that the travelling public were annoyed and apprehensive of harm from theiling his life, the prisoner has very much exceeded his lawful powers, and I guns. It was held, that it did not appear that there was such real and substantial danger to the public as to warrant a conviction.

Concerning the right of resorting to spring-guns for the purpose of protecting property the court reason, that the mere act of setting spring-guns on one's own premises for their protection, is not unlawful in itself, but the person doing it may be responsible for injuries caused thereby to individuals, and may be indictable for the erection of a nuisance, if the public are subjected by it to any danger; that what a man may not do directly, he may not do indirectly; that a man may not, therefore, place instruments of destruction for the protection of his property, where he would not be authorized to take life with his own hand for its protection; that the right to take life in defence of property, as well as of person and habitation, is a natural right; but the law limits its exercise to the prevention of forcible, and atrocious crimes, of which burglary is one; that in the absence of any statutory provision making it burglary to break and enter a shop in the night-time, with intent to steal, and by the early strict rules of the common law, a man may not take life in the prevention of such a crime; but that the habits of the people and other circumstances, have so greatly changed since the ancient rule was established, that it is very questionable whether, in view of the large amount of property now kept in warehouses, banks, and other out-buildings, it should not be held lawful to place instruments of destruction for the protection of such property; that breaking and entering a shop in the night-season with intent to steal, is, by the law of Connecticut, burglary; and that the placing of spring-guns in such a shop for its defence, would be justified, if the burglar should be killed by them; that the guns would, however, constitute a nuisance if they cause actual danger to passers-by in the street; but that the danger to the public must be of a real and substantial nature.

4. Limit of the Right to defend one's Doods.-If we adopt the conclusion of the Connecticut case last above quoted, that what a man may not do, directly, he may not do indirectly, the question involved in the principal case will be found to have been settled by a great weight of authority. That a person is not obliged to surrender the possession of his goods, his lands, or other property to a wrong-doer without resistance, does not admit of question People v. Hubbard, 24 Wend. 369; Curtis v. Hubbard, 1 Hill, 336; S. C., 4 Hill, 437; Commonwealth v. Kennard, 8 Pick. 133, 137; Commonwealth v. Power, 7 Metcalf, (Mass.) 596; People v. Honshell, 10 Cal, 87; Harrington v. People, 5 Barb. 611, 612; McAuley v. State, 3 G. Greene, 435; I Bish. Crim. Law, 861, 5th ed. He may by the doctrine of these, and all the cases where the rule is stated, use, within a certain prescribed limit, as much force as is necessary to preserve his possession-taking care the degree of force used does not exceed what is necessary, or what reasonably appears to be necessary, for the purpose of defence and prevention. The limit here spoken of, is the limit at which it becomes necessary to take or endanger life, in order to protect one's possession. And here, the criminal law, which seeks certainty in its rules as far as possible, divides offences against property into two general classes, namely, felonies and trespasses, for the purpose of determining whether a killing in prevention of such offences, shall be deemed justifiable or culpable.

And the first rule which may be stated is, that a killing which is necessary, or which reasonably appears to be necessary, to prevent a forcible and atrocious felony against property, is justifiable homicide. Pond. v. People, 8 Mich. 150; People v. Payne, 8 Cal., 341; State v. Roane, 2 Devereaux, 58; Gray v. Coombs, 7 J. J. Marsh, 478; State v. Moore, 31 Conn. 479; Johnson v. Patterson, 14 Conn. 1. This rule, the common law writers limit to cases of secret felonies, or felonies not accompanied with force. 1 Hale P. C. 488; 1 East P. C. 273; Foster, 274. Though we do not find this distinction adjudged in any modern case which we have seen, yet it has been quoted with approbation in several. Pond's case, supra; Moore's case, supra. Mr. Bishop, however, is of opinion that upon principle there can be found no such distinction in the law itself; but why he is of this opinion, he does not saisfactorily tell us. I Bish. Crim. Law, 853, 5th ed. It is pretty clear, that the right to kill in defence of property does not extend to cases of larceny, which is a crime of a secret character; although the cases which illustrate this exception, are generally cases of theft of articles of small value. Thus, in Reg. v. Murphy, 2 Craw. & Dix C. C., 20, the prisoner was indicted under the statute for maliciously shooting with intent to do grievous bodily harm, etc. It appeared that on the day in question, the prisoner, who was a game-keeper and wood ranger of Lord Dunsany, and armed with a fowling piece, detected the prosecutor in the act of carrying away from his employer's lands a bundle of sticks, consisting of branches severed from the growing timber by a recent storm; that the prisoner hailed him, when he dropped the sticks and ran; upon which the prisoner called out, "If you don't stop, I'll fire;" but the prosecutor still going on, the prisoner fired, wounding him in the head, back and arms. DOHERTY, Ch. J., said: "There is no doubt that the prosecutor, in carrying away the branches previously dissevered from the trees, was committing a felony, and the prisoner was clearly entitled to arrest him; but in discharging his gun at the prosecutor, and per

