Vaughan v. Davies, 2 H. Bl. 440; Hall v. Ody, 2 B. & In Collett v. Preston, 15 Beav. 458, an application to set off costs recovered by B. against A., against costs recovered in a suit respecting the same matter, by A. against B., was refused, because it would interfere with the solicitor's lien; see Nicholson v. Norton, 7 Beav. 67. NEW YORK COURT OF APPEALS ABSTRACT. CONSTITUTIONAL LAW-EMINENT DOMAIN-PRIVATE USE.-The fact that the use to which real estate is intended to be put, or the structures intended to be built thereon, will tend incidentally to benefit the public by affording additional accommodations for business, commerce or manufacture, is not sufficient to long as the structures are to remain under private bring the case within the right of eminent domain, so ownership or control, and no right to their use or to direct their management is conferred upon the public, and the taking for such a use without the consent of the owner cannot be authorized by statute. Accord In Ex parte Cleland, L. R., 2 Ch. App. 808, C.'s solicitor was held entitled to a lien on costs ordered to be paid to C. by D., as against a debt due from C. to D., at the time when D. made an assignment for the bene-ingly held that the provision of the act of 1881 (Ch. fit of his creditors. Some American cases hold that the solicitor's lien is subordinate to equities existing between the parties to the judgment, Porter v. Lane, 8 Johns. 357; Ross v. Dole, 13 id. 306; People v. Manning, 13 Wend. 649; Crocker v. Claughly, Duer, 684: Shirts v. Irons, 54 Ind. 13; Ex parte Lehman, 59 Ala. 631; even after the judgment has been assigned to the attorney, as security for his costs, Cooper v. Bigalow, 1 Cow. 206; Wright v. Treadwell, 12 Tex. 252; unless the claims sought to be set off arise out of other matters, Carter v. Bennett, 6 Fla. 215; Robertson v. Shutt, 9 Bush, 659; Mohawk Bank v. Burrows, 6 Johns, Ch. 317; and notice of the lien has been given by the attorney, Hurst v. Sheets, 21 Iowa, 501; Andrews v. Morse, 12 Conn. 444; Leavenson v. Lafontane, 3 Kan. 523; Peckham v. Barcalow, Hill & Den. 112; Johnson v. Ballard, 44 Ind. 270: Daniels v. Pratt, 6 Lea, 443; see Newbert v. Cunningham, 50 Me. 231; Walker v. Sargeant, 14 Vt. 247. The lien of the attorney however in an assigned judgment is now generally recognized as superior to any right of set-off as to the judgments between the parties, Terney v. Wilson, 16 Vr. 282; Shapley v. Bellows, 4 N. H. 347; Dunkin v. Vandenbergh, 1 Paige, 622; Gridley v. Garrison, 4 id. 647 (but see Nicoll v. Nicoll, 16 Wend. 446); Zogbaum v. Parker, 55 N. Y. 120; Firmenich v. Bovee, 1 Hun, 532; Prouty v. Swift, 10 id. 232; Davidson v. Alfaro, 16 id. 353; 80 N. Y. 660; Eberhardt v. Schuster, 10 Abb. N. C. 374; Currier v. Boston R., 37 N. H. 223; Boyer v. Clark, 3 Neb. 161; Rice v. Garnhart, 35 Wis. 282; Warfield v. Campbell, 38 Ala. 527; Renick v. Ludington, 16 W. Va. 378; Diehl v. Friester, 37 Ohio St. 473; Brown v. Bigley, 3 Tenn. Ch. 618; Wells v. Elsam, 40 Mich. 218; Ripley v. Bull, 19 Conn. 53; Stratton v. Hussey, 62 Me. 289; even where the judgment sought to be set off was recovered before the other judgment, Benjamin v. Benjamin, 17 Conn. 110; Ely v. Cooke, 2 Hilt. 406; 28 N. Y. 365; Perry v. Chester, 53 id. 240; Enuis v. Curry, 22 Hun, 584; Nay. lor v. Lane (N. Y.), 29 Alb. L. J. 212; see Dingee v. Shears, 29 Hun, 210; Stillman v. Stillman, 4 Lea, 271; Jeffres v. Cochrane, 47 Barb. 557; 6 Alb. L. J. 198; Prince v. Fuller, 34 Me. 122; Neil v. Staten, 7 Heisk. 290. See further, 1 Am. Law Reg. (N. S.) 419, note. Especially where the judgment has been assigned to the attorney as security for his costs. Rumrill v. Huntington, 5 Day, 163. · A defendant against whom a judgment has been recovered cannot, by thereafter purchasing a judgment against the plaintiff, offset it so as to defeat the attorney's lien. Bradt v. Koon, 4 Cow. 416. The attorney must prove clearly what is the amount of his costs and disbursements, Hooper v. Brundage, 22 Me. 460: Adams v. Lee, 82 Ind. 587; Ocean Ins. Co. v. Rider, 22 Pick. 210; and move promptly to secure his lien. Holt v. Quinby, 6 N. H. 79; see Stone v. Hyde, 22 Me. 318.-J. H. STEWART, REP. -- STOCK 667, Laws of 1881), purporting to authorize the E. B. W. & M. Co. to acquire title to lands by proceedings in invitum, was unconstitutional and void. Matter of [Decided May 6, 1884.] Eureka Basin, etc., Co. Opinion by Rapallo, J. MORTGAGE FORECLOSURE RAILROAD HOLDER, RIGHTS OF LACHES-FORFEITURE.