the possession under it.'" Heiskell v. Farmers and Mechanics' Bank. May 5, 1879. Opinion per Curiam. PARTNERSHIP — LIMITED PARTNERSHIP FAILING TO RECORD RENEWAL BECOMES GENERAL.-When a limited partnership fails to record, in the manner prescribed by the Acts of Assembly, an agreement for a renewal of the partnership, the liability of the special partner becomes general. Guillou v. Peterson. May 7, 1879. Opinion per Curiam. PARTNERSHIP-LIABILITY FOR FRAUD OF COPART NER.-A partnership to whom a trustee, who is also a copartner, fraudulently loaned the assets of the trust estate, which were lost by the firm in the course of its business, is liable to the trust estate for the value of the securities so lost, if the partners have knowledge that such securities were not the individual property of the trustee so loaning them; aliter, if the firm have not such knowledge. Citing Marsh v. Keating, 2 Clark & Fin. 250; Stone v. Marsh, 6 B. & C. 551. The court say that it is not meant to advance the broad proposition that where one abuses his trust and thereby obtains the means to advance money to a partnership, he thereby raises a contract between the partnership and the person whose money has been so used. The rule is thus laid down in Lindley on Partnership, at p. 327: "If a partner, being a trustee, improperly employs the money of his cestui que trust in the partnership business, or in payment of the partnership debts, this alone is not sufficient to entitle the cestui que trust to obtain repayment of his money from the firm." To the same point are Ex parte Heaton, Buck. 386; Ex parte Apsey, 3 Bro. Ch. C. 266; Jaques v. Marquand, 6 Cowen, 497. Ib. MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT. FRAUD-RELEASE OBTAINED BY-WHEN CONSIDERATION NEED NOT BE PAID BACK TO RESCIND CONTRACT. -The principle that if a party enters into a contract, and, in consideration of so doing, receives money or merchandise, and afterward seeks to avoid the effect of such contract as having been fraudulently obtained, he must first give back to the other party the consideration received, applies to those cases only where that which was received, and which must be returned, was the consideration of the contract or settlement which the receiver intended to make and understood that he was making, and which he seeks to avoid by reason of fraudulent practices of the other party which led him to agree to its terms. It does not apply to cases where a party holds out that he gives the consideration for one thing, and by fraud obtains an agreement that it was given for another thing. Accordingly where plaintiff, who was old, poor and illiterate, had been injured by the negligence of defendant, a railroad company, and while enfeebled in mind and body by the injury, signed a release of cause of action for such injury, under the belief that he was signing a release for only a year, held, that if plaintiff was induced to sign by the fraudulent representations of defendant, he need not repay the consideration before he could maintain an action for the injury. Mullen v. Old Colony Railroad. Opinion by Soule, J. - NEGOTIABLE INSTRUMENT-PARTNERSHIP NOTE NEGOTIATION OF NOTE BY ONE FIRM IN FRAUD OF ANOTHER HAVING A COMMON MEMBER-NOTICE.-L. was a member of the firm of P. & Co. and also of the firm of S. & Sons. He made his own promissory note to the order of P. & Co. He also indorsed it in the name of S. & Sons. D., a member of the firm of P. & Co., and known to plaintiff to be such, procured from plaintiff the discount of the note, indorsing it in the name of P. & Co. The negotiation of the note and the in dorsement was in fraud of S. & Sons, who had no benefit from the proceeds. The firm of S. & Sons never made or indorsed for discount any negotiable paper, and plaintiff had never discounted any of their paper. L. had been deprived by that firm of the right to sign checks on the bank where they kept their funds and the bank had been notified of that fact, but plaintiff had no notice of that fact and had no knowledge, ground or suspicion that the note was not discounted for the benefit of S. & Sons, except such as might be inferred from the note itself or from the facts above stated as in its knowledge. Held, that by the fact that L. was a member of each firm he was not deprived of authority to sign a note in the name of both, and the firms were not by such fact prevented from dealing with each other, nor did the fact that the note was discounted for a member of the firm of P. & Co. require S. & Sons to be treated as accommodation indorsers. Plaintiff was entitled to the presumptions in favor of innocent purchasers. Freeman's Nat. Bank v. Savery. Opinion by Colt, J. TRADE-MARK -WHAT IS NOT INFRINGEMENT OFPARTS OF STOVES.