the difference between "shipment" and "sailing," nor failed to examine the definitions and decisions upon which the argument is founded. The context of the cases cited however prevents the application of the decision to the one before us; and while the terms are no doubt well defined, there is no definition nor adjudged case which implies that an agreement to deliver goods after prompt shipment is satisfied by merely placing them on board a vessel, which although it should weigh anchor, or cast off moorings, and make other preparations to depart, could not for a considerable period of time (in this case exceeding the customary length of the intended voyage) leave the spot where the cargo was received. Such a shipment would be colorable and deceptive. If it answered the letter of the contract, it defeated its purpose. It would not in fact be the inception of the voyage, and the burden of showing a bona fide shipment would not be sustained. In all the cases referred to by the respondent, the obligation to ship at or within a certain period was held to be unperformed unless the ship might also sail at or within the time stated. Nothing less would be beneficial to the purchaser. The evident object of expressing the time of shipment, as declared in those cases, was to provide that the article purchased should come forward at such time as would, in the opinion of the purchaser, make the venture profitable, or as to time of arrival or payment, suit his convenience. Bowes v. Shand, 2 App. Cas. 455; Alexander v. Vanderzee, L. R., 7 C. P. 530. April 19, 1887. Tobias v. Lissberger. Opinion by Danforth, J.: Ruger, C. J., disseuting.

UNITED STATES SUPREME COURT ABSTRACT.

ARMY-OFFICER-COURT-MARTIAL-SENTENCE-AP

PROVAL BY PRESIDENT.-Under the 65th article of war (2 St. U. S. 367, ch. 20) the sentence of a general court-martial, in the time of peace, to the effect that a commissioned officer be dismissed from service, is inoperative until approved by the president, whose action in that respect is judicial in its character; and an order of the president approving the proceedings and sentence will not be sufficient unless it is authenticated in a way to show otherwise than argumentatively that it is the result of the judgment of the president himself, and that it is not a mere departmental order, signed by the secretary of war alone, which might or might not have attracted his personal attention. The fact that the order was his own should not be left to inference only. Mills v. Martin, 19 Johns. 7,30; Sim. Cts. Mart. (6th ed.), ch. 17, p. 294. A courtmartial organized under the laws of the United States is a court of special and limited jurisdiction. It is called into existence for a special purpose, and to perform a particular duty. When the object of its creation has been accomplished it is dissolved. 3 Greenl. Ev., § 470; Brooks v. Adams, 11 Pick. 442; Mills v. Martin, supra; Duffield v. Smith, 3 Serg. & R. 590, 599. Such also is the effect of the decision of this court in Wise v. Withers, 3 Cranch, 331, which according to the interpretation given it by Chief Justice Marshall in Ex parte Watkins, 3 Pet. 193, 207, ranked a court-martial as "one of these inferior courts of limited jurisdiction whose judgments may be questioned collaterally." To give effect to its sentences, it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with; and that its sentence was conformable to law. Dynes v. Hoover, 20 How. 65, 80; Mills v. Martin, 19 Johns. 33. There are no presumptions in its favor so far as these matters are con

cerned. As to them, the rule announced by Chief Justice Marshall in Brown v. Keene, 8 Pet. 112, 115, in respect to averments of jurisdiction in the courts of the United States, applies. His language is: "The decisions of this court require that averment of jurisdiction shall be positive; that the declaration shall state expressly the facts on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments." All this is equally true of the proceedings of courts-martial. Their authority is statutory, and the statute under which they proceed must be followed throughout. The facts necessary to show their jurisdiction, and that their sentences were conformable to law, must be stated positively; and it is not enough that they may be inferred argumentatively. The action required of the president is judicial in its character, not administrative. As commander-in-chief of the army, he has been made by law the person whose duty it is to review the proceedings of courts-martial in cases of this kind. This implies that he is himself to consider the proceedings laid before him, and decide personally whether they ought to be carried into effect. Such a power he cannot delegate. His personal judgment is required, as much so as it would have been in passing on the case if he had been one of the members of the court-martial itself. He may call others to his assistance in making his examinations, and in informing himself as to what ought to be done, but his judgment, when pronounced, must be his own judgment, and not that of another. And this because he is the person, and the only person, to whom has been committed the important judicial power of finally determining, upon an examination of the whole proceedings of a court-martial, whether an officer holding a commission in the army of the United States shall be dismissed from service as a punishment for an offense with which he has been charged, and for which he has been tried. May 27, 1887. Runkle v. United States; United States v. Runkle. Opinion by Waite, C. J.

