of promise creates the perplexity in the present instance. On which side of the line is to fall an action which is based on the hypothesis of a broken contract, yet is attended with some of the special consequences of a personal wrong, and in which damages may be given of a vindictive and uncertain kind, not merely to repay the plaintiff for temporal loss, but to punish the defendant in an exemplary manner? How far is such an action within, how far without, the maxim, "Actio personalis moritur cum persona?" The problem is one which in the nature of things is of later date than the Year Books. Before the Reformation no action for breach of promise could be maintained, for marriage was a matter of spiritual jurisdiction. It was not till the middle of the seventeenth century that marriage was recognized by our law as a temporal benefit, and a breach of promise of marriage is recognizable by the temporary courts. Baker v. Smith, Styles, 295; see also Rolle's Abridgment, tit. "Action on the Case," fol. 22, par. 20; Hebden v. Rutter, Sid. 180, and Harrison v. Cage, Carthew, 467, a case supposed erroneously by Willes, J., in Smith v. Woodfine, 1 C. B. (N. S.) 660; see p. 667, to be the earliest recorded case of an action for breach of promise of marriage. No authorities of a very early date can accordingly be expected to throw light upon the question, and it must be solved mainly upon principle.

It is a striking and not an immaterial fact that no action for breach of promise of marriage against the executors of a deceased person is to be found in the books. We have moreover a case decided by Lord Ellenborough in the Court of King's Bench toward the beginning of the century which affords us some guidance in the matter. InChamberlain v. Williamson, 2 M. & S. 408, the converse of the present case occurred in an action brought by the representative of a deceased against a living person for breach of promise. It was held that an action of the sort, in which no special damage was alleged, would not lie, on the ground that except when such special damage had been occasioned the action was in reality an action arising out of a personal injury. "The general rule of law," says Lord Ellenborough (2 M. & S., at p. 415), "is actio personalis moritur cum persona, under which rule are included all actions for injuries merely personal. Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of the personal estate." This judgment has been adopted as a guiding one by the American courts in th the cases of Stebbins v. Palmer, 1 Pick. (Mass.) 71; Lattimore v. Simmons, 13 Serg. & R. (Penn.) 183; Smith v. Sherman, 4 Cush. (Mass.) 408, at p. 413; and Hovey v. Page, 55 Me. 142. It does not indeed follow that the same reasoning applies in toto to actions brought against the executors of a deceased person. See per Bramwell, L. J., in Twycross v. Grant, 4 C. P. D. 40.

But the decision in Chamberlain v. Williamson, 2 M. & S. 408, shows at all events that the courts of this country will, even although an action for breach of promise be an action arising out of contract, apply the general principles of the maxim "uctio personalis" to so much of the damages as are a remedy for the mere personal wrong, and will allow so much of the remedy to survive as seems to belong to the ordinary category of actions ex contractu. In order accurately to draw the dividing line, it becomes necessary to analyze the damages which are recoverable in cases of breach of promise, and their measure and character has nowhere been better explained that in Sedgwick on Damages, vol. 2, p. 146, in a passage cited with approval by Willes, J., in Smith v. Woodfine, 1 C. B. (N. S.) 660, at p. 697. "This action," says the

learned author, "is given as an indemnity to the injured party for the loss she has sustained, and has been always held to embrace the injury to the feelings, affections and wounded pride, as well as the loss of marriage. From the nature of the case it has been found impossible to fix the amount of compensation by any precise rule, and as in tort, the measure of damages is a question for the sound discretion of the jury in each particular instance, subject of course to the general restriction that a verdict influenced by prejudice, passion or corruption will not be allowed to stand. Beyond this the power of the court is limited, as in cases of tort, almost exclusively to questious arising on the admissibility of evidence when offered by way of enhancing or mitigating damages.' It is, as it seems to us, by way of enhancing damages, and not as a special head of damage flowing naturally from the breach, that evidence of the means of the defendant is usually given at the trial. If it were otherwise, such head of damage would require special averment on the record. But it is treated as part of the history of the circumstances of the case, and as enabling the jury to estimate properly the conduct of the defendant. "The value of the defendant's property," says Cresswell, J., in Smith v. Woodfine, 1 C. B. (N. S.) at p. 666, "is invariably gene into in cases of this sort." But where there is no special averment on the record of pecuniary loss arising out of the breach, the general allegation of the breach of promise imports, according to Lord Ellenborough, only a' personal injury (Chamberlain v. Williamson, 2 M. & S. 408), though the jury may consider such personal injury with reference to all the circumstances of the

