of money, and may purchase, sell and manage property, real, personal and mixed, including stocks, bonds, bills, notes, and other choses in action and evidences of debt, and may collect and adjust and settle the same for or on account of others, and may guarantee the payment of loans negotiated through it. In all matters committed or intrusted to its care, and with respect to loans made by it for or on account of others, it may, in case of default in or the non-payment of such loans or indebtedness, exercise all the powers herein granted to it, with respect to securities for loans made by it, in the same manner as if such loans were made in its own right." Holt, J., in giving the opinion of the court, pointed out that the state of the authorities was against the validity of this statute, and said: "The serious objection, however, to it is that it is unequal and partial legislation; it is exclusive in its character; it favors the interest of one or a few by affording them a particular remedy, while the many are governed by the general law, which denies it. It grants a mode of doing business which the law does not give to the public; and the recipient of this partial legislation is a corporation devoted to private enterprise and ends; rendering no public service, and under no obligation to do so, as is the case with a railroad, or a turnpike company, or a ferry. It is not even doing business as a bank, because by its charter it is not authorized to do so until it has a paid up capital of one hundred thousand dollars; and hence the power in question cannot be claimed for it upon the ground that as a bank it is bound to perform any services for the public, even if this be true of an incorporated bank. It is purely partial or class legislation as to the ordinary business of life, and as such is at war with the genius of our institutions, which impose equal burdens and confer equal privileges. The grant, with an exclusive privilege, of a right or franchise of a public character, and appertaining to government, as in the case of a turnpike or a ferry, differs widely from one relating to the ordinary avocations of life, and the exercise of which pertains solely to the individual; and when a grant of the latter affects the individual rights of others, or affords remedies doing so, we have one law for the individual or a favored few, and another for the mass of the people. Such legislation is beyond doubt contrary to our fundamental law, and at war with all equality of right; and we do not hesitate, therefore, to decide that the Legislature by the attempted gift of such a power passed beyond its constitutional limit." In Gordon v. Winchester Building Asso., 12 Bush, 110, it was held that the legislature cannot confer upon a corporation the privilege of charging a greater rate of interest than is allowed by the general law. In Lewis v. Webb, 3 Greenl. (Me.), it was held that the legislature cannot authorize an appeal in a special case not allowed by the general law. In Durkee v. Janesville, 28 Wis. 464, it was held that an act exempting a party to a particular suit from the payment of costs, was invalid. The same has been held of an act suspending the statute of limitations in a particular case (Holden v. James, 11 Mass. 386); extending the time for an officer to distrain for his fee bills (Smith v. Marden, 4 Ky. Law Rep. 553); and the list of similar decisions could be greatly extended. Kentucky Trust Co. v. Lewis, Ky. Ct. of App., Feb. 7, 1885; 6 Ky. Law Repr. 547.

7. CO-TENANCY.-[Sale of Personalty.]-Effect of a Sale of the Interest of one Co-tenant of a

common.

Chattel. When one tenant in common of a chattel, in actual possession thereof, sells it as exclusively his own, the sale passes only his own interest to the purchaser, who, in turn, becomes a tenant in Where such a sale of the entirety, either by the original tenant or his vendee, is ratified by his co-tenant, the former becomes liable to the latter for his share of the proceeds. A. and B., partners in the lumber business, were tenants in common of a portable saw-mill. B's interest was sold at sheriff's sale to C. A. remained in exclusive possession for a month after the sale, when he sold the entire property as his own to D. and E., who had, at the time, notice of C.'s claim to an interest therein. D. and E. remained in uninterrupted possession for five years longer, when they sold the property. Nearly a year and a half later, more than six years having elapsed since the sale to D. and E., C. brought assumpsit against them for his share of the purchase-money resulting from their late sale: Held, that A. by the sale had passed only his own interest, that the possession of D. and E. was the possession of C., that the latter having ratified the sale by them was entitled to his share of the purchase-money. Browning v. Cover, S. C. Pa., Feb. 4, 1885; 16 Weekly Notes of Cases, 200.