cannot allow it to go abroad, that it is lawful to fire upon a person committing trespass and larceny; for that would be punishing, perhaps with death, offences for which the law has provided milder penalties." And see to the same effect, McClelland v. Kay, 14 B. Monroe, 106; Gardiner v. Thibodeau, 14 La. An, 733; State v. Vance, 17 Iowa, 144; Priester v. Augley, 5 Rich. (Law), 44. It may be observed, however, that the right extends to statutory felonies, as well as to felonies at common law. Gray v. Coombs, supra, Pond's case, supra; Moore's case, supra. And it would seem that the fact that a common law felony has been reduced by statute to a misdemeanor, does not diminish the right of defence applicable to such cases. Gray v. Coombs, supra; Drennan v. People, 10 Mich. 169. These cases are in accord upon this point with what is said by the learned chief justice in the principal case, where he says that the rule which forbids the resorting to such dangerous means for the prevention of trespasses does not depend upon the light in which the law regards the act and the punishment provided for it, but upon the limitation which the law puts upon the right of the owner of property in rendering it protection. Language of similar import was used by NICHOLAS, J., in Gray v. Coombs, supra, where he said that "a name can neither add to, nor detract from, the moral qualities of a crime; and in the eye of reason and justice, the intrinsic nature of the offence, together with the time and manner of its attempted commission, must ever test the legality of the means to be resorted to for its prevention." 7 J. J. Marsh. 483.

But the ordinary rule is, that a killing to prevent a mere trespass upon property, or any asportation of or injury to it, which does not amount to a felony, is a felonious homicide; or, viewed in the light of a civil action, unlawful. Harrison's case, 24 Ala. 67; Drew's case, 4 Mass. 391; United States v. Williams, 2 Cranch, C. C. 439; Priester v. Augley, 5 Rich. (Law., 44; State v. Morgan, 3 Ired. 186; State v. McDonald, 4 Jones (Law), 22. State v. Brandon, 8 Jones (Law), 467; State v. Vance, 17 Iowa, 144; Gardiner v. Thibodeau, 14 La. An. 733; McClelland v. Kay, 14 B. Monroe, 106. As where a person kills an officer who comes unlawfully to distrain his goods. United States v. Williams, supra Or where a person kills a slave who is stealing sugar-cane. Priester v. Augley, supra. Or stealing chickens. McClel land v. Kay, supra; Gardiner v. Thibodeau, supra. Or where a person kills another who lets down a dividing fence, and hauls off manure as to which there is a disputed claim. State v. McDonald, supra. Or kills one who taking corn from a bin, the right to which is in dispute. State v. Brandon, supra. Or where a person fires among a party of boys who are stealing his melons, and kills one of them. State v. Vance, supra. Or shoots and wound's a person who is carrying off branches severed from his master's trees. Reg. v. Murphy, 2 Crawf. and Dix, C. C. 20.

It is seen, therefore, that the rule that it is unlawful to set engines danger ous to life, for the defence of property against mere trespassers, is not only correct upon principle, as enforced by the reasoning of the principal case, but is sustained by a great array of authority; although it is possible that such means of defence are permissible to secure valuable property kept in ware houses and shops against nocturnal depredators.

Power of the States to tax Agencies of the Gen-
eral Government.

UNION PACIFIC RAILROAD COMPANY v. PENISTON,
TREASURER OF LINCOLN COUNTY; S. C., I DILLON,
C. C. R. 314.