case.

There may of course be an actual loss to the temporal estate of the promisee, arising out of the breach of contract. If such loss is to be relied on as independent and special damage in an action against executors, it ought to be specially pleaded, and in order to see if such damage is in fact recoverable, the ordinary line as to remoteness of damages will have to be drawn according to the well-known doctrine of Hadley v. Baxendale, 9 Ex. 341.

If the above is a correct account of the damages recoverable in an action for breach of promise it would seem to follow that with the death of the promisor all claim to damages of an exemplary or sentimental kind ought to cease, and that such damages only ought to be left as represent compensation for a temporal and measureable loss flowing directly from the breach, or within the contemplation of both parties at the date of the promise, and that in an action against executors such a temporal loss, if it is alleged, must be tested according to the ordinary rules as to remoteness as applied to the special facts of the case. In the present action there is no special averment of temporal loss, and we ought not to allow the pleadings at this late stage to be amended and to send down the case to trial again, unless we are satisfied that there is a substantial claim under this head fit for the consideration of the jury. By special leave of the court the plaintiff has now filed an affidavit as to particulars of special damage. The only items which are entitled even to plausible consideration are two: First, the expense to which the plaintiff was put in maintaining herself as a feme sole subsequently to the breach; and secondly, the amount expended by the plaintiff in the purchase of underclothing, etc., in preparation for her marriage. The plaintiff's expense in maintaining herself after she was forsaken clearly cannot be recovered. It cannot be a consequence naturally arising out of a breach of promise of marriage that the woman is to be entitled during the remainder of her life to charge the expenses of her living and maintenance to her faithless lover. With respect to the claim for underclothing,

etc., it is sufficient to say that the materials furnished by the plaintiff's affidavit do not show that such purchase was made under circumstances which would bring the expenditure within the head of damages flowing directly from the alleged breach of contract or within the contemplation of the parties at the time. We do not desire to intimate any opinion that expenditure in respect of a marriage trousseau or other marriage preparations must necessarily be too remote to be recovered against executors in an action for breach of promise of marriage-the matter must in each case depend upon the circumstances of the case-but though invited to do so, the plaintiff has not given us the means of seeing that this particular head of damage can be sustained by evidence, or what case she has for asking for an amendment to be made in the statement of claim which would include it. The action therefore must be dismissed with costs, but as to the only point taken by the defendants at the trial was one as to corroboration, and as that point was a bad one, we think that there ought to be no costs of the hearing of the Divisional Court or of this appeal.

Judgment for the defendants.

NEW YORK COURT OF APPEALS ABSTRACT.

CARRIERS-OF PASSENGERS-INJURIES TO PASSENGERS-NEGLIGENCE.-Plaintiff's clothing caught in a hook as she was attempting to get out of defendant's car and she was injured. It was a summer car, and the hook served to fasten curtains together. The spring of the hook was broken, thus exposing its point; but it did not appear how long it had been broken, nor that by any diligence defendant could have known of its condition. Held, not sufficient proof of negligence to support a finding of the jury for plaintiff. March 20, 1888. Kelly v. New York & S. B. Ry. Co. Opinion by Earl, J.; Danforth, J., dissenting.

