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his purpose. This is a very special usage, dependent wholly upon the New York statute.
Nor is it in any manner made to appear that this examination" was necessary in order to prevent a delay or failure of justice in any the courts of the United States," nor is any such proposition the foundation of the court's action.
The petitioner having removed his case into the Circuit Court has a right to have its further progress governed by the law of the latter court, and not by that of the court from which it was removed; and if one of the advantages of this removal was an escape from this examination, he has a right to that benefit if his case was rightfully removed.
These are the exceptions which the statute provides This precise point is decided, and in regard to this to its positive rule that the mode of trial in actions at very question of the differing rules of evidence prevaillaw shall be by oral testimony and examination of ing in the State and Federal courts, in King v. Worthwitnesses in open court. They are the only exceptionsington, 104 U. S. 44. thereinafter provided. Does the rule admit of others? Can its language be so construed?
In that case, after it had been once heard on appeal in the Supreme Court of Illinois, it was removed into the Circuit Court of the United States.
On the contrary its purpose is clear to provide a mode of proof in trials at law to the exclusion of all other modes of proof; and because the rigidity of the rule may in some cases work a hardship, it makes ex ceptions of such cases as it recognizes to be entitled to another rule, and it provides that rule for those cases. Under one or the other all cases must come. Every action at law in a court of the United States must be governed by the rule, or by the exceptions which the statute provides. There is no place for exceptions made by State statutes. The court is not at liberty to adopt them, or to require a party to conform to them. It has no power to subject a party to such an examination as this. Not only is no such power conferred, but it is prohibited by the plain language and the equally plain purpose of the acts of Congress, and especially the chapter on Evidence of the Revision. The New York statute would, if in force, repeal or supersede the act of Congress.
The Supreme Court had reversed the judgment of the inferior court, because among other things the evideuce of witnesses had been received whom that court held to be incompetent.
On the trial in the Circuit Court they were held to be competent and admitted to testify, notwithstanding the decision of the Supreme Court of the State, on the ground that section 858 of the Revised Statutes of the United States, already copied in this opinion, made them competent, and although it differed in that respect from the statute of Illinois on the same subject, it must prevail in the Circuit Court.
It was strongly urged here that this was error, and as to that case the decision of the Illinois court, made while it was rightfully before it, should control. But this court held otherwise, and said: "The Federal court was bound to deal with the case according to the rules of practice and evidence prescribed by the acts It does not require much deliberation to see that if of Congress. If the case is properly removed the the acts of Congress forbid the use of this kind of tes-party removing it is entitled to any advantage which timony in the courts of the United States, no order the practice and jurisprudence of the Federal courts for taking it made in the State court while the case give him." was pending in that court, with a view to its use on a trial there, can change the law of evidence in the Federal court. Without deciding now, for the question is not before us, whether the testimony actually given under that order and transmitted with the record of the case to the Circuit Court, can be used when the trial takes place, we are well satisfied that the latter court cannot enforce the unexecuted order of the State court to procure evidence, which by the act of Cougress is forbidden to be introduced on the trial, if it should be so taken.
The Circuit Court was therefore without authority to make the orders for the examination of petitioner in this case, and equally without authority to enforce these orders by process for contempt. Its order finiug him for contempt and committing him to the custody of the marshal was without jurisdiction and void, and the prisoner is entitled to his release.
It is supposed that the announcement of the judgment of the court that he is entitled to the writ will render its issue unnecessary. If it shall prove otherwise the writ will be issued on application to the clerk.
The provision of section 4 of the act of March 3, 1875, 18 U. S. Stat. 470, declares orders of the State court, in a case afterward removed, to be in force until dissolved
or modified by the Circuit Court. This fully recogni- NEW YORK COURT OF APPEALS ABSTRACT. zes the power of the latter court over such orders. And it was not intended to enact that an order made in the State court, which affected or might affect the mode of trial yet to be bad, could change or modify the express directions of an act of Congress on that subject.
Nor does the language of the court in Duncan v. Greghan, 101 U. S. 810, go so far. When it is there said that "the Circuit Court has no more power over what was done before the removal than the State court would have had if the suit had remained," it is in effect affirmed that it has at least that much power. There can be no doubt that on a proper showing before the State court it could have discharged the order for this examination or suspended its further execution. In acting on such a motion as this it would have been governed by the laws of the State of New York. In deciding whether it would continue the execution of this order or decline to execute it further the Circuit Court was governed by the Federal law. If the law governing the Circuit Court gave it no power to make or continue this examination, but in fact forbid it, then it could not enforce the order.
