gether with the bill of lading for the same, are hereby pledged and hypothecated to B. Brothers, as collateral security, with authority to take possession and dispose of the same at discretion for their security and reimbursement;" and by means of the credit thus advanced, A. bought a quantity of shellac from a dealer in Calcutta, the bill of lading being made in the name of B. Brothers at New York. On the arririval of the property at New York, A., who had previously got from B. Brothers, agents there, the bills of lading of other goods for the purpose of warehousing them in the name of B. Brothers, obtained this bill of lading, saying he was going to enter the goods at the custom house, and warehouse them in the name of B. Brothers, and his receipt for the bill of lading specified this as the only object. Instead of so doing, A, entered the goods in the name of his broker, who warehoused them, and gave the receipt therefor to A. A. then pledged this receipt, with orders, to M., the plaintiff, for a loan. B. Brothers and their agents, upon learning of this, seized the goods. M., the plaintiff, then brought an action to recover the value of the goods and damages for their seizure, claiming that B. Brothers were only pledgees, and that A. was the owner of the property. Held, that B. Brothers having advanced at the request of A. their credit for the purchase of the property, and taking the bill of lading in their own name, and having relied upon the property as the means of reimbursing themselves, became the owners and not the pledgees of the property. And their relation to A., the original mover in the transaction, is that of owners under a contract to sell and deliver when the purchase price is paid. (2) Held also, that there being no testimony to show that B. Brothers and A. had ever departed from the arrangement represented by A.'s written receipt, it was not error to refuse to submit to the jury the issue whether A. had been intrusted with the documents of title for the purpose of sale, so as to constitute him a factor within the meaning of the New York and Massachusetts factors' acts. June 7, 1887. Moors v. Kidder. Opinion by Finch, J. Rapallo, Earl and Peckham, JJ., dissenting.

CORPORATION-LIABILITY FOR CONSPIRACY.- An action may be maintained against a corporation to recover damages caused by conspiracy. Morton v. Metropolitan Life Ins. Co., 34 Hun, 367; affirmed 103 N. Y. 645; Reed v. Home Sav. Bank, 130 Mass. 443; Krulivitz v. Eastern R. Co., 140 id. 575; Western News Co. v. Wilmarch, 33 Kans. 510. If actions can be maintained against corporations for malicious prosecution, libel, assault and battery and other torts, we can perceive no reason for holding that actions may not be maintained against them for conspiracy. It is well settled by the authorities cited that the malice and wicked intent needful to sustain such actions may be imputed to corporations. July 1, 1887. Buffalo Lubricating Oil Co., Limited, v. Standard Oil Co. Opinion per Curiam.

COSTS-ACTION AGAINST MUNICIPAL CORPORATION -DEMAND-FISCAL OFFICER.-We held that cases for the recovery of damages for injuries sustained by reason of the negligence of the servants of a municipal corporation were not within the purview of section 2, ch. 262, L. 1859. Taylor v. City of Cohoes, 105 N. Y. 54. The provisions of that section were substantially embodied in section 3245 of the Code. There is no such change in the language of the latter section as requires or will permit us to change our decision, and construe it differently from the former section. We simply decided in Baine v. City of Rochester, 85 N.Y. 523, that under section 3245 a claim against a municipal corporation arising ex contractu must have been

presented to its chief fiscal officer before the commencement of the action in order to entitle the plaintiff to costs, and thus actions ex delicto against municipal corporations are left to stand, as to costs, upon the prior decisions. We do not agree that a claim against this municipality could, under the section of the Code, be presented to its board of trustees. The chief fiscal officer of such a corporation is the officer who receives, keeps and disburses the moneys of the corporation, and such an officer is the treasurer. July 1, 1887. Gage v. Village of Hornellsville. Opinion per Curiam.