CONTRACT-INTERPRETATION-PROVINCE OF JURY. -It is the province of the jury to decide what an oral contract is where the evidence is conflicting as to the intent of the parties to such contract and as to its terms. March 20, 1888. Patten v. Pancoast. Opiuion by Gray, J.

PERFORMANCE CONDITIONS PRECEDENT. —

A provision in a contract that within ten days after the final estimate of a chief engineer of the work done, the full amount due upon such contract shall be paid, may be pleaded in bar to an action to recover for work done under such contract, where there is no evidence that any demand had been made of such engineer for such certificate. The action was not brought upon a quantum meruit-upon the ground that the contract had been rescinded and no longer subsisted, or to rescind or annul it. On the contrary it was brought to enforce it, and necessarily affirmed it. Quinn v. Van Pelt, 56 N. Y. 417. It went upon the theory that there had been a full and final performance, since the work not done was omitted by the defendant's direction and not through the fault of plaintiff. As to that, readiness to perform was equivalent to performance, and the plaintiff came into court standing upon the contract, demanding payment according to its terms, and damages for the work withdrawn. That he had a right to do. In McMaster v. State, 15 N. E. Rep. 417, recently decided, we held that a breach in one respect was not necessarily waived by a continued performance thereafter, but that the contractor could go on and complete his contract so far as possible and recover according to its terms, with damages for the breach, but those damages themselves founded upon the stipulations of the agreement. That is what this plaintiff did. The part of his work at Broadhead's

creek was, without difficulty, severable from the body of the contract. The defendant wrongfully-as we must assume from the verdict of the jury-in September of 1881 gave that work to others. The plaintiff notwithstanding continued his performance of the contract for a year or more, obeying its requirements and taking payments according to its terms. He now sues upon the contract to compel performance or its equivalent by the defendant, and necessarily stands upon and affirms it. He cannot in the present form of action affirm it for one purpose and repudiate it for another. April 10, 1888. Byron v. Low. Opinion by Finch, J.

CRIMINAL LAW-HOMICIDE-INDICTMENT-FINDING -FAILURE TO INDICT FOR THE ASSAULT.-Where an assault is committed, and during the life of the party assaulted, the grand jury, upon the case being presented to them, fail to find an indictment, an indictment for manslaughter, found after the party assaulted had died from the injuries received in the assault, is not defective because found without leave of court, as provided in the Code of Criminal Procedure of New York, § 270 (a charge once dismissed by a grand jury cannot again be submitted without direction of the court), the offenses not being the same. A conviction even of the offense of assault and battery would have been no bar to a prosecution for the graver crime subsequently developed. Burus v. People, 1 Park. Crim. 182; People v. Saunders, 4 id. 196; People v. McCloskey, 5 id. 57. March 20, 1888. People v. Warren. Opiuion by Ruger, C. J. FRAUD.

KIDNAPPING

Where defendant take passage

induced to a female voluntarily for a foreign port, under pretense that he had there obtained employment for her, but intending to place her in a house of prostitution, and it appears that she would not have consented to go but for such false pretense, he is guilty of the offense defined in the Penal Code, § 211. The section defines the crime of kiduaping, and in the first subdivision declares that a person who "seizes, confines, inveigles or kidnaps another, with intent to cause her, without authority of law, to be securely confined or imprisoned within this State, or to be sent out of the State, or to be sold as a slave or in any way held to service, or kept or detained against her will," is guilty of kidnapping. Did the defendant under the circumstances intend that the prosecutrix should be sent out of the State against her will, within the meaning of the statute, or is the statute only applicable where the intent to cause another to leave the State contemplates physical coercion to that end? In Reg. v. Hopkins, Car. & M. 254, the case of an indictment for the abduction of an unmarried girl, under sixteen years of age, against the will" of her father, it appearing that the consent of the parents was induced by fraud, the indictment was sustained, and Gurney, B., said: "I mention these cases to show that the law has long considered fraud and violence to be the same." The language is very comprehensive, and if taken in its broadest meaning, seems scarcely consistent with the English cases which hold that the false personation of the husband, whereby a married woman consents to intercourse with a stranger, does not constitute a ravishment of the wife. Reg. v. Clark, 6 Cox Crim. Cas. 230; Reg. v. Young, 14 id. 114. In Queen v. Dee, Jebb Cr. Cas. 6 Crim. Law Mag. 220 (1884), the court refused to follow the English cases, and adopted the contrary view, upon what seems to us very satisfactory grounds. The case of Beyer v. People, 86 N. Y. 370, is quite apposite on the question of what constitutes a taking "against the will." The defendant in that case was indicted under a section of the Revised Statutes which declared that "every person who shall take any woman unlawfully against her will, with intent to

