or particular place valid and binding on the parties, it must be certain, established, uniform, reasonable, and not contrary to law.

And in harmony with these requirements we think it has been substantially settled by a strong line of decisions, that a local or general usage, at a particular place, the effect of which is to abrogate or control the settled general rules of commercial law, is inadmissible, to vary the rights of the parties to a contract. In a recent case in the Supreme Court of the United States, 10th Wallace 391, it is said "it is well settled that usage cannot be allowed to subvert the settled rules of law; whatever tends to unsettle the law, and make it different in the different communities into which the State is divided, leads to mischievous consequences, embarrasses trade, and is against public policy. In Woodruff vs. Merchants Bank 25th Wendell, 673, when it was sought to vary the commercial rule of three days grace, by proof of the usage of the city of New York, Judge Nelson held it inadmissible, and said "the effect of the proof of this usage, if sanctioned, would overturn the whole law on the subject of bills of exchange in the city of New York," and he added, "if the usage prevailed there it cannot be allowed to control the settled and acknowledged law of the State in respect to this description of paper."

This decision and one similar to it in "Bowen v. Newell," 4th Seldon, 190, was expressly approved by our own Supreme Court in "Morrison v. Bailey," in 5th O. S. R. page 18, in which Judge Bartley says: "It is also settled in Woodruff v. Merchants Bank and Bowen v. Newell that any supposed usage of banks in any particular place to regard drafts upon them payable at a day certain after date, as checks, and not entitled to days of grace, is inadmissible to control the rules of law in relation to such paper."

If the commercial law in regard to days of grace cannot be varied by proof of such usage, is it not quite as clear that the right of the drawer of a check to have it paid according to his order, or the right of a holder of it to be paid according to its terms without any new contract in regard to its negotiability or payment, cannot be affected or destroyed by such usage? Neither do I think it is clear that the usage is a reasonable

one.

What good reason is there why a holder of such a note, bill, or a check shall be required to endorse a paper as a condition of getting his money when he is lawfully entitled to it without such endorsement?

It does not make the person's endorsement genuine if it was in fact forged, it does not increase his liability to the bank in such a case: it may cause the holder who is frequently a person who has no actual interest in the paper, to wit: an agent's attorney, trustee, etc., to run the risk of a liability by a fraudulent or improper reissue of the note and bill with his endorsement on it; neither can it be fairly justified on the ground that the signature is in effect a receipt of the holder, that he has had the money. First,

for the reason that the possession of the bill or check is evidence of its payment.

Second. Because a party having the obligation of paying money cannot insist on a receipt as a condition precedent to payment. In Longworth v. Handy, 1st Disney, 75 Superior Court of Cincinnati, held, "it is no excuse for the refusal of attorneys to pay over money that his client refuses to give a receipt on settlement; the duty is absolute to pay on demand, and the law imposes no obligation on a party receiving money to give an acquitance."

Third. If it were reasonable to call for a receipt in all instances, it would not follow that there was a right to call for a blank indorsement. I hold therefore that in this case there was a dishonor of the check, and that the drawer thereof is liable.

You may take a judgment against the Savings Bank for $2,000 and interest from that time. Mix, Noble & White appeared for the plaintiff. I. E. Ingersoll for the defendant.

VIRGINIA MILITARY LANDS IN OHIO.

AN INFORMAL AND OPEN LETTER TO CONGRESS. CIRCLEVILLE, PICKAWAY CO. O. JULY 10th, 1882. Referring to Miscellaneous Document No. 42. Fortyseventh Congress, First Session, House of Representatives, June 23d, 1882, Referred to the Committee on the Judiciary and Ordered to be Printed.

This paper comes from the judiciary Committee, to whom was referred the Bill H. R., 5123, introduced by Mr. James S. Robinson, entitled, "A Bill in relation to Land Patents in the Virginia Military District of Ohio," and for which Mr. Taylor of said committee proposes the substitute, H. R., 6520, referred to the House Calendar and ordered to be printed June 16th, 1882, with the report submitted by Mr. Taylor, to accompany the said bill, pages 59 and 60 of said document.

This paper is a very full statement of the origin of the titles of those lands, by which it is clearly shown that the United States is the mere trustee of the legal estate in these lands prior to the emenation of the patent.

But many circumstances have conspired to prevent the said officers and soldiers, their heirs and assigns, whose military warrant, have been located in said district from perfecting their titles, so that it is said many tracts are still standing upon entry merely, and upon entry and survey, having never been returned to the General Land Office for patent, many perhaps from sheer dilatoriness by the confident occupant and locator or purchaser of the land, who never conceived for a moment that Congress had ever presumed to limit the time for perfecting title, and, in default, to declare their entries and surveys discharged from the satisfaction of the military warrants upon which they were founded.