BANKRUPTCY-PROPERTY HELD ADVERSELY-LIMITATION. An assiguee in bankruptcy appointed February 15, 1873, on the 5th of April, 1880, attempted to convey lands claimed by the bankrupt at the time of filing his petition in bankruptcy, but which were then and ever since held adversely under tax sales made by the auditor-general of Michigan, of which adverse claim the assignee had notice at the time of the conveyance. Held, that as the assignee was precluded from bringing an action for the lands after the expiration of two years from the date of his appointment, by Rev. Stat. U. S. 5057, providing that no suit shall be maintained between an assignee in bankruptcy and a person claiming an adverse interest property vested in said assignee, unless brought within two years from the time when the cause accrued for or against the assignee, he could not, by selling the property to a third person, enable the latter to maintain an action therefor. Gifford v. Helms, 98 U. S. 248. May 27, 1887. Wisner v. Brown. Opinion by Bradley, J.

CARRIERS-LIABILITY -BILL OF LADING -WAREHOUSEMEN-KNOWLEDGE OF AGENT.-(1) In an action of assumpsit against a railroad company for failure to deliver 525 bales of cotton described in the bills of lading, the evidence was that one P., a cotton broker, purchased large quantities of cotton from time to time, and under a contract with the defendant railway company caused the cotton to be compressed and made ready for shipping. When compressed, each bale was by him weighed, classed and marked; and when a number of bales had been so marked, he made out a bill of lading, describing them by their appropriate

marks, and obtained the certificate of the superintendent of the compress company, indorsed thereon, that the cotton called for by the bill was in the warehouse; also the signature of the defendant's freight agent. Whenever a sale was made P. assigned the proper bills of lading to the purchaser. Plaintiffs claimed as such purchasers and assignees of P. There was evidence that at the time plaintiff's bills of lading were made out and signed as above, there was no cotton of the grade called for in the warehouse (and it was conceded that by an arrangement between P. and defendant bills of lading were often issued before the cotton called for had arrived), but that in this instance there was other cotton on hand of an inferior grade, some of which certain employees of P., with the knowledge of defendant's freight agent, remarked with marks indicating the grade called for by plaintiff's bills, and that defendants forwarded this inferior cotton to plaintiffs. Held, that in such action the only issue was as to defendant's liability upon the bills of lading as a common carrier, and that it was error to charge the jury upon any theory of liability as warehousemen, by reason of defendant's connection with the cotton while in the warehouse, and before delivery for shipment. (2) The court also instructed the jury, that if defendant's freight agent accepted the inferior cotton for shipment to plaintiffs, knowing at the time that it was of a quality inferior to that called for by the bills of lading, and that the marks on the bales had been changed from marks indicating a lower grade of cotton to marks indicating the grade called for by plaintiff's bill of lading, then the defendant was liable. Held, error. May 23, 1887. St. Louis, 1. M. & S. Ry. Co. v. Knight. Opinion by Matthews, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

NUISANCE-ORDINANCE-REMOVING NIGHT-SOIL.The complaint for violation of an ordinance designed to repress and punish noxious and offensive practices in carrying and depositing matter removed from sinks, cess-pools and privy vaults, merely charged that the defendant, in the night-time of a day named, carted, carried and took into and within the limits of the township a load of night-soil. No other circumstances were averred. Held, that an admission of all the facts stated was not sufficient to sustain a conviction. The complaint filed in this case charged that the defendant, in the night-time of a day named, carted, carried and took into and within the limits of the township a load of night-soil. No other circumstances are averred. The defendant, on being arraigned, and on hearing the complaint read, admitted, as the record shows, that the facts charged were true, and could not be denied. Thereupon, without further evidence, the justice declared his guilt, and rendered his judgment convicting the defendant of violation of the ordinance. We think an admission of all the facts stated in the complaint was not sufficient to sustain a conviction. The ordinance can be sustained as a reasonable regulation only upon the ground that its design is to protect the community against practices in the matter of which it treats, such as are noxious or offensive. An ordinance general in its scope may be adjudged reasonable as applied to one state of facts, and unreasonable when applied to circumstances of a different character. Penn. R. v. Jersey City, 18 Vr. 286. The scavenger, even with the use of improved methods of protection, may use the public streets without injury or offense to others, and cautious as courts are in declaring an ordinance void as being unreasonable, they would not hold this ordi