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compel her by force, menace or duress to marry him, or to marry any other person, or to be defiled, etc., shall, upon conviction, be punished, etc. It was held that the defendant, having by the false representation that he had procured for the prosecutrix a situation as a servant in a respectable family, induced her to go with him to a house of prostitution, with intent to compel her to be defiled, was guilty under the statute; and that the inducing the prosecutrix to accompany him, under the circumstances, was a taking "against her will" within the statute. The principle decided covers the present case. The consent of the prosecutrix, having been procured by fraud, was as if no consent had been given; and the fraud being a part of the original scheme, the intent of the defendant was to cause the prosecutrix to be sent out of the State against her will. April 10, 1888. People v. De Leon. Opinion by Andrews, J.

DAMAGES-MEASURE OF FOR BREACH OF CONTRACT ARTICLE. Defendant

TO SUPPLY MANUFACTURED

manufactured for plaintiff milk-coolers, each consisting of an iron frame supporting a vat in which was placed an enameled pan. The parts were separable, and the pans could at once be taken out and replaced by others. In an action to recover damages for defective coolers, where the only defect was in the enamel of the pans, held, that the measure of damages was the amount necessary to replace the defective pans by perfect ones. The plaintiff in every instance took back the pan and replaced it with a new one, and so made the original bargain good at the cost of the new pans alone. That was the plaintiff's damage. It never lost at all the cost or the value of the standards and vats, but keeping that in its treasury as received from the purchasers, it got it a second time in the judgment appealed from. The standards and vats, which were not claimed to be defective, and which could be as easily equipped with good pans as with poor ones, were first paid for by the purchasers, and then again by the defendants. April 10, 1888. New York Monitor Milk-Pan Co. v. Remington. Opinion by Finch, J.

EVIDENCE

FRAUDULENT SALE-BOOKS OF AC

COUNT.-Under allegations in an answer that a purchase by an insolvent firm of certain property, which it afterward pledged, was fraudulent and void, the books of the firm are admissible to show the condition of its affairs and its knowledge of such condition at the time of such purchase. March 20, 1888. Adams v. Bowerman. Opinion by Danforth, J.

HIGHWAYS -ESTABLISHMENT BY STATUTORY PROCEEDINGS WAIVER OF OBJECTION -MANDAMUS TO OFFICERS TO OPEN AND WORK- DISCONTINUANCE OF

ROAD.---(1) In an action for mandamus to compel a highway commissioner to attach a road to some road-district where it appears that the road was laid out by a former commissioner, who expended money and labor thereon, and that the damages were assessed and paid to the land-owners, who had notice of the proceedings, defendant cannot, in the appellate court, first question the legality of the laying out of the road. (2) An order of the highway commissioners, made subsequently to the motion, and before its decision, discontinuing the road in question, cannot be considered, the relator not having had notice of such order. March 20, 1888. People ex rel. Huntley v. Mills. Opinion per Curiam.

