ganized in this State, and obtain from the superIntendent of insurance a certificate of such compliance.

The statute under which the relator is organized and the by-laws under which its business is carried on, authorize it to engage in the business of "insuring lives on the plan of assessment upon surviving members," without other restrictions than that policy holders shall have an interest in the lives of members.

Companies of this State cannot engage in the business of life insurance thus unrestricted, under section 3630 of the Revised Statutes; nor can companies organized under section 3587 to insure lives" on the mutual or stock plan," without furnishing security for the assured, as provided in section 3593. The section last named relates to domestic companies organized under section 3587; but the equivalent provision applicable to similar companies of other States if found in

section 3604.

1. No recovery can be had on a bond given to obtain the discharge of a watercraft, seized under the Watercraft Law of Ohio, in an action against such craft, on a cause of a maritime nature, which is within the exclusive admiralty jurisdiction of the United States Courts.

2. The fact that the owner of such craft, after the bond was given, defended the action against it, on the merits, without objecting to the jurisdiction of the court, does not estop him and his sureties from pleading such want of jurisdiction in an action against them on the bond. The General Buell v. Long, 18 Ohio St. 521, followed and approved.

Error to the District Court of Gallia County. On the 8th of May, 1860, plaintiff commenced an action against the Steamboat R. B. Hamilton, under the Watercraft Law of Ohio, to recover damages for sinking the plaintiff's flatboat while navigating the Ohio River.

Upon a warrant issued in that action the boat was seized by the sheriff. To obtain its discharge, the sheriff, as authorized by the 5th section of that law (1 S. & C. 254)), took a bond from defendants in the usual form, and delivered the boat to the defendant, Merrill, as master thereof.

A final judgment was rendered in that action in favor of the plaintiff, but the boat was not forthcoming to satisfy the same; hence this action on the bond.

To the petition there was a demurrer on the ground that the state court had no jurisdiction in rem against the steamboat and, therefore, as the court had no jurisdiction of the action in which the bond was given, no action could be maintained on the bond. On error to this court, it was held, that the judgment in the action against the boat, will not be held void, in a collateral action on the bond, for want of jnrisdiction, where it does not appear that the judgment was rendered on a maritime cause of action.

Inasmuch as the petition on the bond did not show the nature of the claim on which the vessel was seized, and as the watercraft law had been held valid as to claims not maritime, the court would, until the contrary was shown, pre sume in favor of the jurisdiction of the court making the seizure. The demurrer was therefore overruled. Hamilton v. Merrill and Shepard, 25 O. St. 11. The case was remanded to the common pleas, where an answer was filed alleging the maratime nature of the original cause of action and the absence of jurisdiction of the State court. It further averred that the sheriff, without authority of law, had seized the steamboat, and that the owner was compelled, in order to obtain the custody of his property, to give this bond.

The reply admits the maratime nature of the action, but in avoidance, alleges that the bond was taken by the sheriff at the request of the obligors, to obtain possession of the boat, and that Merrill was master and sole owner, and as such pleaded to that action in the name of the boat, and made defence to the merits without objection to the jurisdiction of the court, hence it is claimed that these defendants, Merrill and Shepard, are estopped from objecting to the jurisdiction of the court in the pres

ent action.

A demurrer to this reply has been sustained in the courts below, and the object of the present proceeding is to reverse these decisions.

Simeon Nash, for plaintiff in error.

T. W. Hampton and D. B. Hebard, for defendant in error.

JOHNSON, J.

It is conceded that the cause of action in which the steamboat was seized, to obtain the discharge of which this bond was given, was of a maratime nature, and within the exclusive cognizance of the United States Courts.

This being so, the State court had no jurisdiction to seize the property, and no authority of law to exact the bond for its release.

The sole question, therefore, is, are the obligors on the bond estopped to raise the question of jurisdiction, by reason of the facts stated in the reply.

The acts alleged, as creating an estoppel are, that Merrill, who was sole owner of the boat, defended on the merits in the action against the the boat without objecting to the jurisdiction of the courts. These acts were all after the bond was given. How these after acts can vitalize a

bond which the court had no authority to exact, it is not easy to comprehend.

