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his purpose. This is a very special usage, dependent The petitioner having removed his case into the Cirwholly upon the New York statute.

cuit Court has a right to have its further progress govNor is it in any manner made to appear that this ex erned by the law of the latter court, and not by that amination “was necessary in order to prevent a delay of the court from which it was removed; and if one of or failure of justice in any of the courts of the United the advantages of this removal was an escape from this States," nor is any such proposition the foundation of examination, he has a right to that benefit if his case the court's action.

was rightfully removed. These are the exceptions which the statute provides This precise point is decided, and in regard to this to its positive rule that the mode of trial in actions at very question of the differing rules of evidence prevaillaw shall be by oral testimony and examination of ing in the State and Federal courts, in King v. IP orthwitnesses in open court. They are the only exceptions ington, 104 U. S. 44. thereinafter provided. Does the rule admit of others? In that case, after it had been once heard on appeal Can its language be so construed ?

in the Supreme Court of Illinois, it was removed into On the contrary its purpose is clear to provide a the Circuit Court of the United States. mode of proof in trials at law to the exclusion of all The Supreme Court had reversed the judgment of other modes of proof; and because tho rigidity the the inferior court, because among other things the evirule may in somo cases work a hardship, it makes ex dence of witnesses had been received whom that court ceptions of such cases as it recognizes to be entitled to held to be incompetent. another rule, and it provides that rule for those cases. On the trial in the ('ircuit ('ourt they were held to Under one or tho other all cases must come. Every be competent and admitted to testify, notwithstandaction at law in a court of the United States must be | ing the decision of the Supreme ('ourt of the State, on governed by the rule, or by the exceptions which the the ground that section 858 of the Revised Statutes of statute provides. There is no place for exceptions mado the United States, already copied in this opinion, by State statutes. The court is not at liberty to adopt | mado them competent, and although it differed in that them, or to require a party to conform to them. It respect from the statute of Illinois on the same subject, has no power to subject a party to such an examina- it must prevail in the ('ircuit ('ourt. tion as this. Not only is no such power conferred, but It was strongly urged here that this was error, and it is prohibited by the plain language and the equally as to that case the decision of the Illinois court, made plain purpose of the acts of ('ongress, and especially while it was rightfully before it, should control. But the chapter on Evidenco of the Revision. The New this court held otherwise, and said: “The Federal York statute would, if in force, repeal or supersede court was bound to deal with the case according to the the act of Congress.

rules of practice and evidenco prescribed by the acts It does not require much deliberation to see that if of ('ongress. If the case is properly removed the the acts of ('ongress forbid the use of this kind of tes- party removing it is entitled to any advantage which timony in tho courts of the United States, no order the practice and jurisprudence of the Federal courts for taking it made in the State court while tho caso give him.” was pending in that court, with a view to its use on a The Circuit Court was therefore without authority trial there, can change the law of evidence in the Fed to make the orders for the examination of petitioner eral court. Without deciding now, for the question in this case, and equally without authority to enforce is not before us, whether tho testimony actually given these orders by process for contempt. Its order fining ander that order and transmitted with the record of him for contempt and committing him to the custody ühe caso to the Circuit ('ourt, can be used when the of the marshal was without jurisdiction and void, and trial takes place, wo are well satisfied that the latter the prisoner is entitled to his release. court cannot enforce the unexecuted order of the State It is supposed that the announcement of the judgcourt to procure evidence, which by the act of ('ou ment of the court that he is entitled to the writ will gress is forbidden to be introduced on tho trial, if it render its issue unnecessary. If it shall prove othershould be so taken.

wise the writ will be issued on application to the The provision of section 4 of the act of March :3, 1875, clerk. 18 U. S. Stat. 470, declares orders of the State court, in a case afterward removed, to be in force until dissolved or modified by tho Circuit Court. This fully recogni

NEW YORK COURT OF APPELS ABSTRACT. zes the power of the latter court over such orders. And it was not intended to enact that an order mado PARTNERSHIP

“AST) (0."