NEGLIGENCE-TRIAL-OBJECTIONS TO EVIDENCEWITNRSS-EXAMINATION INSTRUCTIONS TO JURYAPPEAL-REVIEW.-(1) In an action for injuries to plaintiff's pier by neglect of defendant's servants, one of defendant's witnesses, who had testified that he was familiar with the locus in quo, was asked, "Was

the slip wide enough for the scow to get much force in going through on either side?" Another of defendant's witnesses, after testifying as to the rotten condition of the pier, was asked how long he had noticed its rotten condition. To both questions plaintiff's counsel said, "Objected to." Held, that such objection was too general to raise the questions whether the first question was objectionable in form, or whether that witness had qualified as an expert, and that such objection to the second question did not disclose any defect. (2) After the defendant had concluded, plaintiff called a witness who denied certain declarations which had been attributed to him, and was cross-examined thereon, and on redirect examination plaintiff asked how much of these repairs were necessary to repair the injury occasioned, held, that the question was inadmissible in substance, the witness' testimony showing no knowledge or information on the subject in dispute, and was a reopening of the case. (3) The defense was that the damaged condition complained of was the result of natural causes. The judge submitted to the jury the issue of fact, whether the injuries complained of were the result of such neglect of defendant's servants or of natural causes, there being evidence on the part of the defendant that the pier was rotten, and did not confine their attention to the mere question of plaintiff's damage. Plaintiff made no request to withhold the case from the jury, nor did it except to the charge. Held, that the Appellate Court could not disturb the finding of the jury for defendant. (4) The court refused to charge the jury" that it was an improper use of the pier to moor heavy boats to the spiles," but charged that defendant was liable for any damage occasioned by neglect of its servants, and that it was their duty, if the pier was not safe to moor boats to, to refrain from so doing and not to tie boats to spiles so as to break them off. Held, that the charge was properly refused, that being a question of fact and not of law, and that the charge given properly submitted the question. March 20, 1888. New Jersey Steamboat Co. v. City of New York. Opiuion by Danforth,J.

PARTNERSHIP-FIRM AND PRIVATE CREDITORSJUDGMENT-PRIORITIES- LANDLORD AND TENANTESTOPPEL TO DENY TITLE.—(1) A judgment for a firm debt has no priority over a judgment previously obtained against the several members of the firm on their individual liabilities; and the purchaser at a sale under execution to enforce the latter judgment takes a good title as against the purchaser at a sale under the former. Saunders v. Reilly, 105 N. Y. 12. (2) When a defendant does not take the right to occupy premises under any agreement with plaintiff, nor in any way accept him as landlord, there is no estoppel to deny plaintiff's title. March 20, 1888. Davis v. Delaware & Hudson Canal Co. Opinion by Danforth, J.

RAILROAD COMPANIES - CHARTERS AND FRANCHISES AMENDMENT OF DEFECTIVE ARTICLES-NEW YORK

RAPID TRANSIT ACT -POWERS OF COMMISSIONERS

---

AMENDED PLANS OF CONSTRUCTION-FAILURE TO SUB

MIT TO PROPERTY OWNERS.-(1) Laws of New York, 1870, chap. 135, authorizing directors of any corporation organized under any general act to file an amended certificate of incorporation in case of any informality existing in the original certificate, is inapplicable to companies sought to be organized under the Rapid Transit Act of New York (Laws 1875, chap. 606), which gives to the commissioners therein directed to be appointed by the mayor, the exclusive authority to make articles of incorporation and deliver the certificate of incorporation to the directors, and which was intended to embrace the whole law as to the formation of companies thereunder. (2) Under the Rapid Transit Act, providing for the appointment of com

missioners to organize a county railroad, whose terms of office shall determine and expire with the performance of their functions as herein provided," and prescribing with particularity such functions, and the time within which they are to be performed, the power of the commissioners is not continuing, so as to enable them to reconvene after the prescribed time, and reform the articles or certificate of incorporation. (3) Under the Rapid Transit Act the commissioners were empowered to locate the route of a proposed railway upon the consent of the property owners, or if that is unobtainable, upon the decision of commissioners appointed by the Supreme Court and confirmed by it. The original submission of plans to the property owners was not made within the requirements of the act, so as to enable the property owners to make an intelligent judgment. Held, that the refusal of the property owners to consent to such plans does not empower the commissioners to make a decision upon amended plans to conform to the act, nor the Supreme Court to confirm the same, where the amended plans have never been submitted to the property owners. March 20, 1888. In re New York Cable Ry. Co. Opinion by Gray, J.

