the plaintiff in most or all of the States must have a general or special property in the chattels, and be entitled to the possession of the same; and this right must be shown by affidavit before the writ is issued. The officer seizes the property, if it can be found, and delivers it to the plaintiff upon receiving a bond, with sureties, for its return in case the plaintiff fails to sustain the action. Both parties are actors. If the plaintiff recovers, he takes judgment for any damages he may have proved, while if the defendant recovers, he takes judgment for a return of the property and such damages as he has proved, or for the value of the property. In many of the States the action may even proceed to judgment without a return of the property, where the officer was unable to find the same, or the plaintiff was unable to give satisfactory security for its return. The rights of both parties seem to be sufficiently guarded, and it is difficult to perceive how the writ could be obtained without committing perjury, or be used as a means of oppression.

The cases where punitive damages have been allowed in cases of fraud, negligence, etc., do not, so far as I am aware, rest on the decision of any English court. But even if they did, they are not sanctioned either by the common or civil law.

The rule of damages for a breach of contract to do or not to do some particular thing, as laid down in Hadley v. Baxandale, [9 Exch. 341], that "where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be either such as may fairly or substantially be considered as arising naturally,-i. e., according to the usual course of things,-from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract, as the probable result of the breach of it," is generally accepted as a correct statement of the law. In that case the plaintiffs were the owners of steam-mill, and the shaft being broken, it was delivered to the defendant, as a carrier, to be taken to an engineer to serve as a model for new one. At the time of the delivery the defendant's clerk was informed that the mill was stopped, and the shaft must be sent at once. The shaft was not sent immediately, in consequence of which the mill remained idle. In an action for breach of contract, it was held that if the carrier had been informed that a loss of profits would result from the delay on his part, he would have been liable; but as this did not appear, he was not liable for such profits.

The rule is broader in cases of tort than in actions on contract, but the damages complained of must be the direct and natural result of the wrong or injury in either case. And this rule certainly applies in actions of trover, replevin, injuries to property, fraud, negligence, etc., and is fully carried out by making full compensation for the injury sustained. Any attempt to sup

plant this principle by submitting the damages in such cases as punishment to an inexperienced jury cannot fail to be productive of mischief. A jury, which, under the direction of a capable, conscientious, fearless judge, who will instruct them in as few words as possible, in a clear and direct manner as to the law applicable to that particular case and the rule fixing the measure of damages, will rarely go astray; but, if left to themselves, without limitation or direction, are very liable to err, and this, too, without the possibility of correcting the error, as the damages, being in the nature of punishment, are properly left to them to fix the amount. But it is said that the doctrine of punitive damages is now too firmly rooted in our jurisprudence to admit of further serious discussion. This is begging the question. It is equivalent to saying the rule, although wrong in principle, has been sanctioned by a number of courts for many years, and therefore must be followed. We must remember that this is not a rule by which title to property or rights are acquired or held, and while it is called a rule for measuring damages, it is in fact a discarding of all rules. This is not the age to quietly accept an arbitrary rule as the law simply because it may have received the sanction of any tribunal. Every case must be submitted to the crucial test of whether it is right; and decisions based upon wrong principles will be continually assailed until overturned.

It may be well to enquire by what authority courts impose punitive damages. Courts are organized to administer the law. The law which they are to administer is derived from constitutions, statutes, and the common law, including equity. If a power is exercised by a court which is not conferred upon it, it is pure usurpation. The Constitution of the United States provides that no person shall "be deprived of life, liberty, or property without due process of law." [Art. V. Amendments]. Art. VI. provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury, etc. There are other provisions that are intended to guard the rights of the citizen and prevent the confiscation of his property, to which it is unnecessary to refer. These provisions, in substance, have been incorporated into the constitutions of all, or nearly all, of the States. At common law, before a party could be put on trial for an offence he must be charged with the commission of the same, either by indictment, or, in case of a misdemeanor, it might be by information. Blackstone says: "It [the information] differs in no respect from an indictment in its form and substance, except that it is filed at the mere discretion of the proper law officer of the government, ex officio, without the intervention of a grand jury. [4 Bla. Comm. 308]. And these provisions exist by statute I think, in every State of the Union. Suppose a party was convicted of some offence, and a fine of $1,000, or any other sum, imposed upon him, but no accusation or information charging the

offence had been made and filed against him, is there a court in the United States that would sustain such a judgment? I think not, because the court that imposed the fine would have no jurisdiction. If, then, a court would have no jurisdiction, without an information or indictment, to try a party accused of an offence created by statute, has it any authority to proceed without such accusation in offences that have no statutory existence, and which in fact exist only in the imagination of the court?