8. CRIMINAL PROCEDURE.-[Selling Liquor to Minor.]-Knowledge of Non-age not Inferrible from Physical Appearances in Case of a Youth of Sixteen, but must be Proved.-On the trial of an indictment under a statute for selling liquor to a minor, there must, in order to sustain the conviction on appeal, be some evidence in the record, other that what the court will infer to have been furnished by the physical appearances of the minor (a lad of sixteen), that the defendant knew that he was a minor. [In the opinion of the court the question is reasoned thus, by Mr. Justice Willson: To constitute the offence of which defendant was convicted it must be made to appear by the evidence in some way that at the time he sold, gave or bartered the liquor to the minor, he knew the fact that the person to whom he sold, etc., was under the age of twenty-one years. Knowledge of this fact by the defendant at the time of the act is as essential to constitute this offence as a fraudulent intent at the time of taking property is to constitute the crime of theft. The fact of knowledge may be proved, like any other fact, by circumstances; but it must be proved in some way before it can be said that the law has been violated. The fact that the defendant sold the liquor to a person under the age of twenty-one years does not, of itself, prove, as is contended by counsel for the State, that he knew such person was a minor. Counsel for the State advances this proposition: When the truth of a fact has been proved, all persons will be presumed to have known the truth until the contrary appears. And under this proposition he contends that the State having proved the minority of the person to whom the liquor was sold, has made a prima facie case of guilt against the defendant. No authority is cited in support of this proposition and argument, nor have we been able to find any such authority. The rule contended for would, perhaps, be applicable in a case where the statute creating the offence does not require that the forbidden act should be knowingly done; but it is certainly not applicable where, as in this case, knowledge of the fact of minority on the part of the defendant is an affirmative matter which constitutes an essential element of the offense, and

must be alleged and proved. Mr. Bishop says: Where the statute is silent as to the defendant's intent or knowledge, the indictment need not allege, or the government's evidence show that he knew the fact; his being misled concerning it is matter for him to set up in defence and prove. Quite different are the law and procedure where the statute has the word "knowingly" or the like. Knowledge is then an element in the crime. The indictment must allege it and the evidence against the defendant affirmatively establish its existence. Bish. Stat. Cr., Sec. 1022; 1 Bish. Cr. Prac., Secs. 522, 523. In creating this offence our statute uses the word "knowingly," and is, therefore, as essential element of the offence that the defendant knew at the time he sold the liquor that the purchaser thereof was under age of twenty-one years. This knowledge must, therefor, not only be alleged, but must be affirmatively proved. Pressler v. State, 13 Ct. App., 95. In the record before us there is not one particle of evidence that the defendant had knowledge of the minority of the person to whom he sold the liquor. It is in proof that such person was a little past sixteen years of age at the time defendant sold him the liquor. It is submitted by counsel for the State that the court should take judicial notice of physical facts, such as that a boy of sixteen years of age would not ordinarily appear to be of the age of twenty-one years, and that this physical appearance was sufficient evidence on the part of the State to prove knowledge on the part of the defendant of the non-age of the purchaser. Mr. Wharton says: As a general rule a court, in making up its conclusions, is to take no notice of facts not in evidence. In the Roman law this maxim, as held by the classical jurists, is understood as precluding the judex from allowing his judgment to be influenced by any facts which are the proper objects of evidence, but which are not put in evidence. In the same sense this maxim has been accepted by our own courts. 1 Whart. Ev., Sec. 276. It is very true that a court will assume knowledge, in proper cases, of natural laws such as are ordinarily admitted by experience or demonstrated by science (Idem, Secs. 284, 333, 334), but we do not conceive that in cases like the one under consideration the rule of judicial notice is applicable. While we might concede that it is a general law of good nature that a person sixteen years of age does not present the same appearance as one twenty-one years of age, yet we also know that there have been and are, and will alwas be, exceptions to this general rule. For aught that this court can know from the record before us the person to whom the liquor was sold in this instance may have presented all the physical appearances of a man over the age of twenty-one years. He may have been six feet tall, weighing 200 pounds, full of strange oaths and bearded like a pard. There is nothing in the record that informs us of his physical appearances as to age. If it had been shown in the statement of facts that in size and physical appearance he was not a man; that it was reasonably apparent that to the observation of an ordinarily prudent man that he was not twenty-one years of age, we should hold that such evidence would be sufficient to show knowledge of his non-age. But there is no such proof in this record, and we can not indulge in the presumption that such proof was before the jury, nor can we take judicial notice that this particular minor did, as minors ordinarily do, present the appearance or physical indications of minority. We must hold, therefore, that the evidence fails to