-NEGLIGENCE -FIRES EVIDENCE - COMPETENCY. (1) In an action for damages by fire to plaintiff's property by defendant's engine, because of a defective spark-arrester - there being evidence already in the case that an engine on another road with a different spark-arrester had passed near the property a short time before the fire, it was error to exclude the engineer's testimony as to which kind of sparkarresters used on the two engines in the course of his observation allowed the most and largest sparks to escape. (2) Plaintiff was allowed to prove the size of the sparks emitted from the engine several months after the fire, without any proof that the construction of the arrester was clearly defective in the first place, or that the engine and arrester were in the same condition of repair as at the time of the fire. Held, error. April 10, 1888. Collins v. New York Cent. & H. R. R. Co. Opinion by Peckham, J.

REFERENCE-APPOINTMENT OF REFEREE-EQUITYCANCELLATION OF INSTRUMENTS- TENANCY IN COMMON RIGHTS AND LIABILITIES INTER SE-RENTSTAXES PAID FOR LIFE-TENANT APPEAL REVIEW

MATTERS NOT APPARENT ON RECORD.-(1) Under conclusions of law, in an action to set aside deeds, that defendant shall account to plaintiff for his dealings with the property, and pay her what shall appear to be due, it is proper to include in the interlocutory judgment an order appointing a referee to take the account. (2) In an action to set aside deeds for plaintiff's interest in realty, of which she and defendant were tenants in common, on the ground of fraud and undue influence, plaintiff may recover rent from the time of delivery of the deeds, she having then left the premises in defendant's possession. The counsel cites a number of cases holding that the mere occupation by one of several tenants in common of an estate does not make the occupant liable to his co-tenants for the rent of the premises. Such are the cases of Woolever v. Knapp, 18 Barb. 265; Dresser v. Dresser, 40 id. 300: Roseboom v. Roseboom, 15 Hun, 309. These cases refer to the leading one of Henderson v. Eason, 9 Eng. Law & Eq. 337, where such a proposition was decided, and there is no doubt of its correctness. But that case and all the others resting upon it contains the qualification that the other tenants shall not be excluded or ousted from the possession of the premises or their title denied, in which event the other tenants may maintain ejectment to recover possession, and then an action to recover the mesne profits. 1 Co. Litt., § 184, 4 Bac. Abr., tit. "Joint Tenants,' L, p. 518. And in

order to prove au ouster it is not necessary to prove a violent ejectment, or as one of the cases has it, it is not necessary to prove the party was set out by the shoulders. It may be inferred from circumstances. Doe v. Prosser, Cowp. 217; Hornblower v. Read, 1 East, 568; Goodlittle v. Tombs, 3 Wils. 118, cited in 1 Coke, 906; 4 Kent Comm., marg. p. 370, note a. Obtaining title to the whole property held in common, by virtue of fraud and undue influence practiced on the co.tenant, who thereupon leaves the premises is, as we think, an ouster of such co-tenant, and would enable him to bring ejectment. (3) In an action to set aside deeds for plaintiff's interest in realty, of which she and defendant were tenants in common, where an accounting is adjudged, defendant cannot charge plaintiff with taxes on the property paid by him during the continuance of a precedent life-estate for the benefit of the life-tenant. (4) Where appellant gives notice of appeal from an order overruling his motion to vacate an interlocutory judgment, such order not appearing in the record, will not be reviewed in the appellate court. March 20, 1888. Zapp v. Miller. Opinion by Peckham, J.

UNITED STATES SUPREME COURT ABSTRACT.

