ground of decision in Miller v. Miller (Iowa), 35 N.W. Rep. 464 (Dec. 13, 1887), and so far as appears, was the fact in Copeland v. Boaz, 9 Baxt. 223; Roberts v. Frisby, 38 Tex. 219. The last two cases seem to go in part also, upon the ground that a contract by a husband, upon a consideration moving from the wife, is void, notwithstanding the intervention of a trusteea ground which cannot be taken here in view of the cases first cited. At all events, giving up or refraining from proceedings for divorce and alimony, which the wife is entitled to maintain, is both a sufficient and a legal consideration. Wilson v. Wilson, 1 H. L. Cas. 538, 574; 14 Sim. 405; and 5 H. L. Cas. 40; Hart v. Hart, 18 Ch. Div. 670, 685; Sterling v. Sterling, 12 Ga. 201, 204. So that I understand the precise reason on which the decision of the majority goes, to be that coupling the wife's return to cohabitation with the legal consideration of giving up her divorce suit made the contract illegal. I find no decision or dictum in favor of this proposition. On the other hand, the Court of Errors and Appeals of New York have unanimously sustained the validity of a note given by the husband to a trustee for his wife, upon substantially the same consideration as in the case at bar, and have declared themselves unable to see any thing against public policy in the transaction. It seems probable that the Supreme Court of Pennsylvania would decide in the same way, and it is hardly open to doubt that the same view would be taken in England. Adams v. Adams, 91 N. Y. 381; Burkholder's Appeal, 105 Penn. St. 31, 37; Newsome v. Newsome, L. R., 2 Prob. Div. 306; Jodrell v. Jodrell, 9 Beav. 45, 56, 59, and cases supra; Strong v. Burton, Act. Can. 266.

It seems to me that reason as well as authority is opposed to the decision. The actual return to cohabitation was perfectly lawful whatever the motive which induced it. I cannot think that it is unlawful to make a lawful act, which the wife may do or not do, as she chooses, the consideration of the promise, merely because by reaction, the making of the promise tends to mingle a worldly motive with whatever other motives the wife may have for renewing cohabitation. No one doubts that marriage is a sufficient consideration for a promise to pay money. Pub. Stat., chap. 78, § 1, cl. 3. I do not quite understand why it should be more illegal to make such a promise for the resumption than for the assumption of conjugal relations. I agree too to what is said in Adams v. Adams, ubi supra. The arrangement "tended to restore peace and harmony between husband and wife, and renew their conjugal relations. Agreements to separate have been regarded as against public policy; but it would be strangely inconsistent if the same policy should condemn agreements to restore marital relations after a temporary separation had taken place. While the law favors the settlement of controversies between all other persons, it would be a curious policy which should forbid husband and wife to compromise their differences, or preclude either from forgiving a wrong committed by the other."

I am authorized to say that Mr. Justice Charles Allen and Mr. Justice Knowlton coucur in this opinion.

[Copeland v. Boaz, 9 Baxt. 223; S. C., 40 Am. Rep. 89, is in harmony with this decision; but Phillips v. Meyer, 82 Ill. 67; S. C., 25 Am. Rep. 255, is opposed.ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL-WAIVER-ACCEPTANCE OF COSTS-SUPPLEMENTAL BILL-DISCRETION OF COURT.-Where plaintiff obtains leave to file and serve supplemental com

plaint, * with $10 costs of motion to defend, defendant does not, by accepting the costs, waive his right to appeal from the rest of the order; the costs being given absolutely, and not on condition. An order of the General Term refusing leave to serve a supplemental complaint is discretionary, and reviewable by the Court of Appeals. April 24, 1888. Farmers' L. & T. Co. v. Bankers & Merchants' Tel. Co. Opinion by Danforth, J.

MATTERS NOT APPARENT OF RECORD-MOTION

FOR NEW TRIAL-DECISION-AFFIRMANCE-DISMISSAL -Where a motion for a new trial fails to show that it was based solely on exceptions or questions of law, this court will not review the order granting a new trial. (2) Under the New York Code, § 194, providing that if the Court of Appeals determines that no error was committed in granting a new trial in the lower right of the appellant, the Court of Appeals may, court, it must render judgment absolute upon the and that justice can be best served by an affirmance where it appears chat a new trial was properly granted, absolute, although the motion for the new trial fails to of the order, affirm the same, and reuder judgment properly reviewable on appeal, and might have been show but that it was based on questions of fact not dismissed. Opinion by Earl, J. April 24, 1888. Kennicutt v. Parmalee.

