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probably subject to punishment in a criminal court. Penal Code, § 143, subd. 6.

And certainly if we were to consider the question, not as one of law, but as one of wise protection to the witness, it would be best that his punishment for a refusal should be left to the courts. In trials before courts there are opposite parties. The witness appears for one or the other, and he is practically within the protection of the party for whom he appears. If there be a doubt as to his obligation to answer some question, he is sure to be protected by the arguments of one side or the other. And no decision is made until the matter has been fairly considered. But in a case like the present it is very different. The committee of the Senate is investigating; searching for facts in any way and by any questions. There is no impartial tribunal to decide whether the question is proper or not. The Senate prosecutes the inquiry; the Senate decides the question to be proper; the Senate refuses to allow the witness counsel; and the Senate sends him to jail.

We pass to consider some authorities which have been thought to bear on the question before us. That of Anderson v. Dunn, 6 Wheat. 204, is usually relied upon to sustain the inherent power of legislative bodies to punish for refusal to answer. It is followed in Wickelhausen v. Willet, ut supra, and is the basis of the dictum in 1 Kent Com. 236. It is enough to say that it is overruled by Kilbourn v. Thompson, ut supra, and by Kielley v. Carson, ut supra. The case of Burnham v. Morrison, 14 Gray, 226, rests upon an express provision in the Constitution of Massachusetts. Furthermore, in the opinion it is stated, that "the House of Representatives is the grand inquest for the Commonwealth, and as such has power to inquire into the official conduct of all officers of the Commonwealth, with a view to impeachment." We have already said that the present case does not belong to that part of the powers of the Senate. Nor is the Senate, in any case, an impeaching body. 1 Rev. Stat., marg p. 155, § 15.

In Whitcomb's case, 120 Mass. 118, it was held that the Legislature could not confer upon a body, not judicial, the power to punish for contempt. That case, it is true, following the decision of Anderson v. Dunn, held, that the Legislature itself possessed this power.

In People v. Learned, 12 Sup. Ct. N. Y. (5 Hun) 626, the principal argument of the counsel in behalf of the power to punish rested on the position that the body to which the power had been given was a court. On the other hand the counsel for the prisoner, led by the decision in Anderson v. Dunn, and the like, admitted in argument the existence in legislative bodies of the power to punish for contempt in refusing to answer. On these lines of argument therefore it is not strange that the opinion in that case has not a word on the question here involved. That case was taken to the Court of Appeals; and when it came on to be argued, the attorney-general stipulated not to enforce the warrant of commitment, and against the protest of the prisoner's counsel, the court refused to hear the argument. 16 Alb. Law Jour. 96. This course was the more noticeable, as there were, in fact, other wit nesses than Dennison who had in like manner refused to answer.

But again it is urged, that assuming that there may be some cases in which the Senate might imprison for refusing to answer (as for instance, in the trial of charges against judicial officers), then the Senate is the sole judge of the proper exercise of its powers, and the court cannot interfere. But the contrary was held in Kilbourn v. Thompson, ut supra. In that case the court, passing the question whether the House of Representatives might not commit for refusing to answer in a proper investigation, and admitting that

the House might commit for a refusal to answer in election cases and the like, yet claimed for itself the right to examine whether, in the case then in question, the power was lawfully exercised. And in the language of the court in that case, "we cannot give our assent to the principle, that by the mere act of asserting a person to be in contempt, they (the Senate) thereby establish their right to fine and imprison him, beyond the power of any court or other tribuual to inquire into the grounds on which the order was made." To the same effect are some of the remarks in Burnham v. Morrissey, ut supra.

