be nuisances. It is true also that the necessity need not be absolute; it is enough if it be reasonable. No man has a right to throw wood or stones into the street at his pleasure. But inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried into his house, and it may be there a reasonable time. So because building is necessary, stones, bricks, lime, sand and other materials may be placed in the street, provided it be done in the most convenient manner. On the same princi

ple, a merchant may have his goods placed in the street for the purpose of removing them to hls store in a reasonable time. But he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it. ** * I can easily perceive that it is for the convenience and the interest of an auctioneer to place his goods in the street, because it saves the expense of storage; but there is no more necessity in his case than in that of a private merchant. It is equally in the power of the auctioneer and the merchant to procure warehouses and places of deposit in proportion to the extent of their business."

In People v. Cunningham, 1 Denio, 524, the defend. ants were indicted for obstructing one of the streets in the city of Brooklyn, and the court said: "The fact that the defendants' business was lawful does not afford them a justification in annoying the public in transacting it; it gives them no right to occupy the public high way so as to impede the free passage of it by the citizens generally. The obstruction complained of is not of the temporary character which may be excused within the necessary qualifications referred to in the cases cited, but results from a systematic course of carrying on the defendants' business. It is said that this business cannot be carried on in any other manner at that place so advantageously either to individuals or the public. The answer to this is to be found in the observations of the court in Russell's case. above cited: 'They must either enlarge their premises, or remove their business to some more convenient spot.' Private interests must be made subservient to the general interest in the community."

In Walsh v. Wilson, 101 N. Y. 254; S. C., 54 Am. Rep. 698, a case where the defendant obstructed a sidewalk in the city of New York with skids a few minutes while he was engaged in removing two large cases of merchandise from his store to a truck, in consequence of which the plaintiff claimed to have been injured while passing through the street, we said: "The defendant had the right to place the skids across the sidewalk temporarily for purposes of removing the cases of merchandise. Every one doing business along a street in a populous city must have such a right, to be exercised in a reasonable manner so as not to unnecessarily incumber and obstruct the sidewalk."

In Mathews v. Kelsey, 58 Me. 56, the court said: "As an incident to this right of transit, the public have a right to load and unload such vehicles (in the street or from the street), as they find it convenient to use. But in this respect each individual is restrained by the rights of others. He must do his work in such careful and prudent manner as not to interfere unreasonably with the convenience of others."

Now what are the facts of this case? Both the plaintiffs and the defendant were extensive retail and wholesale grocers, having stores near to each other ou the south side of Vesey street in the city of New York, and a large portion of the plaintiff's customers, in order to reach their store, were obliged to pass upon the sidewalk in front of the defendant's store. Goods were taken to and from the defendant's store by means of trucks loaded in the street. The trucks

were placed in the street adjoining the sidewalk, and then a bridge, made of two skids, planked over, so as to make a plank-way three feet wide and fifteen feet long, with side-pieces three and one-half inches high, was placed over the sidewalk, with one end resting upon the stoop of the defendant's store, and the other end upon a wooden horse outside of the sidewalk near the truck to be loaded. This bridge was elevated above the sidewalk at the inner end about twelve inches, and at the outer end about twenty inches, thus entirely obstructing the sidewalk, and goods were conveyed over this bridge to and from the store. Persons wishing to pass upon the sidewalk in front of the store when the bridge was in place were obliged to step upon the stoop and go around that end of the bridge. The bridge was usually removed when not in use; but there was uncontradicted evidence that it was sometimes permitted to remain in position when not in use for ten or fifteen minutes, and that it sometimes remained in position when in use one hour, one hour and a half, and sometimes even two hours; and the court found that the bridge thus remained in position across the sidewalk from four to five hours each business day between the hours of 9 A. M. and 5. P. M., and that it obstructed the sidewalk the greater part of every business day. Such an extensive and continuous use of the sidewalk cannot be justified. It was a practical appropriation by the defendant of the sidewalk in front of his store to his private use, in disregard of the public convenience. Even if in some sense such use was necessary to the convenient and profitable transaction of his business, and if the obstruction of the sidewalk was no more, and even less than it would be by any other method of doing the business, these circumstances do not justify the obstruction. If the defendant cannot transact his extensive business at that place without thus encroaching upon, obstructing and almost appropriating the sidewalk during the business hours of the day, he must either remove his business to some other place or enlarge the premises so as to accommodate it. It was incumbent upon the defendant to show, not only that the use he made of the sidewalk was necessary in his business, but also that it was reasonable in reference to the public convenience. That it was unreasonable is too clear for dispute. He might use the bridge to load or unload a single truck, and this he could do at intervals during the day, at no time obstructing the street for any considerable length of time. But there is no authority and no rule of law which would warrant such an obstruction daily for hours, or even one hour continuously. The defendant was therefore guilty of a public nuisance.