nance to be so, when its penalties were sought to be enforced against any one making a use of the public street which was harmless in fact. The town cannot deny to citizens the use of its streets to cross the township on any business that is inoffensive. It can. not by merely declaring an act to be a nuisance make it such. The complaint, while it uses the words of the ordinance, is defective in not charging facts to show an offense within the spirit and meaning of the law. It is not sufficient in all cases to charge an offense in the words of a statute creating it. And here all that is charged might be admitted, and yet guilt under the by-law be successfully denied. Should we regard the complaint as sufficient to let in the proof requisite to sustain the defendant's guilt, yet taking the language of the admission of the defendant below, as stated in the record, and regarding the circumstances under which it was made, we think the conviction was without any evidence upon the essential fact of nuisance. N. J. Sup. Ct., March 11, 1887. State v. Lowery. Opinion by Knapp, J.

NEGLIGENCE-CONTRIBUTORY-OF INFANT.-We are now brought face to face with the question whether a bridge company is bound to maintain such a structure as to prevent the possibility of an accident to a child. A venturesome boy, in his natural love of sport, will explore every nook and recess of a bridge, climb upon the timbers, and manage in some way to get through every hole large enough for his body to pass, and is as likely to get down on the piers or upon the roof as anywhere else. The case at bar furnishes an illustration of this. The boy who met with this sad mishap was not content to walk upon the carriage-way, which was safe for all, but insisted upon walking upon a round gas-pipe placed some distance above the floor, notwithstanding the remonstance of his younger brother, who, child as he was, saw the danger. Of course no blame is imputed to the boy for this. It was childlike, and perhaps the very thing I might have done myself at his age, but the question is, has the bridge company been guilty of such neglect as to be liable to the boy's father for his death? Some little of the responsibility for accidents to children ought to remain upon the parents, whose duty is to look after them and preserve them from danger. It must not be overlooked that this suit was brought by the father for the loss of his boy. He was in the habit of crossing this bridge daily, perhaps several times daily, as his house was ou one side of the river and his office on the other. He must have known the condition of the bridge, and may be presumed to have considered it safe, else he would not have given the permission on the day in question, as he had often done before, to cross it unattended. It is hardly possible that he had not seen these openings again and again, but he also knew that the bridge was perfectly safe for travel in the ordinary way, while a child might be injured there, as he might have been injured almost anywhere, by courting danger in walking in dangerous places. Upon careful consideration of the case, we are unable to see any such negligence on the part of the defendant company as to render them liable in this action. As before observed, it was a safe bridge for the ordinary purposes of travel. The child who was killed was not using it in the ordinary way. He was walking upon the gas-pipe, where he ought not to have been, and which was so dangerous that his younger brother remonstrated with him, and warned him to get off. It is not necessary to impute negligence to the child; it is sufficient that he was injured, not as the result of the use of the bridge, but as the consequence of his venturing, in his childish recklessness, where no one, child or adult, had any business to be. Penn. Sup. Ct. Oil City, etc., Bridge Co. v. Jackson. Opinion by Paxson, J.