It may however be said that section 2032, subdivision 3, Code of Civil Procedure, required the court, on the return of the habeas corpus, to remand the prisoner. In the case of commitment by courts the aggrieved party has his remedy by appeal or certiorari, as the case may be. Hence he should not be allowed to review by habeas corpus. There seem to be exceptions even in these cases. People ex rel. Tweed v. Lipscomb, 60 N. Y. 559. But in the present case there can be no review of the action of the Senate by appeal or certiorari. It must then be the right of the aggrieved party to bring his case before the court. To hold that the Legislature could commit for contempt, and then could forbid all inquiry into the rightful exercise of the power, would be to take away the benefit of the writ of habeas corpus. Const., art. 1, § 4. Unless the question as to the lawfulness of McDonald's imprisonment can here be examined in every view, then the Senate, when not acting as a court, may imprison a man, and there can be no judicial protection to him whatever. But whether the witness was bound to auswer depends on legal principles on which he is entitled to a judicial decision. Stockdale v. Hansard, 9 Ad. & Ellis, 1. It is the very basis of liberty that no person shall be imprisoned unless the right to imprison him has been, or may be, determined by the judiciary. People ex rel. Lawrence v. Brady, 56 N. Y. 182; Taylor v. Porter, 4 Hill, 140; Const., art. 1, §1. It must be for the courts to decide whether he is deprived of his rights "by the law of the land." Otherwise the Legislature might pass a vote to imprison a man with or without cause, and he would be remediless.

And it may further be observed that section 2032, subd. 3, Code Civ. Pro. refers, for the definition of criminal contempts, to section 8. And section 8 limits the power to punish such contempts to courts of record, and thus limits such contempts to acts done in contempt of such courts.

Probably the question as to the right of either branch of the Legislature to make investigations is not necessarily before us. As long as witnesses are willing to answer questions, there seems to be nothing for the court to decide. Nor is it quite easy, when a question like the present does arise, to lay down a rule limiting the right of investigation. For the resolution of investigation perhaps need not express the ultimate object to be attained. And possibly the Legislature might be in search of information which would aid in legislation for the future.

In the case of Kilbourne v. Thompson however, already cited, the court examined the resolution under which the investigation was carried on; and remarked that it contained "no hint of any intention of final action by Congress on the subject," and continuing, they said: "Was it to be a fruitless investigation into the personal affairs of individuals? If so the House of Representatives had no power or authority in the matter more than any other equal number of gentlemen interested for the government of their country."

The return to the writ of habeas corpus in this present case sets forth the warrant. This does not state

the resolution of the Senate, or the questions which McDonald refused to answer. A point may be made whether such a warrant is good. Matter of Quin, Abb. Dig 7, p. 402. By way of traverse to the return, the petitioner has set out the proceedings. The resolution recites that grave charges of fraud and irregularities have been made by the public press and the Union League club against Hubert O. Thompson, commissioner of public works of the city of New York; that in the opinion of many persons the charges have not been explained or refuted; that it is important to tax-payers that heads of public departments should be beyond reproach; and it then directs a committee of the Senate to investigate the department of public works in the city of New York. No further action is proposed by the resolution.

This department is not a State department. It is merely one of the branches of the city government of New York. Except on account of the magnitude of its work, there is no more reason that the Senate should investigate this department, than that they should investigate the action of the highway commissioners of some town, charged with fraud and irregularities by the village newspaper and the frequenters of the village tavern. And it can be seen by this recital that this investigation was one appropriate for a grand jury. No legislation was proposed for the future. No redress could be given by the Senate for the past. If frauds had been committed, "the case being one of a judicial character, for which the powers of the courts usually afford the only remedy, it may well be supposed that those powers were more appropriate and more efficient in aid of such relief than the powers which belong to a body whose function is exclusively legislative." Kilbourne v. Thompson, ut supra. It has not been suggested, upon the argument, that any action could be taken by the Senate which would redress these alleged frauds and irregularities. And it is by no means apparent that investigations under oath are needed, or useful, in aid of legislation for the future.