show that the defendant knowingly sold liquor to a person under the age of twenty-one years; and because of this failure in the proof the conviction is without support and must be set aside."] Hunter v. State, Tex. Ct. of App., June, 13, 1885, 15 Tex. Law Rev. 399.

9. DIVORCE.-[Dismissal.]—Attorney's fees not allowed after Condonation and Dismissal.-In a action for divorce by a wife against her husband, where both parties in open court admit condonation and ask that the action be dismissed, it is the duty of the court to order a dismissal, and the court cannot, in such judgment of dismissal, award fees for the attorneys of the plaintiff, and order their payment by the defendant. [In the opinion of the court Myrick, J., said: "When the husband and wife forgave and were forgiven, and abandoned their criminations and recriminations, the attorneys had but to gather up their briefs and retire. The court should at once have dismissed the case and made no further order in it. McCullough v. Murphy, 45 Ill., 258; Newman v. Newman, 69 Id., 169; Persons v. Persons, 7 Humph. 183."] Reynolds v. Reynolds, S. C. Cal., June 29, 1885; 6 W. C. Repr. 879.

10. EMINENT DOMAIN-[Excessive Appropriation] Rights and Remedies of a Land-Owner where more Land is Taken by a Railroad Company than it Needs.-The power to take, in invitum, private property for the purposes of constructing and operating a railroad thereon, can only be delegated to a corporation by statute; and as such statute must be strictly construed and followed, the landowner, by one appropriation pursuant to the Ohio act of 1848, (2 Curwen Oh. St. 1394, § 9) where more land was appropriated by such corporation than was necessary for its use-could not (as but an easement and not a fee passed) be subjected to the occupancy and burden, upon such surplus, of another common carrier holding under an attempted grant in perpetuity from the first corporation. In so holding, the court recognize fully the right of sale or lease of a road and, right-of-way to another railroad corporation, which shall pass all the rights of the original company to the purchaser or lessee, to the extent contemplated in our legislation or recognized in the decisions of this court, none of which are questioned in this case. Piatt v. Pennsylvania R. Co., S. C. Ohio, March 10, 1885; 14 Weekly Law Bulletin, 33.

11.

Sale of by Railroad Company SurplusRemedy of Land-Owner against Vendee is for Damages only.-The fact that it became evident, subsequently to an appropriation, that the company has appropriated more land than was necessary for its use, and would not need a particular specified part of the strip appropriated for any purpose for which the appropriation was made, will not authorize the company to sell in perpetuity such surplus part to another railroad company; and where the latter company, pursuant to such purchase, constructed on such surplus, a railroad, and operated the same for several years, the landowner is not authorized to recover by civil action such surplus, or enjoin the operation of such railroad thereon, but he may by action treat the transaction as an abandonment of such surplus by the first company and its appropriation by the last company, and recover damages as upon an appropriation. [Upon the point that the railroad company has no power to sell the surplus in perpetuity, the court cites Giesey v. Railroad Co., 4