But now having heard of the decisions by

Justice Matthews, as Judge of the Circuit Court of the United States for the Northern District of Ohio, W. D., August, 1881, ip the case of Chamberlain vs. Marshall and others, pages 3-14, inclusive, and in the case of Fussell vs. Hughes, and same vs. Gregg, pages 15-22, inclusive, and that of the Commissioner of the General Land Office, Hon. N. C. McFarland, denying a patent on an entry and survey on a valid warrant, pages 34-39, inclusive, and the opinion of the Hon. Aaron F. Perry furnished to the Trustees of the Ohio Agricultural College, pages 39-46, all involving the validity of these locations and declaring them, under the Act of Congress of March 23d, 1804, forfeited to the Government of the United States and may be disposed of at her pleasure.

It is said that there are 130,000 acres of the best land in the Virginia Military District in Ohio falling within these decisions, worth perhaps with the improvements, $50 per acre, and of the aggregate value of $6,500,000.

If those decisions are the law of these locations, then the owners and occupants of them have no title, and a bill, in justice to these too confiding people, ought at once to be introduced into Congress and made a law, enabling them to perfect their titles by patent. Remember, it is here decided, that the land belongs to the United States, and it is conceded the statute of limitations does not run against the government. Neither the bill here presented as a substitute, or the bill of Mr. Robinson furnishes any relief, nor gives to the parties any title whatever in these lands.

The bill proposed as a substitute tends to befog what is already bad enough, God knows. What is wanted now, is a bill to clear up and perfect these titles and quiet them forever, and I propose the following as a bill that will cover the case:

A BILL

To give Effect to Patents Heretofore and Hereafter to be Issued for Lands in the Virginia Military District of Ohio, and to Enable the Owners of Locations to Complete their Surveys and have them Patented, und Repeal Parts of Certain Acts herein named.

Be it Enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That all patents heretofore issued, and which may be hereafter issued, for land in the Virginia Military District of Ohio, upon surveys legally made and returned to the office of the principal surveyor of the said district for record, on entries made on or before January 1st, 1852. and founded upon unsatisfied Virginia military Continental warrants are hereby declared valid, and the legal title to the land designated in such patents shall enure and become vested in the grantees therein named, their heirs or assigns forever, whether such grantees were dead or alive at the time the patents were or may be issued. Any omission heretofore to extend the time for filing plats, certificates and warrants, or certified copies of warrants, at the General Land Ofice to the contrary notwithstanding.

SEC. 2. That the officers and soldiers of the Virginia line on continental establishment, their heirs or assigns, entitled to bounty lands which have been entered on or before January 1st, 1852, within the tract reserved by Virginia between the Little Miami and Scioto rivers, for satisfying the legal bounties to her officers and soldiers upon continental establishment, may survey and complete the location of the same by returning them to the office of the principal surveyor of said district for record, and may file their surveys previously made as well as those made under this act, with their plats, certificates and warrants, or certified copies of warrants, at the General Land Office and receive patents for the same.

SEC. 3. That sections two and three of the Act of March 23, 1804, entitled; "An Act to ascertain the boundary of the lands reserved by the state of Virginia, north-west of the river Ohio, for the satisfaction of her officers and soldiers on continental establishment, and to limit the period for locating the said lands," and so much of any Act as Congress may have passed subsequent to said Act, limiting the time for surveying locations and returning surveys, plats, certificates and warrents, or certified copies of warrants, to the General Land Office for patent, be and the same are hereby repealed.

This bill will cover the necessity of the case, and have the effect to execute the trust confided to the United States by Virginia, do honor to Congress, and justice to the officers and soldiers their heirs and assigns, for whom the land was reserved, and who have owned, as they thought and have occupied these lands, some of them for a period of three-fourths of a century, and never suspected for a moment, until those adverse decisions, that they did not own the land on which they had spent the labors of their youth and lived to be old men and women.

All the doubt of the validity of these locations comes from the decision of a court, the opinion of a lawyer and the Commissioner of the General Land Office, construing said Act of Congress of March 23d, 1804, limiting the time to three years to complete locations, and to five years for returning them to the Secretary of the Depart ment of War for patent; and declaring those tracts, the surveys whereof shall not have been returned within the time limited from the date of the Act, released from the claim for bounty land, as applying to locations made under the subsequent Acts, extending the time for making locations, etc., nowithstanding said Act of 1804, and as coming into force on the 1st day of January, 1852, and releasing from the the claim for

bounty land all those tracts the surveys whereof had not been returned to the General Land Office at the last-named day for patent. That those tracts had therefore lapsed, and had becoine a part of the public domain of the United States.