—After the foreclosure sale the only property interest which a stockholder of the old company has left is in the surplus, if any, after satisfying the mortgage and him whether he will come in under the plan and join other preferential claims. It is entirely optional with the new company. All the statute secures to him is the option or privilege to join the new company by a compliance with the terms of the plan. If he elects to join the new company, then he gets a proportional interest therein which may be of great value to him. But his right to join the new company, so far as it desix months." If he fails within that time to exercise pends upon the statute, must be exercised within the his right by assenting to the plan, and thus becoming a party thereto, he cannot take or claim any rights under the plan. It is clearly a condition precedent that he must signify his assent to the plan within six months. If he fails to do so, he forfeits no property, as that was swept away by the foreclosure sale; he loses simply the right or privilege to join and become interested in the new company, and thus to acquire an interest in property. That is a forfeiture, if it can properly be so called, which the law imposes, and against which the courts can give no relief. Story Eq. Jur., §§ 1325, 1326; Robinson v. Cropsey, 2 Edw. Ch. 138; Gorman v. Low, id. 324; Weed v. Weed, 94 N. Y. 243. In such a case equity cannot relieve him from the performance of the condition precedent, and thus vest him with rights of property which he did not otherwise have. City Bank v. Smith, Gill & J. 265; Bapham v. Bamfield, 1 Vern. 83. It would lead to intolerable inconvenience, confusion and difficulty if the stockholders of the old company could in such a case take their own time to assent to the plan of reorganization, and to assert their right to become members of the new company upon such facts as they would be able to establish in a court of equity. Vatable v. N. Y. Lake Erie & West. R. Co. Opinion by Earl, J. [Decided May 6, 1884.] TRUST VALID MORTGAGE TO SECURE CLAIMSSTATUTES AS TO ASSIGNMENT-PRACTICE-AMENDMENT -DISCRETION.-(1) A conveyance by a solvent debtor, of a portion of his property to trustees, to pay a portion of his creditors, containing a provision that any surplus after execution of the trust shall be returned to him, is not as matter of law fraudulent and void as to creditors not provided for. A conveyance of real estate upon such a trust is authorized by the Revised Statutes (1 R. S. 728, § 55), and an assignment of personal property upon such a trust, with a reservation of the surplus, does not violate the statute against per sonal uses. 2 Rev. Stat. 135, § 1; Cooper v. Whitney, 3 Hill, 95; Curtis v. Leavitt, 15 N. Y. 9. (2) An insolvent, and even a solvent debtor cannot convey all his property to trustees to pay a portion of his creditors, with a provision that the surplus shall be returned to him, leaving his other creditors unprovided for; because such a conveyance ties up his property in the hands of his trustees, places it beyond the reach of his creditors by the ordinary process of the law and thus hinders and delays them, and is therefore void as to the creditors unprovided for. But there is no rule of law and no reason for holding that a solvent debtor may not devote a portion of his property, by a trust deed, to the payment of a portion of his creditors, and if he leaves property sufficient for the payment of his other creditors, they have no just or legal ground of complaint. Here there was evidence justifying the referee in finding that upon the execution of the trust deed assailed, the assignor had ample property to pay all his creditors not mentioned in that deed. (3) That any debtor, whether solvent or insolvent, may, acting in good faith, mortgage a portion or the whole of his property to secure one or more of his creditors for any indebtedness, cannot be doubted. The referee found that the assigner was at the time solvent, and it has never been questioned that such a debtor may mortgage his property to secure existing claims as well as future loans and advances. Hendricks v. Robinson, 2 Johus. Ch. 283; Leavitt v. Blatchford, 17 N. Y. 521; Dunham v. Whitehead, 21 id. 131; Robinson v. Will iams, 22 id. 380; Ackerman v. Hunsicker, 85 id. 43; 39 Am. Rep. 622; Simons v. First Nat. Bank, 93 N. Y. 269. (4) The statutes regulating assignments for the benefit of creditors (Ch. 348, Laws of 1860; ch. 860, Laws of 1867; ch. 92, Laws of 1870, and ch. 838, Laws of 1872) have reference only to general assignments made by insolvent debtors for the benefit of all their creditors. (5) Where the court has power to order a complaint to be amended and other parties brought in, it is not bound to exercise that power, and may dismiss the complaint without prejudice to the right to bring another action. Knapp v. McGowan, Assignee. Opinion by Earl, J. [Decided May 6, 1884.] deducting them from the debts, legacies and expenses UNITED STATES SUPREME COURT AB- JURISDICTION-FEDERAL QUESTION-PUBLIC LAW— DECISION OF STATE COURT.