JURISDICTION-APPEALABLE ORDERS.—An order directing judgment to be entered on the verdict is not appealable, but an appeal may be taken from the judgment entered in pursuance of said order. April 24, 1888. Delaware, L. & W. R. Co. v. Burkard. Opinion by Earl, J.

CARRIER

PASSENGERS LOSS OF BAGGAGE- EVIDENCE OF VALUE -JEWELRY-DUTY TO INFORM CARRIER. (1) In an action by an emigrant against a steamship company for lost baggage, the testimony of a custom house inspector as to the value of the baggage which generally carried, is incompetent to show the probable emigrants of the same class and nationality as plaintiff value of plaintiff's baggage. Railroad v. Fraloff, 100 U. S. 24. (2) The Revised Statutes of the United States, § 4281, prohibiting any shipper of jewelry, gold or silver, etc., from lading such articles as freight or baggage, without giving notice to the master of the character thereof, and having the same entered on the rying as baggage articles of jewelry and silverware such bill of lading, has no application to an emigrant carApril 24, 1888. as would ordinarily be regarded as proper baggage. Carlson v. Oceanic Steam Nav. Co.

Opinion per Curiam. Earl, Peckham and Gray, JJ., dissenting on first ground.

CRIMINAL LAW-MURDER IN THE FIRST Degree

INSTRUCTIONS-IN

EVIDENCE-EXPERT-HEARSAY
DICTMENT-FORM-ELECTION BETWEEN COUNTS-VER-

DICT IN ABSENCE OF COUNSEL.-(1) It appeared that the defendant had lived unhappily with his wife, and had threatened her life; that he was infatuated with another woman, and after being with her until 2 o'cloch one morning, went directly home, and shortly afterward returned in eager haste, and informed her of his wife's death. The wife had been in good health, and an autopsy pointed to death from asphyxia. A witness of unimpeached character testified that defendant confessed to him that he had suffocated his wife. Held, that a verdict of murder in the first degree was not against the weight of evidence. (2) The testimony of the overseer of the poor that he had furnished aid and provisions to the defendant's family at a time when he had deserted his family, and gone away with the other woman, was competent as tending to show his want of affection for his wife, negligence in care of her, etc. (3) The prosecution claim

ing the deceased was smothered by force, the question as to whether certain cuts on the under lip of deceased, apparently made by the teeth, could have been made by deceased in the absence of any outside cause, is proper to submit to a physician as expert. (4) The testimony of a physician that he saw another physician, at an autopsy on the body of deceased, pass his finger down the trachea, and also up into the larynx, such testimony being for the purpose of showing that there was no obstruction by which deceased might have choked to death, is not objectionable on the ground that such looker-on could not tell whether the finger met any obstruction. (5) Under the New York Code of Criminal Procedure, § 444, providing, that upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any inferior degree, where the indictment charged murder in the first degree, it is the duty of the jury first to consider whether he is guilty of that charge, and if not, to consider the other degrees. (6) Under the New York Code of Criminal Procedure, §§ 273, 275, 276, prescribing the form of indictments, an indictment conforming to such requirements is not defective, in that it does not otherwise state when and where the court was held at which the indictment was found, or the names of the justice and grand jurors at such court. (7) Where several counts in an indictment all charge the same crime, merely differing in their account of the manner of its execution, it is discretionary with the court whether it will compel the prosecution to elect which count it will rely upon. (8) Absence of counsel when the jury return the verdict in a criminal case is not ground for reversal of judgment unless it appears that the defendant was in some way prejudiced thereby. April 24, 1888. People v. Wilson. Opinion by Earl, J.

