IN NOTES OF CASES. [N State v. Smith, Iowa Supreme Court, June 17, 1880, 6 Northw. Rep. 153, it was held, in a prosecution for bastardy, not error to allow the alleged bastard child, two years old or more, to be exhibited to the jury, and permit them to determine as to the family resemblance between such child and the alleged putative father. Statements of counsel calling attention to certain alleged points of resemblance, held, if erroneous, to be without prejudice. The statement of counsel was as follows: "I only wish to call the attention of the jury to what any one can see plainly, with half an eye, that the eyes of this exhibit (the child) are hooked, and that also the eyes of the defendant are hooked, and that the eyes of Reka Helm are not." The court said: "The defendant claims that any resemblance, if it should be thought to exist between such a child and a man alleged to be its father, is too unreliable to constitute legal evidence of the alleged paternity. It is a well-known fact that resemblances often exist between persons who are not related, and are wanting between persons who are. Still, what is called family resemblance is sometimes so marked as scarcely to admit of a mistake. We are of the opinion, therefore, that a child of the proper age may be exhibited to a jury as evidence of alleged paternity. Precisely what should be deemed the proper age we need not determine. It was held in State v. Danforth, 48 Iowa, 43; S. C., 30 Am. Rep. 387, that it was error to allow a child three months old to be exhibited. That case is relied upon by the defendant in this. But a child which is only three months old has that peculiar immaturity of features which characterizes an infant during the time it is called a babe. A child two years old or more has to a large extent put off that peculiar immaturity. In allowing a child of that age to be exhibited we think the court did not err, especially under the instruction given, to which we shall hereafter refer." This decision seems to us about as bad as can be, and not much helped by the instruction that if the jury "did not clearly see such resemblance they should disregard all claims of resemblance on the part of the State." In Marquette, etc., Railroad Co. v. Spear, Michigan Supreme Court, June 23, 1880, 6 Northw. Rep. 202, the owner of a warehouse owned a railroad track, running on his own premises near it, and employed a railroad company to send an engine to draw cars over it for his accommodation. The engine threw off sparks badly, and this he observed and complained of, but nevertheless continued to make use of it for a long time. At last the warehouse was set on fire and burned from the sparks emitted by it. Held, that the owner had no redress against the railroad company for the burning. It is immaterial that the railroad company, on repeated application made that it should repair the engine, had promised to do so "sometime," the use continuing thereafter, with the knowledge of the plaintiff, and on his own application. The court said: "This was not the more case of a defective locomotive moving through the country and scattering desolation among those to whom its proprietors owed the duty of a care corresponding to its dangerous nature; but it was a case of private employment, whereby the proprietors of the engine were solicited to send it upon the private business of the employers into a place where the latter well knew, and had for a long time known and understood, it was likely to do mischief. If there was negligence on the part of the railroad company, it was to be found in consenting to be thus employed. There is just the same and no reason for plaintiffs to complain of it, that there would have been had they hired the owner of a vicious animal, known by them to be such, to bring him for their purposes upon their premises, and then been injured by him, as they should have anticipated they might be. That which one consents to, and invites, he cannot complain of in the law as an injury. Motz v. Detroit, 19 Mich. 495; Maxwell v. Bridge Company, 41 id. 453." On the other point, the court said: "When there is a promise to repair immediately, or within a fixed time, and a party relies upon its having been done, and is injured because of such reliance, he has a right to complain; but this is no such case. The promise was wholly indefinite, and plaintiffs never relied upon it except as a probable future event. They knew the repairs had not been made when they employed the engine on the day of the fire, and they deliberately and most carelessly took the risks of what actually happened." In Dells v. Kennedy, Wisconsin Supreme Court, June, 1880, 6 Northw. Rep. 246, it was held that a registration law, in so far as it prohibits a duly qual ified elector from voting at an election, unless he has been registered before the election, or becomes qualified after the last day for completing the registry, and before the election, is unconstitutional and void, the electoral qualifications being laid down in the Constitution, and the Constitution conferring no authority upon the legislature, directly or indirectly, to change, impair, add to or abridge them. The same had been substantially decided in State ex rel. v. Baker, 38 Wis. 71, and in Page v. Allen, 58 Penn. St. 346. In the latter case it was said: "These