Supreme Court of the United States, October Term, 1873.

Nature and extent of taxing power of the states considered, and held that the Union Pacific Railroad company was not such an instrumentality of the federal gov ernment, as exempts its road bed and rolling stock from state taxation.

The facts will be found fully stated in the report of the case as determined in the court below, under the name of Union Pacific Railroad Company v. Lincoln County, Dillon C. C. R. 314. Mr. Justice STRONG delivered the opinion of the court. That the taxing power of a state is one of its attributes of sovereignty; that it exists independently of the constitution of the United States, and underived from that instrument; and that it may be exercised to an unlimited extent upon all property, trades, business, and avocations existing or carried on within the territo rial boundaries of the state, except so far as it has been surren dered to the federal government, either expressly or by necessary implication, are propositions that have often been asserted by this court. And in thus acknowledging the extent of the power to tax

belonging to the States, we have declared that it is indispensable the Union Pacific Railroad Company was created to subserve, in

to their continued existence. No one ever doubted that before part, at least, the lawful purposes of the national government; that the adoption of the constitution of the United States, each of the it was authorized to construct and maintain a railroad and telegraph states possessed unlimited power to tax, either directly or indi- line along the prescribed route, and that grants were made to it, rectly, all persons and property within their jurisdictions, alike by and privileges conferred upon it, upon condition that it should at taxes on polls, or duties on internal production, manufacture, or all times transmit despatches over its telegraph line, and transuse, except so far as such taxation was inconsistent with certain port mails, troops, and munitions of war, supplies and public treaties which had been made. And the constitution contains no stores upon the railroad for the government, whenever required to express restriction of this power other than a prohibition to lay do so by any department thereof, and that the government should any duty of tonnage, or any impost, or duty on imports or ex- at all times have the preference in the use of the same, for all the ports, except what may be absolutely necessary for executing the purposes aforesaid, must be conceded. Such are the plain prostate's inspection laws. As was said in Lane County v. Oregon, visions of its charter. So it was provided that in case of the re7 Wall. 71, “in respect to property, business, and persons within fusal or failure of the company to redeem the bonds advanced to their respective limits, the power of taxation of the states re- it by the government, or any part of them, when lawfully required mained, and remains entire, notwithstanding the constitution." by the secretary of the treasury, the road, with all the rights, funcIt is, indeed, a concurrent power, (concurrent with that of the tions, immunities, and appurtenances thereunto belonging, and general government,) and in the case of a tax upon the same sub- also all lands granted to the company by the United States which ject by both governments, the claim of the United States as the at the time of the default should remain in the ownership of the supreme authority must be preferred; but with this qualification company, might be taken possession of by the secretary of the it is absolute. The extent to which it shall be exercised, the sub- treasury for the use and benefit of the United States. The charter jects upon which it shall be exercised, and the mode in which it also contains other provisions looking to a supervision and conshall be exercised, are all equally within the discretion of the leg-trol of the road and telegraph line, with the avowed purpose of islatures to which the states commit the exercise of the power. That discretion is restrained only by the will of the people expressed in the state constitutions, or through elections, and by the condition that it must not be so used as to burden or embarrass the operations of the national government. There is nothing in the constitution which contemplates or authorizes any direct | abridgment of this power by national legislation. To the extent just indicated, it is as complete in the states as the like power within the limits of the constitution is complete in congress." Such are the opinions we have expressed heretofore, and we adhere to them now.

which we have already alluded.

Admitting, then, fully, as we do, that the company is an agent of the general government, designed to be employed, and actually employed, in the legitimate service of the government, both military and postal, does it necessarily follow that its property is

