SUNDAY. Although a contract of sale on Sunday is void, yet the seller cannot recover the chattels sold nor damages for their value. Otherwise, if he had been intoxicated by the purchaser for the purpose of defrauding him. Block v. McMurry, 56 Miss. 217, p. 357.

Da

Where one walking on the Lord's day for exercise went into a beer shop and drank a glass of beer and on resuming his walk was injured solely by a defect in the highway, held, that he might recover. vidson v. City of Portland, 69 Me. 116, p. 253. TRIAL. A separation of the jurors in a civil case, after the jury has retired to consider of the verdict, induced by a sudden alarm of fire in the vicinity of the jury-room, is not of itself such misconduct as will vitiate the verdict made on reassembling. Armleder v. Lieberman, 33 Ohio St. 77, p. 530. WATER AND WATER-COURSES. A railroad company constructed an embankment on its own land, whereby the surface-water was thrown upon the land of an adjoining owner. Held, that no action would lie therefor, although the company could have prevented the injury by a culvert. Atchison, Topeka & Santa Fe Railroad Co. v. Hammer, 22 Kans. 763, p. 216.

The owner of land planted a row of trees on his own land, and along the division line between his land and that of an adjoining proprietor, the effect of which was to obstruct the passage of drift-wood carried upon the land of the adjoining proprietor, by the overflow of a water-course adjacent to the lands of both proprietors, to the injury of such adjacent land. Held, that no action would lie therefor. Taylor v. Fickas, 64 Ind. 167, p. 114.

THE

V.

HE laws of New York, enacted in the proprietary and the succeeding periods of government, were not abrogated either by the flight of James II. or by the English Revolution. The legal effect of the revolution was analogous to the demise of the Crown; the prerogatives remain substantially the same as before, but the right of the house of Brunswick to exercise them was deduced from the convention of 1688. (3 Hal. Const. Hist. 95.) This principle, though ascribed to England, applied equally to the trans-atlautic dependenc es of the Crown.

The government of the Province of New York was, by the new sovereigns, William and Mary, placed on a permanent footing through the definitive grant of a representative assembly. The royal commission to Colonel Sloughter- the first governor after the change of succession-authorized him, with the advice of the council, to summon assemblies as need should require.

(3 Col. Doc. 623.) This grant, the Crown had afterward no power to either retract or annul. (Chitty's Prerog. 33.) As thus established the constituents of the provincial government were as follows: the governorderiving his power from the King's commission under the great seal, and his rules of conduct from the King's instructions under the sign manual-was the immediate representative of the Crown; the provincial councilderiving their authority, both legislative and executive, from the King's instructions - constituted the upper legislative house; while the representative assembly, chosen by the provincial electors, comprised the lower house, representing the commons of the Province.

The formation of the provincial government of New York remains a subject of interest, for even now — quito aside from the source from which the powers of government emanate - its structure is but slightly modified.

The limitation on the legislative powers of the provincial government- - that the laws made by their authority should not be repugnant to the laws of England-long remained a fruitful theme of controversy. The Anglo-American inhabitants contended that the English Constitution, as it was exhibited in the great fundamental acts, was the paramount law of their new situation. The qualified denial of this last principle furnishes the key to the future differences with the parent land. By the colonists' assertion, that the plantations and provinces of America were entitled to the common law of England, the Constitution of England was meant; for the common law was conceived to be a limitation, within well-established bounds, of the prerogative and of those powers of subordinate legislation, judicial and otherwise, which flowed from the prerogative. It is important that this general assertion

on the part of the colonists should not be confounded with their right to the purely juridical rules concerning the extra-territorial operation of particular parts of the statute and judiciary law of England - a question, in tho main, of minor moment. Notwithstanding the fact that tho municipal laws of the original colonies exhibited differences at the time of the American revolution-differences which have continued to effect their jurisprudence- there was a unanimous assertion of their right to the English Constitution in so far as it related to political and civil rights, and their respective guaranties.

The distinguishing feature of the government of Englishmen had thitherto from the earliest periods been its entire subordination to the law of the land, the folk law, or jus commune. The American Revolution was a vindication of this principle and the subordination of the present government, State and Federal, to the fundamental law of the land-but a proteau form of the common law exhibited in constitutional codes-is perhaps but the evolution of certain rugged principles of the common law. The permanence of established institutions may be said, in somo respects, to depend on the closest adherence to race principles of legislation, and any wide departure from them, to jeopardize institutions of a normal growth. It is doubtless for this reason that many Americans instinctively distrust any arbitrary attempt at a codification, fearing that it aims at engrafting tho subtler elements of the Roman juridical system which has never permanently coalesced with free institutions. In this connection, the legislation of the province of New York is interesting to present conditions.