[Omitting minor questions.]

It is further objected on the part of the defendant, that some of the material findings of fact made by the trial judge were not upheld by any evidence. A careful scrutiny of the evidence fails to satisfy us that this objection is well founded. On the contrary, the undisputed evidence showed the nuisance, the special damage, and the right of the plaintiffs to a judgment restraining such nuisance. The evidence of defendant was directed mainly to show that the bridge was necessary in his business; that skids and other similar appliances were in common use by merchants in the city; and that he left a passage-way for pedestrians on and over his stoop. The alleged necessity, as we have shown, furnished the defendant no justification for the nuisance, and it may be conceded that similar appliances are quite common in New York. It is not the nature of these appliances that furnishes the basis of our judgment, but its unreasonable use. The defendant could not justify his unreasonable obstruction of the sidewalk by showing that he allowed pedestrians to pass around or through his store or over

his elevated stoop between moving barrels and packages. The stoop is no part of the sidewalk, and the defendant could not appropriate that to his private use, and substitute his stoop for the public convenience. While temporarily obstructing the sidewalk, he should give pedestrians the best passage he can over his stoop. But this should be a temporary, and not a permanent, shift. He cannot justify the obstruction of the sidewalk for hours because he gives the public a less convenient passage over his stoop.

The judgment entirely prevents the defendant from using the bridge or other like obstruction. We find nothing in the evidence which justifies this. We cannot perceive that the bridge is in any material degree a greater obstruction than skids would be if similarly used. The judgment should be so modified as to read as follows: " It is ordered and adjudged that the defendant, his agents, servants and employees refrain from unnecessarily or unreasonably obstructing the southerly sidewalk of Vesey street, in front of the premises Nos. 35 and 37 Vesey street, by any plankway or bridge or other like obstruction elevated above the sidewalk, and reaching from said premises, or from the stoop in front of the same, to the roadway of said Vesey street, or from unnecessarily or unreasonably hindering or preventing the plaintiffs, or their employees, servants and customers from having the convenient use of and passage along the sidewalk of said Vesey street in front of said premises Nos. 35 and 37 Vesey street, by any like obstruction: and it is further adjudged that the plaintiffs recover of the defendant one hundred and sixty-four 20-100 dollars costs of this action," and as so modified it should be affirmed without costs to either party in this court.

It is difficult to frame the judgment by the use of general language so as to protect and secure the rights of the parties. But the rules we have laid down in this opinion will probably be found sufficient as a guide if it should be necessary to enforce the judgment as modified, and therefrom the meaning and scope of the important words "unnecessarily " and "unreasonably " may with sufficient accuracy be ascertained.

All concur, except Rapallo, J., absent.

CRIMINAL LAW-FORGERY-OF NATIONAL BANK PAPER-JURISDICTION OF STATE COURTS.

SUPREME COURT OF ILLINOIS, NOV. 11, 1887. HOKE V. PEOPLE. Upon trial of defendant for forgery it appeared that a draft was drawn by one national bank upon another; that defendant was a bookkeeper in the bank, and without authority filled a draft signed in blank by the assistant cashier, issued it, and fraudulently changed his book entries to cover the crime.

Held, that the punishment of the crime was within the jurisdiction of the State courts, notwithstanding the provision of Rev. Stat. U. S., § 5209, that every president, clerk, or agent of any national bank, who without authority from the directors draws any order or bill of exchange, shall be deemed guilty of a misdemeanor, and act of Congress passed March 3, 1875, which provides that the Circuit Courts of the United States shall have exclusive cognizance of all causes and offenses cognizable under the authority of the United States, except as otherwise provided by law,

RROR to Circuit Court, Peoria county.

