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CTION of partition. Motion for an order requiring the chamberlain of the city of New York to pay over moneys deposited with him. The opinion sufficiently states the facts.

Edward F. Brown, for appellant.

C. H. Woodruff, for respondent.

FINCH, J. In this action, which was brought for the partition of real estate, a sale was had pursuant to the judgment rendered, and the share of the proceeds belonging to Mary C. Thompson and others, amounting in the aggregate to $13,475.23, was brought into court by reason of their infancy and paid over to George W. Lane, as chamberlain of the city of New York, in trust for the infants. No order of the court directing its investment appears to have been made in the action. The money was paid to the chamberlain on December 15, 1873, and was immediately deposited by him to the credit of his account in the Fulton Bank. It apparently remained there on deposit until the 19th of March, 1874, when it was invested in a manner evidently common in the chamberlain's office, but which is criticised by the parties interested in the fund. The chamberlain held a mortgage made by one Edward Jones in 1867, which covered certain vacant lots in the city of New York, and having been originally given for $15,000 had been reduced to $10,000 and a portion of the lots released. On the 19th of March, 1874, the chamberlain was ordered to pay over certain moneys, in the suit of Robins against Robins, to the persons entitled, and desiring to keep this Jones mortgage and certain others in which the moneys had been invested, he used the moneys deposited in this case to make the payments required, crediting the suit now before us with an equivalent interest in the Jones mortgage, and practically transferring to himself, in trust for the infants in this case, an interest in such mortgage to the amount of $4,101.25. The balance of the fund was thereupon deposited in the trust company, where it remained until the following May, when it was invested in a similar manner and by the same process in certain other mortgages held by the chamberlain. At the time of this investment in the Jones mortgage, taxes upon the mortgaged property to the amount of something over $700 were in arrears, but the fact was unknown to the chamberlain, and when afterward discovered, the amount necessary to pay them was called for and they were paid in full. There is no reason to doubt the sufficiency of the Jones mortgage as a security for the sum unpaid upon it at the time of this transaction. The interest was promptly paid, the obligor in the bond was responsible, and in February, 1875, this mortgage, with others, was delivered over by Mr. Lane, at the close of his term of office, to J. Nelson Tappan, the present city chamberlain. While it remained in his hauds a severe depreciation in value of real estate ensued, and in 1876 an assessment of more than $8,000 was imposed upon the property, with the usual ruinous effect to the parties interested. The mortgagor abandoned the payment of interest, and the present chamberlain, acting on his own impression of duty, foreclosed the mortgages, bid the property in for $8,000, and now holds it at the risk and for the benefit of those whose funds went into the investment. The taxes remain unpaid, and the result is substantially a total loss of a fund which the court took from the infants for the purpose of its safety and preservation.

Mary C. Timpson, becoming of age, called for her money, and being unable to obtain it, moved at Special Term for an order requiring the late and the present chamberlain to pay it over to her. That motion was denied; the denial affirmed at the General Term and an appeal taken to this court.

The right to compel Lane or Tappan to pay this money is founded upon allegations that their treatment of the fund committed to their care was unau

thorized by law and in violation of their duty. To establish this it is strenuously argued that in the absence of an explicit order of the court to invest the fund in bond and mortgage they had no right to do so, and should have deposited the money in the authorized trust companies. In case of partition it is provided (2 R. S. 327, §§ 64, 68, 70) that where any of the known parties are infants the court may, in its discretion, direct the share of such infants to be paid over to the general guardian or be invested in permanent securities, at interest, in the name and for the benefit of such infant; that when the security is directed to be taken otherwise than in the name of a known owner, it shall be taken in the name of the clerk, and his successors in office; and that the investments when made shall be in the public stocks of the State or the United States, or in bond and mortgage upon unincumbered real estate of at least double the amount of the loan in value. Such investment being once made the security is not to be discharged, transferred or impaired without the order of the court, entered in its minutes.