The object of punitive damages, we are told, is punishment; and if this power is sustained at all, it must be under the criminal law of the State as a fine, as there is confessedly no power under the civil jurisdiction of a court to require A., as a punishment, to convey his property to B., and a judgment of that kind would be void. But in a criminal trial for any offence, the proof must establish the guilt of the accused beyond a reasonable doubt, and the presumption of innocence continues as evidence in his favor until overcome by the testimony. Now, suppose a judgment for punitive damages is rendered against a party because he was unable to sustain an attachment, and his property is sold to satisfy the judgment, can it be said that he has been deprived of his property by due process of law? In such case he would be convicted of an offence unknown to the law, without being charged therewith in writing, or his guilt established beyond a reasonable doubt. It will be seen at once that every element necessary to give the court jurisdiction is wanting. If the action of a creditor who has failed in an attachment, and who will thereby perhaps lose his debt, or if a claimant in replevin who has failed in his action, is not to be tried on the merits and damages awarded according to the injury, but according to the intent of the party instituting the action, is this principle not capable of being extended to that of a debtor who wilfully refuses to pay a debt whereby his creditor becomes bankrupt, and make him liable for the wrong? It will not do to say that the measure of damage is different in such cases, because all actions to recover money are based upon the wrong done the plaintiff. So, too, if a common carrier, by permitting its train to pass the depot a few yards by which the plaintiff sustained a trifing injury, is to be mulcted in $4,500 for the use of the plaintiff, as in the Mississippi case cited, how much should the man who fails to pay his note when it becomes due be required to pay as a penalty for his negligence? The cases rest upon the same foundation, and the principle of punitive damages cannot be adopted without overturning the rules for determining the measure of damages, and producing chaos and confusion.

SAMUEL MAXwell. Southern Law Review, March, 1882.

EXTRADITION.

SUPERIOR COURT OF CINCINNATI.

In November last, John Larney, (known as Mollie Matches), was arrested in Cincinnati on a requisition from the Governor of Illinois, charging him with complicity in a bank robbery at Galesburg. Larney had a hearing before Judge Harmon of the Superior Court of Cincinnati, during which the prisoner endeavored to introduce certain testimony tending to show that he was not a fugitive from justice, not having fled from the State of Illinois, as he was not within that State at the time he is charged as having committed the crime set forth in the indictment, and that, therefore, the Governor of Ohio had no authority to issue the warrant upon which he was in custody. On a motion to exclude this testimony, Judge Harmon gave his opinion, in substance, as follows:

for

The question is a double one. What is it the prioner to prove in competent for such a case, and does the evidence evidence tend to prove it? It is broadly contended the prisoner that the fact of his being a fugitive from justice, in the sense of having fled from the demanding State on purpose to avoid the consequences of his conduct there, is jurisdictional, and that, therefore, if it appear that there was no evidence of that fact before the Governor when he issued the warrant, it is void, while if there was such evidence, it is open to be rebutted by the prisoner in this proceeding. The propositions followed to their logical results would abolish all limitation to the inquiry to be made by the court upon habeas corpus in such cases. While it is settled that the question of the prisoner's guilt or innocence can not as such be raised, because all the Constitution requires for his extradition is that he be duly charged with crime in the demanding State, yet, if the actual fact that he fled from justice in the sense contended for be the basis of the Governor's jurisdiction to surrender him, and not the fact that he is charged with actual criminal presence in the demanding State, and demanded as having left it before he could be arrested, why may he not prove his innocence as bearing upon the question of his having fled and being a fugitive If he committed no crime, from justice? how can he be a fugitive from justice? If he merely left the State, not having offended its laws and not even aware that he was charged with so doing, how can it be said that he fled from it? The Constitution re fers to "a person charged * * with crime who shall flee from justice," while the act of 1793, R. S. U. Š., 5278, provides for the surrender of any person "demanded as a fugitive from justice," as does our act of March 3, 1875. The ar gument of prisoner's counsel would require the