In the view however which we have taken, that except when acting as a court, neither branch of the Legislature has power to punish, as for contempt, the wrong-doing, if it be such, of a witness in not answering, we do not consider it necessary to decide whether, if he should be brought before a court in a proper manner, McDonald could successfully claim that the investigation was unwarranted. Aud as McDonald was in the custody of the sheriff, at the time of presenting this petition, we have no occasion to inquire as to the authority of the sergeant-at-arms to make an arrest of a private citizen.

We might leave the matter here. But other points have been argued which we will consider. We come then to the specific questions, for refusing to answer which the witness was punished. These are not pointed out in the proceedings before the Senate. But an examination of the proceedings before the committee indicates that the following are the only questions which the witness refused to answer, when required:

Do you keep books of this coal business?

Do you carry on your coal business any differently, or upon any different system, from what you do your business with the city?

How much coal do you keep at your dock?

How much business do you do in the way of coal? I mean all the time.

Give me the name of somebody else besides Robert Gubbins that was breaking stone there for you?

Who are they (from whom you get chips) except the Tompkins Cove people?

So far as we can discover, these are the only questious which the witness refused finally to answer,

after the committee had insisted on his answering. We must assume therefore that these are the "pertinent questions" referred to by the resolution of the Senate.

As to the questions respecting the business of the witness, we cannot see the least pertinency to the subject of investigation. There does not appear to be any thing connecting the coal business with the alleged frauds and irregularities. The questions were impertinent; should not have been asked, and need not have been answered.

The question as to who was breaking stone for witness is liable to the same objection. The resolution of the Senate did not permit an inquiry as to the persons employed by a witness, who was not himself an officer, or employee of the department.

Nor was the witness obliged to tell where he obtained the limestone chips. That was strictly his own business. No question was put tending to show that chips belonged to the city, before the witness delivered them. And if not, it was immaterial where he obtained them.

Many questions had been previously asked, which seem to have been even less material and less pertinent to the investigation than these. But the witness, being at that time unattended by counsel, had answered them. Subsequently he procured counsel. His counsel was permitted to be present "as a matter of courtesy;" but upon his advising the witness not to answer certain questions, the committee refused any longer to recognize the right of the witness to have counsel; and thereupon the witness and his counsel withdrew. Thus the committee appear to have been willing to have the counsel present so long as he gave no advice. The committee had their own counsel acting for them aud conducting the examination. The course of the examination showed an intention to charge the witness himself as a party to the alleged frauds and irregularities.

The committee in the present case, after an executive session, formally ruled that "all questions must be answered that do not tend to criminate a witness, that the committee will judge as to whether the questions asked will criminate the witness or not." Thus the committee insisted that questions should be answered, although they were immaterial, and although they would tend to degrade the witness. See People v. Brown, 72 N. Y 571. The committee and their counsel naturally desired to get all the testimony which they thought might be of any use to them. They would not be likely to reject questions put by their own counsel. And we see no reason why the committee should have excluded a legal adviser of the witness, if he desired to have one present. It was unjust to the witness, that he should be exposed to the unlimited examination of shrewd counsel without having any one to advise and protect him.

No complaint was made of any improper conduct on the part of counsel. He was excluded simply because, in good faith, he endeavored to protect his client against an improper course of examination. The case may net strictly come under the constitutional provision, article 1, section 6; because this proceeding was not a trial. But it seems to us a matter of common sense that a citizen, though he be a witness before a legislative committee, should have a right, in an orderly manner, to take advice of counsel as to matters which may seriously affect him or his business. This is not saying that the advice of counsel will protect him, should the court think the question was proper. It is only asserting the very common right of a citizen to take legal advice when he wishes. And the question was so decided in a similar case. Stewart v. Turner, 3 Ed. Ch. 458. There it was

held that on the examination of a witness before a

master in chancery, the witness had a right, in the presence of the master, to consult his own counsel as to the propriety, or duty, of answering any question proposed to him

We are therefore of the opinion

case it must be made to appear that there is a determination on the part of the defendant to create the cloud, and it is not sufficient that the danger is merely speculative. Sanders v. Yonkers, 63 N. Y. 489. Clarke v. Davenport. Opinion by Miller, J.