These provisions evidently contemplate a case where the court, by an order in the action, directs an investment. They perhaps assume that such direction will be given but do not purport to furnish a rule to control the action of the officer in the absence of a special direction by the court. This difficulty was met and remedied by rule 180 of the Court of Chancery, that where no direction for the investment of funds paid into court is contained in the decree, and the money is not applied for within six months thereafter, it shall be the duty of the register, assistant register or clerk, with whom the same is deposited, and without any special order for that purpose, to cause it to be invested in public stocks or other permanent securities, and a similar duty was imposed as to accumulation of income. Thus both cases were provided for. Where special direction in the suit itself was given, that order furnished the guide. Where such direction was omitted, the chancery rules required the officer to invest according to its terms. That rule has survived the changes of recent legislation and is still operative. When the Court of Chancery was abolished and its jurisdiction and duties imposed upon the Supreme Court, the Judiciary Act of 1847, which directed the change (Laws of 1847, ch. 280, § 71) and vested the securities brought into the Court of Chancery in the clerk of the Court of Appeals, was careful to preserve the rules of the older tribunal respecting the deposit and investment of such funds, subject only to the rules and regulations that might thereafter be prescribed by the Supreme Court. The act of 1848 (ch. 277) worked no other change than to substitute the county treasurers, and in the city of New York, the chamberlain, in the place of the clerk of the Court of Appeals, as custodians of this class of trust funds.

It is claimed, however, that the rules of the Supreme Court have abrogated rule 180, and prescribed for the county treasurers a different duty (Rule 83 of 1849; Rule 79 of 1852; Rule 81 of 1858; Rule 82 of 1871; Rule 82 of 1874). Through all the changes of the rule referred to it steadily did but one thing. It prescribed the place of deposit of moneys that were to be deposited, and it did no more than that. It did not forbid investments in stocks and bonds and mortgages, either directly or by implication. Its entire operation is plainly limited to uninvested funds while they remain uninvested. We conclude, therefore, that rule 180 is yet in force, and furnishes the standard by which to test the action of the chamberlain, modified only by the rule of the Supreme Court as to the place of deposit.

The chamberlain deposited the moneys resulting from the sale in this action in the Fulton Bank, and kept them there for a brief period. This deposit was a violation of rule 82. But no injury resulted. The

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violation was harmless. The fund was in no manner lost or diminished by that act. Soon after, a portion of the fund was invested in the Jones mortgage, and the balance deposited with the trust company, where it remained till the after investments were made.

The manner in which they were made by massing in one mortgage the moneys of different beneficiaries is complained of by the appellant. The sole objections pointed out seem to be that by this process there was a transfer of securities in violation of the statutory rule in partition, and an investment in a mortgage subject to prior incumbrances, which is equally forbidden. There was no transfer of the mortgage. It remained all the time vested in the chamberlain. He did not transfer it at all; he only changed one of the beneficiaNor, in making this ries for whom it was held. change, did he subject the moneys invested to any prior lien or incumbrance, because the interests of the other beneficiaries were vested in them earlier. Whatever the date of their interest, all stood on an equality, no one having any preference over the other, the mortgage being held for all. We cannot see any legal objection to the practice adopted in the chamberlain's office of aggregating in one mortgage the funds of several beneficiaries. The court which has supervision of these funds has been cognizant of the custom and has never forbidden it. It aids to a prompt investment of funds and has much of convenience to recommend it. No rule of law forbids it, and we are not prepared to say it should be discontinued.

It was further objected that when these funds were invested in the Jones mortgage there were taxes in arrears constituting an incumbrance upon the mortgaged property. That was true; but as soon as their existence was ascertained, the amount necessary for their payment was called for and they were discharged in full. We discover, therefore, nothing in the conduct of Mr. Lane to justify the order which was sought against him. He invested these funds, and had a right to do so. The securities chosen at the time were ample, and to all reasonable judgment, prudent and safe investments. The fund, thus intact and represented by good securities, was at the close of his term of office That ended the responhanded over to his successors. sibility of Lane, and we see no reason to continue or prolong it. His successor, Mr. Tappan, continued to receive the interest upon these investments until the two misfortunes happened from which has come all the mischief. Real estate largely depreciated in value, and the property covered by the Jones mortgage, while falling in price, was fatally weighted by the added load of a city assessment amounting to some $8,000. The mortgagor became discouraged and defaulted in his interest. The chamberlain thereupon foreclosed the mortgage, bid in the property, and holds what the depreciation in value and the rapacity of municipal assessments has left of the investment for the benefit of the infants. It is objected that he ought not to have foreclosed this mortgage without the order of the court, and that in doing so he discharged the mortgage in violation of the statute. We do not deem this foreclosure a discharge within the prohibition of the statute. Practically the security remains the same and still vested in the chamberlain, and changed only in form, and while it would have been wiser to have asked direction of the court, we cannot say that the foreclosure was improper or illegal. The right to hold the mortgage involved both the right and duty of collecting all sums due upon it, and that in turn the right and duty of using the ordinary modes of collection. Indeed, if he had not foreclosed, but allowed the debts to accumulate without an effort to collect, it is not impossible that a just complaint might have drawn with it the consequences of negligence.