The era of regular legislation in New York is said to begin with the year 1691, doubtless because the revisers of the provincial laws were directed to begin with the acts of the assembly of that year. But, as has already been pointed out, the Assemblies of 1683-4 and '65 must not be disregarded, for they at least indicate

the condition which the provincial law had attained when the assemblies of the more regularly organized provincial establishments began. (24 Wend. 625.) The New York Civil List (ed. of 1867) contains an interesting account of the early Assemblies. But in reading it, we should notice that it is now esteemed an error to designate the convention of the delegates from the Long Island towns in 1665 a legislative assembly, for it was convened for a special purpose only the settlement of town boundaries, and it possessed no legislative powers. (Dawson's Sons of Liberty, p. 16; 2 Brodhead's N. Y., 67-9.) The first regular legislative assembly of New York was that of 1683-4; an instructive and able account of its proceedings, as well as of those of the second Assembly, held in 1685, appears in the late Dr. O'Callaghan's Historical Introduction to the Journal of the Legislative Council, published by the State in 1861. The Civil List contains also references to the Leisler Assemblies (p. 28), but it is doubtful whether these may properly be deemed legislatures. During the troublesome times in England attending the downfall of the house of Stuart, Captain Jacob Leisler, who had seized the government of New York in the name of William, issued writs requiring the several counties to send representatives to New York. For want of legal authority the Leisler delegates may hardly be considered an Assembly of the Province.

From 1691 until 1716 new assemblies were elected every two years. The Assembly chosen in 1716 continued over ten years, but from 1726 until 1737 there were four assemblies elected. An act was passed in 1737 providing for triennial elections, but it was repealed by the King. In December, 1743, another act was passed limiting an Assembly to seven years, unless previously prorogued. After an existence of ninetytwo years the provincial legislative assembly adjourned to the 3d of April, 1775, and was never again convened. A continuous journal of both the upper and lower houses have been published at a large outlay by the public authorities.

In view of the fact that many editions of the New York provincial laws have now become rare even among bibliomanists, an account of the various imprints may be of some use to those who have given the subject little or no attention. The statutes enacted by provincial authority prior to the year 1691 have been already noticed. (Vol. 21 L. J., p. 2C8.) The first domestic imprint of the Assembly laws is known as Bradford's edition of 1694, and it contains the acts promulgated between the years 1691-4. This volume, highly prized by collectors, was unquestionably the first book printed in New York; * but few copies of it are extant and these fetch extremely high prices on the rare occasions of a sale. One copy of the 1694 edition is in the Lenox collection; another, the Van Schaak copy, the property of Mr. A. J. Vanderpoel, of New York, is perhaps the most perfect in existence. Imperfect copies are possessed by the Society Library and the Secretary of State at Albany. A reputed perfect specimen was lately sold at the Brinley sale, to the New York State Library for $1,600.

Shortly after Bradford's appointment as King's printer in New York, he seems to have begun printing the acts of Assembly, session by session, but he preserved a continuous pagination. From time to time he struck off title pages, and doubtless issued bound volumes of the laws. In many cases the title pages are

The first printing press in New York was set up by William Bradford in 1693. The 1694 edition of the New York laws was its first regular work. Bradford received his first warrant as King's printer in 1693, and it was probably for the major part of the 1694 edition. Wallace's Com. Address on the 200th Birthday of Bradford, p. 63; Vol. I Thomas's History of Printing in America, p. 291.

not an index to the laws included in the various bound volumes now extant, as the original subscribers have, for their own convenience, caused the laws of sessions of a date later than the title page to be included by the binders. The least known of the regular editions of Bradford's imprints are those of 1894 and 1710. That of 1710 may be considered a revision of the laws between 1691 and 1709, for it was published in one volume, in obedience to an order of the Assembly, that Mr. Bradford do print all the acts of the Assembly "now in force." A copy of the 1710 edition is in the New York Historical Society collection. In 1713 Bradford struck off another title-page edition, which includes the acts passed between 1709 and 1713; a copy of the latter is in the State Library at Albany. The New York Historical Society has also a title-page edition of 1719, which includes the laws enacted between 1713 and 1719. A copy of Bradford's title-page edition of 1726, containing the laws passed between 1719 and 1725, is in the libraries of the New York Law Institute and the Historical Society. The latter society possesses also a copy of Bradford, which contains the acts from 1726 to 1735, in addition to those printed in the edition of 1726. The Bradford editions of a date later than 1710 are not trustworthy guides to the Assembly laws.