It was not a voluntary bond. It was given in invitum, to obtain the release of property. As the seizure of the property was void the bond falls with it. Giving it under such circumstances could not confer jurisdiction on the court, over the subject-matter of the seizure. Homan v. Brinkerhoof, 1 Denio 184; In the matter of Faulkner, 4 Hill 598.

The claim is, that Merrill by defending on the merits, in the original action, has waived his right to defend in this action on the bond, on the ground that the court was without jurisdiction to require it..

We regard this question as settled. The Steamboat General Buell v. Long, 18 O. St. 521.

That case arose before the decision in The Belfast, 7 Wallace 764, and other cases, which decided that our watercraft law, so far as it related to maratime causes, was unconstitutional and void.

The boat was seized for such a cause. The defence was upon the merits, in the courts below, without objection to the jurisdiction of the State court. After a petition in error had been filed in this court by the craft to reverse the judgment rendered on the merits, a new assignment of errors was allowed, and then for the first time want of jurisdiction was set up as a ground of reversal.

This court held, that a failure to plead to the jurisdiction of the court in the trial court, was no waiver of the objection where such want of jurisdiction appeared upon the record.

In the opinion, it is said that it was not a case where the court had jurisdiction over the subjectmatter of the suit, and therefore differs from want of jurisdiction over the person, which was a personal privilege that could be waived.

If a defence on the merits in the original action, without objection to the jurisdiction, was not a waiver of the right, after final judgment, to assign it as error and obtain a reversal, for equally cogent reason will such a defence be no bar to an answer setting up want of such jurisdiction in an action on the bond. The right to do so is equally as clear, and the reasons in support of it, rest on stronger grounds than the right to assign it as error, after final judgment in the original action.

This conclusion is supported by Vose v. Cockroft, 44 N. Y. 415, which, like the present, was an action on a bond given to obtain the release of a vessel seized under the Watercraft Law of New York, which its own courts had pronounced unconstitutional in The Josephine, 39 N. Y. 19.

In Vose v. Cockroft the defence was upon the merits, as to the liability on the bond, but there was no plea to the jurisdiction, as there is in the present case. It was there held, that the proceeding under which the vessel was released, and the bond exacted to obtain such release, were void, and that the owner of the craft had the right to its possession, and a bond given to obtain such

possession was not voluntary, but was obtained by duress and illegal compulsion.

It was, however, held, that as no plea to the jurisdiction had been made in the trial court, and as the court of appeals had no authority on review, to consider questions not made and decided in the court in which the judgment was rendered, the obligors on the bond must be deemed to have waived such plea. Here, however, the want of jurisdiction was urged in the court below, first by demurrer, as appears in 25 O. St. 11, and again by answer, to which the reply under consideration was filed.

Counsel for plaintiff are mistaken in supposing that this reply is sanctioned by the decision of Cockroft v. Vose, 14 Wallace 5, or that the decision in that case conflicts with the holding of this court in the case of The General Buell. All that was there decided was, that the Supreme Court of the United States had no jurisdiction to review on error, under the 25th section of the judiciary Act, the decision in 44 N. Y. for the reason that it did not appear from the record that the decision of the State court was in favor of the validity of the New York Watercraft Law. Hence no Federal question was presented on the record and the writ of error was dismissed. The remarks of Mr. Justice Miller in dismissing the writ were simply to show that the State court had not decided that the State law was valid, but the contrary, and, therefore, that the case did not come within the provisions of the 25th section of the Judiciary Act. Judgment affirmed.

[This case will appear in 37 O. S.]

Digest of Decisions.

PENNSYLVANIA.

(Supreme Court.)

ANGIER V. EATON, COLE & BURNHAM Co. January 2, 1882. Evidence-Patent-Royalty.-Where the evidence is such that a court would not sustain a verdict that should find against it, it is not error for the court to practically rule that there was no disputed question of fact for the jury to determine, instead of submitting the evidence to the jury.

