State. Defendant rejoined that a subsequent law of the State forbade the receipt of such coupon in payment of such taxes. To this rejoinder plaintiff demurred. Held, that the case involved a Federal question and was removable to the Federal court. The demurrer in effect denies the validity of that law, and upon the record no ground of its invalidity can be inferred, except that it is avoided by the operation of that provision of the Constitution of the United States which forbids any State from passing laws which impair the obligation of contracts. It therefore sufficiently appears upon the record, that the plaintiff's case arises under the Constitution of the United States, within the rule as laid down in Bridge Proprietors v. Hoboken Com.

pany, 1 Wall. 116. Smith v. Grimhow. Opinion by Matthews, J.

PENNSYLVANIA SUPREME COURT

ABSTRACT.

ATTORNEY-ADMISSION TO BAR OF ONE FROM ANOTHER STATE.-Where an attorney of another State applies for admission to this court, he must submit, in addition to his certificate of admission to the bar in the foreign State, recent certificates or other satisfactory evidence from the courts of such State, of his present good standing in those courts. The certificate produced of recent admission to the Supreme Court of the United States does not supply the place of such evidence. This court does not know the requirements of that court. Matter of Admission to the Bar. Opinion by Mercur, C. J.

[Decided Jan. 10, 1884.]

CORPORATION - RAILROAD, ETC.. COMPANIES PRIVATE CORPORATIONS.-Railroad and canal companies are private corporations. Timlow v. Philadelphia and Reading R. Co., 3 Out. 284; Pittsburgh and Lake Erie R. Co. v. Bruce, 12 Week. Not. 554; Pierce Railroads, 1; Morawetz Priv. Corp., § 2; 1 Redfield Railways, 52-3. In Trustees of Presbyterian Society v. Auburn and Rochester R. Co., 3 Hill, 367, it is said that a railroad company is not public, nor does it stand in the place of the public; it is but a private corporation over whose rails the public may travel, if they choose to ride in its cars. Indeed it is a misnomer to attach even the name “quasi public corporation" to a railroad company, for it has none of the features of such a corporation, if we except its qualified right of eminent domain, and this it has because of the right reserved to the public to use its way for travel and transportation. Its officers are not public officers, and its business transactions are as private as those of a banking house. Its road may be called a quasi public highway, but the company itself is a private corporation and nothing more. Pierce v. Commonwealth of Pennsyl vania. Opinion by Gordon, J. [Decided Oct. 22, 1883.]

NUISANCE -POLLUTION OF STREAM BY MINING OPERATIONS-THAT STREAM INCREASED NOT DEFENSE

OR COUNTER-CLAIM.-In an action against a mining company for polluting a stream, it is not an answer or a ground of recoupment that there was more water in the stream through defendant's act. "Though fouled there is more of it," is not a good answer. A large stream of impure and unwholesome water may be of greater market value than a small one that is pure and wholesome; and if the benefits of a large and constant flow of unwholesome water, which spoils a small pure stream for the uses of a dwelling-house, can be offset against the owner's claim for injury, he is without remedy. His property can be taken or injured against his will, with impunity, for private use. This is not the law. He may hold and enjoy his property so long as he chooses, except when taken, injured, or destroyed for use of the public. A man has no right to turn a stream out of its natural channel into another stream, thereby increasing the flow of the latter through another man's land; and though no appreciable damage could be proved, an action would lie. If it be conceded that the turning of water from a colliery into a stream is an exceptional case, for which an action will not lie, where it has done no injury in fact, yet if it has fouled the stream, the injured party is entitled to redress. The plaintiff avers that the de fendant has subjected her to conditions that did not exist when she built the dams, laid pipes, improved her property, and began to use the water of the

stream, not by increasing the quantity, but by spoiling the water for her uses. "There is no set-off or recoupment of damages, not founded on the undertaking or default of the party sought to be subjected to such adjustment, nor can he who has inflicted a wrong require the injured party to accept indemnity in any other way than such as the law provides." Gerrish v. New Market Manuf. Co., 10 Fost. (N. H.j 478. No infringement of the rights of another can be justified on the ground that the act is a benefit to the owner, if it is done against his will. Tillotson v. Smith, 32 N. H. 90. Benefit to a meadow below a dam by a ditch, dug at the time of the erection of the dam by the owner of the dam, through his own land, cannot be set off against damage to the meadow by subsequent overflowing occasioned by the dam; and the cost of the ditch is immaterial in assessing such damages. Gile v. Stevens, 13 Gray, 146. Sanderson v. Pennsylvania Coal Co. Opinion by Trunkey, J. [Decided April 16, 1883.]