We conclude, therefore, that no remedy for the loss exists against either Lane or Tappan. The wrong to

the infants is great. Their property has been taken
from them by the law in order to protect it from harm,
and the protection has ended in a total loss. There is
much of shame and disgrace in a system which leaves
such a result possible, but the remedy is not with us.
We cannot redress one wrong by committing another.
The conclusion we have reached on the merits ren-
ders it unnecessary to consider whether the motion
made in this case or an action against the late cham-
berlain was the proper remedy.

The order should be affirmed.

STATE LAWS REGULATING REMOVAL OF
DEAD BODIES VALID-CHINESE
RELIGIOUS CUSTOMS.

UNITED STATES CIRCUIT COURT, DISTRICT OF CAL-
IFORNIA, MAY 24, 1880.

IN RE WONG YUNG QUY.

A statute of California provides that a permit from local
authorities shall be required for the disinterment and
removal of a dead body, for which permit $10 fee shall
be paid. The statute does not apply to removals from
one cemetery to another in the same county. In a pro-
ceeding against a Chinese subject who disinterred and
removed the body of another Chinese subject for the
purpose of transportation to China, without procuring a
permit, held, that the statute is not in contravention of
the provision of the Federal Constitution that "Con-
gress shall have power to regulate commerce with for-
(art. 1, § 2, subd. 3), or of the one that no
eign nations"
Stato shall, without the consent of Congress, lay any
duty upon exports (art. 1, § 2, subd. 2), or of that which
any person within
prohibits any State from denying to
its jurisdiction the equal protection of the laws" (14th
Amendment). Held, also, that it is not in violation of
the provision of the treaty between the United States
and China that " Chinese subjects in the United States
shall enjoy entire liberty of conscience, and shall be
exempt from all disability or persecution on account of
their religious faith or worship," even though the relig-
ious sentiments of the Chinese may require that they
shall remove the bodies of their deceased friends to
China for burial.

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ABEAS CORPUS to inquire into the legality of proceedings in a court of the State of California, resulting in the imprisonment of the petitioner. The opinion states the facts.

George E. Bates and J. M. Rothchild, for petitioner.
Crittenden Thornton, for respondent.

SAWYER, C. J. On April 1, 1878, the Legislature of California passed an act entitled "An act to protect public health from infection, caused by exhumation and removal of the remains of deceased persons," sections 1, 2, 3, 4, and 6 of which are as follows:

"Sec. 1. It shall be unlawful to disinter or exhume from a grave, vault, or other burial place, the body or remains of any deceased person, unless the person or persons so doing shall first obtain from the board of health, health officer, mayor, or other head of the municipal government of the city, town, or city and county where the same are deposited, a permit for said purpose. Nor shall such bodies or remains disinterred, exhumed, or taken from any grave, vault, or other place of burial or deposit, be removed or transported in or through the streets or highways of any city, town, or city and county, unless the person or persons removing or transporting such body or remains shall first obtain from the board of health or health officer (if such board or officer there be), and from the mayor or other head of the municipal government of the city or town, or city and county, a permit in writing so to remove or transport such body or remains in and through such streets and highways."

"Sec. 2. Permits to disinter or exhume the bodies or

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remains of deceased persons, as in the last section, may be granted, provided the person applying therefor shall produce a certificate from the coroner, the physician who attended such deceased person, or other physician in good standing cognizant of the facts, which certificate shall state the cause of death or disease of which the person died, and also the age and sex of such deceased; and provided further, that the body or remains of deceased shall be inclosed in a metallic case or coffin, sealed in such manner as to prevent, as far as practicable, any noxious or offensive odor or effluvia escaping therefrom, and that such case or coffin contains the body or remains of but one person, except where infant children of the same parent or parents, or parent and children are contained in such case or coffin. And the permit shall contain the above conditions and the words, 'Permit to remove and transport the body of -, age- -, sex —;' and the name, age and sex shall be written therein. The officer, municipal government of the city or town, or city and county, granting such permit, shall require to be paid for each permit the sum of $10, to be kept as a separate, fund by the treasurer, and which shall be used in defraying expenses of and in respect to such permits, and for the inspection of the metallic cases, coffins, and inclosing boxes herein required; and an account of such moneys shall be embraced in the accounts and statements of the treasurer having the custody thereof."