-Defendant manufactured and sold parts of stoves suitable to replace worn out parts of stoves made by plaintiff. Defendant advertised and sent into market these parts as being suited to plaintiff's stoves and under the name of such stoves, and they contained certain letters and numbers borne on similar parts made by plaintiff, which parts were used to cast from, but defendant represented such parts of his own manufacture. Held, that he did not thereby violate plaintiff's trade-mark. Magee Furnace Co. v. Le Barron. Opinion by Soule, J. IOWA SUPREME COURT ABSTRACT. JUNE TERM, 1879. CARRIER-WHAT CONSTITUTES DELIVERY DESTROYING LIEN.-A railroad company entered into a contract with the defendant, by which they agreed to transport for it certain lumber from Stillwater and Minneapolis, Minnesota, to Sioux City, Iowa, and to unload it at the latter place. The lumber was unloaded and deposited upon the public levee in Sioux City, and a part of it was removed by defendant. Held, that the railroad company lost its lien for transportation. Reineman v. Covington, etc., R. R. Co. Opinion by Adams, J. JURISDICTION-STATE COURTS HAVE NOT, OF ACTION TO SET ASIDE JUDGMENT IN FRAUD OF BANKRUPT LAW.-An action to set aside a judgment as invalid because in fraud of the bankrupt law is not within the jurisdiction of a State court. The Federal Revised Statutes confer exclusive jurisdiction on the Federal courts. It is said in Claflin v. Houseman, 93 U. S. 130, that the "Revised Statutes, whether inadvertently or not, have made the jurisdiction of the United States courts exclusive in all matters and proceedings in bankruptcy. § 711. Whether this regulation will or will not affect the cognizance of plenary actions and suits it is not necessary now to determine. In Frost v. Hotchkiss, 14 N. B. R. 443, Barnard, J., announcing the opinion of the Supreme Court of New York, in an action by an assignee in bankruptcy to recover property alleged to have been conveyed by the bankrupt in fraud of creditors, says: 'I think the Revised Statutes of the United States take away the jurisdiction of the State court in this action, although passed after the action was commenced.'" Hecht v. Springstead. Opinion by Day, J. REAL ESTATE-ADVERSE POSSESSION -OCCUPATION OF PART OF A LOT, OCCUPATION OF ALL. - - Where a tract of land partly covered by timber was conveyed to plaintiff, one who took possession of the part not timbered, held, that it is a well-settled rule, that the actual possession of a part of land is legal possession of the whole tract covered by the title under which the actual possession is taken. 2 Washburn's Real Prop. 36, 497; Anderson v. Darley, Nott & McC. 369; Eifort v. Read, id. 374; Bailey v. Carlton, 12 N. H. 9; Little v. Maguire, 2 Me. 176; Cluggage v. Duncan, 1 Serg. & R. 111; Williams v. Miller, 7 Ind. 186; Berryman v. Kelly, 13 id. 267; Langworthy v. Myers, 4 Iowa, 18. Plaintiff must be regarded as having been in possession of all the land under his deed, and this possession imparted notice to the world of his title. Nolan v. Grant. Opinion by Beck, C. J. REAL ESTATE-ADVERSE POSSESSION BY CO-TENANT. -The seizin and possession of one tenant in common of real estate, is seizin and possession for the use of the others, and under such seizin and possession, however long continued, no title based upon adverse possession can be acquired. Burns v. Byrne et al., 45 Iowa, 285; Campbell v. Campbell, 13 N. H. 488. But the conveyance of the land by one tenant as his own, and the possession taken by his grantor under such conveyance, evinces a claim of exclusive right and title, and a denial of the right of the other tenant. This amounts to an actual ouster and disseizin of the co-tenant. Kinney v. Slattery. Opinion by Rothrock, J. INSURANCE LAW. FIRE POLICY CONDITION AVOIDING IN CASE OF MORTGAGE-VOID MORTGAGE.-By the terms of a fire policy the same was to become void if the insured premises should be mortgaged. A mortgage was executed by the owner which was invalid under the statuto for the reason that the premises were a homestead and the wife did not join in execution. Held, that the policy was not avoided. The court remark: "The policy has reference to a valid incumbrance; a void mortgage is no incumbrance at all. Conditions in a policy, rendering it void in case of subsequent insurance without consent, have frequently been held not to be avoided, unless such subsequent insurance was valid and enforceable. The principle here is the same. What the parties may have supposed would be wholly immaterial. A valid incumbrance would render void the policy, irrespective of what opinion the assured might entertain in reference thereto. The legality or illegality of the incumbrance, and not the intention of the assured must govern. Sutherland v. Old Dominion Ins. Co., Sup. Ct. of Va.; Hubbard v. Hartford F. Ins. Co., 11 Am. Rep. 125; Thomas v. Builders' Fire Ins. Co., 20 Am. 317; Knight v. Eureka Ins. Co., id. 778; Lindley v. Union Ins. Co., id. 701. Minnesota Sup. Ct. Watertown Fire Ins. Co. v. Grover & Baker S. M. Co. Opinion by Marston, J. FIRE POLICY-CONSTRUCTION OF WARRANTY-WHAT DOES NOT AVOID POLICY.