was held that such authority might be established by evidence tending to show that it had been habitually exercised in previous transactions with the knowledge of the other partner and without his objection. 18 In an early New York case, where the firm name, Stocking & Hunt, was so signed by the partner Hunt for the accommodation of David Hunt, it was held competent to show that three years before Stocking was informed that it was so used, and replied that it was all right, that whatever David wanted he could have; and that after the failure of David Hunt, Stocking stated that he did not know the amount of his liabilities for him, that he had such confidence in his credit that he kept no account of them.19 In a Mississippi case, where the evidence disclosed that the co-partnership name of Vance & Andrews was signed to the promissory note by Vance; that Vance was in the habit of signing the co-partnership name as sureties and indorsers; that notices of the approaching maturity of such notes were left at the store of Vance & Andrews, where Andrews was in the habit of frequently visiting, although he was not an active partner of the firm; but there was no evidence of an actual knowledge by Andrews of the use of the name of the firm in this mode, and in the case of the note sued on, he insisted that no such authority was confided to Vance, it was held that these facts were insufficient to uphold a verdict against Andrews. 20

Nor will a mere waiver of notice and protest, for the sake of avoiding the expense, when a note made by his co-partner for the accommodation of a third party is presented, amount to a ratification or adoption of the unauthorized act of his co-partner. 21 Where the transaction is out of the usual course of partnership business, the rule is more stringent. In the New York case of Mercein v. Mack, 22 it was held that a partner is not liable to the payment of a note indorsed by his co-partner in the name of the firm, out of the course of the partnership concerns, although he be present and hear the arrangement; his consent must be proved, and will not be presumed. The fact of the assent of the part

18 First National Bank v. Breese, 39 Ia. 640.

19 Butler v. Stocking, 6 N. Y. 408.

20 Andrews v. Planters' Bank, 7 Sm. & M. 192. 21 Marsh v. Thompson National Bank, 2 Bradw. 217. 22 10 Wend. 461.

ners to such use of the partnership name by their co-partner, must be proved by positive evidence. It will not be inferred from the mere fact of knowledge on their part of the transaction after it has taken place. They are not bound to deny their liability until prosecuted as indorsers. 23

But even where the court inclines to the view that a special authority to a partner to use the firm name upon accommodation paper, may be inferred from the circumstances of the case, such authority will be strictly construed, and the inference will be no wider than the facts of the case justify. Thus, in a case where it appeared that each of two partners had repeatedly, with the knowledge and assent of the other, indorsed accommodation notes in the firm name, it was held that such circumstance was not sufficient evidence' that either of them was authorized to sign the firm name to a note as maker or surety.24 The ground being that the obligation imparted by an indorsement is a conditional one merely, and, unless accompanied by waiver of presentment and notice, is inferior to that incurred by a maker or surety, which is absolute in its nature.

St. Louis, Mo.

WM. L. MURFREE, JR.

23 Elliott v. Dudley, 19 Barb. 326. See, also, Reubin v. Cohen, 48 Cal. 545.

24 Early v. Reed, 6 Hill, 12. See, also, McGuire v. Blanton, 5 Humph. 361.

PROOF BY INSPECTION.

That which one sees need not be proven, is an ancient legal maxim that has in a great many cases been applied to the laws of evidence. Inspection, properly speaking, can hardly be called evidence of itself, but is rather a method of proof which supplies the place of evidence. The Romans thought very highly of this mode of proof, and it has been mentioned as most positive evidence against one accused of crime, and almost certain to result in his conviction.

Our discussion of the subject will lead us to consider it in only one aspect, namely, the legal, and this will be discussed with reference to the inspection in and out of court, by the jury and by the court. All reasonable inferences arising from the inspection will,

of course, have the weight they are entitled to as evidence. Formerly it was held that the court could not of its own motion direct an inspection, but later the practice was allowed.1 Inspection probably includes perception by any of the senses,2 but for all purposes of the present time, we may consider it only by sight, and exclude all other modes. Anything offered for the inspection of the court should be primary evidence of the thing, and this proof would be received to the exclusion of oral description.3 Many cases have arisen where juries have been taken to view the place which caused the litigation. Instruments by which a crime was charged to have been committed, and, in fact, any materials or the clothes of a party, which in any way are part of the res gestæ, may be produced and offered in evidence on the trial.5