ADVANCES ON

FACTORS-CONSIGNMENTS-DRAFTS BILLS OF LADING-GENERAL LIEN FOR BALANCE-ES

TOPPEL IGNORANCE OF RIGHTS.-(1) A shipper drew against his consignment for sale upon the consignees, with whom his account was already overdrawn, and transferred the property, by assignment of the duplicate bills of lading, to the bank, which discounted the drafts. The consignees refused to accept or to pay the drafts, but afterward received the property from the carrier upon the original bills of lading. Held, that the consignees had no right to apply the property, or its proceeds, in discharge of the shipper's liability to themselves arising from other transactions, and that the bank had acquired title to each consignment to the extent of the draft discounted on security thereof. (2) Plaintiff's omission to enforce his right of ownership in former cases cannot affect a subsequent case which involves different property; and in the absence of proof that plaintiff's ignorance of his rights has preju

diced defendants, he is not now estopped to assert those rights. April 10, 1888. First Nat. Bank of Batavia v. Ege. Opinion by Ruger, C. J.

LANDLORD AND TENANT-LEASE-BREACH OF COVENANT FOR PASSAGE-WAY-DESCRIPTION OF PREMISES -AMBIGUITY.-(1) Where defendants refused to take possession of and pay rent for a basement leased for offices, on the ground of breach of covenant to construct and keep lighted a passage-way seven feet wide from B. street, which was in front of the basement, through to N. street, as an entrance to the offices, it appeared that plaintiff built the way from B. street to the rear of the basement; but from this point it was a dark room, filled with obstructions, and entered by means of a door, and that N. street was reached by a ladder with steps thirty inches wide. Held, that the covenant was broken. (2) A lease describing the premises as "the basement in No. 9 B. street (said

basement being about eighty feet in depth by the full width of the building)" the basement being in fact more than 100 feet in depth, demises only eighty feet, and there is no ambiguity proper for the consideration of the jury. This basement, or that part which was let, was to be used for offices, as stated in the lease, and it is obvious that the provision for a thoroughfare from one entrance to the other on the two different streets was a most important one, being of the very substance of the lease, and which if not complied with, would absolve the defendants, the lessees, from all obligations to take possession of the premises or to pay rent in case of not taking possession. It was not a question to be submitted to the jury as to whether there had been a substantial compliance with the covenants of the lease. The evidence as to the state in which the premises were left by the lessor is so far uncontradicted as to have made it the duty of the court to have decided as matter of law that the lessor had not in that respect complied with the covenants of the lease. Instead of so doing, the court substantially left to the jury the question. April 17, 1888. Tunbridge v. Read. Opinion by Peckham, J.; Earl and Andrews, JJ., dissenting.

MECHANICS'

LIENS-SUB-CONTRACTORS-ABANDONMENT OF WORK BY CONTRACTOR-COMPLETION BY OWNER-SURPLUS-NOTICE-VERIFICATION.-(1) Subcontractors who are lienors are entitled to a sum due the contractor by the owner of a building unfinished because of the failure to pay said sum at the stage of the work agreed upon. (2) A contractor who had abandoned word on a building because the owner failed to make a payment as agreed, was notified by said owner that unless he resumed work in two days she would proceed to fiuish the work, and hold him for the damages, and in pursuance of such notice she did finish the work, and at less than the price to be paid the contractor. Held, that the sub-contractors, having filed their liens, were entitled to a pro tanto application of the amount in excess of the actual cost to the satisfaction of their claims. (3) The New York act of 1862, which applies to Kings county, and requires no verification of the notice of a mechanics' lien, was not repealed by the New York act of 1880, chap. 486, applying to the cities of the State generally. April 24, 1888. Graf v. Cunningham. Opinion by Peckham, J. MORTGAGE-CHATTEL-RIGHTS OF MORTGAGEE-INSURANCE-TRIAL-OBJECTION TO MODE-JURY-TRIAL

BY-DEMAND FOR MONEY ONLY.-(1) The mortgagee of a life insurance policy cannot, the debt being overdue, but no foreclosure had, retain from the insured's representatives more than the amount of his debt, with interest and expenses of collecting the money. (2) After plaintiff has closed her case to the jury, defendant is too late in objecting that the action should have been tried as in equity, and not at law. (3) A complaint asking that the surplus received by a mortgagee from mortgaged sureties be paid over to the legatee of the mortgagor demands a judgment for money only, within the New York Code of Civil Procedure, § 968, and so calls for a trial by jury. April 24, 1888. King v. Van Vleck. Opinion by Earl, J.