MORTGAGE-SALE OF PREMISES-ASSUMPTION OF MORTGAGE-LIABILITY OF PURCHASER-MEASURE of

DAMAGE.—(1) Where A., who is the owner of a tract of land which is subject to mortgage, sells a part to B., who assumes and agrees to pay as part of the purchase price the amount of the mortgage, and thereafter A. sells the remainder of the tract to C., C. or his assignee may on the foreclosure of the mortgage, through the failure of B. to pay the same, and the sale of his lands therefor, maintain an action against B. to recover damages. (2) In such a case the value of the land is the measure of damage. July 1, 1887. Wilcox v. Campbell. Opinion by Earl, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CONSTITUTIONAL LAW-FOURTEENTH AMENDMENT -BASTARDY.-The Maryland bastardy law, as embodied in the Code of 1860, provides that any magistrate, upon receiving information that a white woman has given birth to an illegitimate child, may issue his warrant for her apprehension, and require her to give security to indemnify the county, and in case of her neglect or refusal, may commit her unless she discloses the father's name, in which case the latter is to be arrested and compelled to give security. Other acts provide for and limit the mode of enforcing the law. Held, sustaining a conviction of paternity of an illegitimate child of a white woman, that the State's system of bastardy laws was valid and constitutional, and not in contravention of the fourteenth amendment to the Constitution of the United States. The provision relied on as having this effect are those parts of the second clause of that amendment which declare that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws." It was decided in Slaughter-House Cases, 18 Wall. 36, that the first clause of this amendment was primarily intended to confer citizenship on the negro race; that the second protects from the hostile legislation of the States the privileges and immunities of citizens of the United States as distinguished from the privileges and immunities of citizens of the State, and that the paragraph which forbids a State to deny to any person the equal protection of the laws was clearly intended to prevent hostile discrimination against the negro race. And in the more recent cases of Pace v. Alabama, 106 U. S. 583, it was held that the purpose of this last clause was to prevent hostile and discriminating State legislation against any person or class of persons; that equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others, to the courts of the country, for the security of his person and property, but that in the administration of criminal justice he shall not be subjected for the same offense to any greater or different punishment. Yet it was decided in that case that a statute of Alabama

prohibiting a white person and a negro from living with each other in adultery or fornication is not in conflict with this clause, although it prescribes penalties more severe than those to which the parties would be subject were they of the same race and color. Now if we are right in our views as to the construction and effect of this bastardy law, we are unable to perceive how it conflicts with either of these clauses, as thus interpreted by the Supreme Court. Clearly the procreation of illegitimate children cannot be said to be a privilege or immunity of citizens of the United States, nor does the statute give any privilege or confer any benefit upon the mothers of such children. It is true the mother may receive the $30 per year paid by the father, but not because she is the mother of the child, but because the child is maintained by her. It is given to her simply as compensation for such maintenance. If the child is not maintained by the mother, or if she does not have the child in her custody for maintenance, she gets nothing, and the money goes to some "other person to whose custody such child may have been committed to be maintained." Again as between fathers, whether white or colored, no distinction whatever is made; and how can the fact that the law does not extend to negro or colored mothers be regarded as a denial to them of the "equal protection of the laws," as these terms have been defined by the authorities cited? It surely will not be contended that there is discrimination against them because they are not embraced in the terms of a penal statute, or of such a law as this. Nor do we perceive how the white mother can be said to be discriminated against by a law, all the burdens of which she can escape by her own voluntary act of simply disclosing the father of her child, whether he be white or colored. Upon this point, as well as upon the construction of the statute generally, we adopt the following views, stated in the brief of the attorney-general, as having been expressed by Judge Sylvester in a case in his circuit, in which the validity of this law was controverted. "The statute," says the learned judge, "aims at no redress for private or personal wrongs done to the mother. The act intended to be punished involves no invasion of the mother's rights-no element of trespass or violence. She is a consenting party. It is not a case where she would otherwise be left exposed without the protection of the law to trespasses, assaults or violence. Hence the argument that the colored mother is exposed when the white mother is protected, and that redress is extended to the one and denied to the other, is really without foundation. No personal right is invaded; no privilege or immunity of the white or colored mother is interfered with. Still more unfounded is the suggestion that the child itself is protected in the one case and left exposed in the other. No such result is contemplated by the statute, and nothing of the kind follows as an incident of its enforcement. The security required is not for the benefit of the child; it is intended only to protect the public from the maintenance of the child; and if that indemnity is not given, it is a mistake to suppose that the child is left without nurture, maintenance or support. The county or public is charged with its maintenance, and unless the indemnity contemplated by the statute is given, the burden of maintaining the child, whether the illegitimate offspring of a white or colored mother, still rests upon the public. If the child is not left to perish under the law, as the argument assumes, the burden of its support is only shifted and placed on the father as a measure of punishment upon him, and this punishment falls equally without respect to race or color." There are other grounds upon which this judgment could well be rested, but we have deemed it best to affirm it upon the sole ground that in our opinion, the law as it stands is