PARTNERSHIP AND CO." CONSTRUCTION.-Section 1, ch. 281 of the Laws of 1883, reads as follows: "No person shall hereafter transact business in the name of a partner not interested in his firm, and where the designation and Company' or '& Co ' is used, it shall represent an actual partner or partners." This statute does not appear to be a very useful one. It does not compel partners to disclose their true names, or any of their names, in the partnership designation. They may still do business under any style, not untruly containing the name of any person which they choose to assume, such as the "Union Towing Company," the "Eureka Company' or other fanciful names (Crawford v. Collins, 45 Barb. 269; Wright v. Hooker, 10 N. Y. 51); and it may be very difficult in such cases to ascertain who the numerous persons are composing the partnership. Even an individual may transact his business under such a name without violating the statute. So these plaintiffs could have done business under the name "Gay & Co.," and the public would have been just as liable to imposition as when the business was done under the
uame of Gay Brothers & Co. Persons giving credit to a firm, either rely upon the responsibility of the firm, by whomsoever it may be constituted, or they rely upon the members thereof, whose names by inquiry, or in some other way, become known to them. Without this statute, one imposed upon by a fictitious firm would have his civil remedy for the fraud or deceit, and there would generally also be a remedy by indictment for false pretenses. So the statute is not only not very beneficial, but it is also highly penal and it should therefore be strictly construed. Where therefore in a bond given to said firm, which used the "&Co.," the names of the actual partners were stated, and it was known to all the obligors that they alone constituted the firm, heid, that the case was not within the purpose or intent of the statute, and that the use of the fictitious designation was not a defense to an action upon the bond. It is a rule peculiarly applicable to the construction of penal statutes, that a thing within the letter of a statute is not within the statute unless within the intention thereof; and 80 too in the construction of remedial statutes, it is generally held that a thing within the intention is within the statute though not within the letter; and these rules have many illustrations in the books. People v. Utica Ins. Co., 15 Johns. 358, 380; Holmes v. Carley, 31 N. Y. 289. It is said in an old case (Eyston v. Studd, 2 Plow. 465), "it is not the words of the law, but the internal sense of it that makes the law, and our law, like all others, consists of two parts, viz., of body and soul; the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law." " Quia ratio legis est anima legis." Gay v. Siebold. Opinion by Earl, J. (See 60 How. Pr. 163; 83 N. Y. 74.) [Decided Dec. 2, 1884.]
EVIDENCE-EXPERTS-HYPOTHETICAL QUESTIONSCREDIBILITY OF WITNESS.-Hypothetical questions are allowed to be put to experts; but the hypothesis upon which they are examined must be based upon facts admitted or established by the evidence, or which if controverted the jury might legitimately find on weighing the evidence. Purely imaginary or abstract questions, assuming facts on theories for which there is no foundation in the evidence, are not admissible as matter of right. On cross-examination, such abstract or theoretical questions, not founded upon the facts of the case on trial, may be put, for the purpose of testing the knowledge and information of the witness, as to the subject upon which he has been examined, and his competency to give the opinion which he may have pronounced on his direct examination. But the allowance of such questions, like other collateral inquiries touching only the credibility of the witness, rests in the discretion of the court, and when the discretion is fairly exercised, it is not error to exclude them. Dilleber v. Home Life Ins. Co., 87 N. Y. 79-88; La Beau v. People, 34 id. 223. Were the rule otherwise, there would be no limit to the cross-examination of a witness called as an expert. It could be protracted as long as the fertility of the imagination of the examining counsel might enable him to suppose cases, and the mental and physical powers of endurance of the witness would permit him to frame auswers. People v. Augsbury. Opinion by Rapallo, J. [Decided Dec. 16, 1884.]