BANKS-NATIONAL-TAXATION OF SHARES-CONSTITUTIONAL LAW-SHARES OWNED BY OTHER NATIONAL BANKS.-(1) Taxes levied under the Public Statutes of Massachusetts, ch. 13, § 8, which provides that all bank shares shall be assessed at their cash value, and at the same rate, and no greater than other moneyed capital in the hands of citizens is by law assessed, are not invalid, either under the Massachusetts Statutes or the Revised Statutes of the United States, § 5219, because under statutory provisions the tax on savings banks is based on the amount of their deposits, excepting deposits invested in loans secured on taxable real estate, since savings banks, being substantially public institutions, under public management, are organized for the purpose of investing the savings of small investors, and not for banking purposes in the commercial sense. (2) A tax levied under the Public Statutes of Massachusetts, chap. 13, § 8, which provided that bank shares shall be assessed at their cash value, is not in violation of the Revised Statutes of the United States, § 5219, or unconstitutional, by reason of the tax being "at a greater rate than other moneyed capital in the hands of citizens," because disproportionate and unequal to the tax imposed, under Public Statutes of Massachusetts, chap. 13. relative to the taxation of the corporate franchise of corporations, excepting bauks, on life insurance companies, based on the number of its policies, on trust and like companies, based on the amount of its deposits, and on telephone companies, based on the number of telephones used by it, these corporations not being banking institutions, and the investments made by them, their only capital not being "moneyed capital in the hands of citizens." (3) Under the Revised Statutes of the United States, § 5219, which provides that all shares of any banking association may be included in the valuation of the personal property of the owner or holder in the State within which the association is located, but each State may determine the manner of taxing the shares of national banks, a State may tax the shares of a national bank without regard to their ownership, the shares of stock of a national bank owned by another national bank, by reason of such ownership, not being exempt. The question of the exemption from taxation of deposits in savings banks, as affecting the rule for the State taxation of national bank

shares, was very deliberately considered by this court in the case of Bank v. New York, 121 U. S. 138, 160, and the conclusion reached in that case was reaffirmed in the case of Bank v. Board of Equalization, 123 U.S. 83. In the former case deposits in savings banks in the State of New York to the amount of $437,107,501, with an accumulated surplus in addition of $68,669,001, were exempted by the laws of the State from all taxation, neither the bank itself nor the individual depositor being taxed on account thereof. It was said in that case (p. 161): "However much therefore may be the amount of moneyed capital in the hands of individuals in the shape of deposits in savings banks as now organized, which the policy of a State exempts from taxation for its own purposes, that exemption cannot affect the rule for the taxation of shares in national banks, provided they are taxed at a rate not greater than other moneyed capital in the hands of individual citizens, otherwise subject to taxation." It is impossible, in our judgment, to distinguish the present from the case of the New York savings banks, or those of Iowa considered in the case of the Davenport bank. The principal distinction indeed between the case of the New York savings banks and those of Massachusetts involved in the present inquiry is, that the latter pay a tax of one-half of one per cent on the amount of their deposits, while the New York banks were exempt from all taxation whatever. The argument on behalf of the plaintiff in error indeed seeks to establish another distinction. It is alleged that in Massachusetts savings banks are permitted to transact a banking business in the way of loans upon personal securities, which assimilates them more closely to national banks, and takes away the reason for the application of the rule to them which was applied to the case of the savings banks of New York. But the difference mentioned, if it exists at all, is immaterial; the main purpose and chief object of savings banks, as organized under the laws of Massachusetts, are the same as those in New York, as considered in the case of the Mercantile Bank. They are substantially institutions under public management, in pursuance of a great and beneficial public policy, organized for the purpose of investing the savings of small depositors, and not as banking institutions in the commercial sense of that phrase. We adhere to the rule as declared in the cases heretofore decided, which forecloses further discussion as to the present point in this case. A similar objection to the tax in question, founded on a comparison of the taxation of national bank shares with that of insurance companies and trust companies, the American Bell Telephone Company, and the Massachusetts Hospital Life Insurance Company, is equally untenable. Within the definition of that phrase established in the case of Bank v. New York, 121 U. S. 138, the interest of individuals in these institutions is not moneyed capital. The investments made by the institutions themselves, constituting their assets, are not moneyed capital in the hands of individual citizens of the State. People v. Commissioners, 4 Wall. 244. It is further contended however on the part of the plaintiff in error that the taxation in question is not only at a greater rate than that imposed upon other moneyed capital held by individual citizens, but that it is repugnant to the Fourteenth Amendment to the Constitution of the United States, because it operates to deny to the tax payer the equal protection of the laws, and also that it is disproportionate and unequal, in violation of the provisions of the Constitution of Massachusetts. The two branches of this proposition are equivalent; if the tax is not disproportionate and unequal within the meaning of the Constitution of the State, the tax payer is not denied the equal protection of the laws within the sense of the Fourteenth Amendment. The point is fully