COXin the State court, which affected or might affect the STRUCTION.-Section 1, ch. 281 of the Laws 1883, mode of trial yet to be bad, could change or modify reads as follows: “No person shall hereafter transthe express diroctions of an act of Congress on that act business in the name of a partner not interested in subject.

his firm, and where the designation 'and ('ompany' Nor does the language of tho court in Duncan r. or ' & (o'is used, it shall represent an actual partner Greghan, 101 L. S. $10, go so far. When it is there or partners." This statute does not appear to be a said that “the ('ircuit Court has no more power over very useful one. It does not compel partners to diswhat was done before the removal than the State close their true names, or any of their names, in the court would have had if the suit had remained," it is partnership designation. They may still do business in effoct affirmed that it has at least that much power. under any style, not untruly containing the name of There can be no doubt that on a proper showing before any person which they choose to assume, such as the the State court it could have discharged tho order for “Union Towing Company," the “Eureka ('ompany' this examination or suspended its further execution. or other fanciful names (Crawford r. ('ollins, 45 Barb. In acting on such a motion as this it would have been 269; Wright r. Hvoker, 10 X. 1.51°; and it may be governed by the laws of the State of New York. In very difficult in such cases to ascertain who the nudeciding whether it would continue the execution of merous persons are composing the partnership. Eren this order or decline to execute it further tho ('ircuit an individual may transact his business under such a Court was gorerned by the Federal law. If the law name without riolating tho statute. So these plaintgorerning the Circuit Court gave it no power to make iff's could have done business under the name “Gay & or continuo this examination, but in fact forbid it, Co.," and the public would have been just as liable to theu it could not enforce the order.

imposition as when the business was done under the




uame of Gay Brothers & Co. Persons giving credit to and stow live-stock as other ordinary inanimate a firm, either rely upon the responsibility of the firm, freight, is a question upon which much has been writby wliomsoever it may be constituted, or they rely ten, and some diversity of opinion has been expressed. upon the members thereof, whose names by inquiry, It is not necessary here to analyze the adjudged cases, or in some other way, become known to them. With nor indicate the weight of reason or authority. Betts out this statute, one imposed upon by a fictitious firm v. Farmers' L. & T. Co., 21 Wis. 81, was an action for would have his civil remedy for the fraud or deceit, injuries caused by the carrier's negligence in carrying and there would generally also be a remedy by indict the plaintiff's cattle in a car with defective and imperment for false pretenses. So the statute is not only fectly fastened doors, which were thrown open by the not very beneficial, but it is also highly penal and it motion of the cars so that the cattle escaped. The catshould therefore be strictly construed. Where there tle were shipped under a special contract, which, fore in a bond given to said firm, which used the among other things, provided that the company should & Co.,” the names of the actual partners were not be liable for loss in jumping from the cars." In stated, and it was known to all the obligors that they that case, Dixon, C. J., giving the opinion of the court, alone constituted the firm, heid, that the case was said: “As to this species of property, we think it pot within the purpose or intent of the statute, and competent for the carrier to contract the owner shall that the use of the fictitious designation was not a de assume all risk of damage or injury, from whatever fense to an action upon the bond. It is a rulo peculi cause, happening in the course of transportation." arly applicable to the construction of penal statutes, See also C. & N. W. R. Co. v. Vau Dresar, 22 Wis. 512; that a thing within the letter of statute

Morrison v.

Phillips & Colby Constr. Co., 44 id. 405. is not within the statuto unless within the This proposition seems to cover more ground thau the intention thereof; and too in the construc point actually decided in that case, but the English tion of remedial statutes, it is generally held that cases cited by the learned chief justice seem to sustain a thing within the intention is within the statute the proposition. To them others may be added: Mcthough not within the letter; and these rules have Cance v. London & N. W. Ry. Co., 7 Hurl. & N. 477: many illustrations in the books. People v. Utica Ins. Gannell v. Ford, 5 Law T. (N. S.) 604; Robinson v. Co., 15 Johns. 358, 380; Holmes v. Carley, 31 N. Y. 289. Great Western Ry. Co., 35 L. J. C. P. 123; Harrison v. It is said in an old case (Eyston v. Studd, 2 Plow. 465), London, etc., Co., 2 Best & S. 122; Manchester v. “it is not the words of the law, but the internal sense Brown, 50 L. T. Rep. (N. 8.) 281. But there are cases of it that makes the law, and our law, like all others, even in England which seem to hold a contrary docconsists of two parts, viz., of body and soul; the letter trine. McManus v. Lancashire, etc., Co., 4 Hurl. & of the law is the body of the law, and the sense and N. 327; Allday v. Great Western Ry. Co., 5 Best & S. reason of the law is the soul of the law.” “ Quia ratio 903; Gregory v. West Midland Ry. ('0., 2 Hurl. & C. legis est anima legis.Gay v. Siebold. Opinion by Exch. 944; Rooth v. Northeastern Ry. Co., L. R., 2 Earl, J. (See 60 How. Pr. 163; 83 N. Y. 74.)