"Sec. 3. Any person or persons who shall disinter, exhume, or remove, or cause to be disinterred, exhumed, or removed from a grave, vault, or other receptacle or burial place, the body or remains of a deceased person, without a permit therefor,shall be guilty of a misdemeanor, and be punished by a fine not less than fifty nor more than $500, or by imprisonment in the county jail for not less than thirty days nor more than six months, or by both such fine and imprisonment. Nor shall it be lawful to receive such body, bones, or remains on any vehicle, car, barge, boat, ship, steamship, steamboat, or vessel, for transportation in or from this State, unless the permit to transport the same is first received and is retained in evidence by the owner, driver, agent, superintendent, or master of the vehicle, car, or vessel."

"Sec. 4. Any person or persons who shall move or transport, or cause to be moved or transported, on or through the streets or highways of any city or town or city and county of this State, the body or remains of a deceased person which shall have been disinterred or exhumed, without a permit as described in section 3 of this act, shall be guilty of a misdemeanor, and be punishable as provided in section 3 of this act."

"Sec. 6. Nothing in this act shall be taken to apply to the removal of the remains of deceased persons from one place of interment to another cemetery or place of interment within the same county; provided, that no permit shall be issued for the disinterment or removal of any body, unless such body has been buried for two years." Stat. 1877-8, 1050.

The petitioner, Wong Yung Quy, is, and Wong Wai Toon was, in his life-time, a subject of the Emperor of China, of the Mongolian race, residing in the United States. Wong Wai Toon died in January, 1876, and was buried in Laurel Hill Cemetery, a public cemetery of the city and county of San Francisco. In October, 1879, petitioner, a relative of the deceased, having complied with all the provisions of said act, except the payment of ten dollars required by said act to be paid for an exhumation and removal permit, demanded from the proper authorities permission to remove the remains of said Wong Wai Toon from said cemetery, and ship them to China. Refusal having been made on the ground of the non-payment of said fee of ten dollars required to be paid by said act, the petitioner proceeded to disinter and remove said remains with

out a permit, and was arrested in the act, tried and convicted for the offense created by said statute in the court having jurisdiction, and sentenced to pay a fine of fifty dollars, or in default of such payment, to imprisonment in the city and county jail for a period of twenty-five days. Failing to pay the fine, and being imprisoned in pursuance of the judgment, he obtained a writ of habeas corpus, and he now asks to be discharged on the ground that the provision of said act, requiring the payment of said fee for a permit, violates the treaty with China, known as the Burlingame Treaty, and the Constitution of the United States, and is therefore void. All the other provisions of the act having been complied with, the only question is as to the power of the Legislature to require the petitioner to take out a permit at a cost of ten dollars as a condition of disinterment and removal of the remains of his relative from their place of burial.

The first point made is that the act, in the requirement in question, violates subdivision 3, section 8, art. I, of the National Constitution, which provides that "Congress shall have power to regulate commerce with foreign nations." We are unable to perceive any violation of this provision of the Constitution, under the broadest construction claimed by petitioner for the term "commerce," even if it includes the transportation of the remains of aliens to their own country for final sepulture. There is no reference to aliens or to any extra-territorial act of any kind anywhere in the statute, except in the last clause of section 3, which is a wholly independent and different provision from that under consideration, creating an additional offense, and might be wholly omitted without affecting the remainder of the act. It is not necessary now to consider the question of the validity of that provision. The act deals with matters wholly within the Statewithin its territory with the remains of parties who have lived and died within its jurisdiction, and which have been buried and which still remain buried in its soil; and professedly and apparently for sanitary purposes. The statute knows nothing of the objects or motives of the exhumation, except as provided in section 6 that the act shall not apply to removals from one place of interment to another in the same county. This exception is doubtless made for those common cases wherein no vault or burial place has been provided for the deceased during life, and the remains are temporarily deposited in a public receiving vault, or the vault or grounds of some friend, till the surviving friends can provide for a place of final sepulture. These removals are ordinarily from one place of burial to another in the same or an adjacent cemetery, where there are several cemeteries lying near each other, as in San Francisco, and therefore not so fully within the reason upon which the act is founded. The statute deals with the local inter-territorial fact of burial and exhumation, without regard, in other respects than that stated, to motive or intention, race or nation, citizenship or alienage, future domestic or foreign sepulture. The matter of the burial and exhumation of the dead, with a view to sanitary objects, has in all times and among all civilized nations been regarded as a proper subject of local regulation. It is founded upon the law of self-protection. The fact that in many or even most instances the object of disinterment is to send the remains abroad, cannot affect the question. The local sanitary considerations must be the same, whatever the purpose of exhumation and transportation through the streets of a city. The fact that the Chinese exhume and transport to their own country the remains of all or nearly all of their dead (amounting to more than ninety per cent of all such removals), while other aliens and citizens comparatively but rarely perform these acts, only shows that this generality of practice requires more rigid regulations and more careful scrutiny, in order to guard against infectious