-An application for insurance against fire, on a printed form furnished by the company, contained over a hundred interrogatories, with answers thereto, and a statement that the applicant covenants aud agrees with the company "that the foregoing is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicant and are material to the risk; and the same is hereby made a condition of the insurance and a warranty on the part of the assured." The policy provides that the application "shall be considered a part of this policy and a warranty by the assured." Held, (1) that the stipulation in the policy that the application shall be considered a warranty by the assured must be construed to mean such a warranty as is stipulated in the appli cation itself. (2) That the clause, “so far as the same are known to the applicant," etc., is not an additional stipulation that the assured has stated all facts known to him material to the risk, though not called for in the interrogatories; but it qualifies the preceding clause, changing it from an absolute covenant that all the answers are true, to a covenant that they are true "so far as known," etc. (3) That in an action upon the policy, therefore, it cannot be held void merely because the application contains some false statements of fact, but it must be shown that these were known by the assured to be false, and were material to the risk. And as to a promissory or continuing undertaking, true when made, but afterward departed from, it must appear that the change increased the risk, and was thus material. Wisconsin Sup. Ct., May 24, 1879. Redman v. Hartford Fire Ins. Co. Opinion by Lyon, J. LIFE POLICY-DECLARATION OF FUTURE INTENTION NOT WARRANTY.-An application for a life policy contained this: The applicant "further declares, that he is not now afflicted with any disease or disorder, and that he does not now, nor will he, practice any pernicious habit that obviously tends to the shortening of life." It also contained this: "If any of the statements or declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, then and in every such case, this policy shall be null and void." At the time of the application the applicant was of correct habits, but he subsequently became intemperate and died of delirium tremens. It was held that the policy was not thereby avoided, the court remarking, 'It is unnecessary to discuss the question as to whether the declarations of the insured as to existing facts in his application constitute a warranty. The authoriites are by no means uniform on this point. Our own recent case of the Washington Life Ins. Co. v. Shaible, 1 W. Not. Cas. 369, holds that they do not constitute such warranty. Where, however, the policy has been issued upon the faith of such representations, and they are false in point of fact, the better opinion seems to be that the policy is avoided. And this is so even where the false statement is as to a matter not material to the risk. Jeffries v. The Life Ins. Co., 22 Wall. 47. In such case the agreement is that if the statements are false there is no insurance; no policy is made by the company, and no policy is accepted by the insured. In the case in hand the policy attached. There was nothing to avoid it ab initio." "In the absence of any clause in the policy avoiding it in case the assured should practice any such habit, and of any covenant or warranty on his part that he would not do so, we do not think his mere declaration to that effect in the application sufficient to avoid the policy." Pennsylvania Sup. Ct., May 7, 1879. Knecht v. Mutual Life Ins. Co. of New York. Opinion per Curiam. W. Not. Cas. FINANCIAL LAW. INDORSEMENT - WHEN JOINT AND WHEN SEVERAL— WAIVER OF PROTEST.-Indorsements by two or more persons may be joint, as where partnership or otherwise joint payees are the indorsers; and perhaps two or more persons not joint payees might qualify their indorsement so as to make their liability joint; but in other cases, where there are two indorsements in succession, they are several, and the rights and liabilities of the two indorsers are as defined in Linn v. Horton, 17 Wis. 152. Where a note, on or a short time before the day of its maturity, is presented to an indorser, and the latter then promises that if the note is suffered to run be will pay it whenever payment is called for, an omission of protest and notice caused by such promise will not discharge the indorser. Wisconsin Sup. Ct.. April 22, 1879. Hale v. Danforth. Opinion by Orton, J. NATIONAL BANK-NOT LIABLE FOR ACTS DONE BY PRESIDENT IN ITS NAME AS A BROKER.