Exch. 173; Doolan v. Directors, L. R., 2 App. Cas. 792; [Decided Dec. 2, 1884.)


Law, 65. Just how far the cases cited were controlled CREDIBILITY OF WITNESS.—Hypothetical questions are

by the presence or absence of local statutes it is not allowed to be put to experts; but the hypothesis upon

necessary here to determine. It is well settled that a which they are examined must be based upon facts ad

carrier of ordinary inanimate freight cannot by any mitted or established by the evidence, or which if con

agreement, however plain and explicit, wholly relieve troverted the jury might legitimately find on weigh

itself from all liability whatsoever resu ng from its ing the evidence. Purely imaginary or abstract ques

own negligence. Black v. Goodrich Transp. Co., 55 tions, assuming facts on theories for which there is no

Wis. 319. Just the extent that a carrier of such inanifoundation in the evidence, are not admissible as mat

mate freight may by express contract exempt itself ter of right. On cross-examination, such abstract or

from liability for its own negligence need not here be theoretical questions, not founded upon the facts of

determined. Certainly there is a broad distinction the case on trial, may be put, for the purpose of test

between the risks incident to the carriage of such oring the knowledge and information of the witness, as

dinary inanimate freight, and that of live animals to the subject upon which he has been examined, and

having instincts, habits, propensities, wants, necessihis competency to give the opinion which he may have

ties and powers of locomotion. Requisite care in case pronounced on his direct examination. But the al

of the transportation of such live-stook therefore neceslowance of such questions, like other collateral in

sarily implies food and water periodically, and at quiries touching only the credibility of the witness,

times especial care and shelter outside the vehicle of rests in the discretion of the court, and when the dis

carriage. All these things would require help, applicretion is fairly exercised, it is not error to excludo

ances, conveniences and extra arrangements not rethem. Dilleber v. Homo Life Ins. Co., 87 N. Y. 79-88;

quisite in the case of ordinary inanimate freight, La Beau v. People, 34 id. 223. Were the rule other

which a carrier might be unable or unwilling to furwise, there would be no limit to the cross-examination

nish, and yet if furnished by the owner of such liveof a witness called as an expert. It could be protracted

stock, and the risk incident to them assumed by such as long as the fertility of the imagination of the exam

owner, the carrier might be able and willing to underining counsel might enable him to suppose cases, and

take such transportation. And yet, with all reasonathe mental and physical powers of endurance of the

ble care, it would be impossible to secure at all times witness would permit him to frame auswers. People v.

absolute safety in the transportation of such live aniAugsbury. Opinion by Rapallo, J.

mals. This broad distinction between that class of [Decided Dec. 16, 1884.]

freightage and ordinary inanimate freight has frequently been observed by the courts. Blower v. Great

Western Ry. Co., L. R., " C. P. 655; Shir, Lead. Cas., WISCONSIN SUPREME COURT ABSTRACT.