are the constitutional qualifications necessary to be an elector. They are defined, fixed and enumerated in that instrument. In those who possess them is vested a high, and to a freeman, sacred right, of which they cannot be divested by any but the power which establishes them, viz., the people, in their direct legislative capacity. This will not be disputed. For the orderly exercise of the right resulting from these qualifications it is admitted that the Legislature must prescribe necessary regulations as to the places, mode and manner, and whatever else may be required to insure its full and free exercise. But this duty and right inherently imply that such regulations are to be subordinate to the enjoyment of the right, the exercise of which is regulated. The right must not be impaired by the In Webber v. Townley, Supreme Court of Michigan, June, 1880, 11 Cent. L. J. 6, it was held that a person has no right, at common law, to a copy or abstract of the entire records of a public office, in which he has no special interest but which he desires to obtain for speculative purposes. After enumerating the intolerable inconveniences which the converse of this proposition would cause, the court observe: "These and many other embarrassing questions must arise if this right is found to exist. It would not, however, end here. This being a right which we might term one not coupled with an interest, must apply equally to the records of each and every public office. True, the copies or abstracts from each of the several public offices might not be so profitable to the parties making the same as would those from the register's office, but this would not go to the right to make the abstract. May, then, parties in no way interested, other than as are these relators, insist upon the right to inspect and copy or abstract the records of our courts, of the treasurers of our counties, of the several county offices; and, indeed, why with equal propriety may it not be extended to a like right in each of the several State offices? The right once conceded there is no limit to it, until every public office is exhausted. The inconveniences which such a system would engraft upon public offices; the dangers, both of a public and private nature, from abuses which would inevitably follow in the carrying out of such a right, are conclusive against the existence thereof." The court observe, in respect to the statute giving the right to inspect public records and make transcripts: "The language of the act referred to does not in clear and unmistakable terms include a case like the present, and such an one should not be conferred by construction. The ob regulation. It must be regulation purely, not destruction. If this were not an immutable principle, elements essential to the right itself might be invaded, frittered away, or entirely exscinded, under the name or pretense of regulation, and thus would the natural order of things be subverted by making the principle subordinate to the accessory. To state is to prove this position. As a corollary of this, no constitutional qualification of an elector can in the least be abridged, added to, or altered, by legislation or the pretense of legislation. Any such action would be necessarily absolutely void and of no effect." In the principal case, in answer to the argument that no elector need lose his vote except by his own default or neglect, the court say: "If this were a correct statement of the effect of this law, then it might not be obnoxious to objection in the particular, which, in our opinion, renders it unconstitutional and void. By the effect of this law the elector may, and in many cases must and will, lose his vote, by being utterly unable to comply with this law by reason of absence, physical disability, or non-age, and an elector can lose his vote without his own default or negligence in these particulars." "The law disfranchises a constitutionally qualified elector, without his default or negligence, and makes no exception in his favor, and provides no method, chance or opportunity for him to make proof of his qualifications on the day of election, the only time, perchance, when he could possibly do so." "No registry law can be sustained which prescribes qualifications of an elector additional to those named in the Constitution, and a registry law can be sustained only, if at all, as providing a reasonable mode or method by which the constitutional | qualifications of an elector may be ascertained and determined, or as regulating reasonably the exercise of the constitutional right to vote at an election.ject of the act was to enable persons having occaIf the mode or method, or regulations, prescribed sion to make examination of the records for any by law for such purpose, and to such end, deprive lawful purpose, and what would be we have already a fully qualified elector of his right to vote at indicated, to have suitable facilities therefor, to an election, without his fault and against his point out their rights and limitations therein, and will, and require of him what is impracticable the right and duty of the official custodian of the or impossible, and make his right to vote de- records in connection therewith. This was right pend upon a condition which he is unable to per- and proper, in order to define the respective