1. That the questions put were immaterial and that [Decided April 15, 1884.] the witness was not bound to answer them.

2. That the witness had a right to have the advice of counsel, in an orderly manner, and that when this was refused, he was justified in withdrawing.

3. That except when engaged in the judicial functions authorized by the Constitution, neither branch of the Legislature has any power to punish as for contempt for a refusal to answer a question.

4. That the order refusing to discharge McDonald should be reversed and that he should be discharged.

NEW YORK COURT OF APPEALS ABSTRACT.

BENEVOLENT

INSURANCE SOCIETIES.- Plaintiff brought suit, claiming to be the widow of Robert Story, deceased, to recover $1,025 of the defendant by reason of her husband's membership in said corporation at the time of his death. She was designated as the wife of deceased in the certificate of insurance issued by defendant. It was conceded that the deceased and plaintiff lived and held themselves out as man and wife for many years and up to his death. The plaintiff, on the trial, testified to a ceremonial marriage. The defendant did not take issue in such marriage, or ask that the question be submitted to the jury, but insisted that the marriage was void, because at the time of its alleged occurrence the deceased had a wife living in England, who survived him. Held, that the certificate operated as an assent by the association to the appointment of the plaintiff as the beneficiary of the fund, which should become payable on the death of Robert Story, and entitled her, upon his death, in the absence of any other or different appointment to demand and receive it. A by-law contemplating payment to the lawful widow was not a limitation of the power of the company so as to prevent it from recognizing as the beneficiary a person who might be designated by a member as holding to him the relation of wife. Story v. Williamsburgh, etc., Benefit Association, affirming 29 Hun, 278. Opinion by Andrews, J. [See 62 How. 336.-ED.]

[Decided April 15, 1884.]

CLOUD ON TITLE-VOID TAX SALE-ACTION PREMATURE. On November 15, 1881, the comptroller sold and bid in lands of the plaintiff for non-payment of taxes from 1873-1876. A certificate of sale was made

as required by law. A short time before the sale plaintiff made objections to alleged irregularities of the assessments, and requested the comptroller to annul or stop the sale, which was refused. In December, 1881, this action was commenced to have the sale declared null and void, the certificates surrendered and the execution of a deed enjoined. Held, that although the assessments were in fact irregular, the action was premature. Plaintiff must await the two years which must elapse before the giving of the deed. It is settled by the decisions of this court that to authorize the interposition of the court to remove the lien of an assessment as a cloud upon title it must appear that the record of proceedings are not void upon their face, and that the claimant under it would not, by the proof which he would be obliged to produce in event of an attempt to enforce his claim, develop the defect rendering it invalid. Dederer v. Voorhies, 81 N. Y. 156; Guest v. City of Brooklyn, 69 id. 506. While a court of equity may entertain a suit to remove a cloud upon title, and also to prevent one, in the latter

CRIMINAL LAW-EVIDENCE OF OTHER ASSAULTS— DEFENDANT AS WITNESS-CROSS-EXAMINATION-DANGEROUS WEAPON-PISTOL.-On the trial of defendant for assault and battery, on cross-examination he was asked whether he had assaulted a fellow member of the Legislature and was expelled from that body. He admitted the assault. He confessed what unexplained was the commission of a crime, and as was said in People v. Brown, 72 N. Y. 571, tended to impair the credit of the witness "by its tending to establish a bad moral character." Held, that the question was within the discretion of the court, and its permission was no abuse of that discretion. In People v. Noelke, 94 N. Y. 143-4, the cases were reviewed, and we held on an indictment and trial for selling lottery tickets, that the defendant, testifying in his own behalf, might be asked on cross-examination not only whether he had been convicted for sending lottery papers through the mail, but also whether, for a period extending before the offense with which he was charged, he had been engaged in the lottery business. (2) Mere charges or accusatious or even indictments may not be inquired into,since they are consistent with innocence, and may exist without moral delinquency. People v. Crapo, 76 N. Y. 288; People v. Brown, 72 id. 571; Ryan v. People, 79 id. 594. (3) Whether the pistol in the hands of defendant was an instrument or thing likely to produce grievous bodily harm was a question for the jury. Nelson v. People, 23 N. Y. 298; Abbott v. People, 86 id. 471. People v. Irwing. Opinion by Finch, J. [Decided April 15, 1884.]