No. 22, p. 50; Clarke v. Rochester, etc., Ry. Co., 14 N.
Y. 570; Penn v. Buffalo, etc., Ry. Co., 49 id. 204; Cra-

gin v. New York Central Ry. Co., 51 id. 61; Holsapple CARRIER-LIVE-STOCK-DELAY IN SHIPMENT-DAM

v. Rome, Wat. & Ogd. R. Co., 3 Am. & Eng. Ry. Cas. AGES.— Whether a railway company is under the same 487; Smith v. New Haven, etc., R. Co., 12 Allen, 531; obligations to furnish cars for, aud receive, safely carry Evans v. Fitchburgh R. Co., 111 Mass. 142; Michigan

S. & N. Ind. R. Co. v. McDonough, 21 Mich. 189; Lake Shore & Mich. So. R. Co. v. Perkins, 25 id. 329. There would certainly seem to be no good reason why a carrier might not by express contract exempt itself from damage caused wholly, or perhaps in part, by the instinots, habits, propensities, wauts, necessities, vices, or locomotion of such animals. As to injury from such causes the common-law liability and obligation do not seem to attach; certainly not with the same rigidity as they do to ordinary inanimate freight. Thus in a late case in Minnesota it is held that “a railroad corporation which undertakes to transport live-stock for bire for such persons as chose to employ it, assumes the relation of a common carrier, with such modifications of the common-law liability of carriers as arise from the vature of their animals and their capacity for inflicting injury upon themselves and upon each other.” Moulton v. St. Paul, M. & M. Ry. (*o., 12 Am. & Eng. Ry. Cas. 13. To these things may well boadded other things incident to live-stock. As to the extent to which a carrier may limit its liability for injury caused by its own negligence see the valuable notes to Holsapple v. Rome, Wat. & Ogi. R. ('0', 3 Am. & Eug. Ry. Cas. 487, and Harrison v. Alissouri Pac. Ry. ('0., 7 id. 382; Peek v. North Staffordshire Ry. ('0., 10 II. L. 473; Shir. Lead. ('as., No. 23, p. 51. Richardson v. Chicago, etc., R. ('o. Opinion by Cassoday, J. [Decided Oct. 18, 1881.]

EVIDENCE-PAROL TO SHOW LEASE IN FACT MORTGAGE-MORTGAGE ON FUTURE (ROP.-(1) A written contract, by tho terms of which M. leases a farm to L. for one year, surrenders possession at once, and agrees to do all the work in raising a crop thereon, and to deliver the whole of such crop to L., tho latter agreeing to furnish all the groceries necded by M., to furnish the seed, to sign a promissory note of even date with the contract for the sole benefit of M., and upon delirery of the crop to give M. a receipt for $300 of present indebtedness of H. to L., is upon its face a lease, but may bo shown by parol or other competent evidence to have been intended merely as a mortgage of the crop. It presents the well-settled proposition that a bill of sale of chattels, or an absoluto deed or lease of real estate, may be shown to have been given as a mortgage security by parol, or other competent evidence; and where the evidence satisfactorily shows that fact, then the conveyance, whatever its nature or form, will be treated as a mortgage; and the rights of the parties under such contract will be such, and only such, as they would have been had the writing on its face created the relation of mortgagor and mortgagee. The following aro few of the cases in this court which establish the proposition above stated : Plato r. Roo, 14 Wis. 153; Sweet v. Mitchell, 15 id. 611; Kentv. Lasley, 2 id. 63t; Kent v. Agard), id. 378; Wilcox v. Bates, 26 id. 465; Dobbs v. Kellogg, 53 id. 418; S. ('., 10 N. W. Rep. 62:3; Brinkman v. Jones, 41 Wis. 498. (2) A mortgage of a crop thereafter to be raised is void as against a subsequent purchaser from tho mortgagor, unless before such purchase tho mortgagee took actual possession of the property. If tho transaction between M. and L. was shown to be a mortgage socurity in fact then such mortgage would bo absolutely void as to a subsequent mortgagee or vendeo of M., for the reason that the property intended to be covered by the mortgage was not in existence when the mortgage security was given, unless there was evidence given showing that the respondent had taken the actual possession of the property intended to be mortgaged after it came into existence, and before it was mortgaged or sold to the appellant. Comstock v. Scales, ở Wis. 139; ('hyuoweth v. Tonney, 10 id. 397-407; Farmers' L. & T. ('0. v. Commercia! Bank, 11 id. 207; Single v. Phelps, 20 id.

399; Mowry v. White, 21 id, 417; Hunter v. Bosworth, 43 id. 583; Farmers' L. & T. Co. v. Fisher, 17 id. 114; Fariners' L. &. T. Co. v. ('ary, 13 id. 110. Lawson v. dloffatt. Opinion by Taylor, J. [Decided Oct. 14, 1881.]