There can be no doubt, and the law is well settled upon this point, that in cases where the question of forgery arises, the paper that professes to have been forged, may be produced and offered in evidence. Indeed, we can hardly suppose a case in which an inspection of the document would not be advisable.6

It has been held in an action to recover damages for an injury to the person, that the limb, or other injured member, may be shown to the jury on the trial and inspected by them.7 The court may, in such cases, order an inspection by a committee of expert surgeons, of the injury in question.8

4 Mosam v. Ivy, 10 How. St. Tr. 562; State v. Knapp, 45 N. H. 148; Ruloffff v. People, 18 N. Y. 179; Eastward v. People, 3 Park. Cr. 25; Chute v. State, 19 Minn. 271; State v. Bertin, 24 La. Ann. 46; R. v. Martin, L. R. 1, C. C. 378; Stones v. Menham, 2 Ex. 382; Marley v. Gaz. Co., 2 F. & F. 373.

5 Wyman v. State, 56 Ga. 113; La Beau v. People, 34 N. Y. 223; People v. Gonzales, 35 N. Y. 49; Gardner v. People, 6 Park Cr. 155; Com. v. Williams, 2 Cush. 582; Com. v. Wilson, 2 Cush. 590; Com. v. Brown, 121 Mass. 69. See also Com. v. Britton, 5 Cush. 427; Morton v. Fairbanks, 11 Pick. 368; Com. v. Burke, 12 Allen, 182; Martin v. State, 16 Ohio. 363; Com. v. Brown, 14 Gray. 419, Brown v. Foster, 113 Mass. 136.

6, Wharton on Ev., I, sec. 705. et seq.

7 Mulhado v. Railroad, 30 N. Y. 370. See also State v. Garrett, 71 N. C. 85; State v. Wieners, 66 Mo. 13. 8 Walsh v. Sayre, 52 How. Pr. 334. But a contrary doctrine was held in Loyd v. Hannibal, etc. R. Co., 53 Mo. 509.

An inspection is usually the result of the discretion of the court, except in cases where the statute governs, and the judges follow no settled principles of law. Animals are oftentimes brought into court and examined,where their identity is in controversy.9 Where an issue of bastardy is in question, the jury may judge of the resemblance which the child bears to its reputed father by inspection 10 Maryland courts have decided that in an action to recover for an injury to chattels, the injury must be proven by witnesses, and that the plaintiff has no right to bring the articles into court to be inspected and the injury proven in that way. 11 In patent cases experiments before the jury are allowed to illustrate the case more clearly, and great latitude is allowed in this. Where the accused is described in the indictment as a "colored person," no evidence is necessary to prove such fact, but the jury may decide from their own observation.12 On the trial of one charged with theft it is error for the court to allow the jury to leave the court room and inspect for themselves the animal alleged to have been stolen, to solve the question of identity and ownership.13 The impressions made upon the minds of jurors by the examination of premises to which the jury has been sent for such inspection, do not constitute a part of the evidence in the cause, and therefore an instruction to that effect is erroneous. 14

It is this point in relation to the inspection by the jury, as evidence, which we wish briefly to discuss. There is some conflict of authority as to whether the court should allow the jury to visit the premises and view for themselves, and some courts hold the judge has no such power to order a view.15 But in Commonwealth v. Knapp,16 the court

9 Line v. Taylor, 3 F. & F. 731; Taylor's Ev., sec. 500; Lewis v. Hartley, 7 C. & P. 405.

10 State v. Woodruff, 67 N. C. 89; State v. Brith, 78 N. C. 430; Stumm v. Hummell, 30 Iowa, 478; State v. Anderson. 19 Mo. 241; State v. Smith, 54 Iowa, 104; 37 Am. Rep. 192. And see Nutter v. Ricketts, 6 Iowa, 92; Finnegan v. Dugan, 14 Allen, 197.

