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trict Court; that upon a hearing of such petition the court may proceed to hear proof for or against the incorporation, and take such evidence as it shall deem necessary; and that if the court after such hearing is satisfied" that the lands embraced in such petition, or any part thereof, ought to be included in said proposed village, and that the interests of the inhabitants will be promoted thereby, it shall make an order declaring that such territory, the boundaries of which shall be therein set forth by metes and bounds, and which may be diminished or enlarged by such court from the boundaries specified in the application, as justice may require, shall be an incorporated village. Held, that this act is unconstitutional, for the reason that it assumes to delegate legislative powers to the District Court, a tribunal not authorized under the Constituti to xercise such powers. The granting of all charters of incorporation involves the exercise of legislative functions. The proposition (says Dillon) which lies at the foundation of the laws of corporations of the country is that they all, public or private, exist aud cau exist only by virtue of express legislative enactment creating or authorizing the creation of the corporate body. All municipal corporations are mere auxiliaries to the State government in the busi. ness of municipal rule. The act of deciding when and under what circumstances the public interests require the creation of these auxiliaries or aids to the State government is one of the highest and most important legislative powers and duties. By section 1, article 4, the Constitution of the State, the legislative department of the government is made to cons st of a Senate and House of Representatives. In them all legislative power is exclusively vested. One of the settled maxims of constitutional law is that legislative powers cannot be delegated. Where the Constitution has located the law-making power it must remain. The department to whose judgment and wisdom it has been intrusted cannot abdicate this power and relieve itself of the responsibility by choosing other agencies upon whom it shall be devolved. Cooley Const. Law, 139. As said by this court in State v. Young, 29 Miun. 551; S. C., 9 N. W. Rep. 737, it is a principle not questioned that except when authorized by the Constitution, as in respect to municipal corporations, the Legislature cannot delegate legislative power. The power of local legislation commonly bestowed on municipal corporations does not trench upon the maxim, since this is authorized, impliedly at least, by the Constitution itself; and the maxim itself is to be understood in the light of an immemorial practice which has always recognized the policy and propriety of vesting in such corporations these powers. As before remarked, municipal corporations are created for this purpose, as aid to the State government in the business of municipal rule. Cooley Const. Law, 140. Had the Legislature, by the act in questiou, fixed aud specified all the conditions and facts upon which the incorporation of certain territory should depend, we do not question their right to refer to some tribunal or body the question of ascertaining and determining the existence of these facts and conditions. Neither do we decide that they might not delegate certain legislative powers regarding the organization and incorporation of villages to some appropriate municipal body which might constitutionally exercise local legislative powers. The delegation of certain powers of local legislation to municipal bodies, for reasons already suggested, is permissible. Boards of county commissioners are already, under certain limitations, invested with somewhat similar powers in the organization and change of boundaries of towns and school districts. But the present act assumes to delegate these legislative powers to the District Court, a tribunal not authorized to exercise

them, its jurisdiction under the Constitution being purely judicial. Cases may be found where it has been held that powers similar to those conferred by this act were properly delegated to certain so-called courts, but we think it will be found in almost every instance that these courts were not exclusively judicial, but also quasi municipal bodies invested with certain powers of local legislation. Such are the County Courts in some States, which take the place of our boards of county commissioners in the municipal government of the county. As bearing upon the question here considered, see City of Galesburg v. Hawkinson, 75 Ill. 152; Shumway v. Bennett, 29 Mich. 451. State v. Simon. Opinion by Mitchell, J. [Decided Dec. 18, 1884.]

CRIMINAL LAW.