OFFICE AND OFFICER-INCOMPATIBLE OFFICES.-The offices of justice of a District Court and of deputy sheriff are incompatible, and cannot be held by the same person at the same time. In cases where incompatibility of offices has arisen independently of statu tory or constitutional provision, two rules are generally recognized: First. That incompatibility does not depend upon the incidents of the offices, as upon physical inability to be engaged in the duties of both at the same time. For example, in People v. Green, 5 Daly, 254, it was held that the office of member of the Legislature and clerk of the Court of Special Sessions might be held by the same person, even though attendance upon one office prevented for the time being the performance of the duties of the other. This point was approved on appeal. People v. Green, 58 N. Y. 295. These opinions contain an elaborate review of the early cases, and clearly point out the tests by which the question of incompatibility is to be determined. So too in Com. v. Kirby, 2 Cush. 577, 580, the court says: "It has never been supposed that persons holding minor offices appertaining to the executive department of the government, such as deputy sheriffs, constables or coroners, were thereby disqualified from holding seats in the Legislature. The same was formerly true of the judges of the Court of Common Pleas, who frequently held the office of senator or representative while in commission as judges, and were only disqualified by the statute of 1820, and the 8th article of the amendments of the Constitution, adopted in 1821." Second. The test of incompatibility is the character and relation of the offices, as where one is subordinate to the other, and subject in some degree to its revisory power; or where the functious of the two offices are inherently inconsistent and repugnant. In such cases it has uniformly been held that the same person cannot hold both offices. In Rex v. Pateman, 2 T. Rep. 777, it was declared that where a town clerk acts ministerially under the aldermen, who are judicial officers, one cannot hold both offices. Much stress is laid upon the fact that the accounts of the clerk were subject to the revision and control of the aldermen. Rex v. Tizzard, 9 Barn. & C. 418, is to the same effect. In Cotton v. Phillips, 56 N. H. 220, where one was chosen a member of the prudential committee and also an auditor in a school district, it was held that he could not hold both offices. The court says: "If the same person could hold both offices, he would in fact sit in judgment upon his own acts." In England a sheriff's duties are ministerial, and to a limited extent also judicial. While these peculiar functions are recognized in some cases as being necessarily imposed upon the office by legislation and custom, no case upholds the propriety of exercising both the ministerial and judicial functions at the same time and in the same case. Widow v. Clerke, 1 Cro. Eliz. 76, case 38. See also argument of Sheffield in Milward v. Thatcher, 2 T. Rep. 81. Under our law there is no such confusion of duties. In this State, and doubtless in this country generally, a sheriff is simply a ministerial officer. If he performs judicial duties, it is by virtue of another office voluntarily assumed. But the incongruity of such offices in one person is manifest. To say nothing of the breach of dignity and propriety which would result from an attempt to perform the duties of judge and officer together, the power of a judge to pass upon the sufficiency of an officer's return, and to allow or disallow his fees, is quite sufficient to bring these offices within the recognized rule of incompatibility, by reason of the judicial supervision of one office and the accountability of the other. Moreover in this State an officer is required to serve any process duly tendered to him, and thus a judge of a District Court might have the process of his own court tendered to him to

be served, and become liable to a penalty if he did not do it. In many cases he is the complaining officer, whose complaint could only be made by himself, if he were also judge, unless aided by special legislation. In Com. v. Kirby, supra, it is held that the office of justice of the peace and constable are not incompatible. The question is only considered on the ground of constitutional provisions. The relation of the officer, as judicial or revisory, is not at all discussed. The defendant was charged with hindering an officer. The defense was that the process was void because the justice of the peace who issued it had vacated his office by accepting the office of constable. Inasmuch as the court held the process to be good as that of a de facto justice, a discussion of the relation of the two offices was probably deemed unnecessary. The court add however: "A very different case would be presented if the defendant had attempted to exercise the two functions of a justice of the peace in issuing a warrant, aud of a constable in serving the same warrant." It may be said however that the respondent need not, and probably will not, undertake to act in both offices at the same time; but in the words of Ames, C. J., in State v. Brown, 5 R. I. 1: "The admitted necessity of such a course is the strongest proof of the incompatibility of the two offices," and "the question of incompatibility is to be determined from the nature of the duties of the two offices, and not from a possibility, or even a probability, that the defendant might duly perform the duties of both." R. I. Sup. Ct., March 5, 1887. State v. Guff. Opinion by Stiness, J. RAILROADS-NEGLIGENCE-CONDITION OF PREMISES. -A railroad is bound to use ordinary care to keep the platforms at its various station-houses in good repair and safe condition for the use of those who have the legal right to go upon them; and it appearing in this case that the railroad was required by statute to post at the nearest station-house a notice of the killing of stock by their trains, and that one who was missing a cow went upon the platform of the station to read a notice posted there, taking plaintiff with him to do the reading, as he himself was unable to read, and that plaintiff, in climbing up to get at the notice, fell through a defective plank in the platform, and was injured, held, that the railroad was liable to plaintiff. He was there through the inducement or upon the invitation of the company, implied from posting the notice for his information, and was entitled to safe access to his place of business. 2 Wood Ry. Law, § 310; Carleton v. Franconia, I. & S. Co., 99 Mass. 216. This right of protection extends to all persons "who have rightful occasion to use the platforms," as was said by Appleton, C. J., in Tobin v. R. Co., 59 Me. 183. This was the case of a hackman engaged in carrying passengers to the railroad depot. See too Wendell v. Baxter, 12 Gray, 494. No distinction can be drawn between the plaintiff and the stock-owner in the right to go upon the platform to examine the notice. What the latter had the right to do himself, he had the power to authorize another to do for him. An employee who goes upon a company's premises to receive his master's freight enjoys the same right of protection that the master does (Toledo, W. & W. Ry. Co. v. Grush, 67 Ill. 262), and for the same reason that the plaintiff here should be protected, viz., because he is clothed with his principal's right to enter the premises to transact his business; and the rule applies to one who goes upon the company's premises to aid a friend who is to depart or arrive by its trains. Gillis v. Pennsylvania Ry., supra; McKone v. Michigan Cent. Ry., 51 Mich. 601. Ark. Sup. Ct., March 19, 1887. St. Louis, I. M. & S. Ry. v. Fairbairn. Opinion by Cockrill, C. J.