The Assembly, having in several former sessions, as well as in that held in 1741, observed, "how incorrectly the laws were printed and the irregular manner in which they were bound up" were of the opinion that a new revision was necessary. (Assem. Jour., 13th Nov., 1741.) Daniel Horsmanden, who afterward became chief justice of the Supreme Court, was thereupon designated the reviser, but he never proceeded under the act. (2 Smith's History N. Y. 67.) In 1750 another act to revise, digest, and print the laws of the Colony," was passed (1 L. & S., p. 443); it recites, that the laws of New York had from time to time been very incorrectly printed and irregularly bound up. William Smith, Jr., and William Livingston were appointed revisers by this act, and were directed to begin with the laws enacted by the Assembly held in 1691. Smith and Livingston's revision, though it is generally esteemed complete, contained none of the acts of the Assemblies of 1683-4 and '65. The revisors, indeed, in the introduction to the first volume, announce that they omitted also many later acts which they were unable to find after diligent search. They censure the later Bradford editions for containing "acts which have been practised upon that were never passed by the whole Legislature," and for omitting others which were duly enacted. The first volume of Livingston & Smith's revision was published in 1752; the second, containing the later acts and a complete index, in 1762. The revisors proceeded upon the plan originally reported by Mr. Horsmanden. (Assembly Journal, Nov. 13, 1741.)

In 1753 Governor Clinton, by instructions from the lords justices of England, recommended a codification of the New York laws, which was, on the first of June of that year, declined by the Assembly on account of the very considerable expense lately incurred in the revision of Smith and Livingston. (Assembly Journal, May 30 and June 1, 1753.)

The last revision of the laws of the Province was undertaken by Peter Van Schaak, pursuant to an act of Assembly passed in 1772. (Chap. 1543 Van Schaak's Laws, p. 676.) It contains, in addition to the laws included in Smith & Livingston's Revision, the acts passed between 1753 and the 8th of March (13 Geo. 3), 1773. The remaining acts of the Assembly, passed in 1774 and 1775, wero published in one volume by the public printer, Hugh Gaines. In addition to the various imprints already mentioned there is a London edition of those New York laws enacted between the year 1691 and 1718. It is known as the Baskett edi

tion, from the printer's name. It was probably published for the use of the authorities in England."

It not unfrequently happens that the courts and the legal profession have need to consult the statutory law of the Province of New York, and it is a subject of regret that the various editions (though much more beautifully printed than the State session laws) are of so incomplete and untrustworthy a character. Mr. George H. Moore, the accomplished superintendent of the Lenox Library, who has given the subject the most valuable attention, estimates that of nearly two thousand statutes enacted between 1691 and 1775, not onethird have been printed in the various collected and revised editions-all of which are long since out of print.

A republication of the provincial laws of New York is unquestionably desirable, not only for the use of the legal profession but for the benefit of the public authorities and the historical student. If such an undertaking be too long delayed, it may be wholly prevented by the destruction of either the private repositories or the charter rooms of the public archives, containing the necessary but scattered materials. Yet those who are familiar with the Kent and Radcliffe, and the Van Ness and Woodworth revisions of the State laws, must appreciate the important relations which the provincial laws bear to our present statute law, and to the actual and contemplated statutory codification. Such provincial laws are the very foundation stone of our juridical superstructure. An intelligently annotated revision of these laws would of itself complete the legal history of the State. Massachusetts has bestowed on her early statutes much more attention than New York; yet the early laws of New York are quite as interesting and important.

The question, how far the laws of the Province which were enacted before the year 1691, remained in force after that year, has been the subject of judicial inquiry at a comparatively recent date. Doubts on the subject were occasioned by the statements of the early historian, Smith, "that those acts which were made in 1683 and after the Duke's accession to the throne, when the people were admitted to a participation of the legislative power, are for the most part rotten, defaced or lost; and that all laws antecedent to the Assembly of 1691, were disregarded both by the Legislature and the court." (Smith's Hist'y N. Y., Lond. ed., 1757, p. 73; 2 Graham's Hist'y of U. S., p. 255.)