and stow live-stock as other ordinary inanimate freight, is a question upon which much has been written, and some diversity of opinion has been expressed., It is not necessary here to analyze the adjudged cases, nor indicate the weight of reason or authority. Betts v. Farmers' L. & T. Co., 21 Wis. 81, was an action for injuries caused by the carrier's negligence in carrying the plaintiff's cattle in a car with defective and imperfectly fastened doors, which were thrown open by the motion of the cars so that the cattle escaped. The cattle were shipped under a special contract, which, among other things, provided that the company should 'not be liable for loss in jumping from the cars." In that case, Dixon, C. J., giving the opinion of the court, said: "As to this species of property, we think it competent for the carrier to contract the owner shall assume all risk of damage or injury, from whatever cause, happening in the course of transportation." See also C. & N. W. R. Co. v. Vau Dresar, 22 Wis. 512; Morrison v. Phillips & Colby Coustr. Co., 44 id. 405. This proposition seems to cover more ground thau the point actually decided in that case, but the English cases cited by the learned chief justice seem to sustain the proposition. To them others may be added: McCance v. London & N. W. Ry. Co., 7 Hurl. & N. 477: Gannell v. Ford, 5 Law T. (N. S.) 604; Robinson v. Great Western Ry. Co., 35 L. J. C. P. 123; Harrison v. London, etc., Co., 2 Best & S. 122; Manchester v. Brown, 50 L. T. Rep. (N. S.) 281. But there are cases even in England which seem to hold a contrary doctrine. McManus v. Lancashire, etc., Co., 4 Hurl. & N. 327; Allday v. Great Western Ry. Co., 5 Best & S. 903; Gregory v. West Midland Ry. Co., 2 Hurl. & C. Exch. 944; Rooth v. Northeastern Ry. Co., L. R., 2 Exch. 173; Doolan v. Directors, L. R., 2 App. Cas. 792; Moore v. Great S. & W. Ry. Co., 10 Ir. Com. Law, 65. Just how far the cases cited were controlled by the presence or absence of local statutes it is not necessary here to determine. It is well settled that a carrier of ordinary inanimate freight cannot by any agreement, however plain and explicit, wholly relieve itself from all liability whatsoever resulting from its own negligence. Black v. Goodrich Transp. Co., 55 Wis. 319. Just the extent that a carrier of such inanimate freight may by express contract exempt itself from liability for its own negligence need not here be determined. Certainly there is a broad distinction between the risks incident to the carriage of such or dinary inanimate freight, and that of live animals having instincts, habits, propensities, wants, necessities and powers of locomotion. Requisite care in case of the transportation of such live-stock therefore necessarily implies food and water periodically, and at times especial care and shelter outside the vehicle of carriage. All these things would require help, appliances, conveniences and extra arrangements not requisite in the case of ordinary inanimate freight, which a carrier might be unable or unwilling to furnish, and yet if furnished by the owner of such livestock, and the risk incident to them assumed by such owner, the carrier might be able and willing to undertake such transportation. And yet, with all reasonable care, it would be impossible to secure at all times absolute safety in the transportation of such live animals. This broad distinction between that class of freightage and ordinary inanimate freight has frequently been observed by the courts. Blower v. Great Western Ry. Co., L. R., 7 C. P. 655; Shir. Lead. Cas., No. 22, p. 50; Clarke v. Rochester, etc., Ry. Co., 14 N. Y. 570; Peun v. Buffalo, etc., Ry. Co., 49 id. 204; Cragin v. New York Central Ry. Co., 51 id. 61; Holsapple v. Rome, Wat. & Ogd. R. Co., 3 Am. & Eng. Ry. Cas. 487; Smith v. New Haven, etc., R. Co., 12 Allen, 531; Evans v. Fitchburgh R. Co., 111 Mass. 142; Michigan
S. & N. Ind. R. Co. v. McDonough, 21 Mich. 189; Lake Shore & Mich. So. R. Co. v. Perkins, 25 id. 329. There would certainly seem to be no good reason why a carrier might not by express contract exempt itself from damage caused wholly, or perhaps in part, by the instinots, habits, propensities, wants, necessities, vices, or locomotion of such animals. As to injury from such causes the common-law liability and obligation do not seem to attach; certainly not with the same rigidity as they do to ordinary inanimate freight. Thus in a late case in Minnesota it is held that " a railroad corporation which undertakes to transport live-stock for hire for such persons as chose to employ it, assumes the relation of a common carrier, with such modifications of the common-law liability of carriers as arise from the uature of their animals and their capacity for inflicting injury upon themselves and upon each other." Moulton v. St. Paul, M. & M. Ry. Co., 12 Am. & Eug. Ry. Cas. 13. To these things may well be added other things iucident to live-stock. As to the extent to which a carrier may limit its liability for injury caused by its own negligence see the valuable notes to Holsapple v. Rome, Wat. & Ogd. R. Co ̊, 3 Am. & Eng. Ry. Cas. 487, and Harrison v. Missouri Pac. Ry. Co., 7 id. 382; Peek v. North Staffordshire Ry. Co., 10 H. L. 473; Shir. Lead. Cas., No. 23, p. 51. Richardson v. Chicago, etc., R. Co. Opinion by Cassoday, J. [Decided Oct. 18, 1884.]
