veyance and a voluntary conveyance made for a public use. Where property is acquired for public use by proceedings in invitum, the statute which authorizes the acquisition constitutes the contract between the citizen and the public; and when the interest has once been acquired, it can not be changed or enlarged without further compensation. It is only when the title is acquired in fee-simple absolute that the property may be converted to other public uses, or the particular use ceasing, it may be sold and conveyed and converted to private uses. Heyward v. Mayor of New York, 3 Seld. 314; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 239. But where the public acquire, not the property itself, but the mere right to use it for a particular purpose, the title of the former owner is not extinguished; but is so qualified that it can only be enjoyed subject to the easement. In such a case, the title of the public is limited to the particular use, with the powers and privileges incident thereto; such as the right to use the timber and soil for the purpose of constructing or maintaining the street. The former proprietor still retains his exclusive right in all mines, quarries, springs of water, timber and earth, and may enjoy the beneficial ownership of the fee for every purpose not incompatible with the public use for which the land was taken, and may maintain trespass, ejectment or waste (Jackson v. Hathaway, 15 Johns. 477), and the use ceasing, the title reverts to the former owner, freed from the public easement.

By the act of 1813, the city acquired the fee in the street, in trust, however, for a particular public use. Conceding that this trust is for the benefit of the abutting owner as well as for the public, the only right which he has in the street is the right to insist that the trust be faithfully executed. So long as the street is kept open as a public street, the abutting owner can not complain. The question presented in the case of People v. Kerr was whether the particular structure there authorized was inconsistent with the continued use of the streets as open public streets of the city. Whether it was or not was a question of fact dependent upon the nature and character of the structures therein involved. The court found and determined that it was not inconsistent with the public uses of a public street, but was in aid of such uses. And in Kellinger v. Forty-second Street R. Co., 50 N. Y. 206, this court limits the decision in the case of People v. Kerr to a "simple declaration that the legislative authority to construct a railroad on the surface of the street without a change of grade was a legitimate exercise of the power of regulating the use of public streets for public uses. The question whether the abutting owners upon streets opened under the act of 1813 had the right to prevent their being converted to a use destructive of their existence as public streets, was not deemed by the court to be involved in that case. This appears from the report of the case. Davies, J., did not sit in the case. Rosekrans, J., was of the opinion

that the power of the legislature extended only to governing the mode of passing upon the surface of streets, and Judges Balcom and Marvin, concurring in the result, stated that "there might be a private right in the owners adjoining the street to have free access to their premises, held under the original proprietor of the tract embracing the street, of which said owner could not be deprived by the assent or surrender of the public, or of the general owner of the fee in the street, or both, without compensation for his incidental interest or easement in the street. This they said to preclude the conclusion that any such interest had been disregarded. They saw no such question in the case. 99

But the question which was not seen to be involved in that case is the only question involved in the case now under consideration. The question here presented is not whether the legislature has the power to regulate and control the public uses of the public streets of the city, but whether it has the power to grant to a railroad corporation authority to take possession of such streets and appropriate them to uses inconsistent with and destructive of their continued use as open public streets of the city Had the act in that case authorized the corporations to take permanent and exclusive possession of portions of the streets to build sidings, and to permanently occupy them with rows of ears standing in front of the stores and residences of abutting owners, and to erect permanent depot buildings within the limits of the streets for accommodation of their passengers, we can not doubt that a different result would have been reached in that case. The fact that a particular structure is found to be consistent with the uses of a street is no evidence that a different structure is not inconsistent with such uses.