I pray you, not to accept the bill of Mr. Robinson, or the substitute of Mr. Taylor, or any other bill befogging the claim of these locators, or presuming to take from them their claim and transfer it to an intruder on a presumption of abandonment, or sale founded on the lapse of time merely, in the absence of any Act by which they could perfect their titles or, indeed, withdraw their location since May 20, 1826, (See U. S. L. L., Vol. I, p. 68, No. 112, Sec. 3; Taylor vs. Myres, 7th Wheaton, 23) and could not procure a patent because of the expiration of the time set apart for that purpose for more than a quarter of a century without the fault of the locator or his heirs or assigns.

The said Bill of Robinson and the substitute of said Taylor are both in violation of said trust, and would disgrace Congress, and do manifest injustice to the Revolutionary soldier, his heirs, etc.

JEREMIAH HALL,

Attorney for the Representatives of Aquilla Norvall and Others in interest.

CRIMINAL LAW-THREATS-SELF-DE

FENSE.

KENTUCKY COURT OF APPEALS.

ALEXANDER ODER V. THE COMMONWEALTH.

June 22, 1882.

1. Mere threats furnish no legal excuse for taking life, even when such threats are made by the most lawless character.

2. A person is not bound to wait until actually assaulted, if he casually meets his enemy and has reasonable grounds to believe, and does believe, that his enemy has threatened, waylaid and attempted violence to him, and is about, then and there, to inflict en him loss of

life or great bodily harm; but in such case he may law

fully use such force as shall be necessary to avert such impending danger.

"It is always a question for a jury to judge of the reasonableness of the apprehended danger, and the unfeigned belief of its existence by the person imperiled by it."

3. Such person may "carry arms openly" and keep a lookout for his enemy, or procure information of his movements in good faith, and alone for the purpose of guarding himself from surprise or being taken una

wares.

4. One person has no right to seek another for the purpose of killing him, and cannot rely upon the law of self-defense to excuse his act, although he may have believed that he had been threatened, waylaid and assaulted by the deceased, who would at some future time execute his design to kill him.

5. Record cannot be amended by agreement between counsel for appellant and the Commonwealth, that certain instructions relative to reasonable doubt were given, but not embraced in the bill of exceptions.

6. Statements of accused, explanatory of certain movements and acts of his which he did shortly before the killing, were not competent.

7. Whereacts are proven the jury are the judges of their meaning and object, disconnected from the explanation of them by the actor, unless they constitute part of the homicide.

The appellant, Alexander Oder, and Volney Hall were brothers-in-law, and the evidence tends to show that Hall's daughter, Mary, staid with Oder some two years.

About the time she left his house he told her father that he had discovered improper relations between her and a young man who was laboring for Oder.

fall disbelieved the statement and imputed his daughter's misfortune to Oder if any had befallen her.

He threatened to kill Oder, waylaid him, assaulted him with a pistol, and sought an ex-convict, who testifies that he offered him $500, which he refused to accept, to kill Oder.

The threats and lying-in-wait occurred several times, and were communicated to Oder, who armed himself with a shotgun, which he carried about with him.

He and a man by the name of Conrad came once or twice to Cynthiana together. Each time Conrad was seen at the depot. And on the morning of Tuesday, the 31st of May, 1881, Conrad went to the depot and Hall, who had been to Fayette County, got off the train. Shortly after the train arrived Oder went to a livery stable, where he had left his horse and buggy and shotgun, and got the gun. He then proceeded to Pike street. Conrad came by the stable, went on to Pike street and went down it on the opposite side from Oder, who came upon Hall in front of the postoffice, asked him "if he was ready," and while he was turning and before he got turned around, at a distance of fifteen or twenty feet, shot him through the heart, and after he fell, advanced a step or two and fired the other load of the gun into his head, tearing away the skull and leaving the brain exposed.

Conrad came across the street and said to Oder: "Come on, you have killed him." Oder immediately surrendered himself, and was subsequently indicted, and after having been tried once, which resulted in a hung jury, he was again tried, convicted and sentenced to the penitentiary for the period of fifteen years.