securing to the government the use and benefit thereof for postal and military purposes. It is unnecessary to mention these in detail. They all look to a purpose of congress to secure an agency competent and under obligation to perform certain offices for the general government. Notwithstanding this, the railroad and the telegraph line are neither in whole nor in part the property of the government. The ownership is in the complainants, a private corporation, though existing for the performance of public duties. The government owns none of its stock, and though it may appoint two of the directers, the right thus to appoint is plainly reserved for the sole purpose of enabling the enforcement of the There are, we admit, certain subjects of taxation which are with-engagements which the company assumed, the engagements to drawn from the power of the states, not by any direct or express provision of the federal constitution, but by what may be regarded as its necessary implications. They grow out of our complex system of government, and out of the fact that the authority of the national government is legitimately exercised within the states. While it is true that government cannot exercise its power of tax-exempt from state taxation? ation so as to destroy the state governments, or embarass their lawful action, it is equally true that the states may not levy taxes, the direct effect of which shall be to hinder the exercise of any powers which belong to tke national government. The constitution contemplates that none of those powers may be restrained by state legislation. But it is often a difficult question whether a tax imposed by a state does in fact invade the domain of the general government, or interfere with its operations to such an extent, or in such a manner, as to render it unwarranted. It cannot be that a state tax which remotely affects the efficient exercise of a federal power is, for that reason, alone, inhibited by the constitution. To hold that, would be to deny to the states all power to tax persons or property. Every tax levied by a state withdraws from the reach of federal taxation a portion of the property from which it is taken, and to that extent diminishes the subject upon which federal taxes may be laid. The states are, and they must ever be, co-existent with the national government. Neither may destroy the other. Hence, the federal constitution must receive a practical construction. Its limitations and its implied prohibitions must not be extended so far as to destroy the necessary pow ers of the states, or prevent their efficient exercise.

These observations are directly applicable to the case before us. It is insisted, on behalf of the plaintiffs, that the tax of which they complain has been laid upon an agent of the general government, constituted and organized as an instrument to carry into effect the powers vested in that government by the constitution, and it is claimed that such an agency is not subject to state taxation. That

[After reviewing Thompson v. Union Pacific R. R. Co. 9 Wall. 579; McCullough v. Maryland 4 Wheat. 316; Osborn v. Bank, 9 Wheat. 738, the court proceeds :]

It is, therefore, manifest that exemption of federal agencies from state taxation is dependent, not upon the nature of the agents, or upon the mode of their constitution, or upon the fact that they are agents, but upon the effect of the tax; that is, upon the question whether the tax does in truth deprive them of power to serve the government as they were intended to serve it, or does hinder the efficient exercise of their power. A tax upon their property has no such necessary effect. It leaves them free to discharge the duties they have undertaken to perform. A tax upon their operations is a direct obstruction to the exercise of federal powers. In this case, the tax is laid upon the property of the railroad company precisely as was the tax complained of in Thompson v. Union Pacific. It is not imposed upon the franchise or the right of the company to exist and perform the functions for which it was brought into being. Nor is it laid upon any act which the company has been authorized to do. It is not the transmission of dispatches, nor the transportation of United States mails, or troops, or munitions of war, that is taxed, but it is exclusively the real and personal property of the agent, taxed in common with all other property in the state of a similar character. It is impossible to maintain that this is an interference with the exercise of any power belonging to the general government; and if it is not, it is prohibited by no constitutional implication.

It remains only to notice one other position taken by the com

plainants. It is, that if the act of the state, under which the tax was
laid, be constitutional in its application to their property within
Lincoln county, the property outside of Lincoln county is not law-
fully taxable by the authorities of that county under the laws of
the State. To this we are unable to give our assent. By the stat-
utes of Nebraska, the unorganized territory west of Lincoln
county, and the unorganized county of Cheyenne, are attached to
the county of Lincoln for judicial and revenue purposes. The
authorities of that county, therefore, were the proper authorities
to levy the tax upon the property thus placed under their charge
for revenue purposes.

The decree of the circuit court is affirmed.
Mr. Justice SWAYNE concurring:

I see

I concur in the affirmance of the judgment in this case. no reason to doubt that it was the intention of congress not to give the exemption claimed. The exercise of the power may be waived. But I hold that the road is a national instrumentality of such a character that congress may interpose and protect it from state taxation, whenever that body shall deem it proper to do so. For some of the leading authorities in support of the principle involved in this view of the subject, I refer to the Chicago and Northwestern Railway v. Fuller, decided by this court a short time ago. Mr. Justice BRADLEY dissenting, wrote a long opinion, in which he held that if the road-bed may be taxed, it may be seized and sold for non-payment of taxes; seized and sold in parts and parcels; separated by county or state lines, and thus the whole purpose of congress, in creating the corporation, and establishing the line, may be subverted and destroyed. In his judgment, the tax laid in this case was an unconstitutional interference with the instrumentalities created by the national government in carrying out the objects and powers conferred upon it by the constitution. Mr. Justice FIELD concurred with Mr. Justice BRADLEY. Mr. Justice HUNT dissented from the opinion of the court but wrote no opinion.