constitutional and valid,and therefore can be enforced. Md. Ct. App., June 22, 1887. Plunkard v. State. Opinion by Miller, J.

CONTRACT-UNCONSCIONABLE-RELIEF FROM HARD BARGAIN. The fact that a needy borrower of a large sum of money ($51,000 for example) is compelled by his necessities to agree to pay a high rate of interest (16% per cent for instance), and to submit to other hard exactions, affords no reason for the interference of a court of equity, especially where the security consists chiefly of stock on a western ranch, which must be marketed and sold before the loan can be repaid. There was nothing in the situation to hinder or prevent independent action on the part of complainant as well as defendants. It is true that complainant was much in need of money, and apparently there was no one but defendants at hand who could and would furnish it. But this is not an extraordinary situation, from which the law can furnish a means of escape. A needy borrower, being sui juris, and under no other duress than that which comes of his circumstances, must in general perform his contract, whatever its terms may be. Courts have indeed refused to enforce contracts which were harsh and unconscionable, but there will usually be found some element of fraud in any such case; and if in any instance the judgment appears to be based on the nature of the contract above, the contract will be found to be so erroneously wrong as in itself to afford evidence of an intention to cheat and swindle. As before suggested, plaintiff was in full possession of his faculties, and was under no sort of restraint, except that he wanted money, which he could not obtain from any other source, and was therefore compelled to accept defendants' terms. In the nature of the property which was to be security for the loan, the disposition to be made of it, with a view to repay the money, and the time for which the loan was to run, there was some reason for demanding a high rate of interest, the expenses of the trust, and payment for defendants' services; so that all that was embodied in the contract was at least a proper subject for consideration. And the circumstances that the defendants exacted a high rate of interest, and other hard conditions, will not avail to avoid the contract, or substitute it for an earlier agreement, if any such was made. U. S. Cir. Ct., Dist. Colo., June 21, 1887. Wann v. Coe. Opinion by Hallett, J.

CORPORATION-BY-LAWS-WHAT CONSTITUTES MAJORITY.-The by-laws of a corporation provided that "the capital stock of the company shall be $10,000, divided into 400 shares of $25 each," and that "no business shall be transacted at any meeting of the. stockholders unless a majority of the stock is represented, except to organize the meeting and adjourn to some future time." Held, that although only 243 shares had been subscribed for, it required 201 shares to constitute a majority, and that an election of directors at a meeting where less than that number was represented was illegal. Me. Sup. Jud. Ct., June 10, 1887. Ellsworth Woolen Manuf'g Co. v. Faunce. Opinion by Foster, J.

ESCAPE.