CONSPIRACY TO ROB-MURDER-ALL GUILTY.—If several are associated together to commit a robbery, and one of them, while all are engaged in the common design, intentionally kills the person they are attempting to rob, in furtherance of the common purpose, all are equally guilty, though the others had not previously consented to the killing, where such killing was done in the execution of the common purpose, and was a natural and probable result of the attempt to rob. People v. Vasquez, 49 Cal. 560; State v. Shelledy, 8 Iowa, 477; United States v. Ross, 1 Gall. 624; People v. Pool, 27 Cal. 572; State v. Nash, 7 Iowa, 347; Stipp v. State, 11 Ind. 62; 1 Bish. Crim. Law (7th ed.), § 636; 2 Whart. Crim. Law (7th ed.), § 998. So if those inside the house while attempting to consummate the robbery, and in furtherance of such conspiracy purposely kill the person they are attempting to rob, while he is resisting such attempt, and such killing is the natural and probable consequence of the common purpose, the person outside, who is aiding and assisting, is equally guilty as the one striking the fatal blow, though he did not previous to such attempt agree to or assent to such killing. Sup. Ct. Ohio, Jan., 1884. Stephens v. State. Opinion by Johnson, C. J. [42 Ohio St. 150; See 28 Eng. Rep. 64.]

LARCENY-RECENT POSSESSION-INTENT.-The recent possession by the defendant of the stolen property, his conduct at the pawnbroker's shop, the nature of the account given by him of the manner in which he had acquired it, the conflict between his statement and his evidence in that regard, constituted sufficient proof that the defendant stole the watch. State v. Hogard, 12 Minn. 293 (Gil. 191); 2 Russ. Cr. 337, 338; Knickerbocker v. People, 43 N. Y. 177; Com. v. MoGorty, 114 Mass. 299; Ingalls v. State, 48 Wis. 647. The fact that the larceny was committed within the house during the night; that the defendant was not an inmate of the house, and up to the hour of the closing of the house for the night was not in it, render possible no other conclusion from the premise that he committed the larceny than that he also entered the house. The felonious intent with which the entrance was effected was properly inferred from the fact of the larceny committed. Roscoe Crim. Ev. 369; 2 Archb. Crim. Pr. & Pl. (Pomeroy's ed.) 1107. Sup. Ct. Minn., Dec., 1884. State v. Johnson. Opinion by Dickinson, J. [21 N. W. Rep. 843. See 30 Alb. L. J. 318.-ED.]

INDICTMENT-REFERRING TO THIRD PERSON AS UNKNOWN-BRIBERY-EVIDENCE-At common law, in cases where an indictment referred to third parties as persons to the grand jury unknown, if upon the trial it was made to appear that the grand jury did know the names of the persons referred to, the accused would

46

have to be acquitted on the ground of a variance between the allegations of the indictment and the proofs. But it was not necessary for the State to prove the truth of the allegations beyond a reasonable doubt. Upon the contrary, quite a different rule is to be applied, and the burden is on the defendant to show that the grand jury at the particular time of finding the indictment knew the names of the parties described as unknown. Com. v. Gallagher, 126 Mass. 54; Com. v. Hill, 11 Cush. 137; Com. v. Tompson, 2 id. 551; Rex v. Bush, Russ. & R. Cr. Cas. 372; Whart. Crim. Ev., § 97. The doctrine contended for by plaintiff in error can be found in Stone v. State, 30 Ind. 115; but Wħarton, in his work on Precedents of Indictments and Pleas, vol. 1, p. 18, refers to this decision as pushing the doctrine to a questionable extreme; "' and such is evidently the case. Under the allegations of the indictment, and the circumstances of the case as shown by the testimony, it was held competent for the State to prove other acts of bribery than those alleged in the indictment, for the purpose of corroborating the principal witness upon material facts involved in the original contract of bribery, and also for the purpose of showing the system, plan and design of the parties involved in the transaction alleged in the indictment. State v. Bridgman, 49 Vt. 202; Thayer v. Thayer, 101 Mass. 111; Kramer v. Com., 87 Peun. St. 299; Rex v. Hough, Russ. & R. Cr. Cas. 120; Rex v. Ball, id. 132; Com. v. Price, 10 Gray, 472; Reg. v. Francis, 12 Cox Crim. Cas. 612; Regina v. Garner, 4 Fost. & F. 346; Whart. Crim. Ev., § 38 et seq. Sup. Ct. Neb., Nov. 18, 1884. Guthrie v. State. Opinion by Reese, J. [21 N. W. Rep. 455.]