While the patent is apparently valid,and the licensee is enjoying the benefit of its supposed validity, he is bound to pay the stipulated royalty, and cannot set up as a defense the actual invalidity of the patent; but when, in addition to the invalidity of the patent, by reason of a prior outstanding patent for the same invention, it is shown that the owner of the prior patent is asserting his exclusive rights thereunder by supplying the market with the patented article, forbidding all interference on the part of others, etc., and the licensee under the invalid patent is deprived of the enjoyment of the monopoly for which he contracted, and in consideration of which he agreed to pay the royalty, he may defend on the ground of the actual failure of the consideration.

WILSON'S APPEAL. March 13, 1882.

Undue Influence.-Where the chief beneficiary in a will was the confidential adviser of the testator, and was the main instrument in procuring the preparation_and execution of the will, he will be required to prove affirmatively the circumstances connected with the drawing of

the will, that the testator was laboring under no mistaken apprehension as to the value of his property and the amount he was giving his confidential adviser, and that such gift was the free, intelligent act of the testator.

The court below in this case granted an issue as to the question of undue influence, and refused an issue upon the question of testamentary incapacity.

Held, that the evidence upon the latter point amounted to more than a scintilla.

In a case where the person is of great age, suffering from severe illness affecting his brain and vital powers, and where an investigation of a charge of undue influence is admittedly essential, it is best not to limit the investigation to that one matter. Under such circumstances undue influence and mental incapacity are very closely interwoven.

1. Criminal Law.-A peace officer has the right and it is his duty to arrest one who is committing a breach of the peace in his presence, and to use such force as may be necessary to effect the arrest.

2. If a person disturbing the peace resists a peace officer, and in so doing kills said officer, he is guilty of murder if he knew that the person attempting to make the arrest was an officer, and guilty of manslaughter if he did not know it.

3. The law of self-defense as applicable to rencounters between private persons, does not apply in such a case, unless the person resisting the arrest has reasonable grounds to believe, and does believe, that the officer is not acting in good faith in the attempt to arrest; but is using his official position to gratify personal feeling against the person sought to be arrested, and that by submitting to arrest he will be in danger of great bodily harm or of losing his life.

COLORADO.

(Supreme Court.)

FISHER V. HENRY. December Term, 1881. Statute-Constitution of.-Statutes which are remedial should be liberally construed, to the end that intention of their enactment may be made effectual. Everything is to be done in advancement of the remedy that can be consistently with any construction that can be put upon the statute.

THE PUEBLO & ARKANSAS VALLEY R. R. Co. v. TAYLOR ET AL. December, 1881.

1. Public Policy-Covenant Void as Against.-The_condition in a covenant to a railroad company that the latter shall not build a side track to its main line in a given town, is against public policy, and void.

2. Contract-Void Consideration.-Such void condition being embodied in a contract of mutual promises which constitute mutual consideration, and not severable from its other portions, vitiates the entire eontract and no recovery can be had upon any part thereof.

NEW YORK.

(Court of Appeals.)

THE PEOPLE v. O'ConnelL. January 17, 1882. Insanity-Practice.-Where the defense of insanity is interposed, the burden of proof as to whether the acts complained of were committed by the prisoner and whether he was at the time in such condition of mind as so be responsible for them is upon the prosecutor. He is bound to satisfy the jury on the whole evidence that the prisoner was mentally responsible, as he has the affirmative of the issue to the end of the trial.

The legal presumption that every man is sane is sufficient to sustain the latter point until evidence to the contrary is given.

Where a point has already been charged in substance it is not error for the court to refuse to again charge it.

MEAD v. STRATTON ET AL. January 17, 1882. Civil Damage Act.-Plaintiff's husband went to defendant's hotel, drank several times and became so intoxicated that he had to be helped into his buggy. He was found dead with his knee caught under the foot bar and his head between the wheel and the wagon so that it had been beaten by the spokes and otherwise injured. Held, That an action to recover for loss of support could be maintained; that the statute was designed to embrace all injuries produced by the intoxication and which legitimately resulted therefrom.