ERROR

SHELDON, C. J. The plaintiff in error, John Finley Hoke, was convicted of the crime of forging a draft

for $1,000, purporting to be drawn by the Merchants' National Bank of Peoria upon the Merchants' Exchange National Bank of New York, of the date of September 1, 1885, and was sentenced to imprisonment in the penitentiary for the term of five years. It appears from the evidence that Hoke was a bookkeeper in the Merchants' National Bank of Peoria, a corporation organized under the National Banking Act, and that he, without authority, filled up in his handwriting the draft in question, which had been signed in blank by the assistant cashier, and delivered the same to one G. J. Brown, in payment of margins upon certain deals of Hoke on the board of trade, and that no money was paid therefor by Brown to Hoke or the bank. Hoke at the time made false and untrue entries in the books of the bank in order to conceal the fact of the unlawful issuance of the draft. The draft was afterward paid by the Merchants' National Bank in the ordinary course of business. Plaintiff in error's counsel, in the opening of their written argu| ment, say: "We desire expressly to restrict the review of this case to but one question, viz.: Did the court have jurisdiction, and did it err in refusing appellant's instructions on that point? We contend that the offense charged in the proof against appellant was cognizable in the Federal courts, and was therefore excluded from the jurisdiction of the State court."

Section 5209 of the Revised Statutes of the United States is as follows "Every president, director, cashier, teller, clerk or agent of any association (referring to national banks) who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association; or who without authority from the directors, issues or puts in circulation any of the notes of the association; or who without such authority issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any uote, bond, draft, bill of exchange, mortgage, judgment or decree; or who makes any false entry in any book, report or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk or agent in any violation of this section-shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten."

66

It is urged that the offense established by the proof upon the trial of this case is an offense under this section of the statutes of the United States, and that being an offense thereunder, it is punishable in the United States courts alone. The act of Congress, March 3, 1875, § 1 (Sup. Rev. Stat. 173); provides "that the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds," etc., * * * arising under the Constitution or laws of the United States, or treaties made," etc.; 66 * * and shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law." Chancellor Kent, in respect of the concurrent power of the States in matters of judicial cognizance, observes: "In the judicial act of 1789 the exclusive and concurrent jurisdiction conferred upon the courts by that act were clearly distinguished and marked. The act shows, that in the opinion of Congress, a grant of jurisdiction generally was not of itself sufficient to vest an exclusive jurisdiction. The judicial act grants exclusive jurisdiction to the Cir

*

cuit Court of all crimes and offenses cognizable under the authority of the United States, except where the laws of the United States should otherwise provide;" and this accounts for the proviso in the act of 24th of February, 1807, ch. 20, and in the act of 10th of April, 1816, ch. 44, concerning the forgery of the notes of the Bank of the United States, declaring that nothing in that act contained should be construed to deprive the courts of the individual States of jurisdiction, under the laws of the several States, over offenses made punishable by that act. There is a similar proviso in the act of 31st of April, 1806, ch. 49, concerning the counterfeiters of the current coin of the United States. Without these provisos the State courts could not have exercised concurrent jurisdiction over those offenses consistently with the judicial act of 1789. 1 Kent Com. (12th ed.) 373.

And yet in Prigg v. Pennsylvania, 13 Pet. 627, in asserting the exclusive power of Congress over the subject of fugitive slaves, Justice Story observes: "To guard however against any possible misconstruction of our views, it is proper to state that we are by no means to be understood in any manner whatsoever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the States, and has never been conceded to the United States."

And in City of New York v. Miln, 11 Pet. 138, it was said "that a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States: ** * that all those powers which relate to merely municipal legislation, or what may perhaps more properly be called internal police, are not thus surrendered or restrained, and that consequently in relation to these the authority of the State is complete, unqualified and exclusive."

In Eells v. People, 4 Scam. 498, Eells had been indicted under a statute of this State making it an offense to harbor and secrete any negro slave, or to hinder or prevent the lawful owner of such slave from retaking him, and the point was made in the defense, but not sustained, that the offense described in the indictment was precisely such an offense as was indictable under the fugitive slave law of Congress of 1793. The court, by Shields, J., there said: "This (the State) law prescribes a rule of conduct for our own citizens. If the State can do this, and I hardly think the power questionable, it can punish those who violate the rule. If a State has power to regulate its own affairs, it has the power to define offenses and punish offenders." And again: "It is also said that this law may punish a man twice for the same offense. There is no force whatever in this objection. The offenses are separate and distinct; violations of distinct and different laws and the punishments inflicted by different sovereignties."

The conviction in the case was affirmed by the Supreme Court of the United States in Moore v. People, 14 How. 13, Moore being the executor of Eells. It was there said by the court: "But admitting that the plaintiff in error may be liable to an action under the act of Congress for the same acts of harboring and preventing the owner from retaking his slave, it does not follow that he would be twice punished for the same offense. * **The same act may be an offense or transgression of the laws of both (State and United States)," for which, as afterward said, the offender is justly punishable. And it was there further said: "The power to make municipal regulations for the restraint and punishment of crime, for the preservation of the health and morals of her citizens, and

of the public peace, has never been surrendered by the States or restrained by the Constitution of the United States."