*

The framers of the Constitution naturally used language which described the ordinary conduct of guilty persons in such cases, yet it can not be doubted that they intended it to cover any case of voluntary withdrawal of physical presence however deliberate, and although in fact occasioned by other motive than fear of prosecution, where its effect is to escape prosecution. They certainly did not refer to a person not actually, but only constructively present in the demanding State. The language is not "a person charged, etc., in one State and found in another," but who shall flee and be found." Wilcox v. Nolze, 34 O. S., 520.

Upon the case just named the prisoner's counsel mainly relied, and some of the language of the opinion, considered without reference to the question under discussion, would perhaps bear the construction that the absolute fact of actual presence of the prisoner in the demanding State at the time of the alleged offense and flight therefrom is jurisdictional and always open to disproof. But when it is considered that in the same opinion it is said as to the questions open to inquiry, "nor have the courts larger powers in these respects than the Governor;" that in Work v. Corrington; p. 64 of the same volume, it is held that when requisition is made, "and the case shown to be within the provisions of the Constitution and act of Congress, no discretion is vested in the Governor, but it is his imperative duty to issue the warrant;" and that in Ex parte Sheldon, p. 319, id., it was held that "an alleged fugitive, etc., will not be discharged on the ground that there was no evidence before the executive issuing the warrant showing that the fugitive had fled from the demanding State to avoid prosecution," "that it was for the executive to put a construction upon this language " of the affidavit before him upon the subject; we are bound to understand the court as meaning that where it is made clearly to appear, not that there is greater testimony for the prisoner than for the demanding State upon the issue of his having been present in that State when charged with so being, but that the prisoner is not really charged with having been actually present there at all, or really demanded as a fugitive in the sense of the constitution, but only as constructively present and a fugitive, the Governor has no jurisdiction. The court found that there was "no conflict in the testimony that Nolze's statements were all made in this State," referring to the statements alleged to have been false pretenses, upon which he was charged with obtaining goods from a firm in New York. It appears

that the court had before it all the papers and proofs upon which the Governor had acted, yet there was no conflict upon this question. The prisoner was probably merely charged in those papers as in ex parte Sheldon, with being a fugitive-a mere legal conclusion.

But suppose there had been a conflict in the testimony. Suppose the papers and proofs upon which the Governor acted had specifically charged that Nolze had made, in the State of New York, the false statement with which he was charged, that he had been there and afterward came to Ohio. Did the court mean to say that upon the production by the prisoner of a preponderance of evidence to the contrary, the jurisdiction of the Governor would cease and the prisoner become entitled to his discharge? I do not think so. The prisoner was permitted, not to disprove what was proven on behalf of the demanding State, but to prove something which did not appear before the Governor, which took away his power to act. I do not understand the court as dissenting from the well settled law (see Wharton on Criminal Pleadings and Proceedings, section 35, No 6; Spear on Extradition, page 303), that the averments of the indictment and affidavit can not be contradicted by parol. I do not think the Governor's jurisdiction depends upon the uncertain and varying judgment of the many courts to which the prisoner may appeal by habeas corpus upon a question of weight of evidence. Even if the same evidence were presented, courts might differ as to the side having the preponderance. The ultimate power of determination must rest somewhere, and the policy of the law requires that it be with the Governor.

When the prisoner is demanded as having committed a crime, while actually in another State, as having placed himself beyond the reach of prosecution therefor by withdrawing his pres-. ence, and the evidence duly presented by the Governor of such State sustains those facts, our Governor's jurisdiction attaches and certainly does not shift and re-shift by any subsequent conflict of evidence; though the prisoner's rights are fully protected by the Governor's right to revoke his warrant. Work v. Corrington, 34 O. S. 64.

But if I am mistaken, and the supreme court mean to announce the broad rule that it is always open to the prisoner, not merely to show upon habeas corpus what I have just indicated, but to overcome, by evidence, the proof made against him, the evidence sought to be excluded here does not go far enough to entitle him to invoke the principle of that case.