CRIMINAL LAW-ARSON-INTENT-BURNING JAIL TO Appellant, while confined in the wooden prison of a county poor-farm, set fire to the roof of the prison, burning a hole therein. Being tried for arson, there was no evidence tending to disclose with what intent he set fire to the building. To the charge given by the trial court to the jury the defense objected, in substance, because it did not instruct for an acquittal if the appellant's intent was to effect an escape, and not to consume or injure the building. Held, not well taken. In his work on Statutory Crime, Mr. Bishop says: "A jail is held to be an inhabited dwelling

house, within the statutes against arson of such houses." Bish. Stat. Crimes (2d ed.), § 207. In Delany v. State, 41 Tex. 601, it is said by Roberts, C. J.: "Arson is the willful burning of a house. The house need not be consumed with fire to constitute the offense. It will be sufficient to show that a person set fire to the house, to the extent that some part of the house was on fire, unless it is made clearly to appear that it was accidental, or was done for some other object wholly different from the intention to burn up or consume the house. If for instance it appeared from the evidence that a person confined in prison set fire to the door to burn off the lock, so as make his escape, or that he burned a hole in the floor or in the wall for the same purpose, it would not be arson.

So

it has been held by the courts of other States. People v. Cotteral, 18 Johns. 115; State v. Mitchell, 5 Ired. 350. If however a prisoner, or a number of prisoners in concert, should set fire to a jail without such definite purpose, but for the purpose of burning the jail sufficiently to produce the alarm of fire, and in the consequent confusion make au escape, being at the same time indifferent as to whether the jail was consumed or not, that would be arson." In his work on Criminal Law, Mr. Bishop thus discusses the question: "If a prisoner burns a hole in his cell, or otherwise burns the building in which he is confined, not from a desire to consume the building, but to effect his escape, his offense must be, according to the foregoing doctrines, arson; and so it has been held. On the other hand, the contrary has also been held; and unhappily on this side are the majority of cases. One learned judge, after yielding to the authorities which sustain this view, added: If however a prisoner, or a number of prisoners in concert, should set fire to a jail without such definite purpose, but for the purpose of burning the jail sufficiently to produce the alarm of fire, and in the consequent confusion make an escape, being at the same time indifferent as to whether the jail was consumed or not, that would be arson.' 41 Tex., supra. It is difficult to see why this admission should not carry with it the entire better doctrine." 2 Bish. Crim. Law (7th ed.), § 15. Where the doctrine stated in Delany's case is cited in the the text of Wharton's Criminal Law (7th ed., § 829), the learned author in a note upon the subject says: "But as a jail is a house in the sense in which the term is used in arson, this view cannot be harmonized with other recent cases." See Com. v. Posey, 4 Call, 109; Stevens v. Com., 4 Leigh, 683; Luke v. State, 49 Ala. 30. In Lockett v. State, 63 Ala. 5, the rule announced is: "If a prisoner confined in a county jail set fire to the building, with the intent only to burn a hole through which he may escape, not intending that the building should be further damaged, he is guilty of arson." In view of these authorities, we are of opinion that the doctrine announced in Delany's case, to the effect that if a prisoner willfully fire a jail for the purpose of making his escape, with no design of burning the house down, should be overruled, and the same will be considered hereafter as overruled. Such being our view of the law in this case, it was not error in the learned trial judge to omit so to instruct the jury in this case. Tex. Ct. App., May 1887. Smith v. State. Opinion by White, P. J.

MURDER EXPOSURE TO COLD. An indictment charged, in substance that the defendant was the husband of the deceased, and as such owed her the duty of protection; that she was weak, feeble, sick and unable to walk; that defendant had the ability to take care of her, but that he left her exposed in the nighttime to the cold and inclemency of the weather, refusing to provide her with clothing and shelter; that he did did this feloniously, willfully, purposely, pre