Power of Master of Vessel to Create a Lien on
Vessel in Violation of his Instructions-When
United States Courts will Refuse to Entertain
Suits in Admiralty Between Foreigners.

On the 17th instant, Judge BLATCHFORD, sitting in the United States district court for the southern district of New York, rendered an interesting decision in the case of Fechtenberg et al. v. The British bark Woodland, her tackle, etc. The Woodland being in the port of St. Thomas, her master drew certain drafts on her owners, whereby he undertook to pledge the vessel, freight and cargo, for their payment, and which gave to whomsoever might be the legal holder of them, a lien upon the vessel, freight and cargo. These drafts were negotiated with j. Niles & Co., of St. Thomas, who assigned them to the libellants. It is unnecessary to set out the allegations of the libel and answer, as the facts on which the case turns are stated in the concluding portion of Judge BLATCHFORD's opinion, as follows:

ever lien the language of the drafts may be claimed to create. J. Niles & Co., and the libellants declined to take the master's drafts, as authorized by the letter, and insisted that the master should undertake to create a lien on the vessel by other means than a bottomry. They insisted that the master should exceed his authority, as defined and limited by the letter. It is of no consequence to show that a resort to bottomry would have been more expensive to the claimants. They had a right to limit the authority of the master, and they did so. It is of importance so to administer the maritime law, that vessels in distress in foreign ports shall not be deprived of the means of obtaining relief; but it is no less important that masters of vessels and persons dealing with them, with knowledge of the instructions under which they are acting, shall keep within the limits of such instructions. As this is not a case communis juris, and both parties are foreigners, and the contract was made with reference to the law of the vessel's country, it is a case where the question of the liability of the owners of the vessel can, with especial propriety, be determined by the tribunals of such country. The libel must be dismissed with costs."

National Banks-Rate of Interest.

The supreme court of Indiana, on the 7th inst., delivered an opinion, holding that national banks, organized and doing busi ness in the state of Indiana, may lawfully charge an interest rate

of ten per cent., to which may be added the current rate of ex change for sight drafts where there is a purchase discount, or sale of a bona fide bill of exchange, payable at other place than the of illegal interest by a national bank does not defeat a recovery place of purchase, discount or sale. The reserving or receiving upon the note for the principal of the debt. In an action upon an usurious contract for loan of money made with a national bank, or with any person on its behalf, or as its trustee, the bank can recover no interest, nor can defendant recover any interest paid. The usurious interest, with the penalty prescribed by the national banking law, is recoverable as therein stated.

Book Notice.

A TREATISE ON THE AMERICAN LAW OF EASEMENTS AND SERVITUDES.
By Emory Washburn, LL.D., Bussey Professor of Law in Harvard Uni
versity, author of a Treatise on the American Law of Real Property.
Third edition. Boston: Little, Brown & Co., 1873. pp. 776. Sold
by Soule, Thomas & Wentworth, Law Booksellers, St. Louis.
The third edition of this treatise contains over 200 pages more than the
first, and mentions and cites 600 new cases, decided since the second edi
tion was published in 1867. A comparison with the previous editions
shows that the present has not only been enlarged, but otherwise improved.
It is a complete and exhaustive treatise. It will be difficult to find in
England, or in this country, a well considered case on the subject of which
the book treats, which has escaped the unwearied diligence of the author.
For an American lawyer, there is no substitute for this work, and in Great
Britain it would seem to be equally useful, being more comprehensive than
any treatise on the subject which has there appeared. The most striking
feature of the book is the great labor and care which have been bestowed

showing the exact state of the law on the subject with which it deals. It
condense the book two hundred pages, and the work, artistically viewed,
would, perhaps, be possible to classify the cases referred to in the text and
would be more symmetrical; but, to the practising lawyer, for whose use
it is chiefly designed, its practical value would, in our judgment, be
thereby impaired.