The indictment charges that the prisoner committed the crime of grand larceny at Galesburg, Ill., on July 3, 1879. The accompanying affida vit avers that on or about July 4, 1879, he fled from that State to this. The crime charged is one requiring his actual presence at the place of commission. He is not sworn in general terms to be a fugitive, which might include construotion by the witness, but to have fled from that State to this at or about a certain time.

The

depositions and the prisoner's own testimony are to the effect that during the whole of the 3d and 4th days of July, 1879, he was in Cleveland, O., his home. He says he arrived there at 6 a. m. on the former day, whence he does not state. There is no evidence that he never was in Illinois, not even that he was not there about the time laid in the indictment and mentioned in the affidavit. For aught that appears he may have been there on the 1st of July or the 6th. He does not apply his evidence to the material portions of the charge against him, as Nolze did. He does not show that he was not in Illinois, when the money was stolen which he is charged with stealing. He does not contradict the affidavit that he fled from that State on or about July 4, 1879. He assails only the immaterial part of the charge in the indictment, the time laid, variance as to which even upon trial would be immaterial. (Roscoe's Crim. Ev., page 100; Wharton's Crim. Ev., Sec. 103.) Nor does he make it appear, the evidence does not even suggest the possibility, that an effort is being made to extradite him upon the theory of his constructive presence at the commission of the crime.

While the fact that the evidence offered might be competent upon his trial to prove an alibi is no objection to its use for another legitimate purpose here, yet the fact that it tends to prove nothing but a mere alibi is fatal to it.

The suggestion that a guilty person may escape extradition by showing that he did the guilty acts in another than the demanding State, while a person fully prepared to show his innocence may be taken if the evidence be excluded, has no weight. Extradition does not depend upon actual guilt, but upon flight from a charge of guilt, and if in showing he never was present in the demanding State and never fled therefrom he shows he was guilty somewhere, as in the case of Nolze, it is a mere incident.

The motion will be granted, and the prisoner remanded to the Sheriff's custody to be dealt with according to law.

M. F. Wilson, Attorney for the Sheriff.
T. F. Shay, Attorney for defendant.

Digest of Decisions.

CALIFORNIA.

(Supreme Court.)

COTA V. JONES AND WIFE. January 20, 1882. Limitation of Action-Discovery of Fraud.—It appeared that plaintiff discovered the fraud alleged, only two months before the commencement of the action in 1878; that defendants had, in 1866, by false and fraudulent practices, obtained front her, for $1,500, a conveyance of property of the value of $8,000, and that she did not know of the fraud by which it had been accomplished until the investigation of counsel revealed it, because she was ignorant and unacquainted with business and could neither read nor speak the English language, and could not ascertain for herself anything upon the subject, and was

wholly ignorant in relation to it until she ascertained it from counsel. Held, the statute of limitations could not be invoked; and the complaint stated a cause of action.

GETHIN v. WALKER. January 12, 1882. Rescission-Contract of Sale.-Plaintiff, successor to one H., sued defendant in ejectment. Defendant had entered into possession under a contract of sale inade with H. while he (II.) was the owner of the premises. Held, the testimony showed a rescission of the contract between defendant and H. prior to the acquisition of title by plaintiff.

Escrow-Tender of Deed.-By agreement between defendant and H. the latter placed the deed in escrow to be delivered on the payment of the balance of the purchase money. Defendant knew where the deed was and the mode in which he could procure it under the agreement. Held: It was not necessary to tender the deed, in order to place defendant in default after his failure to pay the balance, so as to affect a rescission of the contract on the part of H.

Evidence-Notice to Produce Writing-Notice.—It is not necessary to give notice to the opposite party to produce a writing, which is itself a notice. Parol evidence is admissible to prove the contents of such notice.

Deed-Certified Copy-Recorder's Office.-A certified copy of a Deed from the Recorder's office is primary evidence.

ARNAZ v. ESCANDON ET AL. January 9, 1882. Notary's Certificate-Deed-Married Woman-Interpreter-Notice.-The Court found that the Notary taking the acknowledgment of a married woman failed to make known to her the contents of the deed; that the acknowledgment was taken through an interpreter, who did not correctly interpret the contents of the instrument, but told her it was a mortgage to secure the payment of a certain sum of money. Plaintiff, the grantee, had no notice of such facts: Held, the Notary's certificate was conclusive as to the facts recited in it.