The lower house of the provincial Assembly, on the 24th of April, 1691, resolved, that all the laws consented to by the General Assembly under James, Duke of York, and the liberties and privileges therein contained, granted to the people and declared to be their rights, uot being observed and not ratified and approved by his Royal Highness, are null and void and of none effect; and also, the several ordinances made by the late governor and council, being contrary to the Constitutions of England and the practice of the government of their majesties other plantations in America, are null, void and of none effect or force within this Province. (1 Assembly Jour. 1, 8, 9.) This resolution never ripened into a law. It is said to have been simply declaratory of the existing rule on the subject, and, in reality, not to have had the effect of abrogating any of the valid enactments of a date prior to 1691. (Van Winkle v. Constantine, 10 N. Y. 428; Humbert v. Trinity Church, 24 Wend. 625. See, also, Jackson v. Gilchrist, 15 Johns. 112.) A close examination of the resolution in question shows that it only

* Attention was called to this edition by Mr. Winters, the assistant librarian of the New York Law Institute, who has made the session laws of the different States a special study, to the great benefit of his library. The N. Y. Hist. Society possess a copy of the Baskett edition.

declared that those laws not ratified or confirmed by the proprietary were void, but this was a mere repetition of the Duke's instructions. (3 Col. Doc. 332.) The laws of the proprietary which were approved by the lord proprietor were not impugned by the resolution; and, therefore, clearly those laws not rejected by him remained operative as before the resolution. Indeed, Mr. Smith himself, later on in his history, states that in 1741, when Mr. Horsmanden was directed by the Assembly to compile the laws, it was discovered that several acts passed prior to 1691 were still in force, and an act was then proposed to repeal all such, but it was not passed. (2 Smith's Hist'y N. Y., p. 66.) Mr. Butler has stated the reasons which, in his opinion, probably prompted the resolution of the lower house. (Butler's Const. Hist'y, 41.) Judge Hoffman thought one of the acts of the Assembly of 1683, founding the Court of Chancery, to be in force as late as the year 1834. (1 Hoffman's Ch. Pr. 15-18.) In so far as this resolution under consideration concerned the ordinances of the governors and council prior to 1691, it was also declaratory of the rule of law, that such ordinances must not be contrary to the Constitution of England, by which was meant the common law; it could not affect those ordinances which were valid at common law. (Op. Atty.-Gen. Kemp. Kemp papers MS. N. Y. Hist. So. Col.) The reason why the provincial revisors were directed to begin with the acts of the Assembly first held after the Revolution of 1688, undoubtedly was that most of the laws of the proprietary were not in print, so that they were little known even in the eighteenth century. (24 Wend. 625.) But the omission of the revisors does not affect the validity of the earlier laws.

One of the first acts of the Assembly of 1691 was that, "declaring what are the rights and privileges of their majesties subjects inhabiting within their Province of New York." The purpose of this act was similar to that of the "Charter of Libertys," disallowed by King James II., (Vol. 21, Alb. L. J., p. 268.) -a limitation of the prerogative and an additional guaranty of political rights. The act of 1691 suffered the fate of its prototype, being repealed in the year 1697, and thus the inhabitants were remitted to their original status as English subjects, resident in a royal Province of the Crown.

The commission to Colonel Sloughter, as has been before [stated, formally granted the rights of the inhabitants of New York to a representative Assembly

- a right of which they could not afterward be lawfully deprived. (Chitty's Prerog. 33.) This particular commission is important, as it was a distinct recognition by the new sovereigns of the bicameral legislative system, or the principle of two legislative houses. Thus, this essentially Anglican institutiondeveloped in England, and like the common law accompanying the Anglican race in all its migratiouswas permanently established in New York to continue with but minor modifications until the present time. Our juridical plan is not the only debt that we owe to the progress of the common law, for the very theory and practice of a bicameral Legislature, is itself a common-law development.