EVIDENCE-PAROL TO SHOW LEASE IN FACT MORTGAGE-MORTGAGE ON FUTURE CROP.-(1) A written contract, by the terms of which M. leases a farm to L. for one year, surrenders possession at once, and agrees to do all the work in raising a crop thereon, and to deliver the whole of such crop to L., the latter agreeing to furnish all the groceries needed by M., to furnish the seed, to sign a promissory note of even date with the contract for the sole benefit of M., and upon delivery of the crop to give M. a receipt for $300 of present indebtedness of M. to L., is upon its face a lease, but may be shown by parol or other competent evidence to have been intended merely as a mortgage of the orop. It presents the well-settled proposition that a bill of sale of chattels, or an absolute deed or lease of real estate, may be shown to have been given as a mortgage security by parol, or other competent evidence; and where the evidence satisfactorily shows that fact, then the conveyance, whatever its nature or form, will be treated as a mortgage; and the rights of the parties under such contract will be such, and only such, as they would have been had the writing on its face created the relation of mortgagor and mortgagee. The following are a few of the cases in this court which establish the proposition above stated: Plato v. Roe, 14 Wis. 453; Sweet v. Mitchell, 15 id. 641; Kent v. Lasley, 24 id. 654; Kent v. Agard, id. 378; Wilcox v. Bates, 26 id. 465; Dobbs v. Kellogg, 53 id. 448; S. C., 10 N. W. Rep. 623; Briukman v. Jones, 44 Wis. 498. (2) A mortgage of a crop thereafter to be raised is void as against a subsequent purchaser from the mortgagor, unless before such purchase the mortgagee took actual possession of the property. If the transaction between M. and L. was shown to be a mortgage security in fact then such mortgage would be absolutely void as to a subsequent mortgagee or vendee of M., for the reason that the property intended to be covered by the mortgage was not in existence when the mortgage security was given, unless there was evidence given showing that the respondent had taken the actual possession of the property intended to be mortgaged after it came into existence, and before it was mortgaged or sold to the appellant. Comstock v. Scales, 7 Wis. 159; Chynoweth v. Tenney, 10 id. 397-407; Farmers' L. & T. Co. v. Commercial Bank, 11 id. 207; Single v. Phelps, 20 id.
399; Mowry v. White, 21 id. 417; Hunter v. Bosworth, 43 id. 583; Farmers' L. & T. Co. v. Fisher, 17 id. 114; Farmers' L. &. T. Co. v. Cary, 13 id. 110. Lawson v. Moffatt. Opinion by Taylor, J. [Decided Oct. 14, 1884.]
MUNICIPAL CORPORATION-LEGISLATURE MAY DIVIDE-APPORTIONMENT OF LIABILITIES-SERVICES BY ATTORNEY.-A county board exercising legislative powers in the vacation of a town may apportion the property and charge the liabilities of such town to the towns to which its territory is annexed in such manner and proportion as may seem just. The doctrine that in the vacation of a town the Legislature has the power to apportion the property and charge the liabilities of the vacated town upon the town or towns to which the territory of the vacated town is annexed,in such manner and proportion as may seem just to the Legislature, seems to be well established by authority. Thompson v. Abbott, 61 Mo. 176, 177; Borough of Dunmore's Appeal, 52 Penn. St. 374; City of Olney v. Harvey, 50 Ill. 453; Morgan v. City and Town of Beloit, 7 Wall. 613-617. The general power of the Legislature to apportion the property and the liabilities of a vacated town among the towns to which its territory is attached, is recognized by this court in the case of Town of Depere v. Town of Bellevue, 31 Wis. 120-125; Goodhue v. Beloit, 21 id. 636; and Supervisors of La Pointe v. O'Malley, 47 id. 332; S. C., 2 N. W. Rep. 632; Butternut v. O'Malley, 50 Wis. 333; S. C., 7 N. W. Rep. 248. This court held in La Pointe v. O'Malley, supra, that the county board of supervisors had all the powers of the Legislature in regard to the vacation of towns and the annexation of the territory to other towns, and in such case could distribute the property of the vacated town to the towns to which the territory of the vacated town was attached, in such manner as the board deemed best for the public interest. An attorney rendered services to the town of L. in prosecuting an action against the town of A. under a contract providing that if $10,000 was recovered, or if the action was discontinued by the town he should receive $5,000. While that action was pending on an appeal, the county board vacated the town of L. and annexed a part of its territory to said town of A., making the latter the successor of the town of L. so far as said action was concerned. After the decision of the appeal which established the right of the town of L. to recover $10,000, the town of A. obtained an order dismissing the action. Held, that said attorney might recover for his services from the town of A. The ordinance vacating the town of L. provided that the amount justly due for such services should be determined by a referee named, but the town of A. refused to consent to its being so determined, when the attorney proposed to submit the question to the referee. Held, that the attorney might recover the amount due under the original contract with the town of L. Knight v. Town of Ashland. Opinion by Taylor, J. [See 11 Am. Rep. 602; 21 Eng. Rep. 268.] [Decided Oct. 14, 1884.]