-Plaintiff below, Hoch, paid to the president of a national bank $1,000, taking this receipt from him: "Received of Mr. William Hoch one thousand dollars, to be invested in bonds of the city of Allentown, bearing seven per cent interest. Interest on the said deposit to be allowed from this date, and to be accounted for on de. mand. W. H. Blumer, Pres't 1st Nat. Bank." Failing to obtain all the bonds or the money, Hoch brought suit for the balance against the bank, the Supreme Court held that the bank was not liable, saying: "It is well-recognized law that a national bank is not, by its charter, authorized to act as a broker or agent in the purchase of bonds and stocks. Neither its specified powers given by statute, nor its incidental powers necessary to carry on the business of banking, extend to the transaction of such business. First National Bank of Charlotte v. Exchange Bank, 2 Otto, 122; Fowler v. Scully, 22 P. F. Smith, 462. When the paper on its face shows the transaction not to be within the usual course of business of the bank, it is not binding on the bank, although signed by the president thereof as such officer. He is the executive agent of the board of directors, within the ordinary business of the bank, but cannot bind it by contract outside thereof without special authority." Pennsylvania Sup. Ct., May 9, 1879. First Nat. Bank, Allentown v. Hoch. Opinion per Curiam (W. Not. Cas.). USURY-DEFENSE OF, PERSONAL TO DEBTOR.- The defense of usury is personal to the debtor, his privies in blood or estate, or privies to the contract (Bensley v. Homier, 42 Wis. 631); and it cannot be set up by a second mortgagee, to an action to foreclose a prior mortgage. So held where the alleged usurious contract was made under chapter 160 of 1859. Wisconsin Sup. Ct., May 22, 1879. Ready v. Kobke. Opinion by Ryan, J. CRIMINAL LAW. CONSTITUTIONAL LAW -CRUEL AND UNUSUAL PUNISHMENT -TWO YEARS' IMPRISONMENT FOR ASSAULT AND BATTERY NOT.-Where it appeared that a husband beat his wife in great excess, without excuse or provocation, and to such a degree of cruelty as to indicate malice toward her, it was held that a sentence of imprisonment for two years in the county jail on his conviction for the assault and battery was not in violation of the constitutional provision forbidding cruel and unusual punishments. The court remarks that it was intimated in Miller's case, 75 N. C. 73, and since then, decided in Driver's case, 78 id. 423, that an imprisonment for five years was excessive and in violation of the Constitution for any misdemeanor at common law. In the latter case the court, in speaking of the limit to the power of the judge to punish, say"what the precise limit is, cannot be prescribed. The Constitution does not fix it, precedents do not fix it, and we cannot fix it, and it ought not to be fixed. It ought to be left to the judge who inflicts it under the circumstances of each case, and it ought not to be interfered with except when the abuse is palpable." The case of the defendant is an unusual one in its features, and it called for a punishment unusual in its kind and duration. North Carolina Sup. Ct., January Term, 1879. State v. Pettie. Opinion by Dillard, J. MURDER-INTOXICATION AND INSANITY.- - Where one commits a homicide, the fact that he was in a drunken state does not of itself render the act any less criminal, nor is it available as an excuse. If, notwithstanding his intoxication, he were conscious that the act was wrong, he was a responsible agent and answer able for all the consequences. A charge that the jury were at liberty to take the fact of intoxication as a circumstance to show that the act of killing was not deliberate and premeditated, held, right, and suggesting to the jury the full extent of the effect that might legitimately be given to it. People v. Rogers, 18 N. Y. 9; People v. Beloncia, 21 Cal. 544. And a charge "that settled insanity, produced by intoxication, affects the responsibility in the same way as insanity produced by any other cause. But insanity immediately produced by intoxication does not destroy responsibility where the patient, when sane and responsible, made himself voluntarily intoxicated," held, correct. Nebraska Sup. Ct. Schlenker v. State of Nebraska. Opinion by Lake, J. TRIAL-SENTENCE TO SUCCESSIVE TERMS - FAILURE TO DESIGNATE TERMS DOES NOT INVALIDATE SEN TENCE.