met by the reasoning and judgment of the Supreme Judicial Court of Massachusetts in the cases of Institution for Savings v. City of Boston and Jewell v. City of Boston, 101 Mass. 575, 585. It is contended that no tax is thereby authorized upon the national bank itself as a corporation, nor upon the personal property of any such, and that therefore these shares in the National Bank of Redemption are exempt from taxation by virtue of their ownership. This however is not a reasonable interpretation of the language of the section. The manifest intention of the law is to permit the State in which a national bank is located to tax, subject to the limitations prescribed, all the shares of its capital stock without regard to their ownership. The proper inference is that the law permits, in the particular instance, the taxation of the national banks owning shares of the capital stock of another national bank by reason of that ownership, on the same footing with all other shares. March 19, 1888. National Bank of Redemption v. City of Boston. Opinion by Matthews, J. Bradley, Gray and Blatchford, JJ., did not sit.

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PATENTS FOR INVENTION - PATENTABILITY - IMPROVEMENTS IN TELEGRAPHY-BELL TELEPHONES.— (1) Prior to March 7, 1876, the date of letters-patent No. 174,465, to Alexander Graham Bell, for "improvements in telegraphy," it had long been believed by those experienced in the art, that if the vibrations of air caused by the voice in speaking could be reproduced at a distance by means of electricity, the speech itself would be reproduced and understood. Bell discovered that these vibrations could be electrically reproduced by gradually changing the intensity of a continuous current of electricity, so as to make it correspond exactly to the changes in the density of the air caused by the human voice. He then devised a way in which these changes of intensity could be made, and speech actually transmitted. Held, that discovery in fluding this art, and invention in devising the means of making it useful, were both involved, and that the patent was properly issued, under the Revised Statutes of the United States, § 4886, providing that "any person who has invented or discovered any new and useful art ** may obtain a patent therefor." (2) The fact that the particular instrument which Bell had, and which he used in his experiments, did not under the circumstances in which it was tried reproduce the spoken words so that they could be clearly understood, does not invalidate this patent; the proof being abundant, and of the most convincing character, that other instruments, carefully constructed, and made exactly in accordance with the specifications, did and will operate successfully, though not so perfectly as instruments made upon the principle of the microphone, or the variable resistance method. (3) The fifth claim of letters-patent No. 174,465, of March 7, 1876, to Alexander Graham Bell, for "improvements in telegraphy," is as follows: "The method of and apparatus for transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds, substantially as set forth." Held, that though articulate speech was not mentioned by name in the patent, the sound of articulate speech was one of the" vocal or other sounds" referred to, and that the claim embraced the art of transferring to or impressing upon an undulatory current of electricity the vibrations of air produced by the human voice in articulate speech, in such a way that the speech would be carried to and received by a listener at a distance on the line of the current. (4) Said claim is not for the use of a current of electricity in its natural state as it comes from the battery, but for putting a continuous current in a closed circuit, under such condi