MUNICIPAL CORPORATION-LEGISLATURE MAY DIVIDE-APPORTIONMENT OF LIABILITIES-SERVICES BY ATTORNEY.-A county board exercising legislative powers in the vacation of a town may apportion the property and charge the liabilities of such town to the towns to which its territory is annexed in such manner and proportion as may seem just. The doctrino that in the vacation of a town the Legislature has the power to apportion the property and charge the liabilities of the vacated town upon the town or towns to which the territory of the vacated town is annexed, in such manner and proportion as may seem just to the Legislature, seems to be well established by authority. Thompson v. Abbott, 61 Mo. 176, 177; Borough of Dunmore's Appeal, 5:2 Penn. St. 374; City of Olney r. Harvey, 50 Ill. 453; Morgan v. City and Town of Beloit, 7 Wall. 613-617. The general power of the Legislature to apportion the property and the liabilities of a vacated town among the towns to which its territory is attached, is recognized by this court in tho caso of Town of Depero v. Town of Bellevue, 31 Wis. 120-1255; Goodhuo v. Beloit, 21 id. 6:36; and Supervisors of La Pointe v. ()'Malley, 47 id. 3:32; S. (., 2N. W. Rep. 63.2 ; Butternut v. ()'Malley, 50 Wis. 333; S. (., 7 N. W. Rep. 218. This court held in La Pointe v. O'Malley, suprii, that the county board of supervisors had all the powers of the Legislaturo in regard to the vacation of towns and the annexation of the territory to other towns, and in such case could distribute the property of the vacated town to the towns to which the territory of tho racated town was attached, in such manner as the board deemed best for the public interest. An attorney rendered services to the town of L. in prosecuting an action against the town of A. under a contract providing that if $10,000 was recovered, or if the action was discontinued by the town ho should receive $5,000. While that action was pending on an appeal, tho county board vacated the town of L. and annexed a part of its territory to said town of A., making the latter the successor of the town of L. so far as said action was ooncerned. After the decision of the appeal which established the right of the town of L. to recover $10,000, tho town of A. obtained an order dismissing the action. Held, that said attorney might recover for his services from the town of A. The ordinance vacating the town of L. provided that the amount justly due for such services should be determined by a refereo namel, but the town of A. refused to consent to its being so determined, when the attorney proposed to submit the question to the referee. TIelul, that the attorney might recover the amount duo under the original contract with the town of L. Knight v. Town of Ashland. (pinion by Taylor, J. [See 11 Am. Rep. 602; 21 Eng. Rep. 268.] [Decided (ct. 11, 1881.]



WILL-EXECUTORY DEVISE-DEIXG WITHOU'T ISSUE. - A testator derised to E., daughter of his son N., a parcel of land in fec, provided that should E. die in her minority, and without lawful issue then living, the land should revert and become a part of the residue of his estate; devised other land to his son W. for life, and to J., son of W., in fee, with a like proriso;

* Appearing in Supreme ('ourt Reporter.