rights form, they are as destructive of his constitutional and prevent conflict or confusion, but clearly this right, and make the law itself as void, as if it act does not extend to a case like the present." directly and arbitrarily disfranchised him with- Ferry v. Williams, 12 Vroom, 332, it was held that out any pretended cause or reason, or required of an a citizen who desires to inspect recommendations elector qualifications additional to those named in filed with the collector of taxes as the basis for issuthe Constitution. It would be attempting to do in- ing pending liquor licenses, in order to ascertain directly what no one would claim could be done whether the provisions of the law have been obdirectly." Taylor, J., dissented. It should be served, and to secure obedience of the law, is entinoted that our own Constitution provides that tled to mandamus to compel the exhibition of such "laws shall be made for ascertaining by proper letters. proofs the citizens who shall be entitled to the right of suffrage hereby established." Whether the Wisconsion Constitution contains an equivalent provision, we are not aware, but even under this provision the decision in question would seem to hold that a registry like our own is unconstitutional. The validity of ours has never been questioned, but was assumed in People ex rel. Frost v. Wilson, 62 N. Y. 186. In WHAT CONSTITUTES A MAJORITY OF WE E lately promised our readers a review of the authorities on the point just decided by the Indiana Supreme Court, in respect to the adoption of the constitutional amendments. The question is, what constitutes "a majority of the said electors of the State"? The amendments in question were voted upon at town elections, and although they received a majority of the votes cast upon the particular questions, they did not receive a majority of all the votes cast at the same time for town officers. The majority of the court held that they must at least receive a majority of all the votes cast at the same election. The following are the authorities in point: Taylor v. Taylor, 10 Minn. 107, held that the constitutional provision, art. XI, § 1, that all laws providing for changing county seats shall be submitted to the electors of the county at the next general election, and "adopted by a majority of such electors," simply requires a majority of the electors present and voting at such election. It did not appear in this case that the law in question did not receive a majority of all the votes cast on any subject at that election, but it did appear that it did not receive a majority of all the legal voters of the county. The court said: "The plaintiff claims that this section requires an absolute majority of those qualified to vote in the county at the time of the election. This construction is perhaps in accordance with the letter of the Constitution, but it leads to such practical inconvenience, hardship, and absurdity, we cannot believe it to be in accordance with the spirit and meaning of that instrument." The court rely on Tennessee and Illinois decisions, which we shall notice below. Berry, J., dissented. State v. Mayor, 37 Mo. 270, and State v. Binder, 38 id. 450, hold the same doctrine as to measures submitted at special elections. In Bayard v. Klinge, 16 Minn. 249, it was held that under the provision in art. XI, § 1 of the Constitution, that all laws for removal of county seats shall, before taking effect, be submitted to the electors of the county, at the next general election after the passage thereof, and be adopted by a majority of such electors, it is not competent for the Legislature to provide that such a law shall take effect and be in force after its submission to the electors of said county at the next general election after the passage thereof, and its adoption by a majority of such electors voting thereon, unless that majority is also a majority of all the votes cast. The court hold that the words in the Constitution, "a majority of such electors" cannot be construed to mean simply a majority of those voting upon the particular question. The court distinguish Taylor v. Taylor as follows: "The majority of this court, as then constituted, held in that case, that inasmuch as a literal construction of the constitutional provision above quoted, would in their opinion involve great hardship and absurdity, they were therefore to deviate a little from the received sense, and literal meaning of the words, and interpret it in accordance with what appeared to be the intention of its framers. Hence, considering that the Constitution requires such law to be submitted to the electors at a general election; that the returns would show the actual number of persons present at such election, voting on any question; that as a general rule it is the duty of every elector to attend and vote at such general election, and that the law presumes that every citizen does his duty, they hold, that in the eye of the law, those present and voting at such election, not on any such question then submitted, but on any question then to be voted on, constitute the electors of the county, in the sense in which art. XI, § 1 of the Constitution, uses those words; that is to say, that body, the adoption by a majority of whom of such a law as is there referred to would be the adoption