UNITED STATES SUPREME COURT ABSTRACT.*
WILL-EXECUTORY DEVISE-DYING WITHOUT ISSUE. -A testator devised to E., daughter of his son N., a
parcel of land in fee, provided that should E. die in her minority, and without lawful issue then living, the land should revert and become a part of the resídue of his estate; devised other land to his son W. for life, and to J., son of W., in fee, with a like proviso;
*Appearing in 5 Supreme Court Reporter.
gave to his widow certain real and personal property for life; and devised the residue of his estate to his executors, and directed that the income be suffered to accumulate until his eldest grandchild then living should attain the age of 21 years, or until the decease of his son W., whichever should first occur, and then the whole to be equally divided among all his grandchildren then living, and in making such division the amount of the devises to J. and to E., according to an estimate of their present value, to be made by three appraisers, to be charged to them as part of their respective shares. Held, that the estate of E. in the land specifically devised to her was divested by her dying under age and without issue, though after the deaths of testator and of W. When a devise is made to one person in fee, and "in case of his death" to another in fee, the absurdity of speaking of the one event, which is sure to occur to all living, as uncertain and contingent, has led the courts to interpret the devise over as referring only to death in the testator's life-time. 2 Jarm. Wills, ch. 48; Briggs v. Shaw, 9 Allen, 516; Lord Cairns in O'Mahoney v. Burdett, L. R., 7 H. L. 388, 395. But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstauces indicated at any time, whether before or after the death of the testator. O'Mahoney v. Burdett, supra; 2 Jarm. Wills, ch. 49. We find nothing in this will to take the case out of the general rule, or to support the argument of the plaintiff in error that the testator intended that the devise over should not take effect if Eliza Ann survived him, or at least, if she survived his son William. The phrase in the specific devise that in the prescribed contingency the land shall "revert and become part of the residue," is quite as consistent with the happening of the contingency after the estate has once vested in the devisee, as with its happening in the testator's life-time, and before any estate has vested in her. Britton v. Thornton. Opinion by Gray, J.
[Decided Dec. 15, 1884.]