The commission to Governor Sloughter also empowered him, with the advice and consent of the council, to erect and establish courts of judicature for the trial of all causes, legal and equitable, civil and criminal. This clause relates to a species of prerogativo legisla tion which has by tradition been vested in the Crown, independent of the Legislature. The right of the Crown to erect courts of law without the concurrent action of Parliament seems to have been admitted in England. Whether such power extended to courts of equity has been questioned and denied, but in the colonies this prerogative clearly extended to the establishment of courts both of law and equity. (Chalmers'

Col. Op., p. 194.) In the colonies, however, the Crown rarely claimed the exclusive right; and at times the colonial and provincial Legislatures seem to have been allowed a share in the establishment of the judicatories, while at others, when the Crown asserted its prerogative, they were excluded.

The permanent judicial establishment of the Province of New York owed its origin to the Assembly of 1691. A Supreme Court of judicature, possessing the jurisdiction of the English Courts of King's Bench, Common Pleas and Exchequer, was then created. (Bradford, 1694 ed., N. Y. Laws, p. 2.) This tribunal was, in the main, a court of law, possessing jurisdic-| tion of causes involving upward of twenty pounds, and also an extended supervisory and appellate jurisdiction over the inferior judicatories. In the year 1733 it was asserted, that it had likewise the equity jurisdiction of the court of equity in the Exchequer Chamber; and this pretension was decided in the affirmative. The Judiciary Act of 1691 was continued by an act of Assembly, passed November 9th or 11th, 1692 (Bradford's ed., N. Y. Laws, 1694, p. 64); and the latter was again renewed in October, 1695, for two years. In 1697 this act was finally extended for one year; but, on its expiration, differences having arisen between the Assembly and the governor, it was allowed to expire by limitation. Finally Lord Bellomont, as the royal governor of the Province, in 1699, resorted to the prerogative and continued the courts by an ordinance, in which the Assembly had no part. (Appendix No. v., 2 R. L. 1813.) This ordinance was confirmed by Lord Cornbury in 1704. (Appendix No. vi, 2 R. L. 1813.) On this footing, the Supremo Court continued down to the establishment of the State government, when it was further continued as part of the existing order of things.

The Court of Chancery of the Province, originally erected by the act of 1683, was remodelled by the "Act for establishing courts of judicature," passed in 1691. This act, continued from time to time, as described in the preceding paragraph, finally expired. On the 28th of August, 1701, an ordinance was issued reestablishing the chancery and authorizing the governor and council, or any three of them, to hold the court. In June, 1702, its operations were suspended until a fee bill should be settled, and it was not again revived until the 7th day of November, 1704, when it was directed to proceed. (2 R. L. 1813, Appendix vii.) At various times the lower house of Assembly protested against the establishment of a court of equity by the governor without their concurrence; but notwithstanding this fact the Court of Chancery, until the year 1711, continued to be held by the governor and council, by virtue of the ordinance mentioned. Subsequent to the year 1711, the governor alone sat as chancellor. (Council Min.)

The very early establishment of a Chancery Court in New York was one of several causes contributing to the relative preeminence of its particular jurispru- | dence. In many of the American colonies equity jurisprudence had, prior to the War of Independence, no distinct existence in any large and appropriate sense. In the Province of New York there was, however, a tendency to more closely conform to English precedents. (2 Smith's Hist'y N. Y. 320.) Matters of equity, as distinct from cases cognizable at law, were recognized by the "Duke's Lawes" of 1665, while a Court of Chancery was eo nomine established by the act of 1683. It must be conceded, that there was a strong popular prejudice against the discretionary power of the chancellor, which was thought to be bounded by no very defined limit, and to conceal the undefined prerogative with which colonial principles were ever at war. But it has been said that the true grounds of the hostility of the people of New York to the equity courts was their jurisdiction of the king's

quit-rents-always greatly in arrears. (Lond. Doc. xxiv, 880.)

The proceedings of the Court of Chancery in New York were, doubtless, somewhat intermittent; Blake (Int'd to Ch. Pr.), and Johnson, (Int'd to Johns. Ch. Rep.) have thought that this tribunal transacted but little business prior to the Revolution of 1775-6, but it is more than probable that the opinion of these gentlemen was founded on the statement of the historian Smith, "that the wheels of chancery have ever since (1727) rusted upon their axis"-"the practice being contemned by all gentlemen of eminence in their professiou." (1 Smith's N. Y. 280.) It must be remembered, in this connection, that Mr. Smith, though living at the time of which he wrote, was far from an impartial witness. His father had been engaged professionally in the hostile attack on the court of equity in Governor Cosby's administration, and had thus become a leader of the popular party. The historian Smith followed the political bias of his father, though at the beginning of the Revolution he abandoned the popular party and became a judge under the Crown, in Canada. The late Judge Hoffman, who, years afterward, gave the subject the closest attention, seems to have had a very different estimate of the volume of chancery business in the Province, as well as of comparative importance. (Hoffman's Ch. Pr. pp. 11-14.) Doubtless the Albany records of the Provincial Court of Chancery confirm the latter's view.