thereof by a majority of the electors of the county." Stress is laid upon the fact that while section 1 requires a majority, upon the particular question, of all those voting at the general election, section 2 only requires a majority of those voting upon the particular question. The court observe: "A material link in the chain of reasoning by which the majority of the court in Taylor v. Taylor et al. arrived at their conclusion is, that as it is the duty of every elector to attend and vote at such general election, the law, which presumes that every one does his duty, presumes that he did so attend and vote. Granting, however, not only that it is his duty so to attend and vote on those questions then arising under the general law, in which every citizen is alike interested; but also on matters like that before us, of purely local interest, which by any special law are then to be submitted; (a proposition, which, as at present advised, appears to us to be untenable;) still, the further presumption that he did vote on such particular question could not arise in the face of the provision of the law now before us, that it shall take effect if adopted by a majority of those voting thereon, for the law of itself contemplates herein the existence of electors who will not vote at all on the questions submitted by it; and of course, no such presumption could arise in any case, in which the record, as in the case above supposed, showed on its face that they did not so vote. It is suggested, however, that though it should appear by the record that all the electors have not voted on the question, those who have not will be deemed to acquiesce in the action of the majority. The principle upon which such a presumption is to be based is not stated, and we cannot perceive that there is any. The respondent says, indeed, that a man's inaction is not to be counted as a vote with the minority, but that is no reason why it should be counted with the majority. It is only another way of saying that it should be." The court rely on State v. Winkelmeir, infra, and distinguish Gillespie v. Palmer, on account of the different wording of the constitutional provision. This holding was followed in Everett v. Smith, 22 Minn. 53. In State v. Winkelmeir, 35 Mo. 103, an act of the Legislature gave permission to municipal corporations in St. Louis county to allow the sale of refreshments on any day in the week, when authorized by a majority of the legal voters of the respective cities. A vote for such permission received 5,000 affirmative to 2,000 negative votes out of a vote 13,000 cast for city officers on the same day. Ethat the measure had not received a majority the intent of the law. No authorities were cited, and the court simply observed: "The act expressly requires a majority of the legal voters; that is, of all the legal voters of the city, and not merely of all those who might at a particular time choose to vote upon the question." Louisville & Nashville R. R. Co. v. County Court of Davidson County, 1 Sneed, 637, was cited in and strongly resembles Taylor v. Taylor. The point decided is, that on a vote as to whether a county will take stock, under a law requiring a majority of the voters of the county, a majority of those attending and voting is conclusive. The court said: "How can we know how many legal voters there are in a county at any given time? We cannot judicially know it. If it were proved that the vote were much larger than in the last preceding political election, or by the last census, by the official rereturns, or the examination of the witnesses, it would be only a circumstance, certainly not conclusive. But we put our decision of that question upon a more fixed and stable ground. When a question or an election is put to the people, and is made to depend on a vote of a majority, there can be no other test of the number entitled to vote but the ballot-box. If in fact there be some or many who do not attend and exercise the privilege of voting, it must be presumed that they concur with the majority who do attend, if indeed they can be known at all to have an existence. Certainly it would be competent for the Legislature to prescribe a different rule. But when they simply refer a question to the decision of a majority of the voters of a county,' it cannot be understood that they mean any thing more than those who see fit to exercise the privilege. Great inconvenience would result from the opposite rule." This decision is therefore not in point, but the language has some force as a dictum, for the argument respecting those who stay away from an election is perfectly applicable to those who attend but do not choose to vote on the particular question. People ex rel. Mitchell v. Warfield, 20 Ill. 159, decides that on the question of relocating a county seat, where the law only authorizes the clerk to canvass the votes cast on the question of relocation, and certify the result, without regard to other votes cast at the same election, he cannot give a certificate which will afford legal evidence that the county seat has been changed in conformity with the requirements of the Constitution. This was an application for mandamus to compel the issue of a marriage license. The law in question applied only to Saline county. The Constitution required a majority of the voters of