FINANCIAL LAW.

BANK AND BANKING-DEPOSIT OF NOTE FOR COLLEC

TION—SALE.—(1) Leaving a note at a bank for collection does not authorize the bank to sell it. And if the bank does sell it without authority, and satisfies the payee, the purchaser cannot afterward collect it as against a surety of the maker. And if the purchaser has left the payee to suppose that the note was regularly

taken up, the latter canuot after the maker's death, and on being made a party to a suit upon the note against the surety, be required to elect between affirming the sale and rescinding it and restoring the money which he has received in payment of it. (2) The maker of a note that has been sold to satisfy the payee will continue liable upon it if he consents to do so; but his consent will not bind his surety. (3) Whether one who in good faith has purchased a note that has been sold without authority has not a remedy against the vendor, qucere. Sup. Ct. Mich. Fuller v. Bennett. Opinion by Cooley, C. J. [21 N. W. Rep. 433.]

INSURANCE LAW.

FIRE-AUTHORITY OF ADJUSTER-WAIVER OF FORFEITURE. However well the duties and powers of an insurance adjuster may be known in the community, the law makes no presumption with reference to them, and they must be proven in every case where the rights of the parties depend upon the question whether his acts were done with authority. Where there is no evidence of the authority of an adjuster to waive proofs of loss, it is error to instruct the jury that a waiver might be inferred from certain aots done by him. Where the assured asserts a claim for loss under his policy, and the insurer is informed of facts out of which a forfeiture it is claimed grew, but with knowledge of the circumstances, continues to treat the contract as binding, and induces the assured to act in that belief, the insurer may be held to have waived the for

feiture. See Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Insurance Co. v. Norton, 96 U. S. 234; Webster v. Phoenix Ins. Co., 36 Wis. 67; Northwestern Mut. Ins. Co. v. Germania Ins. Co., 40 id. 453; Cannon v. Home Ins. Co., 53 id. 585. It is claimed however by defendant that a different rule is established by this court in Fitchpatrick v. Hawkeye Ins. Co., 53 Iowa, 335. It is held in that case that the insurer did not waive the forfeiture of the policy by requiring proofs of loss after being orally informed of the fact which created the forfeiture. The ground on which the hold ing is put is that as the policy itself provided that the information should be communicated by the proofs of loss, and as the oral information was not full, the insurer had the right to demand that full information be communicated to it in the manner provided in the contract before it determined the question of its liability; and as the proofs were demanded to enable it to determine that question, it did not waive the forfeiture by demanding them. The distinction between the two cases is very apparent. Sup. Ct. Iowa, Dec., 1884. Hollis v. State Ins. Co. Opinion by Reed, J. [21 N. W. Rep. 774.]

CORRESPONDENCE.

LAW REPORTS. Editor of the Albany Law Journal:

The publication of legal reports, authorized and as private enterprises, constitutes the only perpetual motion. It does not slacken, falter, or wear out. If sufficient cases are not at hand to make a volume every month, what is called "annotation" is resorted to, viz., dozens of pages of solid names of cases which more or less cover certain of the ground of the text. We have railway reports, corporation reports, telegraph reports, and there is no reason why - since everybody who can use a pair of shears can make them -we should not have sugar-refinery cases, horse cases, cow cases, mad-dog cases, snake-bite cases, otc.? Is there no relief? Since nobody but the law booksellers

enjoy this sort of thing, and in the end the people pay,

cannot the State interfere? Why cannot a law be devised authorizing the reporter to abridge decisions something like this:

V.

and as to

"The court followedthe novel point proceeded as follows," etc."

Why should we be compelled to pay for a million decisions to the effect that contributory negligence is a defense to an action for ordinary negligence, or any other proposition of horn-book law?