TURNPIKE

PUBLIC HIGHWAY THOUGH CHARTER OF COMPANY FORFEITED.-The forfeiture of a charter of a turnpike company, held not to destroy the character of its road as a public highway. A turnpike road can be constructed and opened under authority of law only. When used by the public, it becomes a public highway. It was said in Northern Cent. R. Co. V. Commonwealth, 9 Norris, 300, the main object and purpose of a turnpike is to provide a public highway of superior quality. It is very clear that a turnpike is not a private road or way. It cannot be closed by the stockholders against public use. It is constructed by virtue of public authority and for public use. It is for the use of every person who desires to pass over it, on payment of the toll established by law. Its use is common to all who comply with the law. Id. The forfeiture of the charter of the turnpike company destroyed the rights of that corporation; yet the road still remained in fact and in law a public highway. Craig v. People, 49 Ill. 495. Pittsburgh, McKeesport & Youghiogheny Railroad Co. v. Commonwealth of Pennsylvania. Opinion by Mercur, C. J. [Decided Jan. 7, 1884.]

10WA SUPREME COURT ABSTRACT. OCTOBER 17, 1883.

ATTORNEY INCOMPETENCY AS GROUND FOR NEW TRIAL. The incompetence of an attorney does not In ordinarily constitute a ground for a new trial. civil cases the rule may be regarded as almost invariable. Boston v. Haynes, 33 Cal. 31; Farmers' L. & T. Co. v. Bank, 23 Wis. 249; Burton v. Hynson, 14 Ark. 32; Burton v. Wiley, 26 Vt. 430. In criminal cases, and especially in cases involving the life of the defendant, the court would probably be justified in adhering to the rule somewhat less strictly. State v. Jones, St. Louis Court of Appeals, Western Jurist, May No., 1882, p. 322. But in any case, to justify a reversal upon this ground, there should be a strong showing both of incompetency and prejudice. State of Iowa v. Benge. Opinion by Adams, J.

HUSBAND AND WIFE-IMPLIED AGENCY OF WIFE TO CONTRACT.-The wife's implied agency to act for her husband differs under different circumstances. She may ordinarily contract for domestic supplies, and if abandoned by her husband without her fault she may always pledge his credit for necessaries.

If left by

him in the management of his business, she may make the contracts reasonably incident to its management. In the case at bar the wife was left by the husband to provide for the family as best she could out of such

One of the means means of support as they had. of support was a cow, which was not useful to her because the animal was vicious. Held, that under the circumstance the wife had implied authority to sell the cow. Rawson v. Spangler. Opinion by Adams, J.

LIQUOR ABROGATING LICENSE TO SELL BY ORDINANCE FORBIDDING ACT.- The adoption by a city of an ordinance prohibiting the sale of ale, wine, and beer held to abrogate a license to sell issued pursuant to an ordinance authorizing the issuance of it, which was in force when the license was granted. In Adams v. Hackett, 27 N. H. 289, it was held that under a license to sell intoxicating liquors for a specified time, rights are acquired which cannot be taken away by a repeal of the statute under which the license was issued. But the very decided weight of authority holds that licenses to sell liquors are not contracts between the State and the person licensed, giving the latter vested rights, and partaking of the nature of contracts, but are merely temporary permits to do what otherwise would be an offense, issued in the exercise of police powers, and subject to the direction of government, which may revoke them as it deems fit. See Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; Calder v. Kurby, 5 Gray, 597; Commonwealth v. Brennon, 103 Mass. 70. Town of Columbus City v. Cutcomp. Opinion by Day, C. J.