any county to effect such a change. The election in question was a special election. The court said: "The statute itself cannot be sustained, under the Constitution, if we adhere to its literal expressions, for it requires, in order to relocate the county seat, but a majority of the votes cast on the subject of relocation, whereas the Constitution goes farther, and requires a majority of the voters of the county. The law may be sustained by reading it in the light of the Constitution, and construed as giving effect to the affirmative vote, when such affirmative vote is by a majority of the legal voters of the county. The Legislature may have assumed, and doubtless did, that all would vote upon the question, and such is the practical effect if we count the votes in the negative, which are silent on the subject. In this mode alone can the law be sustained authorizing township organization, which has been in operation in most of the northern counties of the State since the adoption of the Constitution. It is a question of no small difficulty to determine in what mode it shall be ascertained who are the voters of the county, so as to determine whether a majority have voted in favor of a relocation. The same difficulty arises under the law authorizing township organization. This portion of the Constitution must receive a practical construction. We understand it to assume and such we believe was the understanding of its framers-that the voters of the county referred to were the voters who should vote at the election authorized by it. If we go beyond this, and inquire whether there were other voters of the county who were detained from the election by absence or sickness, or voluntarily absented themselves from the polls, we should introduce an interminable inquiry, and invite contests in elections of the most harassing and baneful character, if we did not destroy all of the practical benefits of laws passed under these provisions of the Constitution. We hold therefore that a majority of the legal votes cast at this election is sufficient to determine the question of a relocation of the county seat. See 1 Sneed, 692." This decision therefore is like that in Taylor v. Taylor, and is there cited as authority, while the dicta are in harmony with the principal case. Of this decision, the court say in Bayard v. Klinge: "As to the Supreme Court of Illinois, it decides in so many words, that a majority of the legal votes cast at the election, not a majority of those voting on any particular question, is a constitutional majority of the voters of the county; thus counting those who do not vote, in the negative, instead of with the majority." On the other hand, in Gillespie v. Palmer, 20 Wis. 544, it is held that a legislative act, extending the right of suffrage to colored persons, and conditioned to become a law on receiving "a majority of all the votes cast at the next general election," is adopted upon receiving a majority of all the votes cast on that subject at such election. The constitutional provision was that the right of suffrage might be extended on being "submitted to a vote of the people, at a general election, and approved by a majority of all the votes cast at such election." This is a much stronger decision than any of those which we have cited above, for the Constitution expressly requires, for the adoption of the subject specially designated, "a majority of all the votes cast at such election," and this is construed to mean a majority of all the votes cast on that particular subject. The court said that two other and different contentions were urged: first, that it meant a majority of all the votes on all subjects and for all officers; and second, a majority of all the voters voting. The first was said to be manifestly absurd. As to the second, it involved the construction that "votes" and "voters" are synonymous; but even if the word were "voters," the same conclusion must be reached. The court said: "Under the provisions of our Constitution, as well as of other Constitutions, persons are elected to a particular office who have a majority of the votes cast-not for the candidates for some other office, but for the candidates for that office. Measures or laws are also declared adopted or rejected according as they receive or fail to receive each a majority of the votes cast for or against it. To declare a measure or law adopted or defeated-not by the number of votes cast di, rectly for or against it, but by the number cast for and against some other measure, or for the candidates for some office or offices not connected with the measure itself - would not only be out of the course of ordinary legislation, but so far as we know, a thing unknown in the history of constitutional law." The foregoing is from the opinion of Downer, J. Dixon, C. J., says that without the words, "at such election," "no one could hesitate," and these words he explains as intended "to exclude the idea that a majority of votes cast at any other than a general election should suffice." He continues: "But in neither case, in my judgment, does the addition afford the slightest ground for saying that the framers intended that votes cast at the same election upon other subjects should be counted either for or against the law for extending the right of suffrage. Such a provision