gave to his widow certain real and personal property conflict with any treaty with a foreigu nation, they for life; and devised the residue of his estate to his must prevail in all the judicial courts of this country. executors, and directed that the income be suffered to We had supposed that the questiou here raised was set accumulate until his eldest grandchild then living at rest in this court by the decision in the case of the should attain the age of 21 years, or until the decease Cherokee Tobacco, 11 Wall. 616. It is true, as sugof his son W., whichever should first occur, and then gested by counsel, that three judges of the court did the whole to be equally divided among all his grand not sit in the case, and two others dissented. But six children then living, and in making such division the judges took part in the decision, and the two who disamount of the devises to J. and to E., according to an sented placed that dissent upon the ground that Conestimate of their present value, to be made by three gress did not intend that the tax on tobacco should exappraisers, to be charged to them as part of their re tend to tho ('herokee tribe. They referred to the exspective shares. Held, that the estate of E. in the istence of the treaty which would be violated if the land specifically devised to her was divested by her statute was so construed as persuasive against such a dying under age and without issue, though after the construction, but they nowhere intimated that if the deaths of testator and of W. When a devise is made statute was correctly construed by the court, it was to one person in fee, and “in case of his death” to an void because it conflicted with the treaty, which they 0:her in fee, the absurdity of speaking of the one would have done if they had held that view. On the event, which is sure to occur to all living, as uncertain point now in controversy it was therefore the opinion and contingent, has led the courts to interpret the de of all the judges who heard the case. See U. S. v. Mo viso over as referring only to death in the testator's Bratney, 104 U. S. 621-623. The precise question inlife-time. 2 Jarm. Wills, ch. 18; Briggs v. Shaw, 9 volved bere, namely, a supposed conflict between an Allen, 516; Lord Cairns in ()'Mahonoy v. Burdett, L. act of ('ongress imposing a customs duty, and a treaty R., h H. L. 388, 395. But when the death of the first with Russia on that subject, in force when the act was taker is coupled with other circumstances which may passed, came before the Circuit Court for the District or may not ever take place, as, for instance, death un of Massachusetts in 1855. [t received the considerader age or without children, the devise over, unless tion of that eniinent jurist, Mr. Justice Curtis, of this controlled by other provisions of the will, takes effect, court, who in a very learned opinion exhausted the according to the ordinary and literal meaning of the

sources of argument on the subject, holding that it words, upon death, under the circumstances indicated there were such conflict the act of Congress must preat any time, whether before or after the death of the

vail in a judicial forum. Taylor v. Morton, 2 Curt. C. testator. ()'Mahoney V. Burdett, supra; 2 Jarm. ('. 451. And Mr. Justice Field, in a very recent case in Wills, ch. 49. We find nothing in this will to take the the Ninth ('ircuit, that of In re Ah Lung, on a writ of case out of the general rule, or to support the argu

hubeus corpus, has delivered an opinion sustaiuing the mont of the plaintiff in errorthat the testator intended

same doctrine in reference to a statute regulating the that the devise over should not take effect if Eliza Ann immigration of Chinamen into this country. 18 Fed. survived him, or at least, if she survived his son Wil Rep. 28. In the Clinton Bridge case, Woolw. 156, the liam. The phrase in the specific deriso that in the

writer of this opinion expressed the same views as did prescribed contingency the land shall “revert and be

Judge Woodruff, on full consideration, in Ropes v. come part of the residuo," is quite as consistent with Clinch, 8 Blatchf. 304, and Judge Wallace, in the same the happening of the contingency after the estate has ('ircuit, in Bartram v. Robertson, 15 Fed. Rep. 212. It once vested in the devisee, as with its happening in

it very difficult to understand how any different docthe testator's flife-time, and before any estate has trine can be sustained. A treaty is primarily a comvested in her. Britton v. Thornton. Opinion by

pact between independent nations. It depends for the Gray, J.

enforcement of its provisions on the interest and the [Decided Doc. 15, 1881.]

honor of the governments which are parties to it. If CONSTITUTIONAL LAW-ACT OF AUG. 3, 1882–REGUT

these fail, its infraction becomes the subject of interLATION OF COMMERCE—('HINESE IMMIGRATIOX.-The

national negotiations and reclamations, so far as the act of Congress of Aug. 3, 1882, "to regulate immigra- | injured party chosos to seek redress, which may in the tion,” which imposes upon the owners of steam or sail

end be enforced by actual war. It is obrious that ing vessels who shall bring passengers from a foreign

with all this the judicial courts have nothing to do, port into a port of the United States a duty of fifty

and can give no redress. But a treaty may also coucents for every such passenger not a citizen of this

tain provisions which confer certain rights upon the country, is a valid exerciso of the power to regulate

citizens or subjects of one of the nations residing in the commerce with foreign nations. We are clearly of

territorial limits of the other, which partake of the naopinion that in the exercise of its power to regulato

turo of municipal law, and which are capable of enimmigration, and in the very act of exercising that

forcemeut as between private parties in the courts of power, it was compotent for ('ongress to impose this

the country. An illustration of this character is found contribution on the ship-owner engaged in that busi

in treaties, which regulate the mutual rights of citiAnother objection to the validity of this act of

zens and subjects of the contracting nations in regard Congress is that it violates provisions contained in nu

to rights of property by descent or inheritance when merous treaties of our government with friendly na

the individuals concerned are aliens. The Constitutions. And several of the articles of these treaties aro

tion of the United States places such provisions as annexed to the careful brief of counsel. We are not

these in the same category as other laws of Congress satisfied that this act of Congress violates any of these

by its declaration that “this Constitution and the laws treaties on any just construction of them. Though

made in pursuance thereof, and all treaties made, or laws similar to this havo long been enforced by the

which shall bo mado under authority of the United State of New York in the great metropolis of foreign

