partly true, and partly untrue, must, bills then rendered, and the money which while he retains the bill represented by Tweed caused to be paid thereon was nc the honest part thereof, be content with less wrongfully obtained, because Mr. a recovery which gives back to him that Keyser had other bills not rendered, which which was dishonestly taken. It is might have been claimed but were not. scarcely necessary, however, to argue. The fraud took money wrongfully and The Court of Appeals of this State in the that can be recovered, even though the case of State of Michigan vs. Phoenix party rendering the bill may have other Bank (33 N. Y. 9) held that money valid claims still unpaid, and which he obtained by fraudulent representations, can recover. Those bills formed no basis which procured an award in its favor, for the payment, and the legality of the could be recovered back, but only to the payment must stand upon the grounds extent that the State was damnified by then made. the money." That rule applies to the present action, and is decisive of it. It is true that Mr. Tweed has been criminally punished for the crimes, which he is alleged to have committed, but though the People punished him for those, they do not bar the civil remedy, any more than an indictinent and conviction for stealing bars the civil remedy to recover the property from the thief, which the injured party brings. The code itself provides (sec. 7), "Where the violation of a right admits of beth a civil and a criminal remedy, the right to prosecute the one is not merged in the other." In reaching the conclusion that the damages to be recovered in this action are those which the alleged fraud has caused, I have not overlooked the fact that the law of 1870 contemplates and requires an audit of all claims before payment, and if there was no audit, in one sense the whole amount of the bills was illegally paid. This consideration is not so forcible to my mind as the great principle that the remedy and recovery (putting out of view all claim for punitive I have endeavored to dispose of the damages, because the complaint does not var ous points presented. The vi ws exask them) should be commensurate and pressed have been very hastily committed only commensurate, with the injury. As to paper. If wrong a higher court will the county of New York has and retains correct them. Several of the questions the fruit of the bills, so much as that re- are exceedingly interesting, and certainly presents should be deducted from the tne learned counsel for the defendant has claim. It surely ought not to enjoy prop-done his simple duty to his client, and the erty it has purchased, and the results o labor performed, and recover the money it jointly owed therefor. This would be inequitable and unjust, and cannot be al lowed. Whilst I fully agree with the learned counsel of the defendant that the plaintiffs can only recover for the excess of the money paid beyond what was justly due the claimants, I fail to see how other claims of Keyser against the county can avail the defendant, Tweed. It was not for the payment of these other unadjusted. claims that the warrants in favor of Keyser, were drawn. They were given to pa Court in presenting and enforcing them, RAILROAD. REPAIRS. CHARTER. Decided January 6, 1876. A passenger railway, which is required by its act of incorporation and by a city ordinance, to keep the streets, upon which its track is, in good re pair, is liable to clear away debris, Travel over the street, either by railway &c., carried on to the street by an or otherwise, was thereby interrupted. unprecedented freshet. The plaintiffs, after requesting the city Error to Common Pleas No. 2 of Alle-authorities to remove these obstructions, and their refusal to do so, caused them to Held, That the railroad company was bound to remove the obstruction at its own expense. Judgment affirmed. Opinion by Mercur, J.; Agnew, C. J., Gordon and Woodward, J. J., dissenting. ghany county. The plaintiff was incorporated by Act be removed, and now claim to recover of Assembly of the 13th of April, 1859, from the city the expense of that removal. P. L. 749 It was thereby authorized, inter alia, to construct and maintain a passenger railway along Carson street, in the borough of South Pittsburg. Section 8 of the act declares, that the company shall not be permitted to use and occupy any of the streets in said borough for purposes of their railway, until the congent of the Council of the borough is first. thereto had by ordinance duly passed; and the said company shall keep so much of the streets of said borough, from curb to curb, as may be used and occupied by them, in perpetual good repair, at the proper expense and charge of the said company. WILL. COMPETENCY OF WIT- SUPREME COURT OF PENNSYLVANIA. A paper in the form of a bond signed The devisee named in a will is a competent witness under the Act of 1869 to prove its execution. Error to Common pleas No. 1 of Alleghauy county. By ordinance of 15th of August, 1859, consent was given by the borough to the company to use and occupy Carson street, in accordance with said Act of Assembly, "provided, also, that said railroad company shall keep the said Carson street in a good and sufficient state of repair, from curb to curb, to the satisfaction of the Committee on Streets, appointed under the authority of said borough, and also keep said Carson street in a reasonable "Know all men by these presents that sanitary condition." I, James McCully, of Pittsburg, Pa., do The company accepted under this or- order and direct my administrators or dinance. By Act of 2d of April, 1872, the borough of South Pittsburg was annexed to and made part of the City of Pittsburg. A natural ravine, of about one thousand feet in length, extends from the top of Coal Hill down near to Carson street. In July, 1874, a very heavy and extraordinary rain fell. It washed from and through the ravine, rocks, stone, gravel and earth, depositing them in Carson street, for a distance of about one hundred feet in length, and eight or ten feet in depth. This was a feigned issue to try the genuineness and testamentary character of a written instrument, of which the following is a copy, to wit: executors, in case of my death, to pay Robert D. Clark, the sum of