PROBATE LAW -TOMBSTONE PROPER EXPENDITURE BY EXECUTOR. It appears to be well settled that a tombstone is a proper expenditure to be made by an executor as pertaining to the funeral expenses; and such expenditure may be made without any direction by will, and not withstanding the estate may be insolvent. Hapgood v. Houghton, 10 Pick. 154; Wood v. Vandenburg, 6 Paige, 277; Fairman's Appeal, 30 Conn. 205; McGlinsey's Appeal, 14 Serg. & R. 64; Porter's Estate, 77 Peun. St. 43. Crapo v. Armstrong. Opinion by Rothrock, J.

CONTRACT-IMPLIED AGREEMENT AS TO HORSE LET FOR HIRE.-A livery stable keeper who lets a horse for hire for a trip, impliedly promises that the horse is a kind and suitable one for the purpose for which he is let, and not vicious, nor in the habit of kicking. If the livery stable keeper claims to be relieved by reason of any special negotiation between the parties, through which the hirer assumed any risk which the law would not otherwise impose, or if he gave any particular information with regard to the habits of the horse, which called for special and extraordinary care in driving, as to such matters the burden of proof rests on the livery stable to show such special agree ment. Windle v. Jordan. Opinion by Barrows, J.

EVIDENCE ADMISSIBILITY OF DEPOSITION OF WITWHERE SICK.NESS ON FORMER TRIAL WITNESS been

When the deposition of a witness has once legally taken and used at a trial in court, and the witness is dead, the deposition is admissible in evidence, in a subsequent proceeding between the same parties, and involving the same issue. Whether the issue in the two cases is the same, or not, is in the first instance a question for the presiding justice to decide. And his decision is conclusive, when the exceptions do not afford any basis for determination that an error in this respect was committed by such justice. It is not beyond the limits of good practice, or a violation of any settled rule of evidence, to admit in evidence the

*Appearing in 75 Maine Reports.

deposition. of a witness, who, by reason of sickness is unable to attend court, which was taken upon the same issue, between the same parties, and both parties had fully exercised the right to examine the witness, when no surprise or sudden change in the aspect of the case, to render the right of further examination valuable, is alleged, if the court in view of all the circumstances determines that the ends of justice would be better served by receiving the deposition than by interupting the trial. Railroad Co. v. Howard, 13 How. 334; Emery v. Fowler, 39 Me. 326; Bank v. Hewett, 52 id. 531; Perkins v. Stickney, 132 Man. 217; Miller v. Russell, 7 Mart. (N. S.) 266; Lutterel v. Reynell, 1 Md. Rep. 284. It is doubtless true that objections to secondary evidence of this kind have peculiar force in criminal trials. 2 Phil. Ev. 521, n. 437; 2 Starkie Ev., 487, 488; 1 Whart. Ev. § 179; Rex v. Savage, 5 C. & P. 143; State v. Staples, 47 N. H. 113. Chase v. Springvale Mills Co. Opinion by Symonds, J. PHYSICIAN - LIABILITY FOR FALSE CERTIFICATE OF INSANITY.- In an action against physicians for falsely certifying, through malice or negligence, to the insanity of a person, who is thereby committed to the insane asylum, and the pleadings raise the issue as to the sanity of such person at the time when the certificate alleges her to be insane, the burden of proof is on the plaintiff in respect to the averment and claim that she was then sane. In such an action the falsehood, and not the insufficiency of the certificate, is the ground of action against the certifying physicians. Without statutory provisions to that effect there cannot be a civil action for damages against a physician, based upon the insufficiency of the methods which he pursued in reaching and certifying a correct conclusion. In such an action it is open to the defendants to prove precisely what were the circumstances under which they acted, what inquiry, investigation and examination they made and what the information was on which they proceeded. If such testimony did not go to the extent of a justification in case their certificate should be found to be false on the question of insanity, it was proper evidence to be considered in awarding damages. If physicians who have certified to the insanity of a person, have not made the inquiry and examination which the statute requires, or if their evidence and certificate in any respect of form or substance is not sufficient to justify a commitment, the municipal officers should not commit, and if they do it is their fault and not that of the physicians, provided they have stated facts and opinions truly and have acted with due professional skill and care. Pennell v. Cummings. Opinion by Symonds, J.