Defendant, S., managed the hotel and his wife owned it and lived there with her husband and attended to the domestic arrangements. The evidence tended to show that she knew that her husband sold intoxicating liquors. Held, That it was for the jury to determine whether she knew the building was used for such purposes; that it could not be said as matter of law that the husband was in possession and that the wife was relieved from liability as an owner who had no knowledge of the sale of liquors; that it was immaterial whether the strict relation of landlord and tenant existed between them if she permitted him to occupy, with knowledge that he was engaged in such sales, and that the fact that the ownership and possession commenced before the statute was passed did not relieve her from liability.

THOS. SWAN V. THE PEOPLE. December, 1881. Abortion-Evidence.-Where an abortion is committed in one county and death results therefrom in another, an indictment therefor may be brought in the latter county.

On the trial of an indictment for abortion a witness was allowed to testify as to statements made in his presence, which gave him the impression that the prisoner had attempted to produce abortion on other occasions. Held, Error.

SUPREME COURT RECORD.

[New cases filed since last report, up to March 27, 1882.]

1085. The Delphos Paper Co. v. Ferdinand J. King. Error to the District Court of Van Wert County, Saltzgaber & Glenn for plaintiff; Richie & Richie, H. G. Richie and James McKenzie for defendant.

1086. Isaac Burkhart v. Wesley Tenpenning. ErrorReserved in the District Court of Williams County. Kent, Newton & Pugsley for plaintiff.

1087. John Wagner v. New York Chicago & St. Louis Railway Co. Error to the District Court of Cuyahoga County. J. W. Heisley for plaintiff; Estep, Dickey & Squire for defendant.

1088. J. H. Devereux, Receiver v. Stella M. Hart. Error to the District Court of Trumbull County. Adams & Russell and L. C. Jones for plaintift; Hutchins & Tuttle and Harrison for defendant.

1089. Louis Woodmansee v. Hannah Woodmansee et al. Error to the District Court of Belmont County. Wm. Okey and others for plaintiff; D. D. T. Cowen & Son for defendants.

1090. B. F. Stahl v. Silas Idleman. Error to the District Court of Marion County. B. F. Stahl for plaintiff. 1091. Catharine Meyers v. John J. Myers. Error to the District Court of Wood County. Cook & Troup for plaintift; F. A. Baldwin for defendant.

SUPREME COURT ASSIGNMENT.

FOR ORAL ARGUMENT.

April 12th-No. 40. W. H. Crabill Ex'r v. Nancy Marsh. Error to the District Court of Clark County: April 20th-Julius C. Bowen et al. v. C. L. Bowen et.al. Error to the District Court of Washington County.

SUPREME COURT OF OHIO.

NUARY TERM, 1882.

Hon. JOHN W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

Tuesday, March 28, 1882.

GENERAL DOCKET.

No. 54. Detroit Fire & Marine Ins. Co. v. Commercial Mutual Ins. Co. Error to the District Court of Cuyahoga County.

LONGWORTH, J., Held:

Where an insurance company, after having taken a risk and reinsured in another company to Indemnify itself against loss on its policy, discharges its liability by the payment of a less sum than that for which the original Insurance was effected, the sum so paid by it will be taken as the amount of damage sustained, and the measure of indemnity to be recovered from the reinsuring company; provided such sum is within the amount of the reinsurance policy, and does not exceed the amount of actual loss, and such policy contains no condition for prorating loss or limiting liability.

Judgment affirmed.

64. Steubenville v. Culp. Error to the District Court of Jefferson County.

LONGWORTH, J., Held:

A police officer, suspended from office, by the mayor of a city, under the authority granted by secs. 121 and 211 of the Municipal Code (66 O. L. 170 and 184), is not entitled to wages during the period of such suspension, notwithstanding the council afterward declared the cause of suspension insufficient.

Judgment reversed.