In old times the lawyer who was buying books was only losing the use of his money, plus ordinary wear and tear. Now he is buying the costliest class of books published, with the certainty of their being superseded by new editions not only, but by private series and voluminous " reports," within a year or so. I do not remember the proceeds of the late Charles O'Conor's library, but it was a case in point. The amount realized was probably not one-tenth of the disbursement made. The result is that nobody but the law bookseller is benefited.

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The ALBANY LAW JOURNAL will earn the gratitude of lawyers not only, but of clients who in the end pay the lawyers, by not only calling attention to the matter, but keeping it up, inviting suggestions, discussing it, and lending its facilities to working our relief. BARRISTER.

NEW YORK, April 23, 1885.

P.S. What is the meaning of the word "reports?" It has an official sound. What right has any bookseller to get up a collection of cases by hack work and call them "reports," anyhow? The bar itself could stop this thing by simply refusing to purchase.

INTEREST AGAIN.

Editor of the Albany Law Journal:

In reply to my query published on page 300 of your issue of April 11, 1885, relative to the correct legal method of computing time between two given dates for the purpose of subsequently computing interest, the two answers, viz., page 319, April 18, and that of Mr. Fontes, page 340, April 25, do not solve the problem. Both cite the Revised Statutes, pt. 2, ch. 4, tit. 3, §§ 9, 10. But I want to know how to apply the above citation and above all the authorities, or even one authority on the subject.

As my theory resulted from an attempt to calculate an actual payment of interest on over-due notes, I sought to ascertain the authorized method for my own protection.

There are three ways of computing, to mention no more, that I beg to instance to make my query clear.

The question is: What time has elapsed between October 25, 1884, October 29, 1884, October 31, 1884, respectively, and March 19, 1885?

By method 1. The actual number of days is 145. Divide this by 30, and the result is 4 months and 25 days for the first note; 4 months and 21 days for the second; 4 months and 19 days for the third.

By method 2. Calling October the tenth month, and March the third mouth, and subtracting as below, we get:

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4-24

This gives 4 months and 24 days, 4 months and 20 days, 4 months and 18 days for the three notes respectively.

By method 3. From October 25 to November 25 is one month; to December 25, two; to January 25, three; to February 25, four; leaving 22 days to March 19. This gives 4 months aud 29 days, 4 months and 19 days, 4 months and 19 days for the three notes respectively.

Which of the three methods is authorized, and what authority can be cited? Although I seek,information, I would venture the following statement: I cannot see that the above citation authorizes the third method. I can see authority however for the other two, but of these two the first seems to me wrong, while the second, in my opinion, will meet every possible emergency.

Thanking you for this space,

I am, Very truly yours, NEW YORK, April 28, 1885.

INQUIRER.

NEW BOOKS AND NEW EDITIONS.

FARMER'S HISTORY OF DETROIT AND MICHIGAN. The History of Detroit and Michigan, or the Metropolis illustrated. A chronological cyclopædia of the past and ent. Including a full record of territorial days in Michigan and the annals of Wayne county. By Silas Farmer, Historiographer. Detroit: Silas Farmer & Co. 1884. This is a very elaborate and copiously illustrated work, which must be of great interest to the inhabitants of Michigan. It is in plan and execution about on a level with the many local histories which have been issued during the last quarter of a century. While much of it is of no general interest, there are chapters on the legislatures, laws and courts, which are undoubtedly valuable to Michigan lawyers. One of the most valuable characteristics of this history is the large number of cuts of ancient buildings, perpetuating the appearance of old localities which easily fade

from the recollection. Every lawyer has experienced
the difficulty of proving the character of the occupa-
tion of land after the lapse of comparatively a few
years. The book is handsomely printed, and we are
glad to see that it has none of the portraits of self-made
men which usually disfigure such works. We would
whisper to Mr. Farmer that Shakespeare never could

have said "native here and to the manor born." What
he said was 66
manner.'