SCHOOLS-REGULATIONS-REASONABLENESS.-(1) A rule requiring tardy pupils to remain either in the

ege to work, mine, and search for lead ore upon the range therein described." It is intimated in the opinion that such a license was probably irrevocable if the mining was prosecuted with diligence. This case would seem to be sufficient authority. But lest its perfect applicability may be questioned, we will look further into the authorities. The mere right to work a quarry or a mine is not exclusive of the grantor, and conveys no interest in the quarry or mine or the land. Coll. Mines, §§ 1, 5, 9; Co. Litt. 42a; 2 Bl. Com. 121; Brewer v. Hill, 2 Anstr. 413; Hewlins v. Shippam, 5 Barn. & C. 229. A verbal agreement to share profit and loss in the working of a colliery is not within the statute. Foster v. Hale, 5 Ves. Jr. 314; Watson v. Spratley, 10 Exch. 222. Those having a right to search for and dig ore on another's land divided their interest into shares. It was held that such shares may be conveyed by parol. Hanley v. Wood, 2 Barn. & Ald. 274. The liberty to dig tin and other metals on another's land is a mere license, and conveys no interest in the land. Hayter v. Tucker, 4 Kay & J. 249. Shareholders are only interested in the profits of working the mine, and have no interest in the realty. Powell v. Jessopp, 18 C. B. 336; Walker v. Bartlett, id. 845. In Hills v. Parker, 7 Jur. (N. S.) 833, a person holding a leasehold interest in salt-works formed a partnership with others to work the wells and make salt. It was held that the partnership had no interest in the estate. In Burdon v. Barkus, 3 Giff. 412, the lessee of a coal mine took in a partner to work it for iron-stone and fire-clay. It was held that he could terminate the partnership at his pleasure, because he was alone interested in the lease. In Dale v. Hamilton, 2 Phil. 266, C. purchased the land for A. and B., and they entered into a partnership with C., and it was agreed that C. should survey and plat the land into lots, and do other work, and try and sell the lots, and when sold, the profits should be divided between them. It was held that no interest in the land passed to C. by the contract. A mere parol license to dig a well cu another's land, and carry the water in pipes to his own land, conveys no interest in the land. Houston v. Laffee, 46 N. H. 507. If one agrees with the owner of the land to get a railroad located aud constructed on it, and to lay it off into lots, and make sales, in consideration of half of the profits above cost, he obtains no interest in the laud. Lesley v. Rosson, 39 Miss. 368. "A colliery and a landed estate are considered quite different by the courts; a colliery being always considered as a trade, the profits of which accruing from day to day belonging to those who work it for the profits thereof." Steward v. Blakeway, L. R., 4 Ch. App. 603. "Real estate not purchased by partnership funds, although used for partnership purposes, does not become partnership property, and the title is not affected by such use." Alexander v. Kimbro, 49 Miss. 529; Frink v. Branch, 16 Conn. 261. "The authority to do an act or series of acts upon the land of another, such as to hunt, remove stone, or cut down trees, is a mere license, and conveys no interest in the land." Browne St. Frauds, § 26, and cases cited in note. "A parol license to dig minerals on the land of the licenser is valid." 3 Pars. Cont. 39. A third person built a house on the mortgaged premises of the mortgagor on the agreement of the mortgagee that he should be paid for it, or have a lien upon it in preference to the mortgage. The agreement was held valid. Godeffroy v. Caldwell, 2 Cal. 489. The sale of a mining claim does not affect the title of the land. Hitchens v. Nougues, 11 Cal. 29. The owner of the land verbally contracted with two others that they should dig and prospect for coal, and do all the other work to open the mine, and then that they would raise and sell the coal jointly, the profits to be divided equally.