-There is no Federal question in this case. The right of San Francisco under the treaty of Guadalupe Hidalgo to the lands in dispute as pueblo lands is not denied. Precisely what that right was may not be easy to state. Mr. Justice Field speaking for the court, said, in Townsend v. Greely, 5 Wall. 336: "It was not an indefeasible estate; ownership of the lands in the pueblos could not in strictness be affirmed. It amounted in truth to little more than a restricted and qualified right to alienate portions of the land to its inhabitants for building or cultivation, and to use the remainder for commons, for pasture lands, or as a source of revenue, or for other purposes. This right of disposition and use was in all particulars subject to the control of the government of the country." This definition was accepted as substantially accurate in Grisar v. McDowell, 6 Wall. 372, WILL-LIMITATION OVER-INTEREST QUALIFIEDSUBSEQUENT CLAUSE.-The will of S., after giving certain legacies, gave in case of her leaving any child or children her surviving, two-thirds of her residuary es. tate to her executors in trust for the benefit of such child or children until of age, with remainder in fee to the children on arrival of age; the remaining onethird was given to her husband and mother to be equally divided between them. The will then provided that in case of the death of all the children of the testatrix (if she had any), after her death and before they became of age, her husband should receive, out of her estate in full of all claims under the pro-and Palmer v. Lowe, 98 U. S. 16. The act of July 1, visions of the will, the sum of $20,000 theretofore loaned to him by the testatrix, and the residue was given to her mother. In case she left no surviving children the testatrix gave to her husband said $20,000 and the residue of the estate to her mother. The testatrix died leaving her husband, one child, an infaut, and her mother. In proceedings for an accounting by the executors, held that the clause providing for the case of the death of the children under age was solely intended to dispose in that event of the twothirds previously given to them, and did not affect the gift of the one-sixth to the mother, and that she took an absolute title to said one-sixth upon the death of the testatrix; also held that there was no error in compelling the account of said one-sixth interest upon the aggregate of the principal and interest of the whole estate up to the time of the surrogate's decree, after 1864, ch. 194, § 5, 13 Stat. 333, simply released to the been before such conquest accustomed to do," and if so, what would be the effect of such a grant? This does not depend on any legislation of Congress, or on the terms of the treaty, but on the effect of the conquest upon the powers of local government in the pueblo under the Mexican laws. That is a question of general public law, as to which the decisions of the State court are not reviewable here. This has been many times decided. Delmas v. Insurance Co., 14 Wall. 661; Tarver v. Keach, 15 id. 68; New York Life Ins. Co. v. Hendren, 92 U. S. 286; Dugger v. Bocock, 104 id. 596; Allen v. McVeigh, 107 id. 433. City of San Francisco v. Scott. Opinion by Waite, C. J. [Decided May 5, 1884.] BANKRUPTCY-SALE FREE FROM INCUMBRANCESRIGHTS OF LIEN-HOLDERS-MERGER-QUESTION OF INTENTION.-Where a bankrupt sale of property is made free from all incumbrances, it does not bind the holder of a lien against the property whom the record fails to show was served with process, or otherwise notified of the proceedings. Ray v. Norseworthy, 23 Wall. 128. In equity, where an incumbrancer of property, by mortgage or otherwise, becomes the owner of the legal title or of the equity of redemption, merger will not be held to take place, if it is apparent that it is not the intention of the owner, or if it is against his manifest interest. Where the mortgage of property secures notes held by different parties, a bankrupt sale, by order of court, will not merge part of the mortgage and keep a part alive, the legal and equitable title being united, although one of the holders had notice of the sale and the other had not. And the party who had notice, the mortgage being kept alive, is entitled to a share in the proceeds of a new sale, and to be recompensed out of the proceeds for taxes and improvements, although he must account for rents and profits. The rule on this subject is thus stated by Jones Mort., § 848: "It is