UNITED STATES SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW-DUE PROCESS-SPECIAL ADMINISTRATOR'S ACCOUNTING WITHOUT NOTICE TO DISTRIBUTEES.-The Revised Statutes of Missouri, chap. 1, art. 1, § 14, authorizing a special administrator having charge of an estate during the pendency of a suit to have a final settlement of his accounts with

the regular administrator, without giving notice to distributees, which settlement, in the absence of fraud, is deemed conclusive against such distributees, does not deprive any person of his property without due process of law, as the regular administrator represents all the distributees claiming under the will. April 16, 1888. Robards v. Lamb. Opinion by Harlan, J.

CANCEL

PUBLIC LANDS - PATENTS- SUITS ΤΟ LACHES SUIT BY GOVERNMENT.-A lapse of fortyfive years since the cause of action accrued, is a bar to an action by the government to cancel a land patent obtained by fraud, so as to enable it to issue another to those entitled to it, since the United States is not the real party in interest, and is affected by the laches of those whose interests it asserts. The principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign government to enfore a public right, or to assert a public interest, is established past all controversy or doubt. U. S. v. Railway Co., 118 U. S. 125, and cases there cited. But this case stands upon a different footing, and presents a different question. The question is are these defenses available to the defendant in a case where the government, although a nominal complainant party, has no real interest in the litigation, but has allowed its name to be used therein for the sole benefit of a private person? It has been not unusual for this court for the purposes of justice to determine the real parties to a suit by reference, not merely to the names in which it is brought, but to the facts of the case as they appear on the record. Thus, in the case decided at this term (In re Ayers, 123 U. S. 492, 493), the court held that the State of Virginia, though not named as a party defendant, was the actual party in the controversy. Mr. Justice Matthews, who delivered the opinion, said: "It is therefore not conclusive of the principal question in this case that the State of Virginia is not named as a party defendant.

Whether it is the actual party * ** * must be determined by a consideratioh of the nature of the case as presented on the whole record." So in the cases of New Hampshire v. Louisiana and New York v. Louisiana, 108 U. S. 76, the court looked behind and through the nominal parties on the record to ascertain who were the real parties to the suit. Chief Justice Waite, in delivering the opinion of the court, used the following language: "No one can look at the pleadings and testimony in these cases without being satisfied beyond all doubt that they were in legal effect commenced, and are now prosecuted solely by the owners of the bonds and coupons. * ** The bill, although signed by the attorney-general, is also signed and was evidently drawn by the same counsel who prosecuted the suits for the bondholders in Louisiana, and it is manifested in many ways that both the State and the attorney-general are only nominal actors in the proceeding. The bond-owner, whoever he may be, was the promoter and is the manager of the suit. * *And while the suits are in the names of the States, they are under the actual control of individual citizens, and are prosecuted and carried on altogether by and for them." In the case of U. S. v. Railway Co., supra, in which it was decided that the statute of limitations of the State of Tennessee was no defense to an action of the United States upon certain negotiable bonds held by them for public use, Mr. Justice Gray is careful to say: "This case does not present the question what effect the statute may have in an action on a contract in which the United States have nothing but the formal title, and the whole interest belongs to others;" and cites Maryland v. Baldwin, 112 U. S. 490; Miller v. State, 38 Ala. 600. In the former case it was held that a suit in the name