Husband and Wife-Delivery of Deed.-Being conclusively bound by the certificate of acknowledgment, which shows her knowledge of the contents of the deed, and having permitted her husband.to take and use it according to his own judgment, the wife has no right to complain that he delivered it in accordance with its terms and manifest purpose. Under such circumstances a delivery by him must bind her as well as himself, thegrantee having no notice of her dissent.

Execution of Deed-Signature-Written Authority.-It is not necessary that the person who guides the hand of another, while such other is signing a deed, should be authorized by writing so to do. "One signing a contract commonly writes his name with his own hand; but, if another writes it for him in his presence and at his request, or especially if he holds the top of the ren while the other writes it, or nakes his mark to his name which the other has written, or if he acknowledges the signature, however made, to be his own, this is sufficiont."

Findings.-The jury found, first, the deceased was "in the possesssion and use of his mental faculties at the time said deed was signed, so as to be capable of understanding and comprehending what was being done in the execution of said deed." Second, that deceased "was not capable to contract. Held, the last finding was not a legitimate inference from the facts found in the firstfinding.

46

Assuming that deceased was in the possession and use of his mental faculties at the time, and capable of understanding and comprehending what was done, Held, the finding "that he did not, after reading the deed or hearing it read, know its contents," was preposterous." The finding of the jury that the deed was not signed and delivered, Held, not sustained by the evidence. Consideration.-Want of consideration is not sufficient to vitiate a deed.

Fraudulent Conveyance-Reconveyance.-That land had been conveyed to defraud creditors, does not affect the validity of a voluntary reconveyance.

PEOPLE V. SIMONS. February 1, 1882. Homicide-Cominencement of Affray-Self-Defense-Instruction.-The following instruction held erroneous: "If you believe beyond a reasonable doubt that the defendant killed the "deceased, then to render said killing justifiable it must appear that the defendant was wholly without fault imputable to him by law in bringing about or commencing the difficulty in which the mortal wound was given."

If defendant had been the assailant, if he had really and in good faith endeavored to decline any further struggle before the homicide was committed, the killing might be justifiable in self-defense.

PEOPLE v. HURLEY. February 2, 1882. Larceny-Recent Possession.-Upon a charge of larceny the fact that the stolen property is found within a certain period, in the possession of defendant, is not sufficient to Justify the inference that he stole the property. To justify that inference it must further appear that the possession was personal, and that it involved a distinct and conscious assertion of possession by him. Accordingly, the bare fact of finding hides of cattle that had been stolen in the defendant's barn, which was shown to have been open to any one who chose to enter it, in the absence of any evidence tending to prove that he knew or had any reason to suppose that such hides were there, is insufficient to justify the inference of guilt.

Explanation of Possession of Stolen Properly.-Further: Until the declaration of defendant that he knew nothing about the hides being in his barn was shown to be false. he was not called upon to give any explanation as to how they came there.

Character-Possession.-The presumption arising from possession alone of stolen property, is completely removed by evidence of the good character of defendant.

PENNSYLVANIA.

(Supreme Court.)

KERN V. POWELL. November, 1881. Unrecorded assignment in trust for benefit of single creditor-Assignment for benefit of general creditors.-An unrecorded assignment of property, in trust for the benefit of a single creditor, is invalid as against a subsequent general recorded assignment for the benefit of all the assignor's creditors. If, therefore, the assignees under the last-named assignment take and sell the property named in the first assignment, the assignee under said first-named assignment can recover neither the proceeds nor avails of the said property.

WISCONSIN.

(Supreme Court.)

WILEY V. AULTMAN, ET AL. January 1882. Writ of Attachment-Sufficiency of Affidavit.-An affidavit attached to a writ of attachment which is not made by the plaintiffs or one of them, and does not on its face state that it is made in behalf of the plaintiff, nor that the affiant is the agent or attorney, or where the plaintiff is a corporation, the agent, attorney, or officer of the plaint iff, is not a sufficient affidavit under the statute; and all proceedings based upon the same are void. It is the better practice in such case that the affidavit, in addition to stating the relation of the affiant to the plaintiff, should further state the affant's knowledge upon the subject of the indebtedness of the defendant to the plaintiff.

