pass by virtue of the proceedings; and such monument should be carefully and accurately described in their report: ld.

MUNICIPAL CORPORATION.

Assessment for Street Improvements-Partial Completion of the Work. -For the purpose of connecting two public thoroughfares, a street improvement was ordered, which was to be paid for by assessment on the owners of the abutting property. After the work had been completed part of the way, it was suspended or abandoned, leaving a part of the proposed street wholly unopened. Held, that an assessment for the work already done was premature and unauthorized: Cincinnati for the use of Wirth v. Cincinnati and Spring Grove Avenue Co., 26 Ohio St.

Powers of-Counties, cities and towns are municipal corporations, created by the authority of the legislature, and they derive all their powers from the source of their creation, except where the constitution of the state otherwise provides: County Commissioners v. County Commissioners et al., S. C. U. S. Oct. 1875.

Division of—If a part of the territory and inhabitants of a municipal corporation are separated from it, by annexation to another or by the crection of a new corporation, the former corporation still retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties, unless some new provision should be made by the act authorizing the separation : Id.

Regulations upon the subject may be prescribed by the legislature, but if they omit to make any provision in that regard, the presumption must be that they did not consider that any legislation in the particular case was necessary. Where the legislature does not prescribe any such regulations, the rule is that the old corporation owns all the public'property within her new limits and is responsible for all debts contracted by her before the act of separation was passed: Id.

Through what Agency it Acts.—A municipal corporation may act through its mayor, through its common council or its legislative department by whatever name called, its superintendent of streets, commissioner of highways or board of public works, provided the act is within the province committed to its charge. Nor can it in principle be of the slightest consequence by what means these several officers are placed in their position, whether they are elected by the people of the municipality or appointed by the president or a governor. The people are the recognised source of all authority, state and municipal, and it is to this authority it must come at last, whether immediately or by a circuitous process: Barnes v. The District of Columbia, S. C. U. S. Oct. 1875.

PARTNERSHIP. See Foreign Judgment.

QUO WARRANTO.

Irregularity in Elections-Acquiescence.-Upon a petition for a writ of quo warranto, to inquire by what right a person holds the office of prudential committee of a school district, the writ will be denied when

it appears that the petitionee was elected without objection, upon the mistaken understanding of the voters that there had been no election upon a prior balloting, although it turns out that in fact another person was elected, who, at the same meeting, being ignorant of his election, disqualified himself from holding the office by accepting another incompatible therewith, and that all the voters acquiesced therein: Cate v. Furber, 56 N. H.

RAILROAD. See Corporation.

Evidence under the General Issue in Case-Right to Eject Passengers from Cars for Non payment of Fare--Exemplary Damages.-In trespass on the case anything is admissible in evidence under the general issue that shows that the defendant is not guilty of anything actionable in respect to the matters charged in the declaration : Jerome v. Smith et al., 48 Vt.

Plaintiff bought a ticket over defendants' railroad, with checks attached. While riding over the route that his ticket took him, one conductor detached and retained one of the checks, and gave him in lieu thereof a conductor's check that was a full equivalent for the check retained. Before plaintiff arrived at the point in his journey to which the conductor's check took him, another conductor took the train, whereupon plaintiff looked for his conductor's check, but could not find it. The second conductor demanded of him the production of the conductor's check or the payment of fare, and refused to let him ride on his ticket; and upon plaintiff's neglecting and refusing to comply with the demand, the conductor ejected him from the train at a station, using no unnecessary force. Held, that he was lawfully ejected: Id.

Semble, In no case has a plaintiff any legal right to exemplary damages. Such damages depend upon the case and the evidence and the finding of the jury: Id.

SALE. See Contract; Debtor and Creditor.

SET OFF.

Damages for Malicious Prosecution.-When a party has probable cause for instituting a suit in which he fails, the taxable costs are the measure of defendant's damages for the institution and prosecution thereof. If suit be brought without such cause, a suit for malicious prosecution is the remedy, and such claim is not the proper subject of recoupment or offset in a suit subsequently brought upon a contract, in violation of which the former suit was brought: Sampson v. Warner, 48 Vt.

SHIPPING

General Average-Repairs at Intermediate Port subject of-Temporary repairs of damages arising from extraordinary perils of the sea, made at some intermediate port for the purpose of prosecuting the voyage, if the damage to the ship was of a character to disable her and to interrupt the voyage, are the proper objects of general average: Hobson et al. v. Lord, S. C. U. S. Oct. 1875.

Wages. The wages and provisions of the officers and crew during the consequent and necessary interruption of the voyage, occasioned by the disaster, are a proper charge for such proportionate contribution, wholly irrespective of the question whether the ship bore away for repairs to a port of refuge outside of the regular course of the voyage, or whether the necessary repairs were executed in the port where the disaster occurred: Id.

STATUTE.