NEBRASKA SUPREME COURT ABSTRACT.

INTEREST CONTRACT RATE APPLIES UNTIL PAYMENT OR JUDGMENT.-The contract rate of interest specified in a written instrument, applies as well after maturity as before. This question has been before the courts of last resort of several of the States, and the Supreme Court of the United States. It first came before the latter court on appeal from the Supreme Court of Minnesota territory, in Brewster v. Wakefield, 22 How. 118. The laws of Minnesota territory placed no limit upon the rate of interest for which parties might lawfully contract, but provided that seven per cent per annum should be the rate where none other was fixed by contract. The case mentioned was a suit to foreclose a mortgage, given to secure notes bearing interest respectively at the rate of twenty per cent per annum, and two per cent per month, each payable twelve months after date. The Territorial Court held that the notes bore interest at the contract

ness.

rate until judgment, and gave judgment for a sum almost three times the original amount of indebtedTaken to the Supreme Court of the United States on appeal, the case presented an illustration of those hard cases which are sometimes said to make bad precedents. That court held that interest should have been calculated upon the notes at the rate therein stipulated respectively up to the maturity thereof, and after that time at the rate of seven per cent per annum. This decision being authority in Minnesota under the territorial government, has been followed under the State, also, in Kansas, Arkansas, South Carolina, Rhode Island, Kentucky and Maine; and while the question may be considered an open one in New York and Connec ticut, it has been decided the other way—i. e., that the rate of interest being fixed in the note, it governs not only till maturity, but until payment, unless otherwise expressed-by the courts of Massachusetts, Indiana, California, Texas, New Jersey, Illinois, Wisconsin, Iowa, Nevada, Tennessee, Ohio, Michigan and Virginia. This view also seems to be in accord with the recent decisions of the English courts, as collected in the case of Union Institutions for Savings v. City of Boston, 129 Mass. 82. In this case the court reaches the same conclusion as that announced by Field, J., in Cromwell v. County of Sac, 96 U. S. 51, that “the preponderance of opinion is in favor of the doctrine, that the stipulated rate of interest attends the contract until it is merged in the judgment." See also Spencer v. Maxfield, 16 Wis. 178. Kellogg v. Lavender. Opinion by Cobb, J.

[Decided Dec. 18, 1883.]

MANDAMUS-WILL NOT LIE TO CONTROL DISCRETION OF PUBLIC OFFICER.- Mandamus will not lie to a commission for erecting a public building, to control action wherein such commission has a discretion. The only acts which courts can rightfully control by this writ are such as are purely ministerial, and with which nothing like judgment or discretion is connected. United States v. Seaman, 17 How. 225; Same v. Guthrie, id. 284; State v. Governor, 22 Wis. 107: People v. Contracting Board, 27 N. Y. 378. Though they may require inferior tribunals to exercise judgment given them, or to proceed to the discharge of any of their functions, they "cannot control judicial discretion." State of Nebraska v. Kendall. Opinion by Lake, C. J.

[Decided Jan. 2, 1884.]

TRIAL-NEW TRIAL ON ACCOUNT OF FAVOR BY ATTORNEY TO JUROR.- — While a case was being tried, the attorney for the defendant loaned his horse and buggy to two of the jurymen, to enable them to visit home during an adjournment. The verdict was for the defendant. Held, ground for a new trial. Jurors are chosen because they are supposed to be indifferent between the parties. At common law, it was good cause for challenge that the juror had been an arbitrator on either side; that he had an interest in the case; that there was an action pending between him and the party; that he had taken money for his verdict; that he had formerly been a juror in the same case; that he was the party, master, servant, counsellor, steward or attorney, etc. (3 Bl. Comm. 363, 364); and the common law in that regard prevails in this State. Unless fairminded, unbiased jurors can be selected, a trial becomes a mere farce, dependent not upon the merits of the case, but upon extraneous circumstances, such as the bias, prejudice, or interest of the jury. To determine the competency of a juror, au oath is administered to him, and he is required to answer all questions touching his qualifications as a juror, not generally, but in that particular case. Great latitude is allowed in such an examination, and if it appears probable that the juror is not indifferent between the parties, he is ex