The conclusion reached in the present case is based upon the character of the structure here involved. The language of Wright, J., in People v. Kerr, that the abutting owners have no property, estate or interest in land forming the bed of the street in front of their respective premises to be protected by the right of eminent domain, must be construed with reference to the point then being considered. This court had held in the case of Williams v. New York Cent. R. Co., 16 N. Y. 107, that where the public had acquired a mere right of way over the land of another, the laying down of railroad tracks and constructing a steam railroad in the streets of a city was an enlargement of the use understood and contemplated by the parties at the time the land was acquired, and imposed an additional burden upon the fee, and that such act could not be authorized without compensation to the owner. This case was cited and relied upon in support of the claim of the abutting owners, but the answer was that the abutting owners did not own the fee of the street; that such fee being in the public the legislature might lawfully appropriate it to any public use consistent with the trust for which it was held, notwithstanding such use of a street may

not have been known or contemplated at the time the land was acquired. Having parted with the fee, the abutting owner could not maintain trespass or waste, and against an act which did nothing more than to impose an additional burden upon the fee, he could not invoke the inhibition of the Constitution, that private property shall not be taken for public use without compensation. Thus understood we think the language of Wright, J., is not subject to criticism, and furnishes no support to the claim now made that the owner, whose lands were taken and are now held in trust, to be appropriated and used as open public streets forever, has no standing in court to insist that the trust shall be kept and that the streets shall not be destroyed. This precise question was before the .Supreme Court of the United States in the case of Railroad Company v. Schurmeir, 7 Wall. 272. In deciding the case that court says: "Attempt is also made to justify the acts of the respondents (the railroad company) as grantees of the State, upon the ground that the complainant in dedicating the premises to the public as a street, levee and landing, parted with all his title to the same, and that the entire title rested in fee in the State. Resdondents rely for that purpose upon the statute of the territory of Minnesota. Suppose the construction of that provision, as assumed by the respondents, is correct, it is no defense to the suit, because it is nevertheless true that the municipal corporation took the title in trust impliedly, if not expressly, designated by the act of party in making the dedication. They could not, nor could the State convey to the respondents any right to disregard the trust or to appropriate the premises to any purpose which would render valueless the adjoining real estate of the complainant."

That this trust, created by the act of 1813, was intended to be for the benefit of the abutting owner as well as for the public we can not doubt. City property has little or no value disconnected from the streets upon which it abuts. The opening of a city street makes the property abutting thereon available for purposes of trade and commerce, and greatly enhances its value. The act of 1813 proceeds upon the assumption of this well known fact, and the damages sustained by reason of the taking were assessed in view of the trust assumed by the public, that such lands were to be kept as open public streets forever. The public did not assume to take the lands in fee simple absolute, but took and paid for a lesser estate, and in pursuance of the theory of the statute that the abutting owner has a special interest in the street, the cost of the lands was immediately assessed back upon the abutting property. All the owner has ever received for the lands taken under this act is the benefit accruing to his abutting property by reason of the trust for which the lands are held. Having surrendered his land in consideration of the trust assumed by the public, if the trust can now be abrogated and the streets surrendered to the uses and purposes of a railroad

corporation, it follows by authorities that private property may be takeu for public use against the consent of the owner, and without compensation. We have examined the other cases cited by the learned counsel for the respondent, and in none of them do we find authority for the claim here made. The case of Transportation Company v. Chicago, 99 U. S. 635, is not in point. The injury there complained of was necessarily done in the extension of a city street. The interruption was temporary, ceasing with the completion of the work. This case is decided upon the elementary principle that the public have a right to make such use of the land taken for a street as may be deemed necessary for its proper construction, repair or maintenance. Within this power is included the right to fix the grade of the street and to change such grade from time to time as the necessities of the public may require; but whether the grade be elevated or depressed it is still a public street, to which the public have the right of free access, subject to such police regulations as may be adopted by the public authority having charge and control of the same.

The argument has been pressed upon our attention with great abiliiy, that as railroads, like streets, are intended to facilitate trade and commerce, and lands taken for either are taken for public use, the legislature may, in its discretion, appropriate the public streets of our cities to the railroad corporations, and this without reference to the form of their structure or the extent of the injury wrought upon property abutting thereon. This is a startling proposition and one well calculated to fill the owners of such property with alarm. It can not be that the vast property abutting on the streets of our great cities is held by so feeble a tenure. This court has repeatedly held that such a rule has no application where the abutting owner owns the fee of the bed of the street, and we are of opinion that in cases where the public has taken the fee, but in trust to be used as a public street, no structure upon the street can be authorized that is inconsistent with the continued use of the same as an open public street. The obligation to preserve it as an open street rests in the contract written in the statute under which the lands were taken, and which may not be violated by the exercise of any legislative discretion. Whatever force the argument may have as applied to railroads built upon the surface of the street without change of grade, and where the road is so constructed that the public is not excluded from any part of the street thereof, is has no force when applied to a structure like that authorized in the present case. The answer to the argument is that the lands taken for a particular public use can not be appropriated to a different use without further compensation; that the authority attempted to be conferred by the legislature upon the defendant to take exclusive possession of portions of the public street, and to erect a series of iron columns on either side thereof, upon which a superstructure is to be