THE ALBANY LAW JOURNAL.

and other sanitary inconveniences than would other-
wise be required. In Secor's case, Pratt, J., says: "A
proper respect for the memory of the dead, a regard
for the tender sensibilities of the living, and the due
preservation of the public health, require that the
corpses should not be disinterred or transported from
place to place, except under extreme circumstances of
exigency." 18 Alb. L. J. 488; 31 Legal Int. 268. The
exposure of unburied human remains, or neglect to
inter the same by the person on whom the duty is cast,
is a misdemeanor at common law. See Rex v. Stewart,
12 Ad. & E. 773; Chapple v. Cooper, 13 Mees. & Wels.
252; Ambrose v. Kerrison, 10 Com. B. 776; Jenkins v.
Tucker, 1 H. Black. 394; Willes, 536. And this is
doubtless so in part, at least, upon sanitary considera-
tions generally recognized among enlightened nations.
We see nothing in the language of the act, in the
surrounding circumstances, or in the nature of the
subject-matter upon which the statute operates, to
justify us in holding that the object of the Legislature
was to impose burdens on the commerce or intercourse
between this country and China, rather than to pro-
vide wholesome sanitary regulations for the protection
of our people. The statute is general, and operates
wholly upon matters within the territorial jurisdiction
of the State, and without discrimination as to remains
to be removed to any considerable distance, whether
within or without the State, and is within the principle
of the case In re Rudolph, recently decided in the
United States Circuit Court for Nevada, upon drum-
mer's licenses. 10 Cent. L. J. 224; 2 Fed. Rep. 65.
The exhumation and removal of the dead is not a matter
of public indifference, harmless in itself, like the style
of wearing the hair, as in the queue case; but it affects
the public health, and its regulation is like the regula-
tion of slaughter-houses and other noxious pursuits,
strictly within the police powers of the State. See Ex
parte Shrader, 33 Cal. 286; Slaughter-House cases, 16
Wall. 36.

In Gibbons v. Ogden, 9 Wheat. 203, Mr. Chief Justice Marshall says: "But the inspection laws are said to be regulations of commerce, and are certainly recognized in the Constitution as being passed in the exercise of a * * *The obpower remaining with the States.

ject of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation; or it may be for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to a general government, all of which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass." If then, as claimed, the transportation of the remains of deceased persons to China is a part of foreign commerce, these supervising and inspection laws

act upon the subject before it becomes an article of foreign commerce," and while the remains are being "prepared for that purpose." They simply provide that the preparation of the remains for foreign transportation, while still within the State and under its jurisdiction, shall be made in such a manner as not to be detrimental to the public health.

The principles relating to sanitary laws, recognized in City of New York v. Miln, 11 Pet. 102; Thorpe v. R. & B. R. Co., 27 Vt. 140; Passenger cases, 7 How. 283; Railroad Co. v. Huson, 95 U. S. 471, and numerous other cases, are broad enough to cover the provisions in question. In these respects this case differs materially from the Queue case, reported in 5 Sawyer, 553, and is more like the cases arising under the Cubic Air

Statute, which we held to be constitutional. It being within the constitutional power to regulate the disinterment and removal of the dead, and to provide officers to scrutinize and supervise the operation in order to secure a conformity to the laws, we see no reason why a fee cannot be charged to and collected from those who desire to excrcise the privilege to defray the expenses of the inspection and supervision. The fee is charged under the law, not for the transportation or for the privilege of carrying the remains out of the country, but to pay the expenses of supervising their disinterment and due preparation for passing through the territory of the State, and through the streets of populous cities either to other parts of the State or elsewhere, without endangering the health of the people.