a general rule that when the legal title becomes united with the equitable, so that the owner has the whole title, the mortgage is merged by the unity of possession. But if the owner has an interest in keeping these titles distinct, or if there be an intervening right between the mortgage and the equity, there is no merger." And in the case of Forbes v. Moffatt, 18 Ves 384, Sir William Grant says: "The question is always upon the intentions, actual or presumed, of the person in whom the interests are united. Other authorities cited by Mr. Jones sus tain the principle. Clark v. Clark, 56 N. H. 105, is directly in point. Loud v. Lane, 8 Met. 517; Titsworth v. Stout, 49 Ill. 78; Armstrong v. McAlpin, 18 Ohio St. 184. It is to be observed in the present case that as the mortgage, which secured the two notes owned by the insurance company, was the same which secured Mrs. Murphy's notes, as between which there was no priority, it would hardly be held, on the order of the court to sell the property free from all incumbrances, that the purchase by the insurance company merged part of the mortgage, while part was kept alive. This is expressly decided in Barker v. Flood, 103 Mass. 474. Factors and Traders' Ins. Co. v. Murphy. Miller, J. [Decided May 5, 1884.] Opinion by VENDOR AND VENDEE-LIEN OF VENDOR-DECREE— INTEREST, HOW COMPUTED.-(1) Where it is evident from the report of the master in chancery, in an action to enforce a vendor's lien, based on a contract for the sale and purchase of land, that the amount of the lien, as fixed by the decree, was found by estimating the quantity of land, and not by actual survey, the survey having afterward been made, and the true quantity of land ascertained, the decree will be made to conform to it. (2) A decree will not be disturbed on the strength of meager and indefinite testimony. (3) An agreement for the sale of lands examined, in an action to enforce a vendor's lien, and the time from which interest should be allowed to the vendor on the price of the lands determined. Baines v. Clarke. Opinion by Waite C. J. REMOVAL OF CAUSE-FORCING HEARING-ACT OF MARCH 3, 1875-WHEN RIGHT TO REMOVE LOST.-(1) Where a case is removed from the State to the United States court, and a party is forced to a hearing in the latter, although the petition for removal was filed too late, and a motion to remand refused, the party having saved his rights by record may have the error corrected in the appellate court after the final decree be low. Removal Cases, 100 U. S. 475; Railroad Co. v. Koontz, 104 id.16. (2) When a term, at which a cause as a cause can be first tried, has passed by all right of removal, under the act of March 3, 1875, is gone, and a to file pleadings being afterward granted, does not create a new right of removal. It is true that the creditors got leave to file pleadings within ninety days, and that their answers and cross-bills were in before that time expired. But this operated only as an amendment of the original pleadings, and created no new right of removal. As was said in Babbitt v. Clark, 103 U. S. 612, "the act of Congress does not provide for the removal of a cause at the first term at which a trial can be had on the issues as finally made up by leave of court or otherwise, but at the first term at which the cause as a cause could be tried." Edrington v. Jefferson. Opinior. by Waite, C. J. [Decided May 5, 1884.] UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.* SHIP AND SHIPPING-COLLISION PRESUMPTION OF FAULT-PREPONDERANCE OF EVIDENCE.-Where a collision happens between two sailing vessels, the one sailing close-hauled, the other with the wind free, the night being clear and the lights of both vessels seen, the legal presumption is prima facie that the fault was in the vessel sailing free. This presumption is increased by proof of the absence in the latter of any lookout other than the captain standing near the wheel. The evidence of neither of the persons on deck of the latter being obtained, the captain having been knocked overboard and drowned at the time of the collision, and the wheelsman having died before the trial, and the only evidence in her behalf being that of the captain of another schooner about half a mile ahead, sailing in the same direction, who testified that the schooner, sailing close-hauled, just before she was reached luffed up into the wind so that her sails shook, and then paying off ran down on the other schooner, and several witnesses from the schooner close-hauled contradicting the alleged luff, and giving a consistent and probable narrative involving no fault on their part, held, that the luff alleged was improbable under the circumstances, and not sustained by the weight of proof; that the libellants had not overcome the presumption against them by any preponderance of proof; and that the libel must be dismissed. The E. H. Webster, 18 Fed. Rep. 724; The City of Chester, id. 603: The Albert Mason, 8 id. 768; S. C., 2 id. 821. Dist. Ct., S. D. New York, April 28, 1884. Carll v. The Erastus Wiman. Opinion by Brown, J. SHIP AND SHIPPING COLLISION-DUTY OF VESSELS-BOTH IN FAULT.