erected spanning the street and filling the roadway at fifteen feet above the surface, thus excluding light and air from the adjoining premises, is an attempt to appropriate the street to a use essentially inconsistent with that of a public street, and in respect to the land in question violates the covenant of the city made with the plaintiffs, grantors, and in respect to lands acquired under the act of 1813, violates the trust for which such lands are held for public use.

The argument drawn from the great benefit which these roads have conferred upon the city of New York, can have but little weight in determining the legal question presented in this case. No doubt these roads have added much to the aggregate wealth of the city of New York, and have greatly promoted the convenience of its citizens; but the burden of so great a public improvement can not rightfully be cast upon a few of its citizens by appropriating their property to the public use without compensation. The inhibition found in the Constitution against the right of the sovereign to appropriate private property to public use without making compensation therefor, was intended to secure all citizens alike against being compelled to contribute unequally to the public burdens. We are of opinion that the law under which the defendant is incorporated, authorizes it to acquire such property as may be necessary for its uses and purposes, upon making compensation therefor. This was substantially determined in the matter of the New York Elevated Road, 70 N. Y. 327. We have reached in this case the following conclusions:

First. That the plaintiff, by force of the grant of the city to his grantors, has a right or privilege in Front street which entitles him to have the same kept open and continued as a public street for the benefit of his abutting property.

Second. That this right or privilege constitutes an easement in the bed of the street, which attaches to the abutting property of the plaintiff, and constitutes private property within the meaning of the Constitution, of which he can not be deprived without compensation.

Third. That such a structure as the court found the defendant was about to erect In Front street, and which it has since erected, is inconsistent with the use of Front street as a public street.

Fourth. That the plaintiff's property has been taken and appropriated by the defendant for public use without compensation being made therefor.

Fifth. That the defendant's acts are unlawful, and as the structure is permanent in its character, and if suffered to continue will inflict a permanent and continuing injury upon the plaintiff, he has the right to restrain the erection and continuance of the road by injunction.

Sixth. That the statutes under which the defendant is organized authorize it to acquire such property as may be neeessary for its construction and operation by the exercise of the right of eminent domain.

Seventh. In view of the serious consequences

1. ACENCY-COLLECTION OF PRICE BY COMMERCIAL TRAVELER WHO SOLD THE GOODS--WANT OF AUTHORITY.

Where one Kilbourn, a commercial traveler, took from defendant an order for cigars, sent the order to plaintiffs, dealers in Chicago, who filled it and sent a bill of same with sixty days' credit to defendant, and where Kilbourn, about thirty days after shipment, requested and received payment from defendant for the cigars and receipted in the name of plaintiffs the bill which accompanied the goods: Held, that the apparent or ostensible authority of Kilbourn was only to solicit and send plaintiff's orders for goods, that he did not sell the goods, and that the circuit court erred in instructing the jury, 1. That Kilbourn, as agent of plaintiffs, made a sale of the goods to defendant, and was authorized so to do. 2. That if he did sell the goods, he had, therefore, authority to receive payment therefor. McKindley v. Dunham, S. C. Wis., October 10, 1882; 5 Wis. Leg. News, 54.

2. COMMON CARRIERS FEDERAL REGULATION. Section 4386 of the Revised Statutes of the United States, imposing a penalty upon railroads carrying sheep, swine, etc., if they allow such sheep, swine, etc., to be more than twenty-eight consecutive hours confined without unloading them for at least five hours for rest, water and feeding, does not apply to a railroad carrying sheep, swine, etc., from a point within a State to another point therein, but only to such as convey swine, sheep, etc., from one State to another. United States v. East Tennessee, etc. R. Co., U. S. C. C., E. D. Tennessee, 1882, 13 Fed. Kep., 642.