-The Iowa statute provides that "if the defendant is convicted of two or more offenses before judgment on either, the punishment of which is, or may be, imprisonment, the judgment may be so rendered that the imprisonment upon any one shall commence at the expiration of the imprisonment upon any of the other offenses." Two indictments were found against M. He pleaded guilty upon both and was sentenced upon each to one year's imprisonment, both sentences being pronounced upon the same day, and judgments entered. It was not expressly provided in either judgment as to which term of imprisonment should commence first, nor that one term should commence at the expiration of the other. But the mittimus in the case in which judgment was last rendered provided that the term of imprisonment in that case should commence at the expiration of the term of imprisonment in the first. The first term having expired, M. applied for release by habeas corpus. Held, that the failure of the court to make any specific provision in regard to the order of the terms would not affect the validity of the judgment. Iowa Sup. Ct., June 5, 1879. Misir v. McMillan, Opinion by Adams, J. ASSAULTS ON THE POLICE IN THE EXECUTION OF THEIR DUTY. THERE ERE is a subject to which attention is constantly called, by convictions and sentences at the assizes, and other criminal courts, and which was lately illustrated by a judicial decision in the Queen's Bench, and appears to require greater consideration than it has hitherto received; we mean the offense of assaulting This, as is well known, is an offense visited with some or obstructing the police in the execution of their duty. severity, upon the principle that it is necessary to uphold and protect the police in the execution of their duty. Thus, at a recent assizes at Maidstone, a man was sentenced to twelve months' imprisonment with hard labor, for kicking a policeman; and, at the late assizes at Durham, Lord Justice Bramwell sentenced three men, who had knocked a policeman about, to ten years' penal servitude, observing that it was 66 necessary, in the interests of society, that policemen should be protected; and that due retribution should fall upon those who maltreated them." There is no doubt of this; but there is another view of the subject which is equally if not still more important that the people should be protected from the abuse of power on the part of the police, who are, for the most part, ignorant men, often of violent passions, placed in a position of great power, and often tempted or disposed to abuse it. The peculiar danger arising from their position is this: that they are in a position of apparent authority, and that, if they abuse their power and are resisted, they are at once the accusers and the witnesses. They can convict the accused on their own testimony, and wreak a terrible revenge for any resist ance they may encounter. Hence the law, while providing peculiarly severe penalties for the offense of assaulting or obstructing them in the execution of their duty, imposes, in the very definition of the offense, a condition, that they, at the time of the assault or obstruction, are engaged "in the execution of their duty." This, it is obvious, requires careful consideration; yet it is too often very carelessly passed over, in many classes of cases in which it appears clear that the first act of force or violence emanated from the policeman, and he has attempted to take the man, or has pushed him, or the like. It is in all such cases to be considered whether the policeman, whether by common law or by statute, had any power to touch the party, either by pushing him or taking him into custody. For, if not, then the man would have a right to resist him and defend himself from assault; and if death ensued in the struggle the man, if he killed the policeman, would not be guilty of murder, and perhaps not even of manslaughter; and if the policeman killed the man he would be guilty of murder. No part of the law, perhaps, is of greater importance than this; for the very reason that it relates to scuffles, which may lead to violence that may cause homicide. If a policeman, without a warrant, endeavors to arrest a man for a mere misdemeanor not committed in his presence, the man may resist, even to death; and, unless he uses cruelly and unnecessarily a deadly weapon or deadly violence, even if he kill the policeman, he will not be guilty of murder, and may be legally justifiable. That was laid down by Lord Coke in the case of the pursuivant killed by the man whom he illegally sought to arrest; and many cases in our own times have illustrated the doctrine. Lord Campbell held a man not criminally liable for violence in resisting