""

CAREYS' FORMS AND PRECEDENTS.

Forms and Precedents, embracing the following subjects:
Pleading and Practice in courts of equity, admiralty and
common law; proceedings in orphans' courts; statutory
proceedings, patents, trade-marks, and copyrights; con-
tracts and conveya
wills, etc. Compiled and
edited by James Carey, Jr., and Francis King Carey. Bal-
timore: M. Curlander. 1885. Pp. x, 1084.

This seems to be a very complete collection, but many of the forms might well be boiled down and modernized. A compiler of forms ought to find something newer than "made oath on the Holy Evangels of Almighty God." The book is. too coarsely printed; it ought to have been much less bulky.

MURFREE'S OFFICIAL BONDS.

A Treatise on the Law of Official Bonds and other penal bonds. By W. L. Murfree, Sr. St. Louis: Review Publishing Co. 1885. Pp. viii, 646.

The practitioner will here find all the learning on this subordinate subject, conveniently arranged, and concisely expressed. The book is very handsomely printed. The author's industry has enabled him to cite cases filling a double-columned table of thirtysix pages.

BUSWELL ON INSANITY.

The Law of Insanity in its application to the civil rights and
capacities and criminal responsibility of the citizen. By
Henry F. Buswell. Boston: Little, Brown & Co. 1885.
Pp. xxxviii, 595.

A cursory examination leads us to think well of this work. It seems very comprehensive, and a model for text-book writers in oue respect-it wastes no words. The subject well deserves independent treatment such as it receives from Mr. Lawson and the present writer.

COURT OF APPEALS DECISIONS.

THE

IE following decisions were handed down Tuesday, April 28, 1885:

Judgment modified, and as modified affirmed, without costs to either party in this court-Margaret C. Remington, respondent, v. William H. Walker, executor, etc., appellant.-Judgment reversed, new trial pres-granted, costs to abide the event-Charles C. Motel, infant, etc., respondent, v. Sixth Avenue R. Co., appellant.-Judgment affirmed, with costs-Edward J. McGeau, receiver, etc., appellant, v. Thomas Mackellar et al., respondents.- -Order affirmed, with costs -Charles G. S. Baker, appellant, v. Jarvis S. Baker, respondent.- -Order of General Term reversed, that of Special Term affirmed, with costs-Robert F. Little, receiver, etc., appellant, v. Theresa Lynch, respondent.-Appeals dismissed, with costs-Bolton Hall et al., respondents, v. United States Reflector Co., appellant; Peter Rowe, sheriff, etc., appellant.Order modified and affirmed as to the appointment of a trustee only, with costs-In re petition of Edmund Waring and another.

The Albany Law
Albany Law Journal.

ALBANY, MAY 9, 1885.

CURRENT TOPICS.

IN

N last week's Nation we find a long editorial on "The Lawyers and the Field Code." It is by no means so heavy as we expected. On the contrary it is in spots amusing. For example, it would be difficult to imagine any thing "cooler" than the following: "Since it is unquestionably the general opinion among lawyers that the adoption of the Field Code will, for a time at least, greatly increase litigation, the spirited resistance offered by the leaders of the profession to this measure cannot be explained by a reference to selfish motives." This is taking things for granted with a vengeance. The opposition say so, therefore so it is. Now we do not assert or believe that the opposition are actuated by mercenary motives, although we suspect they are selfish. Prejudice, laziness, obstinacy, pique, have a good deal to do with the matter. But the funniest thing the Nation says is this: "It is the product neither of the judges nor of the profession, and the profession will therefore refuse to take the responsibility of giving it a meaning until it has passed through the process of assimilation which they require. No Code, we may safely predict, will be successfully applied unless it first secures the general approbation of the bar." This is rank nonsense. We suspected until just now, that some member of the city bar association wrote these things for the Nation, but it is hard to believe that any lawyer ever wrote such whimsical opinions as this. Not one of the present Codes "secured the general approbation of the bar," yet they are universally acknowledged to be successful. But we find no fault with the Nation and Mr. Cowen. The nonsense of the former, unalleviated by Mr. Cowen's wit and good feeling, and the unsoundness of the latter, uninfected by the Nation's editorial cataract, are alike amusing, and enable us, we trust, to season the insipidity of Current Topics. But we find no argument sufficient to defeat the will of the people, and the repeated action of the Legislature.