The early establishment of a Court of Chancery in New York was, in several aspects, important; it contributed to its jurisprudence the symmetry which that of many of the other colonies lacked, and it finally led to the constitutional recognition of the office of chancellor, possessing almost the powers of the lord chancellor in England. (Camp. & Cambreling's Ch. Dig., p. xi, Pref.) It is now difficult to estimate the influence exercised for over half a century by the chancellors of the State of New York, not only within their own proper sphere, but as well in the formation of equity jurisprudence in its American phase. Without the chancery reports of this State, it is needless to say that the New York contributions to practical administrative jurisprudence would be greatly diminished in value. True it is, that Justice Story has said that equity was scarcely felt in New York until about the time of Caine's and Johnson's reports (§ 56, Story's Eq. Jur.) But it is not strange that the influence of equity jurisprudence was greatly augmented by the efforts of the reporters. That their influence was at once so extensive depended, however, on the highly developed condition of the equity administration at the time the reports began in New York. Taking into consideration the fact, that equity jurisprudence was greatly neglected in many of the Anglo-American colonies, and that until Lord Hardwick's time the administration of equity, even in England, presented many uncertainties, it is a remarkable fact that tho ameliorating tendency of equity was recognized in New York in the very beginning of its political life. It must be considered a very fortunato circumstance that it was so recognized, for when the equity powers of the chancery were distributed under the Constitution of 1846, throughout the courts of record of New York, a well-understood jurisdiction was thus engrafted on the law courts and the process of assimilation was rendered more facile and certain.

One of the first duties of the English authorities, after the conquest, was to make suitable provision for the probate of wills and the administration of estates. (The Duke's Lawes, Tit. Administration.) The clerks of the courts of session which had cognizance of probate in the English parts of the Province were directed to certify the names of the decedents and their executors or administrators, with their security, to the recorder's office at New York city. This led to the establishment of a prerogative court (Bradford's ed.

N. Y. Laws, ed. 1694, p. 72), from which letters testamentary and of administration issued under its peculiar seal. The delegates appointed to take charge of the estates of intestates, in the distant counties, pursuant to the act of 1692 finally took the name of surrogates, which then signified deputies of the prerogative court. This name is now retained in our probate courts, although the surrogate has become chief judge of the probate court. In the year 1754 a judge of probate was appointed; he shared with the prerogative office the duties of ordinary and surrogategeneral. There was very little that was either original or peculiar in the courts appointed for the cognizance of wills and administration.

The judicial organization of the Province may be regarded as having been established by the Judicature Act of 1691 (Bradford's N. Y. Laws, ed. 1694), and the jurisdiction and tribunals established by it, have remained essentially the same to the present day. This act defined the courts of justices of the peace, the courts of sessions of the peace, the county courts of Common Pleas, the mayor's courts of cities, the Supreme Court and the Court of Chancery. It also regulated the Provincial Court of Appeals, which was almost identical with the old Court of Errors, if not its progenitor. From the provincial Court of Appeals, appeals lay to the King in council.

It may be proper, in a survey of the judicial organization of the Province, to refer to the Court of Admiralty established for New York, although it possessed but a limited jurisdiction within the Province. Under the Duke of York, special commissions, issued for the determination of admiralty causes, but in 1678 a regular court was established under the governor's commission. In the year 1699 the lords of trade recommended that the chief justice of the Supreme Court of New York be empowered to act as judge in admiralty. Accordingly William Smith, then chief justice, was made admiralty judge, and fulfilled the duties of that station from 1699 to 1702. Ultimately a vice-admiralty court was established by commissions issuing from the High Court of Admiralty in England. Appeals from the Vice Admiralty Courts for some time lay to the Court of Admiralty in England, but shortly before the American Revolution a superior court of admiralty was established in North America, and thenceforth all appeals from the vice-admiralty were directed to be made to it.

Jurisdictions have since been shifted and interchanged; and yet, after all, but few novelties have been engrafted on the ancient foundations.