18. The Marietta & Cincinnati Railroad Company as reorganized v. The Western Union Telegraph Company et al. Error to the District Court of Hamilton County. MCILVAINE, J. Held:

1. A railroad company, having a line of telegraph poles and wire, granted to a telegraph company, the prívilege of placing another wire on the poles "for general telegraphic correspondence," and of establishing telegraph stations at points along the line as it might think proper, but reserving to the grantor all local telegraph business, "it being understood and agreed between the parties, that the telegraph company should be entitled only to the business of sending such messages as might be received at any of its stations destined for stations on other telegraph lines connected at points where it had stations, or such messages as might be received from other lines connected at points where it had stations destined for its stations, or other lines connected at points where it had stations, with a further agreement for prorating as to business re-telegraphed between the parties: Held, 1. The right acquired by the telegraph company in the business of the line, other than local business, was not exclusive. 2. The railroad company was not precluded from placing another wire upon its poles either for its own use or the use of another party.

2. Equity will not compel specific performance, where the benefits ofthe contract cannot be realized in accordance with its terms. Hence, where a railroad company, having a line of telegraph, grants the use of its poles to a telegraph company on certain conditions and stipulations in favor of the grantor, which are ultra vires, an injunction will not be granted whereby the grantor will be required to perform other stipulations made in consideration of such void stipulations.

Judgment reversed and petition dismissed.

White, J. concurred in the judgment on the ground stated in the second proposition.

1087. John Wagner v. The N. Y. C. & St. L. Railway Co. Error to the District Court of Cuyahoga County. JOHNSON, J. Held:

1. In proceedings by a corporation to appropriate private property, there must be a judgment confirming the verdict of the jury, before the corporation is entitled, by a deposit of the amount of such verdict, to possession of the property appropriated.

2. It is within the appellate jurisdiction of the supreme court to allow a temporary injunction where it

appears that defendant is doing or threatens to do acts respecting the subject of an action pending, tending to render the judgment ineffectual. (Yeoman v. Lasley, 86 Ohio St. 416 followed and approved.)

8. So where the relief sought in the court below was an injunction which was refused, and on error to this court the judgment is reversed for such refusal, this court may, in the exercise of its appellate jurisdiction, proceed to render the judgment which the court below should have rendered.

Judgment reversed and injunction granted until final termination in the probate court of the proceedings there pending to appropriate a right of way over the plaintiff's property.

28. The Scioto Valley Railway Co. v. David Lawrence et al. Error to the District Court of Scioto County. WHITE, J. Held:

1. Where the construction of a railroad in a street of a city, will work material injury to the abutting property, such construction may be enjoined, at the suit of the owners, until the right to construct such road in the street shall first be acquired, under proceedings instituted against such owners as required by law for the appropriation of private property.

2. In such case it is immaterial whether the fee is vested in the city or in the abutting owners, so long as it is held upon the same defined uses. Railway Co. v. Cumminsville, (14 Ohio S. 524) approved and followed. Judgment affirmed.

42. Elizabeth Lafferty and others v. Willie Shinn and others. Error to the District Court of Adams County. OKEY, C. J.

1. The provision in the code of civil procedure as revised in 1878, by which the period within which a froceeding in error may be commenced is reduced from three to two years (Code of 1853, 523; 75 Ohio L. 808, 20; Rev. Stats. 6723), does not apply to judgments which had been rendered when the act of 1878 took effect, but by force of the act of 1866 (S. & S. 1) the period of three years, prescribed in section 523, governs as to those judgments. 2. Where a demurrer to an answer is sustained, but no judgment is rendered or order made which is definitive in its character until a subsequent term, the time within which a proceeding in error may be commenced by the defendant must be computed from the date of the final judgment or order.

3. Where an action is brought under the code of civil procedure for the partition of real estate, and the administrator of the ancestor from whom the estate descended to the persons asking for partition is made a defendant, and files a answer and cross-petition setting forth that it is necessary to sell such property for the purpose of paying the debts of such ancestor, and asking for an order of sale, such administrator is, upon proper showing, entitled to such order of sale, and statutes of limitations have no application in favor of such heirs. Taylor v. Thorn, 29 Ohio St. 569, followed.

Judgment reversed."

37. Phoenix Insurance Co. v. Robinson Priest, administrator, &c. Error to the District Court of Ashland County. Judgment affirmed. There will be no further report.

41. Edward A. Bratton v. Edward D. Dodge et al. Error to the District Court of Vinton County. Judgment reversed, and judgment rendered in favor of plaintiff in error, and cause remanded to the court of common pleas for an account. There will be no further report.