- INTERSTATE COMMERCE

3. COMMON CARRIER SALE OF FREIGHT FOR CHARGES.

1. In making sale of freight for the charges due upon it for carriage, good faith and reasonable diligence must be observed to ascertain and give notice of the nature and character of such freight, so as to make the best sale possible. 2. If, knowing the contents of such package of freight, the

agent selling it withholds such knowledge from the public, and sells to a favorite to whom such knowledge has been communicated, at a nominal sum, such sale is a fraud, which will subject the perpetrators to an action for damages at the suit of the party injured. 3. A common carrier has no right, nor is there any duty resting on him, to examine the contents of barrels before advertising them for sale to pay freight charges. Shivers v. Nathan, S. C. Ala.; 1 Ala. L. J., 311.

CONTRACT-BOND-EXECUTION OF.

To charge as one obligor, who has signed a bond or written undertaking, it is not necessary that his name should appear in the body of such instrument, provided the intention that he shall be so charged appears clearly from its terms, taken in connection with the circumstances attending its execution. Partridge v. Jones, S. C. Pa., October 24, 1882; 3 Ohio L. J., 176.

5. CONTRACT-MATERIAL ALTERATION Of Note. Frost, who was the bookkeeper of the appellees, went to Fort Wayne to secure a debt due his firm from Jacobson. Jacobson took two notes given to him by Frost, signed them, and also procured the appellant to sign them, and brought them back to Frost. The notes were written, "I promise to pay," and Frost, not thinking this form grammatical, as the notes were signed by two persons, requested Jacobson to go out and get appellant to sign his name on the back of the notes. This he declined to do, but told Frost to change the word "I" to "we" in the body of the notes, which Frost thereupon did without the knowledge or consent of appellant. This change was material, as it converted the notes from joint and several into joint notes, and appellant was released. Under the circumstances, Frost must be regarded as acting as the agent, and with the authority of the appellees, and his alteration of the note was not a mere spoliation. Eckert v. Louis, S. C. Ind., November 3, 1882.

CONTRACT-UNDER SEAL-RESCISSION BY PAROL. A contract under seal for the purchase of real estate, where possession has not been delivered, may be rescinded by verbal agreement; but if the rescission is obtained by the fraudulent representation of the purchaser, no effect will be given to it; and it will make no difference that such fraudulent representation was a verbal proposition to purchase lands not enforceable under the statute of frauds. Jones v. Booth, S. C. Ohio, October 24, 1882; 3 Ohio L. J., 193.

7. CONVEYANCES-CONSTRUCTION OF DEED - RE

SERVATION.

1. The intention of parties to a deed may be ascer tained (1) from the words of the grant, (2) from the surrounding circumstances, in which may be considered the position of the parties, and the subject of the grant at and subsequent to the transaction. 2. Where there is a reservation or restriction in a deed, it is to be construed most strongly against the grantor, and when the grantor asserts a reservation, the onus of showing it is upon him. Grubb v. Grubb, S. C. Pa., October 2, 1882; 14 Lanc. Bar, 85.

9. CRIMINAL LAW-ASSAULT-RECKLESS AND WANTON CONDUCT-IMPLICATION OF MALICE. A, while a passenger in a railway car filled with people, in a spirit of frolic, discharged a pistol, intending to shoot the load into the floor of the car, and thereby cause a temporary fright among the passengers. Without any intent on A's part, the ball from the pistol entered the foot of the prosecutor, inflicting a severe wound. At the time of the discharge the pistol was held downward, A standing in the aisie, and the prosecutor and other persons standing behind him and in close proximity to him. On the trial of A, for the above offense, upon an indictment alleging an assault: Held, that under the circumstances defendant's act being recklessly and wilfully done, the law would of itself imply malice. Smith c. Commonwealth, S. C. Pa., Oct. 2. 1882; 13 Pittsb.L. J. 114.