Oh. St. 420, 428; Rensselaer, etc., R. Co. v. Davis, 43 N. Y., 137, 146; Swinney v. Ft. Wayne, etc. R. Co.. 59 Ind. 205; Mahoney v. Spring Valley, etc. Co., 52 Cal. 159; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123; Mills Em. Dom., § 23; Tayl. Corp., § 166. On the point that the land-owner's remedy is by an action for the damages, and not by an injunction, the following cases are cited: Heard v. Brooklyn, 60 N. Y., 242, S. C., sub. nom., Strong v. Brooklyn, 68 N. Y. 1; Washington Cem. v. Railroad, 68 N. Y. 591; Haldeman v. Railroad, 50 Pa. St. 425; Lance's Appeal, 55 Pa. St., 16, 25; Pittsburgh, etc. R. Co. v. Bruce, 102 Pa. St. 23; s. c., 10 Am. & Eng. R. Cases, 1 and note; Hatch v. Railroad Co., 18 Ohio St. 92; Wagner v. Railroad, 22 Ohio St. 563, 579; Goodin v. Cincinnati, etc. R. Co., 18 Ohio St. 169; Atlantic & G. W. R. Co. v. Robbins, 35 Ohio St. 351. 358; Corwin v. Cowan, 12 Ohio St., 629; Longstreet v. Harkrader, 17 Ohio St. 23; Taylor v. Railroad, 38 N. J. L. 28; Oregon C. R. Co. v. Baily, 3 Oregon, 164, 176; Prather v. Jeffersonville, etc. R. Co., 52 Ind. 16; Terre Haute, etc. Co. v. Rodel, 89 Ind. 128; People v. Met. Tel. Co., 11 Abb. N. C. 304; Grand Rapids, etc. Co. v. Heisel, 47 Mich. 393; Proprietor of Locks, etc., v. Railroad, 184 Miss. 1; Buckingham v. Smith, 10 Ohio, 288; Cooper v. Williams, 5 Ohio, 391; McArthur v. Kelley, 5 Ohio, 139; Jordan v. Overseers of Dayton, 4 Ohio, 1294; Moorehead v. Little Miami R. Co., 17 Ohio, 340; Kansas R. Co. v. Allen, 22 Kan. 285; U. S. v. Great Falls Man. Co., 112 U. S. 645; Hopkins v. Railroad, 79 Mo. 38; Boetock v. North Staffordshire R. Co', 3 Smal & Gif., 283, 292; 26 Eng. Reps. Moak's Notes, 404. Ibid.

13. EVIDENCE- [Marriage]

Manner of Proving Marriage.-A marriage may be proved, even in a criminal prosecution, by the testimony of one who was present at the celebration. [In the opinion of the court Maxwell, J., says: "At common law, in trials for polygamy, adultery, and criminal conversation, proof of marriage must be made by direct evidence or its equivalent. 2 Greenl. Ev. § 461; 1 Phil. Ev. (4th Amer. Ed.) 631, 632. But, even at common law, proof of a marriage having been celebrated by a person who was present, was sufficient. 1 Phil. Ev. 632. Hemmings v. Smith, 4 Doug. 33. Any person who was present when the marriage took place is a competent witness to prove the marriage; and it is enough that he is able to state that the marriage was celebrated according to the usual form, and he need not be able to state the words used. Fleming v. People, 27 N. Y. 329. In this state no proof of the official character of the person performing the ceremony is necessary, and his certificate or a copy of the record, duly certified, will be received in all courts and places as presumptive evidence of marriage. In the absence of evidence to the contrary, the statute of Pennsylvania will be presumed to be like our own. Moses v. Comstock, 4 Neb. 519. Story, Confl. Laws, § 637. The marriage was abundanttly proved, and was foliowed by the parties' living together as husband and wife for more than twelve years. They evidently regarded it as a valid marriage, and such we have no doubt, from the evi

dence before us, it was."] Lord v. State, S. C. Neb., May 12, 1885; 23 N. W. Repr. 507.