*

*

of a State for the benefit of parties interested, is to be regarded as a suit in the name of the party for whose benefit it is brought. Mr. Mr. Justice Field, delivering the opinion of the court, said: "The name of the State is used from necessity when a suit on the bond is prosecuted for the benefit of a person interested, and in such cases the real controversy is between him and the obligors on the bond;" and the case was decided upon a consideration of the merits as if the party interested was alone named as plaintiff. And he cited approvingly the following language in McNutt v. Bland, 2 How. 9: "As the instrument of the State law, his (the governor's) name is in the bond and to the suit upon it; but in no just view * * can he be considered a litigant party. Both look to things, not names; to the actors in controversies and suits, not to the mere forms or inactive instruments used in conducting them in virtue of some positive law." In Miller v. State the other case cited by Mr. Justice Gray, the court said: "As laches is not to be imputed to the government, the statute of limitations does not apply to the State, unless it be clear from the act that it was intended to include the State. * * *In our opinion the rule that the statute of limitations does not run against the State has no application to a case like the present, when the State, though a nominal party on the record, has no real interest in the litigation, but its name is used as a means of enforaing the rights of a third party who alone will enjoy the benefits of a recovery." In Moody v. Fleming, 4 Ga. 115, 118, which was a case where a party was applying for a mandamus in the name of the State, the court said: "It is insisted that here the State is a party, moving the contest, and setting up a right to have this survey certified, and that the tenant will not be protected by his possession, because the statute of limitations does not run against the State. We have decided, and the decision is sustained by unbroken masses of authority, that the statute of limitations does not run against the State. The answer however to this argument is this: The State of Georgia is not the real party to the proceeding. * * * The process is in the name of the State, but the right asserted is a private right. The issue is between two of the citizens of the State." We are of the opinion that when the government is a mere formal complainant in a suit, not for the purpose of asserting any public right or protecting any public interest, title or property, but merely to form a conduit through whom one private person can conduct litigation against another private person, a court of equity will not be restrained from administering the equities existing between the real parties by any exemption of the government designed for the protection of the rights or the United States alone. The mere use of its name in a suit for the benefit of a private suitor cannot extend its immunity as a sovereign government to said private suitor, whereby he can avoid and escape the scrutiny of a court of equity into the matters pleaded against him by the other party; nor stop the court from examining into and deciding the case according to the principles governing courts of equity in like cases between private litigants. These principles, so far as they relate to general statutes of limitation, the laches of a party and the lapse of time have been rendered familiar to the legal mind by oft-repeated enunciation and enforcement of them in the decisions of this court. According to these decisions, courts of equity in general recognize and give effect to the statute of limitations as a defense to an equitable right when at law it would bave been properly pleaded as a bar to a legal right. They refuse to interfere to give relief when there has been gross negligence in prosecuting a claim, or where the lapse of time has been so long as to afford a clear presumption

that the witnesses to the original transaction are dead and the other means of proof have disappeared. April 30, 1888. United States v. Beebe. Opinion by Lamar, J.

RAILROADS- REGULATION OF CHARGES – UNREASONABLE RESTRICTIONS - DUE PROCESS OF LAW.

(1) Under the Constitution of Arkansas, art. 12, § 6, giving the Legislature power to prevent excessive charges by railroad companies, a regulation by the Legislature of three cents per mile as the maximum to be charged for carrying passengers will not be considered unreasonable, because it reduces the net income to one and one-half per cent on the original cost of the road, and to two per cent on the amount of its bonded debt, or as confiscating property without due process of law, where there is no evidence to show that plaintiffs, who had purchased the property at a foreclosure sale, had paid a price equal to the original cost of the road or to the bonded debt. Under the Constitution of Arkansas, art. 17, § 10, giving the Legislature the power to regulate fares and freights, a classification by the Legislature of railroad rates in proportion to the length of the line of the road, if applied equally to all roads of the same class, does not violate the constitutional provision securing to all the equal protection of the laws. The general rule of law that governs this case has been clearly stated and developed in opinions of this court, delivered by the late chief justice. Munn v. Illinois, 94 U. S. 113; Railroad Co. v. Iowa, id. 155; Peik v. Railway Co., id. 164, 178; Railroad Co. v Ackley, id. 179; Railroad Co. v. Blake, id. 180; Stone v. Wisconsin, id. 181. Upon like grounds in Ruggles v. Illinois, 108 U. S. 526, and Railroad Co. v. Illinois, id. 541 (decided at October Term, 1882), the statute of Illinois of April 15, 1871 (Laws Ill., 1871, p. 640), which classified the railroads in the State according to their gross annual earnings per mile, and put different limits on the compensation of the different classes per mile for carrying a passenger and his baggage, was adjudged, in opinions delivered by the chief justice, to be constitutional and valid, in restricting to the limit of three cents a mile existing corporations whose charters gave them power to make all by-laws, rules and regulations not repugnant to law, and gave their directors power to establish such rates of toll as they should by their by-laws determine. And two justices who did not assent to those opinions concurred in the judgments, because it was not shown that the rate prescribed by the Legislature was unreasonable. In Stone v. Trust Co., 116 U. S. 307, decided at October Term, 1885, the obligation of a contract created by a charter grauting similar powers to a railroad corporation and its directors was held not to be impaired by a statute of Mississippi establishing a board of railroad commissioners charged with the duty of preventing the exaction of unreasonable or discriminating rates upon transportation done within the limits of the State; and the chief justice said: "It is now settled in this court that a State has power to limit the amount of charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done amounts to a regulation of foreign or inter-State commerce." 116 U. S. 325. He added, however: "From what has thus been said, it is not to be inferred that this power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy; and limitation is not the equivalent of confiscation. Under pretense of regulating fares and freights the State cannot require a railroad company to carry persons and property without reward; neither can it do that which in law amounts to a taking of private property for public use, without just compensation or