A railway employee was sent with a party of men to repair a side track. A man, who claimed that they were coming upon his land, disputed the company's right to do what was proposed, threatened to undo whatever should be done, and in the course of an excited altercation drew a line onthe ground where he said his boundary was, pushed the leader of the working party so that he staggered and then struck him a single blow with a heavy stick and knocked him down. There was some testimony that the person assailed had raised a shovel as if to strike the assailant, but this was denied. The assailant acted in hot blood, butapparently supposed that in trying to prevent what was proposed he was defending his right. Held, that although the blow was unjustifiable, the evidence would not sustain a charge of assault with intent to kill. People v. Comstock, S. C. Mich., Oct. 20, 1882; 13 N. W. R. 617.

11. CRIMINAL LAW-SELF-CRIMINATION-HOMICIDE. In prosecution for murder: 1. Pulling the shoes and socks off the defendant's feet or inducing him to do it, would not render evidence touching their identification inadmissible. While a defendant can not be compelled to criminate himself by words or acts, yet in the case it seems he did not object to the shoes being taken off, and the policetook them off in the discharge of their duty. 2. The shoes and socks as well as the knife found at the place of homicide were, of course, admissible, after identification. Franklin v. State, S. C. Ga., Oct. 31. 1882.

12. CRIMINAL LAW - TWICE IN JEOPARDY — ADJOURNED TRIAL.

Where the presiding judge in a trial for forgery, who was suddenly called to his home on account of the illness of his wife, after all the evidence had been introduced, temporarily adjourned the court, and a day or two later finally adjourned the court by telegram, it was held that the prisoner had not been in jeopardy, and could be tried at the following term of court upon the indictment. While a person may be said to be in legal jeopardy when he is put upon trial before a court of competent jurisdiction upon an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance—that is, when they have been impanelled and sworn,-there are some exceptions to this general rule; and when the jury, by necessity, is discharged on account of death or illness of the judge or of a juror, or from an inability of

the jury to agree upon a verdict, or the term expires by law before trial is finished, or the jury are discharged with consent of defendant, or a new trial is granted to him, he may again be put upon trial upon the same indictment. State v. Tatman, S. C. Iowa, Oct. 17, 1882; 13 N. W. R., 632.

13. CRIMINAL LAW- UNLAWFUL ASSEMBLY DISTURBANCE OF THE PEACE SALVATION ARMY. " The appellants, with a considerable number of other persons, forming a body called the "Salvation A my,'' assembled together in the streets of a town for a lawful object, and with no intention of carrying out their object unlawfully, or by the use of physical force, but knowing that their assembly would be opposed and resisted by other persons in such a way as would in all probability tend to the committing of a breach of the peace on the part of such opposing persons. A disturb. ance of the peace having been created by the forcible opposition of a number of persons to the assembly and procession through the streets of the appellants and the Salvation Army, who themselves used no force or violence, it was Ield, by Field and Cave, JJ. (reversing the decision of the justices), that the appellants had not been guilty of unlawfully and tumultuously assembling," etc., and could not therefore be convicted of that offense, nor be bound over to keep the peace. Held, also, that knowledge by persons peaceably assembling for a lawful object, that their assembly will be forcibly opposed by other persons, under circumstances likely to lead to a breach of the peace on the part of such other persons, does not render such assembly unlawful. Beatty v. Gillbanks, Eng. High Ct., Q. B. Div., June 13, 1882; 47 L. T., 194.

14. DIVORCE-ADULTERY OF WIFE-CUSTODY OF

CHILDREN.

Where a decree of divorce is granted upon the application of the husband for the reason of the adultery of his wife, she ceases whether or not the decree awards the custody of the children to the father, to have any right to the care, control, education or companionship of the minor children, and the court has no jurisdiction after final judgment to enjoin upon the husband or the children the company of the woman who has violated her marriage vows. Crimmins v. Crimmins, Supreme Ct. N. Y., 1882; 22 Daily Reg., 889.