in the Constitution of a State would be an anomaly in our system of government. It would be contrary to the fundamental American idea, which is that in all popular elections the will of a majority of the voters voting upon any subject or question submitted shall prevail." No authorities are cited. Judge Cooley, in "Constitutional Limitations," in a note, citing the above cases, without further consideration, says: "This must be understood to mean a majority of those voting at the election on any question." The principle of Taylor v. Taylor is expressly approved in County of Cass v. Johnston, 95 U. S. 360, which holds, in regard to a township subscription for railroad stock, that a majority of those voting at a special election satisfies the requirement of the Constitution that such measures must receive the vote of two-thirds of the qualified voters of the town, etc. In regard to State v. Winkelmeir, the court said: "Taking the opinion as a whole, it is apparent that there was no intention of deciding that resort must be had elsewhere than to the records of the election at which the vote was taken to ascertain whether the requisite majority had been obtained." Mr. Justice Bradley dissented, and his JURISDICTION OF ACTIONS FOR INJURIES TO LANDS SITUATED IN A FOREIGN STATE. "The law is unknown to him who knoweth not the reason thereof." We purpose to show that the courts of New York State have jurisdiction of actions for injuries to land situated in a foreign State or country. For this purpose it is necessary to trace the common law of venue to its fountain-head: "from the first rough sketches to more perfect draughts; from the first causes or occasions that produced them, through all the effects, good and bad, that they produced." It is very curious and instructive to trace the progress of the English law respecting the locality of actions. During the earliest ages juries were selected for the very reasons which would now argue their unfitness, namely, their personal acquaintance with the parties and the merits of the cause; and few rules of law were enforced with greater strictness than those which required that the venue, visne, or vicinetum, in other words, the neighborhood whence the juries were to be summoned, should be also that in which the cause of action had arisen; in order that the jury who were to determine it principally from their own private knowledge, and who were liable to be attainted if they delivered a wrong verdict, might be persons likely to be acquainted with the nature of the transaction which they were called upon to try. In order to effect this end the parties litigant were required to state in their pleadings with the utmost certainty, not merely the county, but the very venue, i. e., the very district, hundred, or will, within that county, where the facts that they alleged had taken place, in order that the sheriff might be directed to summon the jury from the proper neighborhood in case issue should be taken on any of such allegations. It followed, of course, that a new venue was designated as often as the allegations of the parties litigant shifted the scene of the transaction from one part of the country to another. This was, however, soon found to produce great inconveniences, for in mixed transactions, which may happen partly in one place and partly in another, it was extremely difficult to ascertain the right venue, and as the number of these transactions increased with increasing civilization, these difficulties about determining the place of trial became of constant occurrence and soon induced the courts, in order to relieve themselves, to take a distinction between transitory matters, such as a contract which might happen anywhere, and local ones, such as a trespass to the realty, which could only happen in one particular place, and they established as a rule that in transitory matters the plaintiff should have a right to lay the venue where he pleased and the defendant should be bound to follow it, unless indeed his defense consisted of some matter in its nature local and which must therefore, ex necessitate rei, be alleged to have taken place where it really happened. But where a matter alleged in pleading was of a local description, the venue for the trial of such matter could be nowhere but at the very place where it was alleged in pleading to have happened. 1 Smith's Lead. Cas. 781. Independently of some legal fiction, the jurisdiction of a common-law court could never extend to a cause of action accruing beyond the limits assigned to the opinion must be ranked on the side of the principal running of its writs. This will be sufficiently evident case. It thus appears that the Indiana decision is supported by a majority of the authorities on the point in question. It may well be doubted that it has the better foundation in principle. There seems to be no logical escape from the reasoning of the Wisconsin court, and we prefer that doctrine. if we reflect, that while the common law requires that the truth of every material fact traversed should be tried by a jury of the place where it is alleged to have happened, the rules of pleading equally demand that such an allegation of place should accompany every material averment. In order to obviate this difficulty the English courts permitted the plaintiff, in certain |