11 Jacobs v. Davis, 34 Md. 204. See Millan v. Davis, 66 N. C. 599.

12 Garvin v. State, 52 Miss. 207. 13 Smith v. State, 42 Tex. 444. 14 Heady v. Vevay, 52 Ind. 117.

15 Eastwood v. People, 3 Park. Cr. 25; State v. Knapp, 45 N. H. 148. Under the English statutesStone v. Menham, 2 Ex. R. 382; Morley v. Gaz. Co., 2 F. & F. 373; State v. Bertin, 24 La. An. 46. 16 9 Pick. 515.

allowed the jury, with the consent of the prisoner, his counsel, and the attorney general, to visit the locus where the murder had taken place, but the order was made with some reluctance. In Minnesota, the propriIn Minnesota, the propriety of ordering a view by the jury in criminal cases, is by statute invested in the discretion of the court. The defendant in that State was indicted for erecting and maintaining a nuisance, and the court below charged the jury as follows: "You must weigh the evidence given in court, coupled with your own examination, and if you are satisfied therefrom, beyond a reasonable doubt, that the building is a nuisance, and dangerous to the public, you should so find." This the court above held to be error; that the court below misconceived the proper purpose of a view by jury; that the view is not allowed for the purpose of furnishing evidence upon which a verdict is to be found, but for the purpose of enabling the jury to better understand the evidence given in court. The court say further: "One juror might observe something upon the view which another did not, so that the same evidence in fact would not be submitted to the entire jury. The case would then stand as if one juror had private and peculiar knowledge of facts not known to his fellows, to make which available, it is held the juror must be sworn and testify to the same.17 Besides this, the parties have, for the most obvious reasons, a right to know just what evidence is submitted; but this can not be done if every juror is to be permitted to look up facts on his own account."18

In a case where the jury had been empanelled to assess damages in right of way proceedings, it would seem almost indispensable that they should view the premises in question.19 The practice is pretty general for the court to allow the view when requested, and in many cases it is ordered when the parties or their counsel are opposed to it, although there are but few cases reported, which would serve as precedents, were the question to be thoroughly investigated. disadvantage in allowing the jury to inspect the locus in quo, which the courts have seemed

One

17 1 Greenl. Ev., sec. 364 and note; Starkie Ev., sec. 510 and note.

18 Chute v. State, 19 Minn. 282.

19 Parks v. Boston, 15 Pick. 209; Galena, etc. R. Co. v. Haslam, 73 Ill. 494.

to disregard, or which, perhaps, they have never regarded as of much consequence, but which is undoubtedly a strong argument against it, is the difficulty of making the transactions of the jury while making the view, appear upon the record; in other words, how is it to become a part of the evidence in the case? The view of the jury in the case we have mentioned, would necessarily need to be carried on out of court. If, for an instance, we take a criminal trial, and in the course of its progress, it becomes necessary that the jury should view the premises where the crime was committed, it is perfectly obvious that what transpired there, could not, in any event, become a part of the record; and each one knows, in a criminal prosecution, how essential it is that everything, from the empanelling of the jury to the rendering of the verdict, should be in the record. One can easily perceive that in such an event, an inspection by the jury might be productive of more evil than good; and to an ingenious and clever counsel this might leave open a door through which his client might peaceably pass to his freedom. Again, as the court say in Chute v. State, 20 while the inspection was being made, no conversation was allowed between the jurors, and that which was passing in the mind of one juror, would be entirely unknown to another. In an Indiana case, this question of the evidence on the view becoming a part of the record, came up, and the counsel for defendants argued that the evidence was not all contained in the record, referring more particularly to that part where the jury inspected the place where the accident occurred; but in reply the court say: "The bill of exceptions, therefore, stating that it contains all the evidence, we must so regard it, notwithstanding it appears the jury were sent to and viewed the place where the facts occurred."21 In Close v. Samm,22 the court held the object of the statute providing for an inspection in certain cases, was to enable the jury to better understand the evidence adduced upon the trial, and not to found their verdict upon the examination alone, without any regard to the testimony,

20 19 Minn. 271.