meditatedly and of his malice aforethought, and that she, "languishing of such exposure, leaving, and of such neglecting, omitting, and refusing to provide clothing and shelter, * * * did die;" and that thus the defendant feloniously, willfully, purposely, premeditatedly and of his malice aforethought, did kill and murder her. Held, that it sufficiently charged the offense of murder in the second degree, under Rev. Stat. Mont. p. 358, § 18, defining murder as “the unlawful killing of a human being, with malice aforethought, either express or implied," and providing that "the unlawful killing may be effected by any of the various means by which death may be occasioned. The proximate means of her death were the cold and inclemency of the weather. These were allowed to do their work of destruction by the criminal negligence of the defendant to do the duty of protection, which he owed her as husband. The point is made by the counsel of defendant, that this indictment charges no crime known to the law; that a husband, having the ability to protect his wife, may stand passively by, and see her sick and weak and helpless, refuse to help her, and allow her to perish under the influence of the cold and inclemency of the weather; and this negligence was the result of malice, this refusal to help the product of a felonious, willful, premeditated purpose. There is no charge of an assault made; none that he exposed her to the inclemency of the weather; but he finds her exposed to the unpropitious elements, and he criminally leaves her there to die. If the defendant had, by his own acts, subjected her to the inclemency of the weather, there would be no doubt but that he would be guilty of murder if she had died from the exposure, and he had so subjected her unlawfully and with malice aforethought. But the question is, when he absolutely does nothing, when the very gravamen of the charge is his failure to do something, can he be guilty of murder or manslaughter either? She perishes of cold. It is the agent which causes death. He might have prevented it, but he wickedly refused, and lets her die. This is the question we have to consider. Bishop, in his work on Criminal Law (volume 2, § 689), says, in relation to the degree of duty which renders one responsible for death in cases of neglect, that "the doctrine on this subject is that wherever there is a legal duty, and death comes by reason of any omission to discharge it, the party omitting it is guilty of a felonious homicide." In section 690, discussing the same subject, this learned author says: "If a man neglects to supply his legitimate child with suitable food and clothing, or suitably provide for his apprentice who he is under legal obligation to maintain, and the child or apprentice dies of the neglect, he is guilty of a felonious homicide." The same author, speaking of the kinds of force by which life is taken, says that "whenever the volition, of whatever kind, put forth by one man, results in the death of another man, the former is to be charged with having committed the homicide." And it is immaterial "whether the action be of the mind or of the body; whether it operates solely or concurrently with other things; whether it was consented to by the person on whom it operated or not; whether it was an unlawful confinement, or the leaving a dependent person in a place of exposure, or any omission of duty which the law enjoins. Section 682. Under this authority, the very volition of the defendant by which he was led to refuse aid to his wife when the law imposed the duty upon him to protect her, is transferred to the violence of the elements, and he is made to use their forces, and is responsible for the death which they immediately caused. We find the indictment good as charging a felonious homicide; but what degree of felonious homicide still remains to be decided. The same author above quoted, says: "Another illustration may be found in cases of

the exposure or neglect of infants or other dependent persons. If the act is one of negligence, not clearly showing danger to the life, yet if death follows, the offense is only manslaughter; whereas if the exposure or neglect is of a dangerous kind, it is murder. Ordinarily, if a husband should withhold necessaries from his wife, and she dies, it will be only manslaughter, since this act is not so immediately dangerous to life as the other. Whether death caused by neglect is murder or manslaughter is made to depend on the nature and character of the neglect." If a man willfully abandons his wife to the destruction of the elements when he can save her, or criminally neglects to shelter her when he is able to do so, and leaves her to perish with cold, he is as much a murderer as if he had assaulted her with a deadly weapon, and inflicted upon her a mortal wound of which she died. Mont. Sup. Ct., July 29, 1887. Territory v. Manton. Opinion by McConnell, C. J.