14. HOMESTEAD. [Kentucky Statute.] - Infants, when Entitled to.-Infant children are entitled to homestead in the land of their father, not only against his creditors, but also as against his other children who are adults, and although he may not have left a widow. Loyd v. Loyd, Ky. Ct. of App., Jan. 15, 1885; 6 Ky. Law Repr. 551.

15.

[Waste- Injunction.] — Injunction Issues to Restrain Tenant of Homestead from Committing Waste.-Under the act of March 3, 1852, compiled laws, § 676, the homestead of a deceased is not liable for his debts, but is held for the use of the wife and family. So long as his family exists as such the homestead remains as a homestead. The widow has a life estate therein, with reversion in his heirs. She is entitled to the possession, but cannot tear down the buildings situated thereon. If she attempts so to do, she is guilty of waste, and may be restrained by injunction. Dooley v. Stringham, S. C. Utah, June 18, 1885; 6 W. C. Rep., 844.

16. INSURANCE. [Arbitration-Waiver.] When Provision in Policy for Submission to Arbitrators Deemed Waived.-A policy of insurance provided -1st. That arbitrators are to be chosen at the request of either party in writing; and 2d. That no suit shall be commenced until an award shall be obtained fixing the amount of the claim "in the manner hereinbefore provided." Held, that the one clause must be read with the other, and if there was no written request for arbitration given it will be presumed that it was waived, and a suit at law may be brought without first referring it to arbitration. In the opinion of the court Paxson, J., said: "In Mentz v. Armenia Fire Insurance Co., 29 P. F. Smith, 478, there was a condition in the policy which absolutely required an arbitrator to settle the loss in case of dispute, and that no action should be brought until after such award made. It was held, however, not to be binding. It was said by Mr. Justice Sharswood: 'Such an agreement, like any other agreement of reference, is revocable, though the party may subject himself to an action of damages for the revocation. It is not in the power of the parties thus to oust the courts of their general jurisdiction, any [more than they have to a personal covenant that they are not to be responsible for a breach of it;' Farnivall v. Coombes, 5 Mann and G., 736. The Supreme Court of the United States have recognized the soundness of this general principal in Insurance Company v. Morse, 20 Wallace, 445, in which they held that an agreement by a foreign insurance company, in conformity with a State statute, that if sued in a State court they would not remove the suit into the Federal court, was invalid. Flaherty v. Insurance Company, 1 W. N. C. 352, was cited as sustaining the opposite view. The condition of the policy was not given in that case, and, as reported, it is of very little value in this connection, for the reason that we are left in considerable doubt as to what the case really was. In German American Insurance Co. v. Steiger, 13 Ins. Law J., 546, the condition in the policy was substantially similar to the one in this case, and it was held 'that such written request was a condition precedent to the appraisal award, and that there not having been a written request by either party for an appraisal, such appraisal and award were not necessary, under the conditions in order to entitle

17.

the plaintiff to a recovery.'"] Wright v. Susquehannah Mutual Fire Ins. Co., S. C. Pa., May 25, 1885; 15 Pittsb. Leg. Jour. (N. S.) 463.

[Assignment for Creditors.]—Assignee may Insure before Giving Bond.-An assignee for the benefit of creditors may insure the assignee's property against destruction by fire before he has filed his bond, and in the event of loss may bring suit on the policy issued to him as "assignee." A recovery in such an action cannot be defeated by showing that there were other policies on the property at the time of the issuance of the policy to the assignee. [In the opinion of the court by Cooley, C. J., the case of Fuller v. Hasbrouck, 46 Mich. 78; s. c., 8 N. W. Repr. 697, is cited as furnishing the principle upon which the court proceeds, and the following additional observations are made: "We have seen no reason to change the views here expressed. The acceptance of the assignment and the taking possession of the property create a trust with the assignee as trustee, and the assignee may defend the trust by the institution of any necessary suits for the purpose. Coots v. Radford, 47 Mich. 37; s. c., 10 N. W. Rep. 69. The trusteeship is, indeed, for the time being imperfect, for he cannot proceed in its execution before the bond is filed. It is subject to a contingency in the nature of a condition subsequent which may defeat his power to act without destroying the trust; but that, in the meantime, he may do whatever may be found necessary for the protection of the interests of the beneficiaries in the assigned property is recognized by the case just cited. The assignor has transferred to him the legal title for that purpose, and his power to act as trustee is merely suspended for the time being, until certain acts shall be done which are essential to give due protection to parties concerned. But that he may insure the property against destruction by fire in the meantime we have no doubt. He may do so just as properly and with as much right as he may by force or by suit defend his possession against trespassers."] Sibley v. Prescott Ins. Co., S. C. Mich., May 13, 1885; 23 N. W. Repr. 473.