63. The German and English Reformed Congregation of Zion's Church &c. v. The Evangelical Lutheran Church Error to the District Court of Holmes County. Judgment of the district court reversed, and the court pro ceeding to render the judgment the district court should have rendered, order the appeal to be dismissed on authority of Barger v. Cochran, 15 Ohio St. 460. There will be no further report.

811. Samuel Brown v. John R. Brown. Error to the District Court of Franklin County. Dismissed by plaintiff in error and at his costs.

EDITORS OHIO LAW JOURNAL:

I have waited quietly to hear further from some one who sustained the ruling of the Court of Common Pleas in Vinton County, at its January term, in the case of The State of Ohio v. G. Gilman, in which the learned judge decided against the right of a prosecuting witness in a criminal case, to employ attorneys.

At the argument it was claimed that the Supreme Court of Ohio had decided the very question, and that it had held that the court had discretion to permit outside counsel to so appear, even though the court had already appointed an assistant.

The court in Vinton County held, that the court having assigned one attorney to assist the State, its power was exhausted, and that it would be error to allow another, even though requested by the prosecuting attorney, and no extra charge to the county was to be made.

Some one from Steubenville, and Prof Aldrich, of Columbus, sustained the court in Vinton with expressions of their opinion.

Having stated to the court in Vinton that the question had already been decided in Ohio, I have felt called upon to make diligent search for the opinions.

Judge Walker, of Logan County, has been kind enough to cite the case and I have it before me. The question was made in the case of Bazil Bailey v. The State of Ohio. Error to the Court of Common Pleas of Logan County, Ohio. It appears by the bill of exceptions in that case, filed in the Supreme Court, January 15, 1878, that on the trial of the defendant in the court of common pleas "Thereupon, John A. Price, William H. Martin, W. W. Beatty and William Lawrence, attorneys of this court, but neither one of them being Prosecuting Attorney, nor assistant Prosecuting Attorney, nor in any manner appointed by the court or otherwise assistant Prosecuting Attorney, with consent and acquiescence of the said Duncan McLaughlin, Prosecuting Attorney, took part in, and aided in conducting the said trial, and in the examination and

cross-examination of witnesses who gave their testimony on the said trial, to all which participation and interference the defendant, by his counsel, then objected, and protested against the same. But the court overruled said objection and permitted said persons to participate in the trial of said case, and in the examination and cross-examination of the several witnesses who testified therein, to all of which, the defendant, by his counsel, then excepted."

Messrs. West, Walker & Kennedy, filed their motion in the Supreme Court for leave to file a petition in error, in said cause, to reverse the judgment and sentence of the common pleas. The assignment of error is as follows:

"The record shows that persons other than the Prosecuting Attorney, were permitted to obtrude themselves into, and to take part in the trial of said case against the protest of the prisoner."

Hon. Wm. Lawrence and others argued for the State, and cited an unbroken line of authority in support of their position.

The Supreme Court held, there was no error in the ruling of the court of common pleas, and refused to allow a petition in error to be filed.

In this district, Judges Guthrie, Knowles and Bradbury, had each held the same way before this decision.

Thus it will be seen that I was right in my statement that the ruling in Vinton County was "unsupported by law, precedent or common sense," and I now add, "in plain, and flagrant defiance of the decision of the Supreme Court." G.

NEW BOOKS.

THE LAW OF CONVEYANCING.-A treatise on the Law of Convexancing. By W. B. Martindale Esq., St. Louis. W. H. Stevenson, Law Publisher and publisher of the Central Law Journal. 1882, Pp. LXI, 63; Price $6.00 net.

We are inclined to think, after examination of the general scope and plan of the work before us that it stands alone in supplying to the profession, and indeed to all who have aught to do with real estate and real estate titles, what is popularly denominated "a want long felt." There is no book extant, to our knowledge, that deals with all the contingencies of acquiring and conveying titles to real estate in so thorough and satisfactory manner as does this new publication. The author understands the subject; that much is evident from the arrangement and manner of treatment of its various phases. H