-(1) A steamer in the East river, having upon her own starboard hand another *Appearing in 20 Federal Reporter. large steamer, evidently engaged in turning around in a way that must cross the course of the former, is bound to keep out of her way, and give room for her necessary path in turning. When that duty has attached, she cannot relieve herself of it by getting across the bows of the latter and claiming that the latter is then in the position of a following or overtaking vessel. The Franconia, 2 Prob. Div. 8; The Cayuga, 14 Wall. 270. There was danger of collision from the very act of sheering to the westward, and the Unit was therefore bound to refrain from such a change. The Nichols, 7 Wall. 656; The Free State, 91 U. S. 200. (2) A large steamer, engaged in making a turn in the East river, is bound to special watchfulness and care to avoid contact with other vessels. The lookout having failed to continue his attention to a tug and tow on the opposite side of the river, and a collision having happened, which by such attention would have been avoided by the steamer's timely backing, held, that both were in fault, the steamer for inattention, and the tug for steering across the steamer's path, instead of stopping, as he might have doue. The previous fault of the tug did not relieve the steamer of her duty to keep constant watch for the purpose of avoiding injury. The Maria Martin, 12 Wall. 31; The Vim, 12 Fed. Rep. 906; The Pegasus, 19 id. 46. Dist. Ct., S. D. New York, April 29, 1884. The State of Texas. Opinion by Brown, J. REMOVAL OF CAUSE-AMOUNT IN DISPUTE-ACT OF 1875-CITIZENSHIP.-(1) In order that a cause may be removed from the State courts to the United State courts, under § 639, Rev. Stat., the sum in dispute, exclusive of costs, must exceed $500 at the time of the commencement of the action in the State courts. In Spear on the Law of the Fed. Judic., at p. 462, speaking of the amount in dispute, the author says: "The absence of this condition is fatal to the right of removal as given by the statute. The right depends upon a statute, and the facts as they existed when the suit was commenced in the State court in respect to the sum or value in dispute must determine whether this particular condition of the statute is present," citing Roberts v. Nelson, 8 Blatchf. 74, 77. This author adds: "These general provisions of the statute apply to all the cases enumerated therein, and constitute a part of the legal requirements in the removal of these cases from the State courts to the Circuit Courts of the United States." (2) A suit cannot be removed from a State court to the United States courts under the act of 1875, unless the requisite citizenship of the parties existed both when the action was begun and the petition for removal filed. That proposition is maintained by a line of authorities cited in Spear Fed. Jud. 501, 502, among which is Jackson v. Ins. Co., 3 Woods, 413, opinion by Judge Woods. There is however a line of authorities to the proposition that the cause cannot be removed unless the required citizenship existed, not only when the petition for removal is filed, but also at the time the action is begun in the State court. The case of Houser v. Clayton, 3 Woods, 273, opinion by Justice Bradley, and the case of Kaeiser v. Illinois Cent. R., 6 Fed. Rep. 1, opinion by Judge McCrary, of the Eighth Circuit, are cited, and other authorities to the same proposition; Spear Fed. Jud. 502, 503. The Supreme Court of the United States, in the case of Gibson v. Bruce, 2 Sup. Ct. 873, hold that a suit cannot be removed from a State court, under the act of 1875, unless the requisite citizenship of the parties exists both when the suit was begun and when the petition for removal is filed. Cir. Ct., N. D. Ala., April, 1884. Carrick v. Landman. Opinion by Bruce, J. NEBRASKA SUPREME COURT ABSTRACT. LIMITATION ACKNOWLEDGMENT — OPENING AND CLOSING.