Construction of Retrospective-Account.-The Act of 1872, providing that the judgment to account in the common-law action of account, shall not debar the defendant from making any defence before the auditor which he might have made by special plea in bar of the action if said judgment to account had not been rendered," is not retrospective and does not apply to a case in which judgment to account was rendered and an auditor appointed before the passage of the act, but wherein the account was not taken until after its passage: Sturgis v. Hull, 48 Vt. When the language of a statute is such that it will admit of either construction, if it appears that a retrospective construction is necessary, to accomplish and carry into effect the intent and purpose of the legisla ture, and no substantial rights are thereby impaired or destroyed, and no wrong done, or when a statute is purely remedial, and does not take away vested rights, such a construction will be put upon it; otherwise it will be considered as prospective: Id.

TIME. See Vendor.

VENDOR AND PURCHASER.

Time-When of Essence of Contract-United States Notes-Specific Performance where Title to part of Land fails.-Where a party makes an offer to sell on specified terms, giving the proposed purchaser the option to accept the terms within a limited period, time is to be regarded as of the essence of the offer, and an acceptance of the terms after the period limited will not be binding: Longworth v. Mitchell, 26 Ohio St.

United States treasury notes are a lawful tender upon contracts stipulating for the payment of money generally, whether made before or after the date of the law under which the notes were issued; and this rule applies as well in equity as at law, and as well where by the contract the payment is optional with the party and his rights made to depend upon it, as where the payment is required by the contract: Id.

Where a tenant-in-common of land contracts for the sale and conveyance of the entire land, with a purchaser who in good faith believes him to be sole owner, on a bill filed by such purchaser for a specific execn. tion of the contract, equity will decree a conveyance by the vendor of his interest in the land, and a compensation in money for the value of the outstanding interest: Id.

THE

AMERICAN LAW REGISTER.

DECEMBER 1876.

LIMITATIONS IMPOSED BY THE CONSTITUTION OF THE UNITED STATES ON THE TAXING POWERS OF THE STATES.

(Concluded from p. 638.)

II. Instrumentalities of the United States Government.—The Federal government is one that within the purview of the powers. granted it by the Constitution, must be supreme, and all state laws that conflict with the proper exercise of these powers are invalid. This principle has been applied to the tax laws of the states, where they affect the instrumentalities (which the Federal government has thought necessary and proper to be used, to carry out the powers vested in it. The Federal government thought proper to create a bank with branches in the different states, to be used in carrying on the fiscal operations of the government. The state of Maryland required every bank doing business in that state, and not chartered by the state, either to pay a stamp duty on every note issued, or pay a tax of $1500 in gross; certain penalties were imposed on all the officers of a bank violating the law, and upon every person who had any agency in circulating such notes. An action was brought for the penalty, against the officer of a branch of the Bank of the United States for a violation of this law. It was held that the law was void, and that the instrumentalities of the government could not be taxed by the state. MARSHALL, J. The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission, but

VOL. XXIV.-87

(689)

not.

it does not extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States. We think it demonstrable that it does Those powers are not given by the people of a single state. They are given by the people of the United States, to a government whose laws, made in pursuance of the Constitution, declared to be supreme. Consequently, the people of a single state cannot confer a sovereignty which will extend over them:" McCulloch v. State of Maryland, 4 Wheat. 316, 405 (Cond. U. S. 415-421). It is conceded in this case that the real property of the bank was liable to taxation, and the shares of the stockholders in the state were also liable; those constituted property subject to the jurisdiction of the state to be taxed as other property in the state. But the effect of the law under consideration, was to prohibit the bank from conducting its business in the state except upon the conditions prescribed by the state. This could not be done, as it would make the Federal government, in carrying out the powers vested in it, dependent upon the states in the selection of its instruments for the exercise of its powers. In a subsequent case it was urged (Osborn v. United States Bank, 9 Wheat. 860 (Cond. U. S. 278-9)), that this was a private corporation engaged in its own business, and the casual circumstance of its being employed by the government in the transaction of its fiscal affairs, should not exempt it from taxation. But the court did not consider it a private corporation, whose principal object was individual trade and individual profit, but as a public corporation, created for public and national purposes. The principle is applied to a tax on the stock. of the United States imposed by one of the states; this was said to be a tax on the power of the government to borrow, and inconsistent with the supreme power of that government in exercise of its vested powers. The exercise of these powers can not be impeded, retarded or burdened in any manner whatever; they are to be wielded independent of the will of any of the states: Weston v. City of Charleston, 2 Pet. 448-467 (Cond. U. S. 171-175).

Congress, on the 25th of February 1862, passed a law which provides that "all stocks, bonds and other securities of the United States, held by individuals, corporations or associations within the United States, shall be exempt from taxation by or under state authority." By the laws of the state of New York, in force at this time, the capital of banks was taxed according to its value;