21 J. M. & I. R. Co. v. Bowen, 40 Ind. 545, overruling E. J. & C. R. Co. v. Cochran, 10 Ind. 560.

27 Iowa, 503.

and that the charge of the court below in that respect was erroneous. 23

In England, as in some of our States, the whole subject of a view by jury is regulated by statute.24 The court can not even by consent, order a view in one county by a sheriff of another; nor can the court compel the jury to go out of the county limits for such a purpose. 25 Neither before 15 & 16 Vic., c. 76, s. 114 was passed, did the court have any power in an action for work and labor, to order the plaintiff and his witnesses to enter upon the freehold of the defendant, for the purpose of inspecting the work done.26 When the court makes an order for inspection, on the application of either party, he may also order such things to be done as may be essential to the inspection, and to remove all obstacles which may prevent such inspection.2 27 Where the defendant had obtained a rule for a view, and it was accordingly had, but when the trial came on at the assizes, all the viewers were engaged in trying a cause in another court, the judge, however, against the consent of the defendant, determined to try it, and caused a jury other than the viewers to be empanelled, and a verdict was rendered for the plaintiff, held, that this was a mistrial. 28

In New Jersey the plaintiff's right depended upon certain boundary lines, and a rule for the view by jury was refused as an improper course in that case. 29 Again, a special rule may be supported on a motion for a jury of view, when one of the showers was obstructed in running a line. 30

On the trial of the keeper of a billiard room, for admitting minors, a personal inspection of the minor as a witness, with or without other evidence as to his age, is a proper proceeding, unless it appear the defendant was injured thereby 31

Where a town was sued for a defect in a highway, and one of the jurors empanelled in

23 Rev. Stat. Iowa, sec. 3061; Close v. Samm, 27 Iowa, 503, with the dissenting opinion of Wright, J. 24 15-18, 28 & 29 Vict.

25 Malins v. Dunraven, 9 Jur. 690.

26 Turquand v. Strand Union, 8 D. P. C. 201; 4 Jur. 74; Newham v. Taite, 6 Scott, 575; 1 Arn. 244. 27 Bennett v. Griffiths, 30 L. J. Q. B. 98.

28 Kingston Union v. Landed Est. Co., 20 L. T. N. S. 644, Exchr.

29 Den. v. Woodward, 1 South. 122.

30 Den. Suydam v. Van Natta, 2 Hal. 25.

31 Commonwealth v. Emmons, 98 Mass.-6.

the cause visited the place in question, and conversed with the neighbors as to the matters in issue, and communicated it to the other members of the jury, the verdict was set aside because they were improperly influenced. 32 But in this case the juror took it upon himself to visit the locality in controversy, without an order of court or consulting his fellow-jurors; it was clearly misconduct upon his part, and the cause should very properly have been retried.

When a rule for a jury of view has once been extended, it continues in favor until the cause is tried or the rule discharged. Detroit, Mich. A. G. MCKEAN.

32 Bowler v. Washington, 62 Me. 302. 33 Houston v. Woodward, 2 Hall, 344.

33

WRONGFUL LEVY · EQUITABLE JURISDICTION-CONSTITUTIONAL LAW-CONVERSION OF EXEMPT PUBLIC PROPERTY INTO CORPORATE STOCK.

NEW ORLEANS v. MORRIS.

United States Supreme Court, October Term, 1882.

1. Though the proper remedy where property is seized on execution, is by motion, to have the writ discharged, still where there are other grounds for equitable jurisdiction the court will entertain an application in the same bill to restrain a sale under the writ.

2. A State statute authorizing a city to convert a public property, which is exempt from sale for municipal debts, as being held for public use, into the shares of a joint stock corporation, and declares that these shares shall be exempt from judicial sale for the debts of the city, does not impair the obligation of existing contracts, within the meaning of the Constitution.

3. The water-works of a city are held for public use, and are not liable for the debts of the city.

Appeal from the Circuit Court of the United States for the District of Louisiana. Mr. Justice MILLER delivered the opinion of the court:

This is an appeal from the circuit court for the District of Louisiana, dismissing appellant's bill.

The case was heard on a plea of the defendants, which being held to be good, the bill was dismissed. The substance of the bill is that the defendants having several judgments on the law side of the circuit court, had caused executions issued on these judgments to be levied upon shares of the stock of the New Orleans WaterWorks Company, and the marshal had advertised them for sale, and was about to sell them to the highest bidder. That, prior to March 31, 1887,

the city was the sole and absolute owner of the water-works now owned and held by the corporation known as the New Orleans Water-Works Company. That on that day the legislature of Louisiana enacted a law creating that corporation, with a capital of $2,000,000. Of this sum the corporation, as soon as organized, was to "issue to the city of New Orleans stock to the amount of $606,600, full paid up and not subject to assessment, and in addition thereto one similar share for every hundred dollars of water-works bonds which the city has taken up heretofore and extinguished by payment, exchange or otherwise; and that the residue of said capital stock shall be reserved for the benefit of all holders of waterworks bonds, to the extent of the amount now outstanding, who may elect to avail themselves of the provisions of this act."