-(1) A writing signed by the party as follows: "I am sorry that you have had to pay the notes of Frank Pillond and myself, upon which you were surety for us. I cannot at this time pay you the money, but propose to pay you my share, which I am told is about $413. I hope to be able to pay you soon, but will let you know in a few days what I can do;" held, to take the debt out of the statute of limitations. (2) A partial payment, acknowledgment of the debt, or promise to pay, made after the debt is barred, will revive it. (3) A defendant is not entitled to the opening and closing on a trial, unless he by his answer admits the allegations of the plaintiff's petition, and relies entirely upon an affirmative defense. Rolf v. Pillond. Opinion by Reese, J. [Decided May 28, 1884.] CONTRACT-ILLEGAL-PUBLIC POLICY.-No court of law or equity will end its assistance in any way toward carrying out an illegal contract, therefore such a contract cannot be enforced by any one party against the other, either directly, by asking the court to carry it into effect, or indirectly, by claiming damages or compensation for a breach of it. Sykes v. Beadon, 11 Ch. Div. 170; 27 Eng. R. 435, note. A contract by which G. & K., who were the holders of a license to trade with the Fort Peck Indian agency, agreed to pay to K. & S. the one-half of the net profits of such trade for the consideration of the said K. & S. purchasing all goods and supplies necessary and proper for said trade at their own account and credit, and immediately resell and invoice such goods to said G. & K. at said agency at cost price, cost of transportation and insurauce added, and one of the said K. & S. take entire charge, management and control of said business, devoting his entire time and attention thereto, and residing at Fort Peck, is illegal, for the reason that it contemplates the violation of the statute as well as the public policy of the government of the United States. Chief Justice Marshall, in the case of Armstrong v. Toler, 11 Wheat. 268, stated the law with great clearness and perspicuity in the following language: "Questions upon illegal contracts have arisen very often, both in England and in this country, and no principle is better settled than that no action can be maintained on a contract, the consideration of which is either wicked in itself or prohibited by law." We have seen above, to my own satisfaction at least, that the plaintiffs and defendants in the case at bar cannot be considered as partners, for the want of an intention on their part to establish that relationship, as expressed by the language of the contract, as well as the lack of mutuality of its terms. It cannot be claimed that the plaintiffs are entitled to this remedy for the purpose of following their money or property in the hands of the defendants, and claiming a share of its product or earnings, for they have placed neither money, property nor services there. They have given to the defendants, so far as they could, the ægis of their license, for which the defendants promised them a certain share of the net profits of their business; but as we have seen, the consideration being illegal, that promise cannot be enforced. It may be claimed that the defendants, having done business in the name of the plaintiffs, are estopped to deny the interest of the plaintiffs in that business. That would probably be so, could the plaintiffs' case ever reach the point at which the defendants are required to develop their defense; but the difficulty is in the inherent weakness of the plaintiffs' case. They cannot reach the enemies' works except through the contract, which, by reason of its ille gality, is "no thoroughfare "for them. Gould v. Ken- founded, but if an indictment professes to dall. Opinion by Cobb, C. J. [Decided May 28, 1884.] do So, a material variance will be fatal: or if the statute does not support the verdict, it must fail. If there had been no allegations in the indictment as to the law, the indictment might have been sustained; but as these allegations make it quite evi, dent that the finding of the grand jury was upon a law which had been repealed I think that judgment must be arrested. Cir. Ct., Dist. N. H., May 13, 1884. United States v. Goodwin. Opinion by Clark, J. (20 Fed. Rep. 237.) NEGLIGENCE-DEFENDANT'S QUESTION FOR JURYOF PARENT NOT IMPUTED TO CHILD.—(1) The plaintiffs in error employed the defendant in error to labor for them in and about a cane-mill while engaged in crushing sugar cane. The defendant in error was a boy of the age of eleven years, and while feeding the mill his hand was caught between the rollers and so severely injured as to require the amputation of two of his fingers. This action was instituted by him, through his next friend, for damages resulting from the alleged SENTENCED TO DEATH-A SCENE IN AN ENGcarelessness of the plaintiffs in error, in requiring him at his age to feed the cane-mill, that being a dangerous employment. Upon the trial the plaintiffs in error requested the court to give a number of instructions, a part of which the court refused to give, to which refusal the plaintiffs in error excepted. The jury having returned a verdict in favor of the defendant in error, CRIMINAL LAW. MANSLAUGHTER-FIGHT IN STREET.