States, shall be tho supreme law of the land." A trado, where four-lifths of these passengers have been

treaty then is a law of the land as an act of Congress landed, no complaint has boen made by any foreign

is, whenever its provisions prescribo a rule by which nation to ours of the violation of treaty obligations by

the rights of the private citizen or subject may be dethe enforcement of those laws. But we do not placo

termined. And when such rights are of a nature to be the defense of the act of Congress against this objec

enforced in a court of justice, that court resorts to the tion upon that suggestion. Wo are of opinion, that so

treaty for a rule of decision for the case before it as it far as the provisions in that act may be found to be in

would to a statuto. But even in this aspect of the


case there is nothing in this law which makes it irre their attorneys, and filed with the clerk. Flanders v. pealable or unchaugeable. The Constitution gives it Tweed, 9 Wall. 425; Kearney v. ('ase, 12 id. 275; Gilno superiority over an act of Congress in this respect, man v. Illinois & M. T. Co., 91 U. S. 603, 614; Madison which may be repealed or modified by an act of a later Co. v. Warren, 106 id. 6:22; Alexander Co. v. Kimball, date. Nor is there auy thing in its essential character id. 6:23. In Flanders v. Tweed Mr. Justice Nelson or in the branches of the government by which the quoted the passage just cited from the opinion of treaty is made, which gives it this superior sanctity. Chief Justice Taney in ('ampbell v. Boyreau, and said A treaty is made by the president and the Senate. that when a trial by jury had been waived, but there Statutes are made by the president, the Senate and was no stipulation in writing, no finding of the facts, the House of Representatives. The addition of the and no question upon the pleadings, the judgment latter body to the other two in making a law certainly must, according to the course of proceeding in prodoes not render it less entitled to respect in the mat vious cases, be affirmed, unless under very special cirter of its repeal or modification than a treaty made by cumstances this court otherwise ordered. 9 Wall. the other two. If there bo any difference in this re 129, 131. The most appropriate evidence of a comgard it would seem to be in favor of an act in which all pliance with the statute is a copy of the stipulation in three of the bodies participate. And such is in fact writing filed with the clerk. But the existence of the the case in a declaration of war, which must be made condition upon which a review is allowed is sufficiently by Congress, and which, when made, usually suspends showu by a statement, in the finding of facts by the or destroys existing treaties between the nations thus court, or in the bill of exceptions, or in the record of at war. In short, we are of opinion that so far as a the judgment entry, that such a stipulation was made treaty made by the United States with any foreign na in writing. Kearney v. ('ase, 12 Wall. 283, 284; Dick. tion can become the subject of judicial cognizance in inson v. Planters' Bank, 16 id. 250. So it has been the courts of this country, it is subject to such acts as held that a written consent of the parties, after a trial Congress may pass for its enforcement, modification, by jury has begun, to withdraw a juror and refer the or repeal. Edye v. Robertson. Opinion by Miller, j. case to a referee, in accordance with a statute of the [Decided Dec. 8, 1881.]

Stato authorizing this course, is a sufficient stipulation

in writing waiving a jury; and that when the court PRACTICE-WAIVER OF JURY-STIPULATION-REV.

has authority to refer a case upon consent in writivg STAT., § 619-STATE DECISIONS.— (1) By the act of

only, an order expressed to bo mado “ by consent of March 3, 1865, ch. 86, § 4, re-enacted in tho Revised

parties,” that the case be referred, necessarily implies Statutes, it is provided that issues of fact in civil cases

that such consent was in writing. Boogher v. Insurway be tried and determined by the Circuit Court

ance Co., 103 U. S. 90. See also l. S. v. Ilarris, 106 id. without the intervention of a jury, whenever the par