CONSTITUTIONAL LAW-ACT OF AUG. 3, 1882-REGULATION OF COMMERCE-CHINESE IMMIGRATION.-The
act of Congress of Aug. 3, 1882, "to regulate immigration," which imposes upon the owners of steam or sailing vessels who shall bring passengers from a foreign port into a port of the United States a duty of fifty cents for every such passenger not a citizen of this country, is a valid exercise of the power to regulate commerce with foreign nations. We are clearly of opinion that in the exercise of its power to regulate immigration, and in the very act of exercising that power, it was competent for Congress to impose this contribution on the ship-owner engaged in that busincss. Another objection to the validity of this act of Congress is that it violates provisions contained in numerous treaties of our government with friendly nations. And several of the articles of these treaties are annexed to the careful brief of counsel. We are not satisfied that this act of Congress violates any of these treaties on any just construction of them. Though laws similar to this have long been enforced by the State of New York in the great metropolis of foreign trade, where four-fifths of these passengers have been landed, no complaint has been made by any foreign nation to ours of the violation of treaty obligations by the enforcement of those laws. But we do not place the defense of the act of Congress against this objection upon that suggestion. We are of opinion, that so far as the provisions in that act may be found to be in
conflict with any treaty with a foreign nation, they .must prevail in all the judicial courts of this country. We had supposed that the question here raised was set at rest in this court by the decision in the case of the Cherokee Tobacco, 11 Wall. 616. It is true, as suggested by counsel, that three judges of the court did not sit in the case, and two others dissented. But six judges took part in the decision, and the two who dissented placed that dissent upon the ground that Congress did not intend that the tax on tobacco should extend to the Cherokee tribe. They referred to the existence of the treaty which would be violated if the statute was so construed as persuasive against such a construction, but they nowhere intimated that if the statute was correctly construed by the court, it was void because it conflicted with the treaty, which they would have done if they had held that view. On the point now in controversy it was therefore the opinion of all the judges who heard the case. See U. S. v. Mo Bratney, 104 U. S. 621-623. The precise question involved here, namely, a supposed conflict between an act of Congress imposing a customs duty, and a treaty with Russia on that subject, in force when the act was passed, came before the Circuit Court for the District of Massachusetts in 1855. It received the consideration of that eminent jurist, Mr. Justice Curtis, of this court, who in a very learned opinion exhausted the sources of argument on the subject, holding that if there were such conflict the act of Congress must prevail in a judicial forum. Taylor v. Morton, 2 Curt. C. C. 454. And Mr. Justice Field, in a very recent case in the Ninth Circuit, that of In re Ah Lung, on a writ of habeas corpus, has delivered an opinion sustaining the same doctrine in reference to a statute regulating the immigration of Chiuamen into this country. 18 Fed. Rep. 28. In the Clinton Bridge case, Woolw. 156, the writer of this opinion expressed the same views as did Judge Woodruff, on full cousideration, in Ropes v. Clinch, 8 Blatchf. 304, and Judge Wallace, in the same Circuit, in Bartram v. Robertson, 15 Fed. Rep. 212. It it very difficult to understand how any different doctrine can be sustained. A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party choses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do, and can give no redress. But a treaty may also contain provisious which coufer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of oitizens and subjects of the contracting nations in regard to rights of property by descent or inheritance when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that "this Constitution and the laws made in pursuance thereof, and all treaties made, or which shall be made under authority of the United States, shall be the supreme law of the land." A treaty then is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute. But even in this aspect of the
case there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by au act of a later date. Nor is there any thing in its essential character or in the branches of the government by which the treaty is made, which gives it this superior sanctity. A treaty is made by the president and the Senate. Statutes are made by the president, the Senate and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard it would seem to be in favor of an act in which all three of the bodies participate. Aud such is in fact the case in a declaration of war, which must be made by Congress, aud which, when made, usually suspends or destroys existing treaties between the nations thus at war. In short, we are of opinion that so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal. Edye v. Robertson. Opinion by Miller, J. [Decided Dec. 8, 1884.]