without due process of law." 116 U. S. 331. The opinions of the two dissenting justices were grounded upon the provisions of the charter and upon its not having been expressly made subject to alteration or repeal by the Legislature. The cases, decided at the same time, of Stone v. Illinois Cent. R. Co., 116 U. S. 347, and Stone v. New Orleans & N. E. R. Co., id. 352, were substantially similar. As applied to freights and fares for transportation not extending beyond the limits of the State by which the rail-road company is incorporated, the authority of the Legislature is not affected by the later decision in Railway Co. v. Illinois, 118 U. S. 557. The case at bar is quite clear of any of the questions upon which the members of the court have heretofore differed in opinion. If the Memphis & Little Rock Railroad Company, as reorganized by the purchasers at the sale under the decree of foreclosure of the previous mortgages, was a lawful corporation of the State of Arkansas, it was not the same corporation as that chartered by the Legislature in 1853, but was a new corporation, subject to the provisions of the Constitution and laws in force when it first came into existence, that is to say in 1877. Railroad Co. v. Commissioners, 112 U. S. 609. The Constitution of Arkansas of 1874 contains the following provisions: "Corporations may be formed under general laws, which laws may from time to time be altered or repealed. The General Assembly shall have power to alter, revoke or annul any charter of incorporation now existing and revocable at the adoption of this Constitution, or that may be hereafter created, whenever, in their opinion, it may be injurious to the citizens of the State, in such manner however, that no injustice shall be done to the corporators." Article 12, § 6. "The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and excessive charges by railroad, canal and turnpike companies, for transporting freight and passengers, and shall provide for enforcing such laws by adequate penalties and forfeitures." Article 17, 10. The Legislature of Arkansas, by the statute of April 4, 1887, fixed the maximum fare that any corporation, trustees or persons operating a line of railroad might charge and collect for carrying a passenger within the State at eight cents a mile on a line fifteen miles long or less, five cents a mile on a line more than fifteen and less than seventy-five miles long, and three cents a mile on a line more than seventy-five miles long. The line of the road of the plaintiffs in error is more than seventy-five miles long, and they charged more than three cents a mile, and were therefore held to be subject to the penalty imposed by the statute for any violation of its provisions. The plaintiffs in error do not contend that it is always or generally unreasonable to restrict the rate for carrying each passenger to three cents a mile. They argue that it is so in this case by reason of the admitted fact that with the same traffic that their road has now, and charging for transportation at the rate of three cents per mile, the net yearly income will pay less than one and onehalf per cent on the original cost of the road, and only a little more than two per cent on the amount of its bonded debt. But there is no evidence whatever as to how much money the bonds cost, or as to the amount of the capital stock of the corporation as reorganized, or as to the sum paid for the road by that corporation or its trustees. It certainly cannot be presumed that the price paid at the sale under the decree of foreclosure equaled the original cost of the road or the amount of outstanding bonded debt. Without any proof of the sum invested by the reorganized corporation or its trustees, the court has no means, if it would under any circumstances have the power, of determining that the rate of three cents a mile, fixed by the Legislature, is unreasonable. Still less does it ap

pear that there has been any such confiscation as amounts to a taking of property without due process of law. (2) It is equally clear that the plaintiffs in error have not been denied the equal protection of the laws. The Legislature, in the exercise of its power of regulating fares and freights may classify the railroads according to the amount of the business which they have done or appear likely to do. Whether the classification shall be according to the amount of passengers and freight carried, or of gross or net earnings, during a previous year, or according to the simpler and more constant test of the length of the line of the railroad, is a matter within the discretion of the Legislature. If the same rule is applied to all railroads of the same class, there is no violation of the constitutional provision securing to all the equal protection of the laws. A similar question was presented and decided in Railroad Co. v. Iowa, above cited. It was there objected that a statute regulating the rate for the carriage of passengers by different classes of railroads, according to their gross earnings per mile, was in conflict with article 1, § 4, of the Constitution of Iowa, which provides that "all laws of a general nature shall have a uniform operation," and "the General Assembly shall not grant to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens." In answering that objection, the chief justice said: "The statute divides the railroads of the State into classes, according to business, and establishes a maximum of rates for each of the classes. It operates uniformly on each class, and this is all the Constitution requires." "It is very clear that a uniform rate of charges for all railroad companies in the State might operate unjustly upon some. It was proper therefore to provide in some way for an adaptation of the rates to the circumstances of the different roads; and the General Assembly, in the exercise of its legislative discretion, has seen fit to do this by a system of classification. Whether this was the best that could have been done is not for us to decide. Our province is only to determine whether it could be done at all and under any circumstances. If it could, the Legislature must decide for itself, subject to no control from us, whether the common good requires that it should be done." 94 U. S. 163, 164. April 16, 1888. Dow v. Beidelman. Opinion by Gray, J.