6:29, 631, 6:35. And since the statute, as before, a judgties, or their attorneys of record, filo a stipulation in

ment upon an agreed statement of facts or case stated, writing with the clerk of the court waiving a jury;

signed by the parties or their counsel, and entered of that the finding of the court upon the facts shall have

record, leaving no question of fact, to be tried, and prethe same effect as the verdict of a jury; and that its

senting nothing but a question of law, may be reviewed rulings in the progress of the trial, when excepted to

on error. Supervisors V.: Kennicott, 103 U. S. 554; U. at the time, and presented by bill of excoptions, may

S. v. Eliason, 16 Pet. 291; Burr v. Des Moines ('o., 1 be reviewed by this court upon error or appeal. 13 St.

Wall. 99; ('ampbell v. Boyreau, supru. The record 501 ; Rev. Stat., ss 649, 700. Before the passage of this

before us contains nothing to show that there was any statute it had been settled by repeated decisions that

stipulation in writing waiving a jury. The ('ircuit in any action at law at which the parties waived a

Court had authority to try and determine the case, trial by jury and submitted the facts to the determina whether the waiver was written or oral. In the findtiou of the Circuit Court upon the evidence, its judg. ing of facts and in tho judgment there is no statement ment was valid; but that this court had no authority

upon the subject. (?) By the common law indeed a to revise its opinion upon the admission or rejection general verdict and judgment upon several counts in of testimony, or upon any other question of law grow a civil action must be reversed on writ or error, if only iug out of the evidence, and therefore when no other

one of tho counts was bad. But Lord Mansfield “exerror appeared on the record, must allirm tho judg-ceedingly lamented that ever so inconvenient and illment. Guild v. Frontin, 18 How. 135; Kelsey v. founded a rule should have been established," and adForsyth, 21 id. 85; ('ampbell v. Bugrean, id. 2:23. The

ded, “what makes this rule appear more absurd is that reason for this, as stated by ('hief Justice Taney in

it does not hold in the case of criminal prosecutions." Campbell v. Boy reau was that “by the established and

Grant v. Astle, ? Doug. 172:2, 730; Snyder v. U. S., 112 fanuiliar rules and principles which govern common U. S. 216. In Illinois it has been changed by statute, law proceedings no question of law can be reviewed

providing that wheneveran entiro verdict shall be given and re-examined in an appellato court upon a writ of

on several counts, tho sane shall not bo set aside or error (except only whero it arises upon the process,

reversed on the ground of any defective count, if one pleadings or judgment in the cause), unless the facts

or more of the counts in the declaration shall be suffiare found by a jury, by a general or special verdict, cient to sustain the verdict." Ill. Rev. Stat., 1874, ch. or are admitted by the parties upon a case stated in

110, $ 68. That statute governs proceedings in cases the nature of a special verdict, stating the facts and

tried in the Federal courts within that State. Rer. referring the questions of law to the court." 21 110w.

Stat., § 914; Townsend v. Jemison, ñ How. 706, 722; 226. Eren in actions duly referred by rule of court to Sawin v. Kemny, 9:3 IT. S. 289. And the rule thereby au arbitrator, only rulings and decisions in matter of established must be applied to judgments lawfully law after the return of the award were reviewable, rendered without a verdict. Bond v. Dustin. OpiuThornton v. Carson, ñ (ranch, 596, 601; Alexandria

ion by Gray, J. ('aval ('o. v. Swam, 5 lIow. 83; York & ('. R. ('. r.

[Decided Dec. 22, 1881.] Myers, 18 id. 246; Ileckers v. Fowler, ?, Wall. 1:23. Since the passage of this statuto it is equally well set TAXATION-EXEMPTION RAILROAD-PERSONAL tled by a series of decisions that this court cannot con PRIVILEGE.—Where a State Legislature authorizes thu sider the correctness of rulings at the trial of an action formation of a railroad company to be a body corpoby the Circuit ('ourt without a jury, unless the record rate for certain purposes, and provides by its charter shows such a waiver of a jury as the statute requires, that it shall be exeoipt from taxation for a certain peby stipulation or iu writing, signed by the parties or riod of timo from and after its completion, the ex


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