their attorneys, and filed with the clerk. Flauders v. Tweed, 9 Wall. 425; Kearney v. Case, 12 id. 275; Gilman v. Illinois & M. T. Co., 91 U. S. 603, 614; Madison Co. v. Warren, 106 id. 622; Alexander Co. v. Kimball, id. 623. In Flanders v. Tweed Mr. Justice Nelson quoted the passage just cited from the opinion of Chief Justice Tauey in Campbell v. Boyreau, and said that when a trial by jury had been waived, but there was no stipulation in writing, no finding of the facts, and no question upon the pleadings, the judgment must, according to the course of proceeding in previous cases, be affirmed, unless under very special circumstances this court otherwise ordered. 9 Wall. 429, 431. The most appropriate evidence of a compliance with the statute is a copy of the stipulation in writing filed with the clerk. But the existence of the condition upon which a review is allowed is sufficiently showu by a statement, iu the finding of facts by the court, or in the bill of exceptions, or in the record of the judgment entry, that such a stipulation was made in writing. Kearney v. Case, 12 Wall. 283, 284; Dick. inson v. Planters' Bank, 16 id. 250. So it has been held that a written consent of the parties, after a trial by jury has begun, to withdraw a juror and refer the case to a referee, in accordance with a statute of the State authorizing this course, is a sufficient stipulation in writing waiving a jury; and that when the court has authority to refer a case upon consent in writing only, an order expressed to be made " by consent of parties," that the case be referred, necessarily implies that such consent was in writing. Boogher v. Insurance Co., 103 U. S. 90. See also U. S. v. Harris, 106 id. 629, 634, 635. And since the statute, as before, a judgment upon an agreed statement of facts or case stated, signed by the parties or their counsel, and entered of record, leaving no question of fact to be tried, and presenting nothing but a question of law, may be reviewed on error. Supervisors v. Kennicott, 103 U. S. 554; U. S. v. Eliasou, 16 Pet. 291; Burr v. Des Moines Co., 1 Wall. 99; Campbell v. Boyreau, supra. The record before us contains nothing to show that there was any stipulation in writing waiving a jury. The Circuit Court had authority to try and determine the case, whether the waiver was written or oral. In the findof facts and in the judgment there is no statement upon the subject. (2) By the [common law indeed a general verdict and judgment upon several counts in a civil action must be reversed on writ or error, if only one of the counts was bad. But Lord Mansfield " exceedingly lamented that ever so inconvenient and illfounded a rule should have been established," and added, "what makes this rule appear more absurd is that it does not hold in the case of criminal prosecutions." Grant v. Astle, 2 Doug. 722, 730; Snyder v. U. S., 112 U. S. 216. In Illinois it has been changed by statute, providing that whenever an entire verdict shall be given on several counts, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts in the declaration shall be sufficient to sustain the verdict." Ill. Rev. Stat., 1874, ch. 110, § 58. That statute governs proceedings in cases tried in the Federal courts within that State. Rev. Stat., § 914; Townsend v. Jemison, 7 How. 706, 722; Sawin v. Kenny, 93 U. S. 289. And the rule thereby established must be applied to judgments lawfully reuddered without a verdict. Bond v. Dustin. Opinion by Gray, J.
[Decided Dec. 22, 1884.]
PRACTICE-WAIVER OF JURY—STIPULATION-REV. STAT., 649-STATE DECISIONS.- (1) By the act of March 3, 1865, ch. 86, § 4, re-enacted in the Revised Statutes, it is provided that issues of fact in civil cases may be tried and determined by the Circuit Court without the intervention of a jury, whenever the parties, or their attorneys of record, file a stipulation in writing with the clerk of the court waiving a jury; that the finding of the court upon the facts shall have the same effect as the verdict of a jury; and that its rulings in the progress of the trial, when excepted to at the time, and presented by bill of exceptions, may be reviewed by this court upon error or appeal. 13 St. 501; Rev. Stat., §§ 649, 700. Before the passage of this statute it had been settled by repeated decisions that in any action at law at which the parties waived a trial by jury and submitted the facts to the determination of the Circuit Court upon the evidence, its judging ment was valid; but that this court had no authority to revise its opinion upon the admission or rejection of testimony, or upon any other question of law growing out of the evidence, and therefore when no other error appeared on the record, must affirm the judgment. Guild v. Frontin, 18 How. 135; Kelsey v. Forsyth, 21 id. 85; Campbell v. Boyreau, id. 223. The reason for this, as stated by Chief Justice Taney in Campbell v. Boyreau was that "by the established and familiar rules and principles which govern commonlaw proceedings no question of law can be reviewed and re-examined in an appellate court upon a writ of error (except only where it arises upon the process, pleadings or judgment iu the cause), unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties upon a case stated in the nature of a special verdict, stating the facts and referring the questions of law to the court." 21 How. 226. Even in actions duly referred by rule of court to au arbitrator, ouly rulings and decisions in matter of law after the return of the award were reviewable. Thornton v. Carson, 7 Cranch, 596, 601; Alexandria Canal Co. v. Swauu, 5 How. 83; York & C. R. Co. v. Myers, 18 id. 246; Heckers v. Fowler, 2 Wall. 123. Since the passage of this statute it is equally well settled by a series of decisions that this court cannot consider the correctness of rulings at the trial of an action by the Circuit Court without a jury, unless the record shows such a waiver of a jury as the statute requires, by stipulation or in writing, signed by the parties or
TAXATION-EXEMPTION OF RAILROAD-PERSONAL PRIVILEGE.-Where a State Legislature authorizes the formation of a railroad company to be a body corporate for certain purposes, and provides by its charter that it shall be exempt from taxation for a certain period of time from aud after its completion, the ex