The bonds here referred to were those issued by the city while sole owner of the water-works, in aid of their construction and extension. The seventh section of this act read as follows: "Be it further enacted, That the stock owned by the City of New Orleans in said water-works company shall not be liable to seizure for the debts of said city." It was under this statute, and especially under the section just recited, that the city invoked the restraining power of the court to pre vent the sale of its stock in the company. To this bill the defendants interposed a plea to the effect that, so far as the provision of the statute, exempting the stock of the city in the waterworks company from sale under execution, relates to their judgments, it is void by the provisions of the Constitution of Louisiana and of the United States, which forbid the enactment of laws impairing the obligation of contracts; and in their plea they show that the obligations on which their judgments were obtained against the city were existing contracts before the passage of the act of 1877. As we have already said, the court held this plea good, refused the injunction and dismissed the bill.

The first point raised in argument here which requires our attention is that, whether the court below was right or wrong in its decision of the case on its merits, the bill must still be dismissed for want of equity, on the ground that there is ample remedy at law by a motion to the court to compel the marshal to release his levy on the stock, because not liable to be sold on the execution. It will be observed that no such objection was made to the bill in the court below, and although one of the defendants filed a general demurrer to the bill which might have raised it, he afterwards withdrew his demurrer, and joined in the plea on which the case was decided. This plea was a defense on the merits of the case, and was to be held good or bad on precisely the same principles whether pleaded to a declaration at law or a bill in chancery. We should under such circumstances have great hesitation to permit the party who had, by tendering this issue, waived the question of the special jurisdiction of the

court in equity, to raise that point for the first time in this court on appeal.

We are of opinion, however, that the bill does show on its face a sufficient ground of equitable jurisdiction in the allegations found in the bill sustained by the provisions of the statute, which creates a trust in favor of the holders of the old water-works bonds of the city, and of other creditors of the city, which is not shown in any way to have been released or discharged. Notwithstanding, therefore, the opinion of this court in the case of Van Norden v. Morton, 99 U. S. 378, that in the ordinary case of a wrongful levy of an execution on property not subject to be seized under it, the proper remedy is by motion to the court to have the levy discharged, we think there is in this bill other sufficient grounds for the equitable jurisdiction of the court.

The question to be decided on the merits is, shortly, this: Is a statute of a State legislature which, in the act authorizing a city to convert its ownership of a large and valuable property, held for the use of the public, such as this, into the shares of a joint stock corporation, declares that these shares shall be exempt from judicial sale for the debts of the city, an impairment of the obligation of existing contracts within the meaning of the Constitution. The learned counsel, in the oral argument and in the brief, substantially concedes that the water-works themselves, in the hands of the city, were not liable to be sold for the debts of the city. And if no such concession were made, we think it quite clear that these works were of a character which, like the wharves owned by the city, of such public utility and necessity, that they were held in trust for the use of the citizens. In this respect they were the same as public parks and buildings, and were not liable to sale under execution for ordinary debts against the city. There is nothing in the nature of this legislation which directly impairs the obligation of the city's contract with the appellees. The courts recognized the binding force of those contracts by rendering judgments against the city after the passage of the act complained of, just as they would before, and there is no pretense but that the moral or legal obligation of the city to pay those judgments remains undiminished. The force of the argument for holding the statute void rests on certain decisions of this and other courts in regard to laws which attempted to exempt from the liability to seizure under execution property which, at the time the contract was made, was by law so liable to be seized and sold in enforcement of the contract. The cases of most importance so relied on are Green v. Biddle, 8 Wheat. 1; Bronson v. Kinzie, 1 How. 311; McCracken v. Haywood, 2 How. 608. But these cases do not go so far as the argument in this case requires. Indeed, they fall far short of it. They simply hold that an act of the legislature, passed after a contract is made, which withdraws property then liable to be seized and sold, in enforcement of that contract, from the power of the courts to seize