DEED QUIT-CLAIM -BONA FIDE PURCHASER.- A person who holds real estate by virtue only of a quitclaim deed from his immediate grantor, whether he is purchaser or not, is not a bona fide purchaser with respect to outstanding and adverse equities and interests shown by the records, or which are discoverable by the exercise of reasonable diligence in making proper examinations and inquiries. It may be that, with reference to some equities or interests in real estate, the purchaser who holds only under a quit-claim deed may be deemed to be a bona fide purchaser; for equities and interests in real estate may sometimes be latent, hidden, secret and concealed, and not only unknown to the purchaser, but undiscoverable by the exercise of any ordinary or reasonable degree of diligence. It is possible also that a purchaser taking a quit-claim deed may, under the registry laws, be considered a bona fide purchaser with reference to a prior unrecorded deed with respect to which he has no notice, nor any reasonable means of obtaining notice. Bradbury v. Davis, 5 Colo. 265; Butterfield v. Smith, 11 Ill. 485; Brown v. Banner Coal & Coal Oil Co., 97 id. 214; Fox v. Hall, 74 Mo. 315; Graff v. Middleton, 43 Cal. 341; Pettingill v. Devin, 35 Iowa, 344. But, contra, see Thorn v. Newsom, 64 Tex. 161; 53 Am. Rep. 747, and note; Pastel v. Palmer, 32 N. W. Rep. 257. We would think that in all cases however where a purchaser takes a quit-claim deed, he must be presumed to take it with notice of all outstanding equities and interests of which he could by the exercise of any reasonable diligence obtain notice from an examination of all the records affecting the title to the property, and from all inquiries which he might make of persons in the possession of the property, or of persons paying taxes thereon, or of any person who might, from any record, or from any knowledge which the purchaser might have, seemingly have some interest in the property. In nearly all cases between individuals where land is sold or conveyed, and where there is no doubt about the title, a general warranty deed is given; and it is only in cases where there is a doubt concerning the title that only a quit-claim deed is given or received. Hence when the party takes a quit-claim deed, he knows he is taking a doubtful title, and is put upon inquiry as to the title. The very form of.the deed indicates to him that the grantor has doubts concerning the title; and the deed itself is notice to him that he is getting only a doubtful title. Also as a quit-claim deed can never of itself subject the maker thereof to any liability, such deeds may be executed recklessly, and by persons who have no real claim and scarcely a shadow of a claim to the lands for which the deeds are given; and the deeds may be executed for a merely nominal consideration, and merely to enable speculators in doubtful titles to harass and annoy the real

owners of the land; and speculators in doubtful titles are always ready to pay some trifling or nominal consideration to obtain a quit-claim deed. This kind of thing should not be encouraged. Speculators in doubtful titles are not so pre-eminently unselfish, altruistic, or philanthropic in their dealings with others as to be entitled to any very high degree of encouragement from any source. There are cases which are claimed to be adverse to the opinion herein expressed. They will be found cited in Martindale on Conveyancing, $$ 59, 285, and notes and 12 Cent. Law J. 127. Kan. Sup. Ct., June 9, 1887. Johnson v. Williams. Opinion by Valentine, J.