We have read Mr. Pomeroy's and Mr. Miller's pamphlets against the Code, and do not find much startling or new. Mr. Pomeroy was a learned teacher and a good author, but he was a professor, and he was bounded by the spirit of the professor; he lacked the breadth of a man of affairs. We would rather pin our faith to the opinion of Chief Justice Wallace. It is no disparagement to Mr. Miller to say that his opinions are not even so weighty as Mr. Pomeroy's, although if we could see general merit in his minute criticisms we would admit it. Our answer to all these criticisms is that it is hopeless to get a Code without fault or above criticism, and that this Code probably comes nearer VOL. 31 No. 19.

the mark than any we could get in another generation.

One reason against codification has not been stated by the gentlemen of the New York City Bar Association, and we do not scruple to give them a live reason. That reason is, that after we get a Code the courts, having run so long in the ruts of the common law, will not pay any attention to it. For example: the Code of Civil Procedure, section 3345,

enacts that "the rule of the common law that a statute in derogation of the common law is strictly construed, does not apply to this act." This was the provision of the old Code, § 467. Now in the case of Noyes v. Davidson, an abstract of which is given in another column, our Court of Appeals say, the chief judge himself writing the opinion: "Sections 1421 et seq. of Code of Civil Procedure, authorizing the substitution of the indemnitors of a sheriff as defendants in an action brought to recover personal property levied upon him by virtue of an attachment or execution, or to recover damages for such a levy are new, and constitute a serious and important innovation upon the law as it stood previous to their enactment. This statute is clearly in derogation of the common law and common right, and by settled rules of interpretation must be strictly construed, and not extended beyond its express provisions and clear import. McCluskey v. Cromwell, 11 N. Y. 593; Sprague v. Birdsall, 2 Cow. 419; 4 Mass. 145, 473." If courts are not going to pay any more attention than this to Codes and statutes, of course we may just as well let them go on making the law to suit themselves. We wonder if the court would not have granted a reargument in this case on the ground that they had misapprehended the law.

The Pennsylvania Supreme Court, in April, 1884, were called on, in Carroll v. Burns, to construe this provision in a will: "All the rest, residue and remainder of my estate, real and personal, I devise and bequeath unto my said three daughters, to have and to hold to them during their natural lives, and after their death then to the lawful issue of my said three daughters and the heirs and assigns of

such issue." They unanimously held that "the

clear intent of the testatrix was to give each of her daughters a life estate only, and on their death to give to their children and their heirs the estate in fee." Soon after this decision was rendered, leading conveyancers and real estate lawyers, although without any standing in court as to the case, united in a memorial to the court, praying for a rehearing, on the ground that the decision, as it stood, would unsettle half the real estate titles in the city; and it was contended that the decision was contrary to the "rule in Shelly's case," the ancient and accepted rule for interpreting the principle involved. A rehearing was granted, and the court, three judges dissenting, held that "perhaps the testatrix intended to give a life estate to her daughters, and the remainder in fee to their children; but she has

used words which definitely vest in her daughters an estate tail, and the courts are not at liberty to wrest them so that they may mean any thing else." And so reversed their former decision. Fine commentary on the precision and "elasticity" of the common law! This is cited as a remarkable instance of a court's reversing itself, but we recollect that this same court turned a similar somersault a few years ago.