From that sentence he prosecutes this appeal. On the trial the court instructed the jury, first as to murder, second as to manslaughter, third with reference to the doubt as to the degree of the offense, and fourth, in this language: "If the jury shall believe from all the evidence, that previous to the time of killing of the deceased, Volney Hall lay in wait for the defendant, and menaced and threatened to kill him and attempted violence upon his person with a deadly weapon, or did any or either of them, then he had the right to consider the same in

determining whether he was in danger of losing his life or suffering great bodily harm at the hands of Hall whenever with or near him. These alone will not excuse the killing, but the defendant had the right to bear arms openly, and when he met the deceased, if from such lying in wait, threats, menaces and attempted violence, if any, and from the circumstances attending the meeting, or if from the circumstances attending the meeting alone, he in good faith believed, and had reasonable grounds to believe, that he was there and then in danger of losing his life or of suffering great bodily harm at the hands of deceased, then he was not obliged to wait until he was actually a saulted, but he had the right to use such means as were at hand and as were necessary, or apparently necessary, to protect himself from such immediate danger, and if in doing so he shot and killed deceased, he is excusable on the ground of self-defence and should be acquitted, unless the jury shall believe from all the evidence, beyond a reasonable doubt, that at the time of the killing the defendant sought deceased, with the intention and for the purpose of killing him, in which case he is not entitled to an acquittal on the ground of self-defense."

By the terms of the instruction the appellant was excluded from considering the menaces, lying in wait and threats by Hall, unless the jury believed from the evidence. that they actually

occurred.

While this proof would add weight to the claim of self-defense, yet they are not to be entirely cut out of the defense, unless shown to the jury to have existed.

The appellant had the right to consider the threats, which were heard and communicated to him by others, also the waylaying of him by Hall, which was known to others, who informed him thereof, whether he heard the threats or had personal knowledge of being waylaid by Hall or not, provided he in good faith believed, and had reasonable grounds to believe, from the circumstances as they appeared to him, that Hall had waylaid and threatened him, but in forming a belief, upon such information, the appellant must have acted at his peril and with the utmost good faith and been free from making such information a pretext to slay Hall; and the jury should have been so instructed and allowed to decide. The question is not whether the jury believed Hall threatened and waylaid the appellant, but whether the appellant believed, and had reasonable grounds to believe, he had done so.

The maintenance of self-defense in a court of justice, under such a state of facts as exhibited by this record, requires upon the part of the court the utmost care, so that the accused may not be deprived of its right, upon the one hand, and assasination excused on the other.

After a careful review of the authorities on the subject we declare the law to be this, that when a person has been merely threatened, by

even the most lawless character, it furnishes no legal excuse for taking his life.

But when a person has been threatened, waylaid, menaced and assaulted with a deadly weapon, and he afterwards casually meets his foe, if, from his character, antecedent conduct and the circumstances of the meeting and his presence, he believes, and has reasonable grounds to believe, judging thereof for himself, but at his peril, that his foe is about to inflict on him loss of life, or great bodily harm, or will then and there carry into execution his design to kill him, or do him such harm, unless prevented, he is not bound to wait until actually assaulted, but he may lawfully use such force as shall be necessary to avert such impending danger, but it is always a question for the jury to judge of the reasonableness of the apprehended danger, and the unfeigned belief of its existence by the person imperiled by it.

And in this connection, in view of the qualification added to the instruction quoted, it is necessary to determine the rights of the accused under an opposite tendency of the evidence from that contemplated by the qualification.

It must be accorded as a right, to which all citizens are entitled, that the accused "may leave his home for the transaction of his legiti mate business, or for any lawful or proper purpose," and while so engaged, having reasonable grounds to believe, and in good faith believing that he had been threatened, waylaid and assaulted with a deadly weapon, he had the right to carry arms openly, and keep a look out for his enemy, or procure information of his movements in good faith, and alone for the purpose of guarding himself from surprise, or being taken unawares, and if, under such circumstances, a meeting casually occurs, then the law of self-defense applies in the same manner, under similar circumstances, as indicated where the meeting is casual, and without precautions against surprise, further than being armed for the purpose of selfprotection.

But in no state of case is one person allowed by law to hunt down, or seek another for the purpose of killing him, and in pursuance of such an intention, accompanied by such an act, take his life; hence if the defendant sought the deceased with the intention of killing him, or purposely brought about the meeting between them or made his presence a mere pretext for slaying him, he cannot rely upon the law of self-defence to excuse his act, although he may have velieved that he had been threatened, waylaid ard assaulted by the deceased, who would, at some future time, execute his design.