18. MALICIOUS PROSECUTION,-[Dismissal.]—Acquittal on Former Charge, when not Necessary to Maintain Action.-"The general rule, making the right to maintain an action of this nature to depend upon the fact that the prosecution complained of has resulted in a determination in favor of the accused, is applicable only when the course of the prosecution has been such that the accused had the opportunity to controvert the facts alleged against him, and to secure a determination in his favor. [Pixley v. Reed, 26 Minn. 80; s. c., 1 N. W. Rep. 800; Cardival v. Smith, 109 Mass. 158; Buckland v. Green, 133 Mass. 421; Clark v. Cleveland, 6 Hill, 344; Fay v. O'Neill, 36 N. Y. 11; Apgar v. Woolston, 43 N. J. Law, 57; Stanton v. Hart, 27 Mich. 539." Swensgaard v. Davis, S. C. Minn., May 18, 1885; 23 N. W. Repr. 543.

19. NEGLIGENCE.-[Railway Crossing.]-Liability for Injury to Traveller through Negligence of Flagman at Crossing.-Where a flagman in the employment of a railroad company has for several years been in the habit of warning persons about to cross the main line of the railroad of the approach of trains, but was not employed by the railroad company to watch such main track, the company will nevertheless be liable if he so negligently discharges his assumed duty as to the main

track that a party attempting to cross is led into a place of danger, and injured without any want of care on his own part concurring to produce such injury. Peck v. Michigan Central R. Co., S. C. Mich., May 13, 1885; 23 N. W. Repr. 466.

[Railway Fires.]

20. Negligence to Allow Combustible Materials to Accumulate, etc. -Negligence may be imputed to a defendant railway company by a jury from evidence that combustible materials have been allowed to accumulate and remain upon its land, liable to be ignited by sparks from its engines, and to communicate fire to property upon adjoining lands. Evidence considered, and held sufficient to support the verdict. Dickinson, J., dissenting. [In the opinion of the court by Vanderburgh, it is said that there was evidence tending to show that the defendant had allowed combustible materials to accumulate upon its right of way. "The evidence," he observed, "also shows that just before the fire broke out volumes of sparks were observed to escape from the smoke-stack of the engine; and on the part of the defendant it was shown that sparks are liable to escape more or less in the ordinary use of engines, though not out of repair or carelessly managed. If, therefore, combustible materials were allowed to remain upon defendant's land, liable, under the circumstances, to take and communicate fire to the adjacent meadows, from sparks escaping in the ordinary running of trains on the road, the jury might be warranted in imputing negligence to the defendant on this ground. Kellogg v. Railway Co., 26 Wis. 223; Railway v. Jones, 44 Amer. Rep. 337. That plaintiffs had not taken precaution to prevent fire from communicating from the meadow to their stacks was not negligence per se on their part. Karsen v. Railway Co., 29 Minn. 17; s. C., 11 N. W. Rep. 122."] Clarke v. Chicago, etc. R. Co., S. C. Minn., May 12, 1885; 23 N. W. Repr. 536.

JETSAM AND FLOTSAM.