ESCAPE-BOND VOID-SHERIFF NOT LIABLE.-In a creditor's action to set aside a general assignment plaintiff obtained judgment adjudging said assignment fraudulent as against creditors. Subsequently a receiver was appointed and the assignee ordered to account and pay over to the receiver. By same order a referee was appointed to pass an assignee's account, who thereafter made an order that the assignee, after deducting an amount allowed him, pay the remainder to the receiver. Refusing so to do, the assignee was arrested under Revised Statutes, part 3, chapter 8, title 13, and gave a bond to the predecessor of the plaintiff in this action, and escaped while plaintiff was sheriff. In an action on the bond held, that plaintiff was not liable, as the bond was void. No final judgment had been entered on the order requiring the assignee to pay over to the receiver. The last two orders should have been attached to the judgment roll in the creditor's action and a final judgment entered thereon (Geery v. Geery, 63 N. Y. 252), which could have been enforced by execution, and not in the manner as was done. Code, $ 1240, 1241. The provisions of the Revised Statutes under which the assignee was arrested do not apply to a case where money has been ordered paid by a final judgment. Lansing v. Lansing, 4 Lans. 377; Strobridge v. Strobridge, 21 Hun, 288; Baker v. Baker, 23 id. 356; People ex rel. Fries v. Riley, 25 id. 587; Randall v. Dusenbury, 41 N. Y. Supr. 456; Watson v. Nelson, 69 N. Y. 536; O'Gara v. Kearney, 77 id. 423. Myers, Sheriff, v. Becker. Opinion by Earl, J. [Decided April 15, 1884.]

WILL-SALE OF REAL ESTATE-DISCRETION OF EXECUTOR-COMMISSIONS.-The testator by a clause in his will authorized and empowered his executors " to let or lease my real estate and to receive the rents and profits thereof, and after the decease of my wife to sell and

convey the same for such prices and upon such terms as they may deem best for the interests of my estate." On the final accounting the appellant, who is a daughter of defendant intestate, claimed that it was the duty of the executors, under the will of the testator, to have sold certain unproductive real estate and so much of the productive as was not needed for certain trusts created by the will, forthwith after the testator's death, and to have sold all the real estate forthwith after the death of his widow. Held, that taking the various parts of the will which have been referred to into consideration, it is a reasonable presumption that the testator intended to leave the question as to the sale of the real estate before the death of his wife to the judgment and sound discretion of his executors. While perhaps they might have the right to sell, they at the same time were authorized to retain and hold the same until the death of testator's widow. If it was desired to com. pel the executors to sell under the provisions of the will the proper course would seem to have been to institute a suit for that purpose. Hancox v. Wall, 28 Hun, 214. The power to sell after the death of the widow was also discretionary. Where there is a voluntary accounting and a settlement between the parties, as appears to have been the case here, it may well be doubted whether the right to commissions retained could be afterward questioned by the parties who had assented to the retention of them by the trustees. Hurlburt v. Durant, 88 N. Y. 121. The general rule that executors and administrators cannot retain commissions, and can only be allowed them upon an accounting would seem to be inapplicable to the case at bar. Here the income was required to be paid periodically, and the trustee stands in the same position as a trustee who holds an estate, and is required to pay the annual income arising from the same to the cestui que trust. Such a trustee is entitled to full commissions on each year's receipts and disbursements. Vanderheyden v. Vanderheyden, 2 Paige, 288; Matter of Bank of Niagara, 6 id. 216; Matter of Kellogg, 7 id. 266; Hosack v. Rogers, 9 id. 467; Fisher v. Fisher, 1 Bradf. 336. Hancox v. Meeker. Opinion by Miller, J.