a policeman who, without lawful authority, tried to take his gun from him. Regina v. Archer, "Foster & Finlaison's Rep." 361. A constable has no right to arrest a disorderly person unless he is committing, or is on the point of committing, a breach of the peace; and, if he attempt it, he may be resisted. Re Lockley, 4 F. & F. 155; Re Spencer, 3 id. 857. And, if the constable is killed in resisting him, it is not even manslaughter, unless there is some excess. Id. Some years ago, a man was tried at Hertford, before Mr. Justice Hannen, for the murder of a policeman who had, without having a warrant with him (though a warrant had been issued), tried to arrest him for some misdemeanor, and whom the man had killed by striking him with the butt of his gun. The man was convicted only of manslaughter, on the ground of supposed excess; though, as it did not appear that he struck more than one blow, it is very questionable whether the conviction was right; but the point was not raised and reserved, as it ought to have been. These cases show the importance of this head of the law, and a decision of the Queen's Bench, during the late sittings, illustrates the principle on which it depends. There, a policeman had attempted, without warrant, to arrest a man for a misdemeanor not committed in his presence; the man resisted, and struck him, and had been convicted sum marily by the magistrate of "assaulting the policeman in the execution of his duty." The court set aside the conviction on the ground that the act of the policeman was illegal, and that, therefore, he was not, at the time of the assault, "in the execution of his duty." Leslie v. Punshon, Q. B., Trinity Sittings. Thus it is clear that, where the policeman attempts to arrest, unless he is legally justified in arresting, resistance to him, to any extent necessary, will be lawful and justifiable, and so cannot form the subject of a criminal charge. On the same principle, it is manifest that, if the policeman, having no power to arrest, offer any force or violence to the person, as by pushing, this will justify resistance, or so far excuse it that he will not be justifled in arresting the party for the resistance; and, if he attempts to arrest, the man may resist apprehension, and the policeman, if assaulted, will not be assaulted in the execution of his duty," but, on the contrary, will be guilty of illegal violence while being lawfully resisted. This is the class of cases of most common occurrence, and in which misapprehension of the law by the police, and by the magistrates, leads to great illegalities on the part of the police, which provokes violence in resistance, and sometimes leads to fatal consequences. The police have a notion, for instance, that if any one is drunk, or is making a little noise, the person may be at once arrested and dragged to prison; and daily persons are thus treated, and, if they resist, are charged with assaulting the police in the execution of their duty, and probably convicted summarily or on a trial, and visited with severe punishment. Possibly this misapprehension of the law may have arisen from some stringent enactments, in rather loose language, in the Metropolitan Police Act in London, and possibly in some other local acts, in extension of the common law. There is an enactment, for instance, as to being "drunk and disorderly," and there may be one as to "creating disturbance;" and the knowledge that the police act in such cases in the metropolis may have given rise to an erroneous notion that they may do so everywhere. But it is obvious that these are extraordinary enactments, deemed necessary for the preservation of peace and order in populous cities; and, being in extension of the common law, and in derogation of personal liberty, they are to be construed strictly; and merely being drunk is not, by the statute, sufficient to justify interference-the words being "drunk and disorderly," which must mean disorderly, not only in the sense of being drunk, but of causing annoyance to others. So as to the words "creating a disturbance," it must mean a disturbance tending to a breach of the peace. Yet magistrates constantly allow a very loose and arbitrary application of these statutory powers of the police; and, some years ago, this misapprehension of the law was painfully illustrated. The managing clerk to a large city house, going home one night after dining out, stopped to have a little badinage with a servant girl. A policeman — jealous, perhaps, of what looked like poaching on his manor― roughly told him to go on. The gentleman refused; the policeman pushed and hustled him, no doubt to provoke him; the gentleman resisted; a scuffle ensued, in which the gentleman