For similar reasons the provision in question does not violate subdivision 2 of section 10, Article I, of the Constitution, which provides that "no State shall, without the consent of Congress, levy any imposts or duties on imports or exports, except what is absolutely necessary for its inspection laws." The case also seems to be within the terms of this exception. Besides, the remains of deceased persons are not "exports" within the meaning of the term as used in the Constitution. The term refers ouly to those things which are property. There is no property in any just sense in the dead body of a human being. 18 Alb. L. J. 487; 17 id. 258; Pierce v. Pro. of Swan Point Cemetery, 14 Am. Rep. 667; 10 R. I. 227, and cases cited. There is no impost or duty on exports in any proper sense, or in the sense of the Constitution. This provision of the Constitution was intended to prevent discrimination in matters of trade.

There is no violation of the Fourteenth Amendment to the National Constitution. There is no discrimination against or in favor of any class of residents. It operates upon aliens of all nationalities and upon all citizens alike. It applies to all cases of remains to be removed beyond the boundaries of the county, whether to foreign countries, to other States, or to other parts of this State. And there are no restrictions upon disinterments and removals of Chinese dead to other places within the same county for burial not applicable to citizens and all other aliens. It may be that the large number of Chinese removals suggested the necessity for stringent supervision; but we see no reason to suppose that the act was not intended to operate upon all within its terms; and the testimony shows if it is admissible to look at the testimony-that it is, in fact, enforced against all alike. But whether enforced or not, the subject-matter, as we have seen, is a proper one for regulation; and if the act is not enforced upon all alike, there is a gross neglect of duty on the part of those appointed for this purpose under the law. If the provisions of the act affect a larger number of Chinese than of any other class, it is not on account of any discriminations made by the law, but only because under their customs there is a much larger number of disinterments and removals by them than by any others. In re Rudolph, supra, and cases cited.

There is nothing in the provision in question in conflict with Article IV of the Burlingame Treaty, which provides that "Chinese subjects of the United States shall enjoy entire liberty of conscience, and shall be free from all disabilities or persecutions on account of their religious faith or worship." Conceding that the religious sentiment of the Chinese requires that they shall remove the remains of their deceased friends to China for final burial, there is nothing in the provision forbidding or unduly obstructing the performance of that rite or religious duty, and nothing that does not equally apply to aliens and other citizens. It is only provided that in the performance of that duty proper precautions shall be taken not to endanger the health of the people among whom they have elected to live,

and have died and once been buried. The fee established is only to liquidate the portion of the expense of supervision and inspection imposed upon the public resulting from their custom; and like the other expenses of disinterment and removal, which the surviving friends voluntarily incur, is necessarily incident to their peculiar practice. The custom of the Chinese in this respect renders the supervision necessary and proper; and we can perceive no impropriety in charging them with the expense incident to it. The amount of ten dollars may seem large, but it is charged alike to all, and is not so large as to justify us in holding that it was manifestly intended to obstruct the performance of the duty; and we do not understand that the amount is regarded as objectionable if the charge is otherwise legal. Besides, it may well be questioned whether the treaty making power would extend to the protection of practices under the guise of religious sentiment, deleterious to the public health or morals, or to a subject-matter within the acknowledged police power of the State. See Reynolds v. United States, 98 U.S. 145, with respect to religious belief as affected by the First Amendment to the National Constitution. But under the view we take, it is unnecessary to consider the question now.

We are satisfied that the provisions of the act in question do not violate any provision of the National Constitution or of the treaty with China, and that there is no ground for discharging the prisoner by this

court.

Let the writ be discharged, and the prisoner remanded to the custody of the officer from whom he was taken.

Hoffman, District Judge, concurred.

SUPERIOR COURT OF BUFFALO.

SPECIAL TERM ABSTRACT

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RIGHTS OF JOINT MORT

CHATTEL MORTGAGE GAGEES.- One part owner of a chattel mortgage, not holding the same as partners, can make no agreement with the mortgagor which will affect the rights of the other; as for example, by permitting mortgagor to retain possession after default in payment of an installment. Gock v. Keneda, 29 Barb. 120; White v. Osborn, 21 Wend. 72; Tyler v. Taylor, 8 Barb. 585. And such an agreement does not even preclude the mortgagee making it from taking possession of the chattel by virtue of the clause in the mortgage that the mortgagee may, at any time he deems himself unsafe, tako possession. Hanrahan v. Roche. Opinion by James M. Smith, J.