[Decided April 15, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.

LIMITATION-FRAUDULENT CONCEALMENT-KNOWLEDGE OF ASSIGNEE-LETTERS MAILED PRESUMED RE

CEIVED. (1) An assignee in bankruptcy, from whom a fraudulent transfer by the bankrupt has been concealed until the expiration of the period within which the statute requires all actions for the recovery of property thus transferred to be brought, may nevertheless bring his action upon discovering the fraud. The statute of limitations cannot be made an instrument of fraud. In Bailey v. Glover, 21 Wall. 342, the court held, that "as the bill contained a distinct allegation that the defendants kept secret and concealed from the parties interested the fraud which was sought to be redressed," the case was not subject to the bar of the statute. The court added: "To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure." The court also declared that the exception to the bar of the statute was applicable to suits at law as well as in equity. The case of Bailey v. Glover is a decision construing the statute which is relied on in this case, and unless

subsequently overruled by this court, is conclusive of the point under discussion. It has never been overruled. The plaintiff in error relies on the case of Wood v. Carpenter, 101 U. S. 135, and National Bank v. Carpenter, id. 567. The first was an action at law; the second a suit in equity. The court in both cases was called on to construe a statute of limitations of the State of Indiana, and it followed the adjudications of the Supreme Court of that State upon the same statute. Neither case refers to the opinion of the court in Bailey v. Glover, or can be held to overrule or modify it. The case of Bailey v. Glover has been often cited by this court, but has never been doubted or qualified. Wood v. Bailey, 21 Wall. 640; Wiswall v. Campbell, 93 U. S. 347; Gifford v. Holmes, 98 id. 552; Upton v. Mc. Laughlin, 105 id. 640. (2) Knowledge on the part of the assignce that the bankrupt has refused, at a judicial examination, to answer certain questions regarding his property, on the ground that his answers would criminate him with respect to an indictment then pending against him for a criminal offense under the bankrupt laws, is not sufficient to make it the duty of the judge to rule, as a matter of law, that the assignee had constructive knowledge of the fraud. His knowledge is a question for the jury on all the evidence. (3) The rule is well settled that if a letter properly directed is proved to have been either put into the postoffice or delivered to the post-man it is presumed, from the known course of business in the post-office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed. Saunderson v. Judge, 2 H. Bl. 509; Woodcock v. Houldsworth, 16 M. & W. 124; Dunlop v. Higgins, 1 H. L. Cas. 381; Callan v. Gaylord, 3 Watts, 321; Starr v. Torrey, 2 Zabr. 190; Tanner v. Hughes, 53 Penn. St. 289; Howard v. Daly, 61 N. Y. 362; Huntley v. Whittier, 105 Mass. 392. As was said by Gray, J., in the case last cited, "the presumption so arising is not a conclusive presumption of law, but a mere inference of fact founded on the probability that the officers of the government will do their duty and the usual course of business, and when is is opposed by evidence that the letters never were received, must be weighed with all the other circumstances of the case by the jury in determining the question whether the letters were actually received or not." (4) The court, having in its own way fairly presented the issues, was not bound by its duty to give the charges requested, had they been unobjectionable. The Schools v. Risley, 10 Wall. 115. Rosenthal v. Walker. Opinion by Woods, J. [Decided March 31, 1884.]

LIMITATION-RUNS FROM RETURN OF EXECUTION.Suit was brought upon a judgment after a return of nulla bona upon the execution writ. Held, that the statute of limitations commenced to run at the time of the return of the execution, and not the entry of the judgment. Taylor v. Bowker. Opinion by Harlan, J. [Decided March 24, 1884.]