15. EVIDENCE-TESTIMONY OF PRISONER IN HIS OWN BEHALF-COMMENTS OF PROSECUTING ATTORNEY.

A prisoner, by testifying in his own behalf, waives the protection which the statute forbidding the district attorney from commenting on his not testifying accords him, and the district attorney can properly call the attention of the jury to the fact that he has not testified as to a certain part of the case. State v. Tatman, S. C. Iowa, Oct. 17, 1882; 13 N. W. R., 630.

16. FRAUDULENT CONVEYANCES PRIORITIES BE

TWEEN CREDITORS.

Creditors have the right to treat conveyances o their debtors made to hinder, delay or defraud them, as void, and their election to treat them as void is shown by attaching the property so conveyed, and such attachments, when levied, will become a lien upon the property with the same effect as if no fraudulent conveyances had been made. 2. By the levy of an attachment upon lands which have been fraudulently conveyed, for the debt of the grantor, the attaching creditor ac

quires a lien which is not disturbed by a decree in chancery setting aside the fraudulent conveyance, and subjecting the property to sale, for the payment of a judgment recovered by another creditor after the levy of the attachment. The levy of the attachment, before the recovery of judgment by the other creditor and the filing of his bill, creates a prior lien on the property. McKinney v. Farmer's National Bank, S. C. Ill., Sept. 27, 1882; 104 Ill. 180; Reporter's Advance Sheets.

17. FRAUDULENT CONVEYANCE ADVERSE POSSESSION.

SECRET TRUST

1. The grantee, in a conveyance made for the purpose of creating a secret trust for the benefit of the grantor, is not clothed with any ownership or asserted right, which will uphold a claim of adverse possession. 2. Where a debtor has conveyed his lands with intent to delay, hinder and defraud his creditors, to another, and he sells a portion of the lands to a stranger, upon a bill to set aside the conveyance by the debtor as fraudulent, the land so sold to such stranger, can not be made subject to the complainant's debt, without making him a party defendant to the bill. Jones v. Wilson, S. C. Ala.; 1 Ala. L. J,, 303. 18. MASTER AND SERVANT-NEGLIGENCE-FELLOW SERVANT IN SAME COMMON EMPLOYMENT. The complaint alleges that plaintiff was employed by defendant company to accompany the defendant's express wagons and load and unload goods, etc.; that while so employed, by the direction of one Colvin, the agent and manager of said company's office in the city of Oshkosh, who, at the time of the injury, was driving, he was thrown to the ground and injured, because of negligence on the part of such driver. Held, that plaintiff and defendant's agent were co-employees. That the complaint does not state facts showing that the agent Colvin stood in the relation of vice-principal of the defendant. Dwyer v. American Express Co., S. C. Wis., Oct. 10, 1882; 5 Wis. Leg. News, 43.

WAIVER-IMPLIED CON

19. MECHANIC'S LIEN
TRACT-RUNNING ACCOUNTS.

1. The right to a mechanic's lien for labor or materials furnished for the erection or repair of a building may be waived by an agreement either expressed or implied. 2. Where no contract is shown except such as is implied from the running of mutual accounts between the parties for many years, with semi-annual settlements, a mechanic's lien can not be asserted on such accounts, the items of which generally were furnished for repairs upon machinery attached to a rolling mill. Other items, however, did not relate to repairs of the machinery or building. Iron Company v. Murray, S. C. Ohio, Oct. 3, 1882; 3 Ohio L. J., 195.

20. NEGLIGENCE-EVIDENCE-CUSTOM AS BEARING ON QUESTION OF COMPARATIVE NEGLIGENCE. In a suit against a railroad company to recover damages for causing the death of the plaintiff's intestate, on the ground of negligence, it appeared that the deceased, at the time of the injury, was engaged in his duty of inspecting cars then standing in a yard kept for that purpose, and was under a standing car, examining the same, which, by being suddenly struck byother cars in motion, caused the injury resulting in his death. It further appeared, the defendant, in taking some of its cars to the yard, there to be left, detached them from the engine propelling them before entering the yard and suffered the cars, without any brakeman to