CONSIDERATION-MARRIAGE.- Where, at the time of a loan made by plaintiff to defendant, the latter was under a legal obligation to marry plaintiff's daughter, the performance of that obligation can form no consideration of a promise by the plaintiff, made subsequent to the loan, to forgive him the debt if he fulfilled his obligation. Gerlach v. Steinke. Opinion by James M. Smith, J.

CORPORATION DE FACTO — MUNICIPAL CORPORATION - RAILROADS IN CITIES.-(1) Where twenty-four persons subscribed articles of incorporation, while the statute required twenty-five, and filed the same pursuant to the statute, and exercised the powers and franchises which would have belonged to them if duly incorporated, they become de facto a corporation, and a defendant in an action brought by the corporation cannot question the validity of its incorporation. That can be done only in an action by the people, brought for the purpose of testing its right to the corporate powers and franchises which it has assumed. (2) A resolution of the common council of a city giving to a railroad corporation permission to lay its

tracks in the streets of the city, is not the grant of a franchise, but is simply a license. No estate or property right whatever was granted to it, for the city had no power to grant any, nor to confer upon it any franchise. The streets are held in trust for the people, and are not corporate or municipal property. Therefore, where the city reserved the right to revoke the license for non-compliance with its conditions, it may do so by resolution without obtaining a judgment declaring the forfeiture. Buffalo City Railway Co. v. N. Y. Cent., etc., R. Co. Opinion by James M. Smith, J.

MORTGAGE TO A CORPORATION DE FACTO-ESTOPPEL BUILDING ASSOCIATION-USURY.- Where a member of a corporation de facto executed a mortgage to it and afterward gave mortgages to other parties, it was held that neither the mortgagor nor the mortgagees could question the validity of the mortgage on the ground that the corporation had no legal existence; the certificate of incorporation not having been filed as required by statute. The right of a corporation de facto to exercise the powers and privileges of that class of corporations to which it belongs, cannot be inquired into in a private action to which such corporation is a party. Persons who become members of a corporation de facto by subscribing to or taking shares of its stock, and those who make contracts and deal with it in its corporate capacity, so as necessarily to recognize its corporate existence by such contracts and dealings, and who accept the benefits thereof, are thereby precluded from denying the legal validity of its incorporation. And estoppels bind not only the parties, but their privies. When a party by his contract, his acts or his statements, has qualified his own rights, and another succeeds him as heir, grantee, or executor, he succeeds only to the right as thus qualified when his title commenced. 1 Greenleaf on Ev., § 189. Therefore, as the mortgagor was estopped from showing that the association was not a corporate body, for the purpose of invalidating his mortgage, his grantees or mortgagees are also estopped. His title being subject to the lien of the mortgage, any subsequent grant or incumbrance by him must necessarily be subject to the same lien. See Merch. Exch. Bank v. Com. Warehouse, 49 N. Y. 643, note; Mason v. Lord, 40 id. 476; Stewart v. Bramhall, 74 id. 85; Real Est. Trust Co. v. Seagrave, 49 How. 489. (2) A bond and mortgage given by a member of a building association to secure a loan, and conditioned to pay seventy cents contribution and forty cents interest each and every week during the existence of the association, and also all dues, fines and penalties which may be imposed upon the mortgagor as a member of it, pursuant to the Constitution, etc., is within the provision of the act of 1851, ch. 122, § 7, and is exempted from the statute of usury. Citizens' Mut. Loan Assoc. v. Webster, 25 Barb. 263. In Melville v. Amer. Benev. Assoc. 33 Barb. 108, the mortgage was given previous to the act of 1851. Baldwin. Erie County Savings Bank v. Opinion by James M. Smith, J. (Affirmed at General Term, but no opinion delivered.)

PRACTICE-VACATING order of ARREST REFERENCE- ENTRY OF ORDER.- (1) Section 719 of the Code, which provides that an application to vacate an order of arrest must be finally decided within twenty days after it is submitted for decision, is directory merely, and a decision made after that time is valid. See People ex rel. v. Dodge, 5 How. Pr. 47; Burger v. Baker, 4 Abb. 11; Stewart v. Slater, 6 Duer, 84; O'Brien v. Bowes, 4 Bosw. 663; Heroy v. Kerr, 21 How. 409. And the court or judge may, even after the twenty days, refer it to a referee to take proofs of the facts stated in the affidavits, and the reference, though unexecuted at the hearing of the motion to vacate it, will not be set aside. See Brinkley v. Brinkley, 56 N. Y. 192,

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