|

The constitutional question in the case of General Lawton's appointment by the president is not so casy to dispose of as the party newspapers on both sides deem it. Attorney-General Garland is a good lawyer, and he holds that President Johnson's pardon made General Lawton a new man, and quite competent to hold office under the government in spite of his previous rebelliousness. Others think that the subsequent constitutional amendment requiring the removal of disability by Congress applies to the General's case, and that the pardon extended only to criminal responsibility. But it is replied that one of the consequences of rebellion or treason was incompetency to hold office, and that this disability was cured by the pardon. But then on the other hand it is said that while an act of Congress alone could not revive the disability, the constitutional amendment did have that effect, that the change of the fundamental law could and did effect any thing that the sovereign law makers, the people, intended or desired. It is much easier to state the question than to solve it, and we shall not at present undertake to express an opinion, because we have no right, upon present reflection, to have any. It is a good question for our law-school moot courts to discuss, and settle off-hand. We think that General Lawton showed excellent sense in not accepting the appointment. We will suggest however that it is a question that will need to be settled some time, and no time is better than now.

The London Law Times, in a review of Mr. Kelly's "French Law of Marriage," criticises the author for using the phrase "pass upon," in the sense of decide or adjudge, and calls it an "unpleasant American phrase." And yet it is used by Shakespeare and Jeremy Taylor, and we venture to say never until now has been condemned except by some philological pedant. Most "Americanisms " traceable to good English origin.

are

In City of Chicago v. O'Brien, 111 Ill. 532, it was held that a city has not the constitutional power to require the owner or occupant of premises to keep the sidewalk and gutters in front thereof free from sand where the snow and ice cannot be removed snow and ice, or to sprinkle the same with ashes or him for a neglect or failure to do so. without injury to the pavement, and inflict a fine on Referring to contrary cases the court said: "These cases go to the length of sustaining the doctrine contended for by plaintiffs in error. They announce the doctrine that such improvements may be compelled under the general police power. If this be so, by an exercise of the same power we presume that the owner be compelled to construct and keep in

NOTES OF CASES.

'N v. Cases 52

IN Reg. 7. Stephenson, Crown C that served, he repair public brocom, budges and culverts fronting

there is sufficient on this case to show that the coroner had the right and power to hold one. No case absolutely in point has been referred to, but there are many cases which show that interfering with and preventing the performance of duties imposed upon officers by statute is a misdemeanor at common law. Now the holding of an inquest is a matter of great public importance, and it is most important that where a coroner has reasonable grounds for holding an inquest, he should not be prevented from doing so, otherwise the consequences would be most formidable. Child murder especially would be more likely to go unpunished, if by disposing of the bodies by burning the only evidence perhaps of the crime could be destroyed. The very object of a coroner's inquest is to ascertain the cause of death, and it certainly is not the law that the coroner must be certain of the cause of death before he can hold an inquest, which would be the effect of the argument that the pris oners cannot be convicted, although the coroner acted reasonably in determining to hold the inquest, if the inquest should prove to be unnecessary. Under the statute of Edward I, the coroner's duty is to act on information, and the inquest is held to test the information. It is said in Bracton 3, chapter 5, and Horne's Mirrour, page 38, that the statute is in affirmance of the common law, and merely directory. Now the statute says 'the coroner, if he be certified by the king's bailiffs or other honest men of the country, shall go to the place where any be slain, or suddenly dead or wounded,' nothing being said about murder. An examination of the body is required by the statute, and the whole wording shows that an inquiry into the cause of death is intended, which would be useless had the coroner to satisfy himself by evidence as to the cause of death previously to holding the inquest."

dictable misdemeanor willfully to prevent an inquest appointed by the coroner, or to destroy the body in question. Grove, J., said: "The two points submitted for our consideration and decision “Whether it is an indictable misdemeanor willfully to prevent the holding of an inquest of which the coroner has given notice, and whether

are:

upon or running through his lands, or the owner of a city or village lot could be compelled to make and repair the street in front of his property. A sidewalk is a portion of a public highway, appropriated, it is true, to pedestrians alone, but still open and free to all persons desiring to use and enjoy it as a public highway. It is as much a public

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