It will be seen from this view of the law that the instruction was erroneous in two aspects, first, in making the right of the appellant to rely upon the threats and waylaying of him by deceased dependent on the establishment of their existence to the satisfaction of the jury by the evidence; second, in not informing the jury in connection with the qualification that the accused had the right to keep a lookout for the

deceased or procure information of his movements for the sole purpose of avoiding a surprise.

It is agreed by counsel for the appellant and the commonwealth, that certain instructions relative to reasonable doubt were given, but not embraced in the bill of exceptions, and that if they have the lawful right to consent to the amendment of the record, they will freely do so. We know no law that authorizes the record to

be amended in this manner. If such a practice were adopted in cases of this character authority of counsel might be disputed by his imprisoned client after a tentive submission and hearing of his cause had proved disastrous, and in case of bad faith upon the part of counsel no protection might be in the reach of the accused until too late to save him from punishment, and thus embarrassment would be the consequence of its adoption.

The appellant objected to the testimony adduced by the commonwealth as to what Conrad did in his absence.

The objection was properly overruled because this evidence was competent as tending to show that the appellant had an apportunity to know that Hall had arrived and got off the train and was then in town. The conduct of Conrad, and the motive and purpose he had in going to the depot, was for the consideration of the jury. Whether he went there of his own volition, or at appellant's instance, either for a lawful or unlawful purpose, should have been left to the jury under proper instructions, which would have allowed them an unqualified opportunity of determining the true nature and purpose of what he did.

Appellant's statement explanatory of certain movements and acts of his, which he did shortly before the killing, were not competent, but as a new trial is bound to be given to him, we forbear expressing any reasons for this view except to say that where his acts are proven the jury are the judges of their meaning and object disconnected from his explanation of them unless they constitute part of the homicide, which is the main fact in issue.

Wherefore the judgment is reversed and cause remanded, with directions to grant appellant a new trial.

SUPREME COURT OF ILLINOIS. TAXATION-LICENSE FEE ON DOGS NOT A TAX-POLICE POWER OF THE

Everything hurtful to the public interest is subject to the police power of the State, and may be brought within restraining and prohibiting influence. Therefore the act authorizing a license fee to be imposed upon and collected of the owners or keepers of dogs is not subject to any constitutional objection.

The matter of imposing a license fee upon the owners or keepers of dogs is sufficiently expressed in the title of the act entitled "An act to indemnify the owners of sheep in cases of damage committed by dogs."

SCOTT, J.

The bill in this case was brought by owners of dogs, resident in the town of Serena, against the collector of taxes for the town, and is to enjoin the collection of a "license fee" of one dollar on each dog owned by complainants, respectively, and which was imposed by the proper authorities under the act of May 29, 1879, entitled "An act to indemnify the owners of sheep in cases of damage committed by dogs." It is not questioned the statute has been complied with by the proper authorities in charging the "license fee" upon complainants for dogs owned by them, but the questions argued have exclusive reference to the constitutionality of the act under which it is sought to be imposed.

The "license fee" imposed under the provisions of the statute is in no sense a tax, and is not therefore within the operation of section 1, art. 9, of the constitution, which provides all needful revenue shall be raised by levying a tax by valuation, so that every person or corporation shall pay a tax in proportion to his, her or its property, and hence all questions as to the value of property to be taxed are of no consequence in this case. It is simply what it purports to be, a "license fee," and is imposed under the police power, and not under the taxing power of the State. Undoubtedly "dogs" are regarded as species of property for some purposes, but owing to their habits, which are known to be hurtful sometimes to persons and to some kinds of domestic animals, the keeping of them may be the subject of regulations provided by law. Everything hurtful to the public interest is subject to the police power of the State, and may be brought within its restraining or prohibitory influence, otherwise a public evil might exist, with no power to abate it. This ought not to be. It is known that "dogs" often impart a most fearful disease to persons injured by them, and that they are oftentimes destructive to domestic animals, such as sheep, and the State may well provide such regulations for the keeping of them as will insure safety, and may, with a view to effectuate that purpose, impose upon the owners or keepers either a license or a penalty. There is nothing in the constitution that forbids it.

As to the objection the matter of imposing a "license fee" upon the owners or keepers of dogs is not expressed in the title of the act, a majority of the court are of opinion it is sufficiently germane to the subject expressed as to be fairly embraced in it, and that under the decision of this court in Johnson v. The People, 83 Ill. 431, answers the constitutional requirements in this regard.

It would seem it can make no difference what