-Where F., a saloon keeper, and the defendant attempted to eject M. and others from a saloon because of their noise and disturbance, and after something of an altercation M. departed, with F. in pursuit, and immediately afterward they engaged in a struggle in the open street and in the presence of many people, and F., when in danger of receiving personal chastisement, but not in such imminent peril as to justify the use of a deadly weapon, shot and killed M., held, that a punishment for manslaughter is not excessive, and that the verdict is sustained by the evidence. Sup. Ct. Iowa, June 6, 1884. State v. Fitzsimmons. Opinion by Reed, J. (19 N. W. Rep. 821.) INDICTMENT-PLEADING MATTERS OF LAW-SUR PLUSAGE.—It is never necessary to set forth matters of law in a criminal proceeding. U. S. v. Rhodes, 1 Abb. (U. S.) 28. But if the indictment set out the offense with greater particularity than is required the proof must correspond with the averment; nothing connected with the offense is regarded as surplusage. U. S. v. Brown, 3 McLean, 233. And it must be that if the law supposed to govern the offense be set out in the indictment, and the grand jury present it to the court as their finding, it cannot be rejected, if erroneous, because it was the ground of their action. In Butler v. State, 3 McCord, 383, it was held that an indictment need not recite the statute on which it is LISH COURT. THE prisoner in the dock would not under ordinary circumstances attract attention. Shambling, undersized and listless, one may see dozens of his type hanging around the pit banks any Saturday afternoon, hungry, lazy loafers whose sole object is to drag through an animal existence with as little work as possible. Whether the repeated sight of the weekly arrival of the pay clerk with his bags of yellow sovereigus acted as a cumulative temptation to this man's vaguely brooding mind, or whether impelled by some sudden onslaught of the devil, we cannot tell, but one Saturday morning he was noticed lounging near the bank of the neighboring town, and when poor Meredith, little suspecting how short a span of life remained for him emerged therefrom, laden as usual with the colliery wages, the prisoner quietly followed and in broad day light, on a well frequented highway, almost in sight of the passers-by, shot him and decamped with the coveted bags. So bungling was the execution of the crime that detection and arrest were quick and easy, and now some two months after that fatal moruing this commonplace criminal stands here to receive his wage and have his own span of days exactly meted out. The promising junior, assigned by the formal humanity of our law for his defense, has made the most of a hopeless case, resting principally upon a possible insanity of which there has been some faint evidence given, but the judge has covertly destroyed his slender plea,telling the jury that if such excuses are to be taken, our pris ons may at once be turned into lunatic asylums. Mere empty clap trap this, but when delivered from judicial lips by that incarnation of wisdom to rustic jurors, a judge on Circuit, it is abundantly sufficient to seal the prisoner's fate, and so after a quarter of an hour's retirement, for decency's sake, the twelve have delivered their verdict. Is there no one here, beside ourselves, who feels a sickening doubt of the justice of the dreadful sentence just impending? Look at that wretched specimen of humanity, not a muscle of whose face or hands betrays what is passing in his dim brain. To the damning evidence, to his counsel's appeal, to the judge's summing up, to the verdict itself he has listened discounectedly with that indolent lack of interest characteristic of his stupid class, himself the least concerned spectator in the densely crowded court, and now as the low tones of the judge pronouncing sentence strike on his ear, he looks up at him with a slight vague speculation in his eyes, evidently noting with dull surprise, the black cap which has suddenly appeared on the judicial wig. It is clear the judge is far too case-hardened to feel any qualms such as are troubling our less ancient conscience. Behind the expression of decorous pity on his face lurks an irrepressible self complacency which receives from the tremendous power he is now exercising, a gratification unowned, but real and deep. His well-modulated voice, bated to a theatric whisper, is under excellent control, and |