TION

LOADING-PORT

INSURANCE-MARINE-MUTUAL INDEMNITY ASSOCIA- "IMPROPER NAVIGATION INEFFICIENTLY CLOSED.-A shipowner neglected to efficiently close a loading-port in the side of his ship. The act of negligence occurred before the complection of the loading. Goods were damaged by sea-water which leaked in during the voyage, but the leak did not endanger or impede the navigation of the ship. Held, that the damage was "caused by improper navigation of the ship" within the meaning of the articles of association of a shipowners' mutual indemnity association. It has been argued on behalf of the defendant association that they are not liable for the damage, unless the plaintiffs are able to make out that their ship was endangered; but the plaintiffs are not seeking an indemnity in the character of shipowners, but as the owners of goods, and in my judgment, if the goods were damaged by the improper navigation of the carrying ship, the plaintiffs are entitled to an indemnity. Let us assume for a moment that goods were carried with the hatches off from port to port, and that the ship was not at all damaged or endangered thereby, but nevertheless water got into the hold and damaged the cargo, could it be said in that case that the navigation was not improper, because the safety of the ship was never imperiled? It seems to me that this was not the meaning of the parties when they entered into this agreement. In my judgment that would be improper navigation by the ship with respect to the goods. The port was unclosed at the commencement of the voyage, and continued unclosed during the whole of the voyage; and I think that that amounted to improper navigation of the ship with respect to the cargo carried. As to the authorities, I only desire to add that I do not deal at all with the cases in which similar words in bills of lading have been discussed and construed, because I do not think that those cases are in point. I will refer to two cases only. In Good v. London Steamship Owners' Association, L. R., 6 C. P. 563, Willes, J., said that "improper navigation, within the meaning of this deed, is something improperly done with the ship or part of the ship in the course of the voyage; " but I do not think that the learned judge intended by those words to confine the meaning of the term to things actually done by some hand during the actual voyage, and I think that it applies equally to a thing done before the voyage, and continued through it. In the case of The Warkworth, 9 P. Div. 20, 145, the default occurred before the commencement of the voyage, and the Master of the Rolls there says, 9 P. Div. 147: "Although the negligence occurred before the vessel started, its effect was continuous, and operated while the ship was on her voyage." It is quite true that in that case the act of negligence operated with respect to the ship, whereas in the present case it operated with respect to the goods; but I do not think that that constitutes a fatal distinction, and I therefore think that the plaintiffs are entitled to judgment. Q. B. Div., Dec. 13, 1887. Carmichael v. Liverpool Sailing Shipowners' Mutual Indemnity Association. Opinion by White and Wills, JJ.

JURY TRIAL - JURORS' FEES.- Where in a civil action the defendant demands a trial by jury, but fails to deposit the jury-fee required by the rules of the court to be paid in advance, the case may be tried without a jury. We think that the advance of the fees was a reasonable regulation of the mode of the enjoyment of the right of a jury trial, and that the making of such a regulation cannot be said to be a denial or impairment of the right. The expense of a jury demanded by a party is expense incurred on his behalf, and at his instance. It is reasonable and just that he should bear this expense; and it always has been the law and the practice to collect it from one or the other of the litigants. The point is not and could not be that the court had no right to make the parties pay it, but that it could not be collected in advance. But if the court has the right to make the parties pay, it does not seem that the time of its collection is of such importance as to change the character of the requirement. A rule requiring the fee to be paid in advance is a reasonable precaution to prevent the jurors from being defrauded by unscrupulous parties, and to prevent the demand of a jury being used as a pretext to obtain continuances and thus trifle with justice. The right to bring suit, and the right to appeal to a higher court, are as fully secured by the Constitution as the right to a trial by jury; yet it has always been the practice to collect the fees therefor before the suit is commenced or the record on appeal is filed. And we do not see how such a proceeding impairs the right in the one case any more than in the other. If the court has a right to require the payment of a jury fee in advance, the refusal to pay it is the refusal to have a jury trial, and since this is the party's own act, he cannot be said to be deprived of any thing. Upon analogous principles it was held, even in a criminal case, that where after demurrer a defendant refused to plead, such refusal was a refusal of a jury trial or any trial, and that judgment should be entered against him without further ceremony, the court, per Sanderson, C. J., saying: "The intent of the Constitution is to secure every person charged with crime a fair and impartial trial by jury, but not to place it in his power to evade a trial altogether." People v. King, 28 Cal. 266. The authorities in other States bear out the proposition that the making of a reasonable regulation of the mode of enjoyment of the right of trial by jury is not a denial or impairment of the right. Thus in Biddle v. Com. 13 Serg. & R. 410, the provision was for a trial in the first instance before a magistrate without a jury, but upon complying with the requisite conditions, the party could appeal to a higher court, where the case was to be tried by a jury. The condition of the appeal was that the party should make affidavit that "he verily believed injustice had been done him, and that the appeal was not made for the purpose of delay." The court held that there was no impairment of the right of trial by jury, and Tilghman, C. J., delivering | the opinion, said: "Laws such as these promote justice, and leaye the substance of the trial by jury unimpaired, and that is all that is required by these expressions in the Constitution." A similar ruling was made in Keddie v. Moore, 2 Murph. 45, in which case the condition was that the party should give a bond, the court, per Locke, J., saying: "The party wishing to appeal may be subject to some inconvenience in getting security, but this inconvenience does not in this, nor in any other case where security is required, amount to a denial of the right." A similar ruling was made in Beers v. Beers, 4 Conn. 539, the court, per Hosmer, C. J., saying: "A law containing arbitrary and unreasonable provisions, made with the intention of annihilating or impairing the trial by jury, would be subject to the same consideration as if the object had been openly and directly pursued. But on