JURISDICTION OF STATE COURTS AS TO OFFENSES BY NATIONAL BANK

OFFICERS.

PENNSYLVANIA SUPREME COURT, JANUARY 19, 1880.

COMMONWEALTH EX REL. TORREY V. KETNER.

A Pennsylvania State court has not jurisdiction to try an indictment against the cashier of a National bank for embezzling the funds of the bank, such embezzlement not being a common-law offense or ono against the statutes of Pennsylvania.

APPLICATION by habeas corpus for the release of

William Torrey, the relator, who was held upon a charge of embezzling, abstracting and misapplying the funds, moneys and assets of the First National Bank of Ashland, in Schuylkill county; a bank duly incorporated, organized and established under the laws of the United States, commonly known as the National Banking Act.

The prosecution, which was commenced before a justice of the peace, was returned to the quarter sessions of Schuylkill county, aud in that court a true

bill was found, and the indictment and record show upon the face of the proceedings that the offense charged was for embezzling, abstracting and misapplying the funds of the First National Bank of Ashland, created under the National Banking Act.

Relator was arrested and lodged in the county prison, then took out this writ of habeas corpus, and in obedience to its command, Ketner, the warden of the prison, produced the body, and made return that he held the prisoner by virtue of above-named proceedings.

By virtue of article V, section 3, of the Constitution of 1874, the Supreme Court of Pennsylvania, in cases of habeas corpus, has original jurisdiction.

William A. Marr, James Ryon, William B. Mann and John W. Ryon, for relators. The State court has no jurisdiction, embezzlement not being a commonlaw offense. 2 Russell on Crimes, 163; 4 Bl. Com. 230; United States v. Clew, 4 Wash. C. C. Rep. 700. Congress has power to give the Federal courts exclusive jurisdiction. Houston v. Moore, 5 Wheat. 1--24; 1 Kent's Com. 398; Curtis' Com. 176; Claflin v. Houseman, 3 Otto, 141. Where an act of Congress creating a corporation provides a punishment to be inflicted upon any officer of the corporation who embezzles its property, it is not competent for the State Legislature to make the same act an offense against the laws of the State. Commonwealth v. Fuller, 8 Metc. (Mass.) 313; Commonwealth v. Felton, 101 Mass. 204; Commonwealth v. Barry, 116 id. 1; State v. Tuller, 34 Conn. 280. By section 711 of the Judiciary Act of 1789 (U. S. R. 8. 134), the jurisdiction vested in the United States courts is exclusive of the State courts. Section 5209, et seq., of the National Banking Act provides for punishing embezzlement by officers.

A. W. Schalck, district attorney, and Hughes & Farquhar, for respondent. Jurisdiction of State courts has been sustained in Buckwalter v. United States, 11 Serg. & R. 196; White v. Commonwealth, 4 Binn. 418; Commonwealth v. Shaeffer, 4 Dall. 27; United States v. Ilutchinson, 4 Clark, 211; Jett v. Commonwealth of Virginia, 7 Am. Law Reg. (N. S.) 265; Claflin v. Houseman, 3 Otto, 130; Coleman v. State of Tennessee, 7 id. 509, especially the dissenting opinion of Clifford, J., not differing in this respect from the majority of the court.

PAXSON, J. It appears by the return to this writ that the relator is held to answer an indictment in the court of quarter sessions of Schuylkill county, charging him, as cashier of the First National Bank of Ashland, with having embezzled the funds and property of said bank. There are three counts in the indictment, each varying the form of the charge, but not essentially changing its substance.

be.

It is almost needless to say that a habeas corpus is not a writ of error. Hence, if the court below had jurisdiction of the offense, we cannot correct its rulings in this proceeding, however erroneous they may On the other hand, it is equally clear that if the relator is being prosecuted for a matter which is not an indictable offense by the law of Pennsylvania, or one over which the court below has no jurisdiction, it would be our right, as well as our plain duty, to discharge him. No authority is needed for so obvious a proposition.

Embezzlement by the cashier of a bank is not a common-law offense. This indictment must rest upon some statute of this State or it cannot be sustained. IIas it such support? As preliminary to this question, it is proper to say that section 5209 of the United States statutes provides specifically for the punishment of cashiers and other officers of National banks who shall be guilty of embezzling the moneys, funds or credits of such institutions. The relator was not indicted under this section, and could not have been in a State court. Our own legislation upon this subject