OUR NEW MINISTER TO ENGLAND.-Mr. Edward J. Phelps, who has been nominated Minister to Great Britain by the President of the United States, is known to English lawyers as having been, in association with the late Mr. William A. Beach, counsel against the English company in the case of The Emma Mining Company v. Parke, tried in New York in 1877. Mr. Beach, who died last June, was eminent for his powerful advocacy in jury cases, while Mr. Phelps' powers lie rather in equity cases, and he is distinguished for his knowledge of law, his subtlety in argument, and the refinement of his style of speaking. Mr. Phelps comes of a good New England family, and has, socially, a reputation for wit, besides other engaging qualities, so that his arrival may be looked upon as another importation of geniality flavored with sal Transatlanticum which his predecessors have made so popular in England.-Law Journal (London).

ST. LOUIS, AUGUST 7, 1885.

CURRENT EVENTS.

A NATIONAL CODE OF PROCEDURE.-At the last session of Congress, a petition, of a number of lawyers and business men of the State of Missouri, asking for the appointment of a commission to prepare a national code of procedure, was presented to the Senate by Mr. Cockerill, referred to the committee on the judiciary, and ordered to be printed. The proponent of the measure was Samuel B. Gordon, Esq., of the St. Louis Bar, a gentleman of learning and experience, who has bestowed considerable reflection upon the subject. Appended to the memorial are some remarks of his, which we subjoin: "The need of such a code is obvious; since, under the present statute, the practice of the Circuit Courts of the United States in actions at law must conform to that in the courts of the particular State; whereas, if a Federal code of procedure were established, uniform in all cases, whether at law or in equity, or admiralty, the legislatures of the States would, in course of time, conform their respective codes of practice to it, and thus we should finally have a uniform system of legal procedure throughout the United States. The subject of codification will come up for sharp discussion at the next meeting of the American Bar Association, and this feature of it will be well worthy of consideration."

PROSECUTION OF INFAMOUS CRIMES.-The decision of the Supreme Court of the United States, in Ex Parte Wilson,1 promises to work the immediate discharge of a good many offenders now in prison under sentences for infamous crimes, who were prosecuted by information, and to make more difficult the prosecution of certain classes of offenders against Federal statutes. Under this decision, selling whiskey without a Federal license is understood to become an infamous crime; since § 3242 of the Revised Statutes

1 Ante p. 28.

Vol. 21-No. 6.

punished by a fine of not less than $100 or more than $5,000, and imprisonment for not less than thirty days or more than two years. But the decision will work no practical harm, except to the United States district attorneys and marshals; for grand juries will always indict in cases of plain violations of the law. On the contrary, it is unquestionaby sound in principle and favorable to public right; since it will put a stop to those oppressive prosecutions which some of the district attorneys have been in the habit of instituting, for the mere purpose of raising fees, where there had been no more than a technical violation of the law.

2

DISTRESS FOR RENT.-We see from the case of Waring v. Slingluff, that they still have in Maryland, the common law abomination of distress for rent, though hedged about with some restraints which make it a more dangerous and difficult pastime for the landlord than in ancient times, when he could distrain any body's cattle that happened to be in his tenant's field, whether they belonged to the tenant or to a stranger. Distress for rent is an infamous procedure, which came into vogue when England was run by landlords, when the tenant was but one grade above the villein, and had but few rights which the landlord was bound to respect. It was a kind of legal process by which a man acted as judge, jury and sheriff in his own case; tried the matter in controversy between himself and his tenant, rendering judgment in his own favor, and levying execution, either upon the tenant's or upon some one else's cattle, without giving the tenant any notice of the proceeding, except such as he might acquire by ocular demonstration, if he happened to be at home and saw the cattle driven off. It was a case in which the common law (let us not forget to call it the "wisdom of ages") allowed a man to be a judge in his own case, to render a judgment in his own favor, and to execute the judgment, without giving the other party any notice; and all this in the face of the solemn declaration of Magna Charta, that "No man shall be taken or im

2 63 Md, 53, (Adv. Sheets.)