REISSUE

PATENT-COMBINATION-INFRINGEMENT VOID-DISCLAIMER DOES NOT REVIVE ORIGINAL.-(1)A patent for a combination of several parts is not infringed by the use of the combination of any number of those parts less than the whole. Brooks v. Mears, 16 Pet. 336. (2) In a patent for a soldering-iron, claiming a hollowed disk combined with a movable rod passing through it to hold the lid while the solder hardens, the disk is an indispensable element; and all claims of the reissue which do not restrict the soldering-iron to the form of disk are void. No combination having a soldering iron of different form is an infringment. Gill v. Wells, 22 Wall. 1; The Wood Paper Patent, 23 id. 566; Powder Company v. Powder Works, 98 U. S.; Ball v. Langles, 102 id. 128; Miller v. Brass Co., 104 id. 350; Jones v. Campbell, id 356; Heald v. Rice, id.737;

Johnson v. Railroad Co., 105 id. 539; Bantz v. Frantz, id. 160; Wing v. Anthony, 106 id. 142. (3) Where the original claim was for a hollow soldering iron with a handle and beveled rim, in combination with a rod to hold the cap firm, and the specifications showed that the hollow iron was intended to fit upon a cap of any shape, held, that a claim in the reissue for "a tool consisting of a soldering-iron revolving about a central pivotal rod" was broader than the original, and void. (4) Where a patent has been declared on the oath of a patentee to be invalid and inoperative, been surrendered and canceled, and reissued letters patent granted in its place, it is not competent for the patentee or his assignees, by merely disclaiming all the changes made in the reissued patent, to revive and restore the original patent. This could be done only, if it could be done at all, by surrender of the reissued patent and the grant of another reissue. McMurray v. Mallory.

Opinion by Woods, J.

them orders for their wages, stating that they would regard themselves in that case as discharged. The master gave them the orders, and the saiiors left the vessel. Held, that they were discharged, and were not to be looked on as deserters. Grauon v. Hartshorne, Blatchf. & H. 458; The David Faust, 1 Ben. 187. (2) Upon the wrongful discharge of a workman engaged under an entire contract, he is entitled to recover his wages during actual service. (3) The remedy afforded seamen by sections 4546 and 4547 of the Revised Statutes is not exclusive, and the usual process in rem against the vessel is still open to them. Murray v. Ferryboat, 2 Fed. Rep. 88; The William Jarvis, Spr. Dec. 485; The M. W. Wright, 1 Brown, Adm. 290; The Waverly, 7 Biss. 465. Dist. Ct., D. N. J. Feb. 2, 1884. The Frank C. Burker. Opinion by Nixon, J.

[Decided March 24, 1884.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

PATENT-SUSPENDING INJUNCTION-PUBLIC INTEREST.-After a final decree establishing an exclusive right to the use of a patent and awarding an injunction to protect it, the injunction will not be suspended while the decree stands unreversed, unless some extraordinary cause outside of the interests of the parties is shown. Public necessity may bo a cause for such suspension; but the defendant, after insisting that the invention is of no use and benefit, and thus defeating the orator's claim for substantial damages on account of infringement will not be heard to allege that it is of such public importance as to warrant a court in suspending the injunction. Potter v. Mack, 3 Fish. Pat. Cas. 428; Brown v. Deere, 6 Fed. Rep. 487. Cir. Ct., S. D. N. Y., 1884. Munson v. Mayor, etc., of New York. Opinion by Wheeler, J.