struck a light blow; upon which the policeman arrested him for assaulting him in the execution of his duty; and, supporting the charge by his own testimony, the magistrate convicted the accused gentleman, and sent him to prison for a month. A body of gentlemen who knew the unfortunate party — including a barrister of eminence — waited on the magistrate to entreat him to reconsider his sentence; but in vain, and the sentence was suffered. It is manifest that the magistrate, misled by the dangerous looseness in some enactment in the Police Act, mistook the law, and too easily assumed that the policeman was justified in using force to compel a person to move on who was simply having a conversation. It is obvious that the accused ought to have been discharged, and the policeman punished and dismissed from the force. Under no sound construction, even of any enactment in the Police Act, could a policeman be justified in assaulting a person engaged in a quiet conversation. But, supposing for a moment that any such monstrous consequence could follow from any enactment in the Police Act, at all events such cannot be the law in the country at common law. Yet cases constantly occur which show that similar notions prevail in the country, where the common law applies. In the case mentioned as occurring at the autumn assizes at Maidstone, the man was simply drunk on a country road, and not at all dis orderly; the policeman wanted to force him in the direction contrary to his residence; the man naturally wanted to go home; he resisted, the policeman used violence to force him to go or to take him into custody, and a scuffle ensued, in which the man kicked the policeman, and was convicted of assaulting him in the execution of his duty, and sentenced to a year's imprisonment with hard labor. It should be stated that the man was not defended by counsel, and did not succeed in making the judge understand his case. But cases occur which show that even the judges prior to the late decision in the Queen's Bench, and even since that decision, not knowing of it-have been rather loose in their notions of what at common law will justify a policeman in using force to a person on the highway. A case occurred at the last assizes at Lewes, before Mr. Justice Grove, which will illustrate the question. A young man sued a policeman for assault; and proved by several witnesses -more than one of them independent-that he was merely talking with one or two companions at the corner of a street, when the policeman suddenly came over and told him to go on; and, on his refusing, seized him violently and pushed him across the street, and knocked him down, and then took him into custody, and dragged him through the streets to the police station, and lodged him in a cell, where he was imprisoned all Saturday night, and all Sunday and Sunday night until Monday morning, when he was discharged by the magistrates. The constable denied knocking the man down, but admitted pushing him across the road and taking him into custody; and, although he alleged that the man struck him, this he admitted was after he had seized him and pushed him; and all he could allege in justification was that the man was "making a disturbance," of which, however, he could give no other definite description than that he was talking loudly with two of his friends. Thus, therefore, the question came to this, whether, if a man be talking loudly to a friend, at a corner of a street, and refuses to leave off when desired to do so, a policeman may seize him, push or drag him along, and, if he resists, then drag him off to a police station and place him in a cell for a day or a night until he can be brought before a magistrate on such an utter absence of any legal charge as to be at once discharged. For there is not-as the magistrate's clerk no doubt told them any such offense known to the common law as merely "making a disturbance by talking loudly." In Fielding's "Treatise of the Office of Constable"- | which is carefully founded on the authority of Coke and Hale-it is laid down that, "except for treason or felony, a constable without warrant can only arrest for an 'affray;' and that there can be no affray without an actual breach of the peace, as weapons drawn, blows struck or attempted, etc. Words will not make an affray; yet if there be words of menace to beat or hurt any one, then may the constable arrest the offender, and carry him before a justice of the peace." And the power to interfere in mere cases of disturbance, disorderly drinking, etc., is said to be confined to cases of such disturbance in a house. No doubt the magistrates' clerk was aware of this, and so advised them; and so they discharged the