The indictment in this case is for the crime of forgery. In the offense described in section 5209 above of the United States law, which is claimed as being the same as that shown by the proof here, the offender is an officer or clerk of a national bank, who without authority from the directors draws an order of bill of exchange with intent to injure or defraud, etc. The offenses do not appear to be the same. Under this indictment for forgery there could not, we apprehend, be a conviction for the offense described in section 5209. Nor would an indictment charging merely the offense described in that section sustain a conviction for forgery. The objects of the United States law and the State law appear to be different. The purpose of the former seems to be for the protection of national banks; to punish breaches of trust on the part of those holding fiduciary relations toward such banks; to punish what is of the nature of a private crime. The State law is for the protection of the public against the public mischief to the people of the State from the perpetration of forgeries. The United States statutes is not levelled against the crime of forgery, but against a breach of trust. The offense is called but a misdemeanor. There is no apt language in section 5209 to describe forgery. Whenever Congress has legislated with respect to that offense it has used the language which is appropriate for its description. Thus under title 70, Rev. Stat. U. S.,

§ 5414, provides: "Every person who with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation, etc., of the United States shall be punished by a fine of not more than $5,000, and by imprisonment at hard labor not more than fifteen years.'

Section 5415: "Every person who falsely makes, forges, or counterfeits, etc., any of the circulating notes of any banking association now or hereafter authorized and acting under the laws of the United States, shall be imprisoned at hard labor not less than five nor more than fifteen years, and fined not more that $1,000." And so of other sections providing for the punishment of forgery, where the United States may be injured. the description of the offense is in the like apt language. The punishment there denounced against the crime of forgery is greater than that prescribed in section 5209 for the breach of trust there made punishable, exceeding it by five years in extent of imprisonment. And section 5328, under this same title (70), declares: "Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof." There is thus manifestation in the legislation of Congress that section 5029 is not directed against the crime of forgery; that the offense provided against in that section is of less degree than that of forgery; and that it was not the intent to suspend in any respect the jurisdiction of the State courts over the crime of forgery under State laws, inasmuch as the United States law providing for the punishment of forgery declares that nothing therein shall be held to take away or impair the jurisdiction of the State courts under State laws. The State law is in no way repugnant to section 5029, and is not at all in the way of supplement to the legislation therein. It is but a statute for the punishment of the common-law crime of forgery. Because it happens to appear in the proof in this case that the wrong-doer was the clerk of a national bank, and that the draft was drawn without authority from the directors of the bank, thus presenting the peculiar elements which constitute the offense in said section 5209, and because, may be, the proof shows nothing more than what amounts to the

offense described in that section, we do not think that thereby the jurisdiction of the State court over the crime of forgery should be taken to be suspended. The cases cited in behalf of the plaintiff in error are mostly cases relating particularly to the execution of some Federal statute, or to some act done within some Federal tribunal. The distinction is taken in State v. Pike, 15 N. H. 83, between cases where the alleged criminal act is done in the course of the execution of the laws of the United States, and where not so done, and favoring the idea that the exclusive jurisdiction of the Federal courts may exist in the former class of cases, and not in the latter. The same distinction was recognized in People v. Kelly, 38 Cal. 145, as one properly taken. The offense here charged was not committed in the course of the administration of any law of the United States.

In Com. v. Luberg, 94 Penn. St. 85, a conviction in the State court of the offense of making faise entries in the books of a national bank by the receiving teller of the bank was sustained.

But in Com. v. Felton, 101 Mass. 204, it was held that the offense of the embezzlement of the funds of a national bank by its cashier was exclusively cognizable by the courts of the United States, and that it was taken out of the jurisdiction of the State court by the acts of Congress.

While the case does not seem to be entirely clear upon the authorities, we are disposed to hold that the crime charged in the indictment, or that established by the proof, is not excluded from the jurisdiction of the State court.