WHARVES--RIGHT TO MOOR VESSELS-COLLISIONDAMAGES.—(1) The right of mooring vessels at public wharves is as much to be protected as that of navigation itself, but it is to be exercised with due regard to the rights of passing vessels, and any unnecessary encroachment upon the channel-way which greatly imperils passing craft is without justification. (2) A steamboat lying at a wharf-boat at the public landing of Pittsburgh threw her stern out in the way of a descending coal-tow, when she might have lain broadside to the wharfboat, and thus afforded a sufficient passage-way for the towboat and tow. A collision occurring, held, that the steamboat was answerable to the owner of a coalboat thereby lost. (3) In case of a collision between a descending coal-tow and a vessel wrongfully obstructing the channel-way, the previous fault of another vessel, in striking and throwing out of shape the coal-tow, is not to be imputed to the towboat if the latter were free from blame. (4) An innocent party who sustains loss by reason of the concurrent negligence of two vessels may pursue aud recover the entire damages from either wrong-doer. The Atlas, 93 U. S. 302; The Franconia, 16 Fed. Rep. 149. Dist. Ct., W. D. Penn. Jan. 23, 1884. The St. Lawrence. Opinion by Acheson, J.

SHIPPING AND ADMIRALTY--DISCHARGE OF SEAMEN -RECOVERY OF WAGES REMEDIES.-(1) In cousequence of a disagreement between the master of a vessel and his seamen about the amount of wages due them, the mariners were ordered to go to work or go on shore. They agreed to go on shore if he would give *Appearing in 19 Federal Reporter.

TEXAS SUPREME COURT ABSTRACT.

DAMAGES-RAILROAD ON PUBLIC STREET-SPECIAL INJURY. (1) In a suit for damage to property by a railroad running along a public street, near such property, evidence going to show damage from smoke, cinders, unusual noises from the ringing of bells, blowing of whistles, etc., is admissible. Sutherland on Damages, pp. 436-7; Wilmington, etc., R. Co. v. Stauffer, 60 Penn. St. 374. (2) Where the continued presence and operation and operation and operation of such road along the street inflicts such special injury to the property of the abutting owner as to practically deprive him of the ordinary use and enjoyment of it, that such special injury is of such a nature that an action for damage will lie. Ashley v. Port Huron, 35 Mich. 296; Pumpelly v. Green Bay R. Co., 13 Wall. 166, Hooker v. New Haven, etc., R. Co., 14 Conn. 146; Grand Rapids Boom Co. v. Jarvis, 30 Mich. 308; Armond v. Green Bay R. Co., 31 Wis. 316. In order to give the party injured a right of action the street need not be entirely destroyed or wholly or exclusively used by the appellant. Where, as the result of the occupation of it by the railroad company, the use of the street by the adjoining owner is very greatly impaired and the injury in this respect one special in its nature, and not one common to the community at large, an action to recover damages will lie. G. C. & S. Fe R. Co. v. Eddins. Opinion by West, J. [Decided Jan. 29, 1884.]

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PAYMENT APPLICATION - NO DEBTOR'S CONSENT.-The debtor may designate to what particular debt a payment shall be applied where he owes more than one distinct separate debt to the creditor. Such designation precludes the creditor from otherwise appropriating it. Proctor v. Marshall, 18 Tex. 66; Taylor v. Coleman, 20 id. 776. If a creditor receive money, with directions to appropriate it on a named debt, it must go to the specified debt, no matter what the creditor may say at the time; and an appropriation once designated cannot be changed by the creditor without the debtor's consent. Whart. Cont. 923; Levystein v. Whitman 59 Ala. 345; Reed v. Boardman, 20 Pick. 443; Benj. Sales, 746. Eyler v. Read. Opinion by Stayton, J. [See 1 Am. Rep. 109; 16 Eng. R. 273.-ED.] [Decided Nov., 1883.]

JUDGMENT-NUNC PRO TUNC-FOR COSTS NOT FINAL. -(1) Judgments nunc pro tunc are never permitted to affect the rights of such persons as have acquired rights between the time a judgment is really rendered and the time at which the judgment is entered upon the minutes, now or then, such persons having no notice of the judgment. Freem. Judg., 66; Jordan Petty, 5 Fla. 326; McCormick v. Wheeler, 36 Ill. 114;

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