the other hand, every reasonable regulation made by those who value this palladium of our rights, and directed to the attainment of the public good, must not be deemed inhibited, because it increases the burden or expense of the litigating parties. Such a degree of morbid sensibility may be excited on this subject as to generate an opinion that the legal requisition of a bond, the increase of jurors's fees, and other trivial changes, although imperiously demanded to promote justice and the general convenience, if they only operate to subject the trial by jury to a burden not unreasonable, are a violation of the Constitution. * * * As the interests of a State however do not essentially depend on the existence of one right only, but on many, it is proper to preserve them generally, and not to sacrifice one important consideration to another equally important." And similar decisions have been made in other cases. See Jones v. Robbins, 8 Gray, 341; Flint River Co. v. Foster, 5 Ga. 195; Morford v. Barnes, 8 Yerg. 446. The foregoing cases seem to us to proceed upon the principle above stated, viz., that a reasonable regulation of the mode of enjoyment is not a denial or impairment of the right, although in the cases referred to, the regulation was not the prepayment of the jury fees. But in Adams v. Corriston, 7 Minn. 456 (Gil. 365), the precise point was decided. The court below refused a jury trial, because the defendant declined to advance a jury fee of three dollars, and tried the case without a jury. On appeal, this was held to be proper, the court, per Emmett, C. J., saying: "The objection to the jury fee we do not think is well taken. It is altogether too broad. It is not that the fee is so unreasonably high as to impede the due administration of justice, but because a fee is charged at all. We can see no valid objection to a reasonable fee of this kind. The Constitution does not guaranty to the citizen the right to litigate without expense, but simply protects him from the imposition of such terms as unreasonably and injuriously interfere with his right to a remedy in the law, or impede the due administration of justice. And that a party who demands a trial by jury should be required to advance a small jury fee, whether it is considered as a tax on litigation or as a part of the expense which is necessarily incurred in his behalf, seems no more liable to a constitutional objection than is the requirement that the fee of the clerk, sheriff, and other officers shall be paid in advance when demanded. If the clause in the Constitution means that we shall be permitted to litigate literally without price,' there is an end to all fees, from the issuing of summons to the entry of satisfaction of the judgment." And see also People v. Hoffman, 3 Mich. 248; Randall v. Kehlor, 60 Me. 44, 45; Venine v. Archibald, 3 Colo. 165. Cal. Sup. Ct., Aug. 1, 1887. Conneau v. Geis. Opinion by Hayne, C. TRADE-MARK—“ GUARANTEED INJUNCTION.-A firm of corset manufacturers had for upward of four years been the exclusive makers and sellers of a corset which they called the "Guaranteed Corset," the wear of which they guaranteed for twelve months by undertaking to supply any perchaser with a new corset in case of complaint within that period. The corset was sold in a box bearing a printed label with the words "Guaranteed Corset " in large and conspicuous type, and in smaller type the words, "This corset is guaranteed to wear twelve months." The defendants, a rival firm of corset manufacturers, subsequently introduced a cheaper and inferior corset, the wear of which they also professed to guarantee for twelve months, and which they sold in a box bearing a printed label with the words "Guaranteed Corset" in large type, and words in smaller type similar to the plaintiffs'. Held, in an action by the plaintiffs for an injunction, that the

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