'In the present case the libellants have put in evidence a letter of December 24, 1870, from the claimants to the master. That upon it. It fulfils excellently the leading office of an elementary work, in letter was made known to J. Niles & Co., and to the libellants. It authorizes the raising of the funds by drafts on Heaney & Parker, or by drafts on the claimants, and states that the claimants have no doubt that the master will be able to obtain funds in that way. But it contemplates, as the alternative means, only a bottomry. It authorizes a bottomry if a resort to drafts fails. But it authorizes only drafts or a bottomry. It must be regarded as excluding the master from resorting to anything but drafts or a bottomry, and as excluding him from resorting to the creation of a lien on the vessel by any form or hypothecation other than a bottemry, or to the creation of such a lien as is asserted in this case, whether an implied lien to result from the transactions, or what

Treating of a single subject, which embraces many topics not yet fully settled, it was practicable for the author to undertake to refer to all the principal cases, and to state in the text the exact substance of the more im portant of them; and this Prof. Washburn has done. · A book prepared upon this plan, wherever it is practicable, is more useful to the mass of the profession than one in which the author gives us more of his own views and discussions. It is to be recollected that, in not one place in a hundred

where the book will be used, is to be found a full library, and this consid-structive possession of the property, but only gives authority to reduce it to eration justifies the author in his full statement of the more important possession. Saunders v. Bartlett. adjudications, and in taking the space necessary to display, though with some repetition, the course of decisions in the several states.

While we are of opinion that this work would not serve as an universal model for law treatises, yet for the subject in hand, the plan is excellent, and has been executed with that skill and pains-taking care for which the author is justly noted.

It may be acceptable to some of our readers to give an idea of its scope. Chapter I. treats of the nature of Easements and the mode of acquiring them by Grant, User and Prescription, and Dedication.

Chapter II. treats of Easements and Servitudes of WAY, and herein of Ways of Necessity, by Grant, how used, and the relative rights of the landowner and the way-owner.

Chapter III. treats of Easements and servitudes of WATER, and herein of Irrigation; Water for Mills; Artificial Water Courses; Rights in Rain and Surface Waters; Subterranean Waters, and Public Waters.

Chapter IV. relates to Miscellaneous Easements, such as the Lateral Support of Land, and the Support of Houses; Party Walls; Light and Air, etc.

Chapter V. treats of the Loss and Extinguishment of Easements, by uniting the dominant and servient estates; by abandonment, non-user, etc. Chapter VI. relates to the Repair of Easements and Remedies at Law and in Equity for injuries thereto by action, by injunction and by abate

ment.

Corporation; Insolvent.-In winding up, each stockholder is liable to the creditors for the full amount of his subscription, irrespective of insolvent

stockholders; and the creditors are entitled to immediate payment, and cannot be postponed till after the collection of doubtful claims. Marr v. Bank West Tennessee.

Dray-Is a vehicle, and subject to municipal tax as such. Memphis v. Battaile.

Demurrer.-Under the Tennessee code, abolishing general demurrersa demurrer to a plea or subsequent pleading, does not ransack the record or reach back to the declaration. Hobbs v. Memphis and Charleston R. R. Company.

Evidence-In cases in chancery, must be secundum allegata. Johnson v. Luckadoo.

Books of account, when testified to by witnesses, are competent evidence. Apperson v. Har is. Endorser-Notice to, left at his residence, when it was known that he had

abandoned it, is not sufficient to bind him. Selby v. Brinkley.

Frauds, Statute of.-A verbal promise to pay the debt of another is void under the statute, even where the promisor has the debtor's effects in his hands. Murphy v. Renkert.

A few topics, and but a few, we noticed in passing, had not been treated by the author with his accustomed fullness. For example, the distinction which is overlooked or disregarded in so many of the cases between ordinary highways in the country, and streets in compact places or in incorporated towns, as to the uses to which they may properly be put, and the remedies of the public and the adjoining owner for improper uses, is not for improvements. Keep v. Cannavan. as fully defined and enforced as it seems to us it is desirable, at least on principle, that it should be.