The judgment will be affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL--WHEN LIES--SPECIAL PROCEEDING--COUNTY COURT.-Plaintiff obtained a judgment by confession before a justice of the peace, a transcript of which was filed in the county clerk's office. After the expiration of five years, plaintiff still claiming to own the judgment, moved for leave to issue execution. Upon the hearing the contestant appeared, and by affidavit alleged that he was the owner of the judgment by assignment from the plaintiff. The matter was referred to a referee, who reported adversely to the plaintiff. The report was confirmed by the County Court, and plaintiff appealed to the General Term of the Supreme Court, which court dismissed the appeal as not appealable. The defendant did not appear at any stage of the proceedings. Held, a special proceeding within N. Y. Code Civil Proc., § 1357, which provides that "an appeal may * * * be taken to the Supreme Court from an order * * * made by a court of record possessing original jurisdiction, or a judge thereof, in a special proceeding instituted in that court," ,"etc. Nov. 29, 1887. Ithaca Agr. Works v. Eggleston. Opinion by Peckham, J.

CONTRACT-AGENT'S PROMISE TO PAY-PERSONAL LIABILITY-STRANGER-STATUTE OF FRAUDS.-Defendant had acted as agent for his wife in the sale to her of the business of a certain firm, against which plaintiffs had claims. In the course of negotiations which resulted in the execution of a written instrument transferring the business to his wife, defendant was alleged to have said that he "would see that the creditors were paid." Plaintiffs sued to recover their claims from defendant, on the ground that he had become personally responsible for the debts of the firm. Held, (1) that the expressions, if made by defendant as alleged, should be construed as made by him as agent for his wife, and that he was not personally responsible; (2) that plaintiffs were strangers to the

agreemeut, if made, and could not enforce it; (3) that the agreement, if any, was void under the statute of frauds, as an agreement to answer for the debt of another. Mallory v. Gillette, 21 N. Y. 412; Belknap v. Bender, 75 id. 446. Nov. 29, 1887. Berry v. Brown. Opinion by Earl, J.

UNDER SEAL-CONSIDERATION-EVIDENCEPAROL-TO VARY LICENSE-LICENSE-TO MAKE REPAIRS-REVOCATION.-(1) Plaintiff sued her landlord for breaking into her rooms and injuring her furniture while altering the house. Defendants alleged an agreement, not under seal, signed by plaintiffs and eight other tenants, "for the consideration of $1 to us paid, the receipt of which we hereby acknowledge," to permit the landlord to make such changes in the house as he thought necessary. Plaintiff, on trial denied receiving the money, or that there was any other consideration for the agreement. N. Y. Code Civ. Proc., § 840, provides that an instrument not under seal is not entitled to the presumption of consideration. Held, that as the plaintiff was nonsuited, her evidence must be taken as true, and the agreement was invalid, and was no justification to defendants. (2) Plaintiff testified that the license she gave was for alterations to be made on another part of the house, and that they were completed before the trespass complained of. Held, that the writing could be explained or contradicted by oral testimony. (3) A tenant who gives her landlord a license to make such alterations as he wished, may revoke it any time before he has entered upon the work. Nov. 29, 1887. Fargis v. Walton. Opinion by Earl, J.

CRIMINAL LAW-HOMICIDE-EVIDENCE-DECLARATIONS-RELEVANCY.-(1) In a trial for murder it was in evidence that deceased, with defendant, had on the night of the homicide been from saloon to saloon drinking; that deceased was heard to say to him, "You kill him, and I'll stick by you;" that with no apparent reason they went to the house of one M., with whom defendant had lately had a difficulty; that defendant, with deceased, attempted to open a door of a room in which M. and others were; that deceased got in, but defendant was pushed out, and then shot through the door, and then through the door of a room connecting with the first; that deceased was shot; that M. fled by the window, but shortly returned; that deceased, lying wounded on the bed, said M. killed her, which M. then denied, and gave up his pistol to the police; that it was loaded and the barrels were cold; that before her death that afternoon deceased told her mother defendant shot her; that defendant fled after the shooting with his right hand in the pocket of his coat; that he was caught soon after in a room without his coat; that be said he had not been at M.'s that night, nor out at all. Held, that a verdict of guilty of murder was justified by the evidence. (2) A witness had testified to hearing M. state in a conversation shortly after the killing that he did not shoot deceased; M., on the stand, testified he did not discharge a pistol that night. Defendant had shown that deceased had charged M. in his presence with killing her, and the declaration of M. denying it was made at that time. Held, that it was properly admitted as a part of the conversation introduced by defendant. (3) It was in evidence that M., after the shooting, gave up his pistol to an officer; that it was loaded, and the barrels were cold. Defendant, when another witness attempted to show the same facts, objected, and asked to have it stricken out. Held, that as the same evidence was already in, without objection, it was useless to grant the motion, and it was competent to rebut an effort to fix the guilt on M. (4) A witness testified, without objection, that M. had, after the homicide, given up his pistol to