LXVTH GENERAL ASSEMBLY OF OHIO.

ANYPOSIS OF LAWS PASSED THIS SESSION.

FEBRUARY 17, 1882.

House Bill No. 198.-To amend section 4448 of the Revised Statutes, to read as follows:

Section 4443. A bushel of the respective articles here

inafter mentioned shall mean the amount of weight averdupois, in this section specified, viz:

Of Wheat, 60 pounds; of Rye, 56 pounds; of Oats, 32 pounds; of Clover seed, 60 pounds; of Timothy seed, 45 pounds; of Hemp seed, 44 pounds; of Millet seed, 50 pounds; of Buckwheat, 50 pounds; of Beans, 60 pounds; of Pens, 60 pounds; of Hominy, 60 pounds; of Irish Potatoes, 60 pounds; of Sweet Potatoes, 50 pounds; of Onions, 50 pounds; of Dried Peaches, 33 pounds; of Dried Apples, 22 pounds; of Flax seed, 56 pounds; of Barley, 48 pounds; of Malt, 34 pounds; of Hungarian grass seed, 50 pounds; of Lime, 70 pounds; of Coke, 40 pounds; of Bituminous Coal, 80 pounds; of Cannel Coal, 70 pounds; of Corn, shelled, 56 pounds; of Tomatoes, 56 pounds; of Corn in the ear, 70 pounds, until the first of January next after it is raised, and after that date, 68 pounds.

Senate Bill No. 26. Authorizing the incorporated village of Doylestown, Wayne County, to levy a tax and issue bonds to raise money to build a town hall.

S. B. 4. Repealing an act to provide for the more ef fectual drainage of Hog Creek Marsh, in Hardin County, passed June 5, 1879, and an act amendatory thereof.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Feb. 28, 1882.]

No. 1058. P. P. Mast & Co. v. Lucinda Gustin. Error to the District Court of Clinton County. L. H. Baldwin and A. H. Jones for plaintiffs; Sloue & Walker for defendant.

1059. Samuel Martin, et al. v. E. E. Roney, auditor &c. et al. Error to the District Court of Brown County. D. W. C. Loudon and G. Bumbach for plaintiffs; Moore & Harding for defendants.

1060. Herman Levi v. George Tremmel. Error to the District Court of Hamilton County. Yaple, Moos aud McCabe for plaintiff; Jordan, Jordan & Williams for defendant.

1061. William Edwards, et al. v. The Bedford Chair Co. et al. Error to the District Court of Cuyahoa County. Mix, Noble & White for plaintiffs.

1062. Harriet Tompkins v. Theodore B. Starr. Error to the District Court of Cuyahoga County. Mix. Noble & White for plaintiff.

1063. W. H. Harrison et al. v. J. M. Neeley et al. Error t the District Court of Hamilton County. O'Connor, Glidden & Burgoyne and P. W. Steinbrecher for plaintits.

1064. Waldemar Otis v. The Euclid Avenue Opera House. Error to the District Court of Cuyalioga County. Mix, Noble & White for plaintiff; Gilbert & Johnson for defendant.

1065. Rachel Gaff, Exe'x. &c. and Mary J. Pevin Exe'x. &c. v. Robert Crigle. Error to the District Court of Hamilton County. Moulton, Johnson & Levy for plaintiffs; McDowell & Strafer for defendant.

1066. Samuel Cadwallader v. John W. Barrack, Treasurer of Seneca County. A. L. Brewer for plaintift; Lutes & Lutes for defendant.

SUPREME COURT ASSIGNMENT.

FOR ORAL ARGUMENT.

March 2d-No. 18. Marietta & Cincinnati Railroad Company v. Western Union Telegraph Company et al. March 3d-No. 87. Phoenix Insurance Company v. Priest, adm'r, etc.

March 8th-No. 40. Crabill, ex'r v. Marsh. No. 50. City of Ironton v. Kelley and Wife.

March 8th-No. 740. City of Ironton v. Thomas D. Kelley.

March 9th-No. 7. Dawson v. Ohio and J. B. Koch. No. 74. Ohio ex rel. Dawson et al. v. Board of Education of Wooster.

March 10th-No. 45. Mighton v. Dawson et al.