Infant-Is not bound by a decree obtained in a suit where the administrator, being a party, has also acted as prochein ami. O'Connor v. Cobb. Is not bound by the stipulations of the guardian's lease, to pay

The chapter on Dedication is a mine of wealth on the subject, and quite exhausts the authorities relating to it, except upon the point, whether the rights of the public in a complete and accepted dedication can be lost by nonuser or adverse possession. On this subject there are cases not referred to

Insurance.-Condition of policy that suit be brought within 12 months after loss, was avoided and nullified by the breaking out of the late war. (Acc. 13 Wall. 158.) Underwood v. Phoenix Insurance Co.

Parties to an insurance policy are bound by their contract, ac

by the author, and which are essential to a full understanding of the views cording to its fair and reasonable intendment. People's Insurance Co. v.

which the courts have held concerning it, and the state of the law upon the subject.

The principal rights of riparian owners are well presented. We think the author does well to question the doctrine which has been sanctioned in New Jersey, (Stevens v. Paterson etc., Railroad, 5 C. E. Green 126, 34 N. J. (Law) 532); in New York, (Gould v. Hudson River R. R. 6 N. Y. 522); and recently in Iowa, (Tomlin v. Dubuque etc. R. R. Co. 32 Iowa 106),

that a riparian proprietor upon a navigable river, is without remedy for being deprived of access to the water by the construction of a railroad along the river, outside of the water-line bounding the land of such owner; and to invite comparison with the rights of such owners to access to the stream, as laid down by Mr. Justice MILLER in Yates v. Milwaukee, 10 Wall. 497. Without here entering upon the discussion of the subject, we may observe that the doctrine that the riparian owner has no rights except those of alluvion and dereliction, and in particular, that he has no right of access to the navigable water, of which he cannot be deprived without compensation, is not to our mind so clear that it should be adopted by other courts without at least further consideration.

The author's treatment of rights in respect to public streams, and surfacewater, party-walls, light and air, and the right of support of land and houses, leaves nothing to be desired. The work is a credit to the law literature of the country, and is published in the excellent style which has justly made the house of Little, Brown & Co. famous

Notes of Recent Tennessee Decisions. SUPREME COURT, JACKSON, OCTOBER (SPECIAL) TERM, 1873. [Courtesy of Hon. J. Pierce of Memphis.]

Bankruptcy.-See Replevin; Surety.

Bill of Lading-In the hands of a consignee (though the property be consigned to him on account of a debt) does not amount to actual or con

Kuhn.

Limitations, Statute of.-Part payment of a note within six years, without more, is not sufficient proof of a new promise as to the remainder. Locke v. Wilson.

Malicious Prosecution.-In an action for, under the Tennessee code, want of probable cause is a substantial fact in the case, and a failure to aver it specifically in the declaration, is bad after judgment by default, and is reversible error. Thompson v. Evans.

Municipal Corporation-Is an imperium in imperio, and special legislation for it is not unconstitutional. [Acc. Trigalley case, 6 Cold. 382.] Memphis v. Battaile.

Plea in abatement-Lies to an ancillary attachment, and the issues on it are to be tried separately by a jury, before the trial of the main suit. Price v. Bescher.

Partnership-Not liable for money advanced to one partner on his sole credit, though the firm get the benefit of it. Union & Planters' Bank v. Day.

On attachment against one member of, the sheriff may take possession of the firm property and sell the debtor's interest in it. (N. B.The property not in actual possession of either partner.) Saunders v. Bartlett.

Replevin.-The suit as to detention being decided without reference to

United States Supreme Court Decisions Last Missouri. This was an action by the trustee of a bankrupt to recover

notify the mortgagees of the proceedings, inasmuch as the property is de- already fixed by protest and notice. Judgment affirmed. Mr. Justice

Land Law. No. 670. Crews v. Brewer.-Error to the circuit court for the southern district of Illinois.—This is an affirmance of the title to cer tain lands in Illinois, the court sustaining the title of those who held under In the case of Bougree v. John Slidell et al., the decision affirms the conveyances from the settlers at the date of the cession to the United States, judgment below, holding that the confiscation of the property of Slidell as against those who claim by pre-emption, and the action of the land depassed only a life estate, and did not affect the title of his children as heirs.partment since. Mr. Justice CLIFFORD delivered the opinion.