CODE OF ETHICS OF THE ALABAMA BAR ASSOCIATION.

THE purity and efficiency of judicial administration, which under our system is largely government itself, depend as much upon the character, conduct and demeanor of attorneys in their great trust, as upon the fidelity and learning of courts, or the honesty and intelligence of juries.

"There is perhaps no profession after that of the sacred ministry in which a high-toned morality is more imperatively necessary than that of the law. There is certainly, without any exception, no profession in which so many temptations beset the path to swerve from the lines of strict integrity; in which so many delicate and difficult questions of duty are constantly arising. There are pitfulls and mantraps at every step, and the mere youth at the very outset of his career needs often the prudence and self-denial, as well as the moral courage, which belong commonly to riper years. High moral principle is his only safe guide-the only torch to light his way amidst darkness and obstruction."-Sharswood.

A comprehensive summary of the duties specifically enjoined by law upon attorneys, which they are sworn

"not to violate," is found in section 791 of the Code of Alabama.

These duties are:

"1st. To support the Constitution and laws of this State and the United States.

"2. To maintain the respect due to courts of justice and judicial officers.

"3d. To employ, for the purpose of maintaining the causes confided in them, such means only as are consistent with truth; and never to seek to mislead the judges by any artifice or false statement of the law.

4th. To maintain inviolate the confidence, and at every peril to themselves to preserve the secrets of their clients.

“5th. To abstain from all offensive personalities, and to advance no fact prejudicial to the honor or reputation of a party or a witness, unless required by the justice of the cause with which they are charged.

"6th. To encourage neither the commencement nor continuance of an action or proceeding from any motive of passion or interest.

"7th. Never to reject, for any consideration personal to themselves, the cause of the defenseless or oppressed."

No rule will determine an attorney's duty in the varying phases of every case. What is right and proper must, in the absence of statutory rules and an authoritative code, be ascertained in view of the peculiar facts, in the light of conscience, and the conduct of honorable and distinguished attorneys in similar cases, and by analogy to the duties enjoined by statute, and the rules of good neighborhood.

The following general rules are adopted by the Alabama State Bar Association for the guidance of its members:

DUTY OF ATTORNEYS TO COURTS AND JUDICIAL OFFICERS.

1. The respect enjoined by law for courts and judicial officers is exacted for the sake of the office, and not for the individual who administers it. Bad opinion of the incumbent, however well founded, cannot excuse the withholding of the respect due the office while administering its functions.

2. The proprieties of the judicial station in a great measure disable the judge from defending_himself against strictures upon his official conduct. For this reason, and because such criticisms tend to impair public confidence in the administration of justice, attorneys should as a rule refrain from published criticism of judicial misconduct, especially in reference to causes in which they have been of counsel, otherwise than in courts of review, or when the conduct of the judge is necessarily involved in determining his removal from or continuance in office.

3. Marked attention and unusual hospitality to a judge, when the relations of the parties are such that they would not otherwise be extended, subject both judge and attorney to misconstruction, and should be sedulously avoided. A self-respecting independence in the discharge of the attorney's duties, which at the same time does not withhold the courtesy and respect due the judge's station, is the only just foundation for cordial personal and official relations between bench and bar. All attempts by means beyond these to gain special personal consideration and favor of a judge are disreputable.

4. Courts and judicial officers, in the rightful exercise of their functions, should always receive the support and countenance of attorneys against unjust criticism and popular clamor; and it is an attorney's duty to give them his moral support in all proper ways, and particularly by setting a good example in his own person of obedience to law.