man. But, if he had committed no offense, then he was entitled to make a counter-charge against the constable of assault; aud he made such charge in the action. The learned judge also very properly inquired whether there was any Police Act in force in Brighton that could give peculiar powers to the police beyond the common law; and was told that there was none. He appears, however, to have been under the impression that mere noise, without any idea of a breach of the peace, or any approach to a quarrel or affray -mere noisy talking of friends - might amount to a breach of the peace, justifying the exercise of force by a con stable to disperse the persons talking; and he left the question to the jury whether there was such a noise. But this was quite contrary to the authorities, the effect of which is that there must be a quarrel and an affray, and menace of blows such as would be an actual breach of the peace, to justify the interference of a constable. The jury, however, were slow to accept the definition of the law thus presented to them, or, at all events, to apply it and act upon it; and they deliberated a long time. The man, however, appeared to have been more than once turned out of public houses, and so was not a good plaintiff; and, on the other hand, a retired police officer gave it as his opinion that, in such a case as was described, the policeman would be justified in interfering; and so, at last, they found for the defendant. But the police officer's idea of the law is, of course, no authority; and the direction of the learned judge is not reconcilable with the best authorities as to the power of a constable at common law. In a case tried, last week, at Leicester, where a man sued a sergeant of police for assault where there was a "Guy Faux" disturbance, in which—as the police said- the plaintiff had taken part, and they had arrested him, and, on resistance, had struck him, but he had been fined by the magistrates on their testimony, the plaintiff, nevertheless, recovered a verdict. Mason v. Roberts, Leicester Summer Assizes. Yet, in that case there certainly was a "disturbance” and an 'obstruction "-gathering a crowd, rolling tar barrels about, etc.,-which would justify the police in interfering, and if they were assaulted, then in arresting an assailant; and, therefore, the verdict must have gone on the ground of excess. But where there is mere noise of two or three friends loudly talking or singing, there can be no pretense for the police interfering, and a mere push would be excess because no use of force at all would be justified; and probably, in the case at Lewes, the plaintiff, but for his antecedents, would have recovered a verdict, even on the issue presented to them by the judge. The direction, however, was certainly not in accordance with the authorities, according to which nothing short of an actual breach of the peace by blows struck, or such menaces of violence as amount to an affray, will justify a constable in the use of force. Nor will any threat of resistance to himself, if he, without due cause, threatens the use of force, amount to an affray which will justify his arrest of a party, for the affray must arise before he threatens or offers force; and he cannot, by his own menace of illegal violence, provoke an affray to justify an arrest; for then it is he himself who creates the breach of the peace by the threat of illegal violence. He has, in such a case, no right to interfere at all. Mere talking or singing does not, at common law, constitute an offense or a breach of the peace, and a constable cannot arbitrarily make it one by calling it a "disturbance." Unless there is an actual breach of the peace, or an affray, there is nothing of which the common law takes cognizance-nothing which justifies a coustable's interference; and if he interferes, and the parties do not desist, and he then threatens force, they may threaten resistance; and, if he uses force, they may resist; and, if he suffers any violence (unless excessive), it is his own fault; and, if he inflicts violence, he is himself civilly or criminally answerable; and, if he causes homicide, he is guilty of murder; while, if the person he has assaulted causes death (unintentionally, and with no wicked excess), he is not guilty of murder, nor even of manslaughter, but it is excusable homicide. The fact that death has sometimes been caused in these encounters shows the grave importance of the subject; and cases are constantly occurring which show that many of the police are quite capable of gross abuse of their powers, and of justifying their violence by false charges against their victims. The Court for Crown Cases has lately had before it a case of |