It was held a partnership in mining like any other partnerships, only it was not founded on the delectus persona, and that it carried no interest in the land. Id.; Duryea v. Burt, 28 Cal. 569. A verbal agreement between two or more to explore and locate, and work lodes on government lands is not within the statute. Murley v. Ennis, 2 Colo. 300. A verbal agreement that plaster lands and a plaster-mill should be bought and owned by A. and B., and worked by them as partners, is within the statute; but not so if the land was to be owned by one of them only. Brosnan v. McKee, 59 Mich. 107. To this case there is a note of cases of Suyder v. Wolford (Minu.), 22 N. W. Rep. 254; Carr v. Leavitt (Mich.), 20 id. 576; Miller v. Kendig (Iowa), 7 id. 500. These cases hold that when one person selects lands, and contracts with another to purchase and hold them in his own name, and when they are sold the net profits to be divided between them in consideration of his services, the contract is not within the statute. The plaintiff was the owner of a limekiln, and it was verbally agreed that the defendant should fill it with limestone, and furnish the wood to burn it, and the lime to be equally divided between them. It was held to be a partnership, and the defendant was liable for taking more than his share. Musier v. Trumpbour, 5 Wend. 274. A verbal agreement of copartnership was entered into by several persons for the purposes of developing plaster-beds on certain lands, and for getting out and selling plaster, and for procuring the title to the lands. The business went on until the lands were finally bought and paid for by the profits of the concern. It was held not to be within the statute. Godfrey v. White, 43 Mich. 171. A sale of shares of a mining company working a mine does not convey any interest in the land, but only in the severed mineral ores, machinery, and personal effects. Rog. Mines, 428. A partnership for the purpose of mining for lead ore, irrespective of title to the lands, may be formed by parol agreement, and will be treated, in respect to the ore raised, like any other partnership. Sauntry v. Dunlop, 12 Wis. 404. These cases clearly illustrate the principles underlying this contract or partnership in this case. There can no case be found, in my opinion, of similar facts, where it has ever been held that such a contract was within the statute. But there are many respectable authorities which hold that such a contract, even if it went further, and provided that the lands themselves should belong to the partnership, or held in trust for the partnership for the purpose of mining or quarrying or milling, etc., was not within the statute. But such is clearly not this case; for there

is no provision made for the purchase of the land, or any interest in it, from the defendant, although there is an averment in the complaint that the defendant held it in trust for the purpose of such quarrying business. This can only mean that the land was to be used by the partnership only for such purpose. It appears very clear, both from reason and authority, that this contract is not within the statute above referred to, and is therefore valid if it could be performed within one year, and not within the other section of the statute. Wis Sup. Ct., March 1, 1887. Treat v. Hiles. Opinion by Orton, J. TAXATION EXEMPTION-TOOLS-PRINTING PRESS. - A printing-press owned by a practical printer, editor, and publisher of a newspaper, and necessary to carry on his trade or business as printer and publisher of such paper, is not a tool within the meaning of Code Miss., § 468, exempting from taxation "the tools of any mechanic necessary for carrying on his trade." Statutes exempting property from levy and sale for the payment of debts, and those exempting persons or property from the payment of taxes, are construed