seventy-five thousand dollars, as a token of my regard for him, and to commemorate the long friendship existing between us. Witness my hand and seal this 17th day of April, A. D. 1872. $75,000. JAMES MCCULLY. [L. S.] Twenty errors have been assigned, yet all the substantial matter may be consid ered in answering the following questions: First. Is the instrument of a testamentary character? Second. Is the signature thereto in the was fastened closely, without latch or bolt, handwriting of James McCully? Third. Was his signature obtained through fraud or imposition, or in his ignorance of the contents of the instru ment. The first is a question of law, the others questions of facts. Clark was allowed to testify as to the genuineness of the instrument. that it would be burglary to break it open. If it fitted tightly it was burglary. To this charge the defendant's counsel excepted, and asked the Judge to charge that "if the door was not fastened, or latched, there can be no burglary; or that the door must be either bolted, locked or fastened in some way-fastened by some artificial fastening, or there can be no burglary." The Judge refused so to charge, and charged as above stated. The counsel for the prisoner also excepted to another portion of the charge, as follows: "It would seem from the cir Held, 1. This instrument is in writing. It is signed at the end thereof. It con tains no admission of indebtedness. It furnishes no evidence of a debt. It contains no promise to pay. It vested no present interest. It was not to take effect cumstances of this case, that the breaking until after the death of McCully. In the into this house, which was fastened in the mcantime he could revoke it at his pleas-way it was, if fastened as Phelan (a witure. It therefore possessed all the es- ness) said it was, closed tightly, for the sential characteristics of a will, and was purpose of stealing, was burglary" undoubtedly testamentary in its charac FOURTH DEPT. The Judge charged and intended to be understood, that if the door was closed lightly, without being either bolted, Randal & Randal for Pltff. in error. Held, The charge was substantially correct. Some degree of force in obtaining an N. Y. SUPREME COURT-GEN'L TERM. entrance to a dwelling house, it was ne The People v. Ticknor. Decided January, 1876. The breaking to constitute burglary need not be violent or with great force; to raise a window or push open a closed door is sufficient. cessary to show was used, to constitute the crime of burglary. To enter by an open door is not burglary. But the breaking need not be violent, or with great force. To push open a closed door, or raise a window, is a sufficient exercise of force to constitute the crime. It is a breaking into the house within the intent and Writ of error to Onondaga Sessions, on meaning of the Statute. a conviction for burglary. The chief question in this case arises upon an exception to the charge of the Judge in respect to the degree of force requisite to be used in breaking into a dwelling house to constitute the crime of burglary. The Judge charged that if the door It was not error to charge that the possession of stolen property unexplained, is strong evidence of guilt. There was no error in the proceedings on the trial, and the judgment must be affirmed. Judgment affirmed. Opinion by E. Darwin Smith, J. CONSTITUTIONAL LAW. INTER- U. S. SUPREME COURT. Decided January, 1876. A license tax required for the sale of goods is in effect a tax upon the goods themselves. which are not the growth, produce, or manufacture of the State, by going from place to place to sell the same, shall be deemed a peddler; and then enacts that no person shall deal as a peddler without a license, and prescribes the rates of charge for the licenses, these varying according to the manner in which the business is conducted whether by the party carrying A statute of a State which requires the the goods himself on foot, or by the use payment of a license tax from per. of beasts of burden, or by carts or other sons who deal in the sale of goods, land carriage, or by boats or other river wares, and merchandise which are vessels. Penalties are imposed for dealing not the growth, produce, or manufac-without the license prescribed. No license ture of the State, by going from is required for selling in a similar way, place to place to sell the same in the by going from place to place in the State, State, and requires no such license tax from persons selling in a simi- goods which are the growth, product, er lar way goods which are the growth, manufacture of the State. produce, or manufacture of the State, is unconstitutional and void. In error to the Supreme Court of Missouri. The license charge exacted is sought to be maintained as a tax upon a calling. It was held to be such a tax by the Supreme Court of the State; a calling, says the court, which is limited to the sale of merchandise not the growth or product of the State. States is in violation of that clause of the This case comes before us on a writ of error to the Supreme Court of Missouri, and involves a consideration of the validiHeld, That the license tax exacted ty of a statute of that State discriminafrom dealers in goods which are not ting in favor of goods, wares, and merchandise which are the growth, product, the product or manufacture of the or manufacture of the State, and against State must be regarded as a tax upon such those which are the growth, product, or goods themselves: That legislation dismanufacture of other States or countries, criminating against the products of other in the conditions upon which their sale can be made by travelling dealers. The Constitution which declares that Conplaintiff in error was a dealer in sewing-gress shall have the power to regulate machines which were manufactured with-commerce with foreign nations and among out the State of Missouri, and went from the several States, and is unconstitutional place to place in the State selling them without a license for that purpose. For this offence he was indicted and convicted in one of the Circuit Courts of the State, and he was sentenced to pay fine of fifty dollars, and to be committed until the same was paid. On appeal to the Supreme Court of the State the judgment was affirmed. and void. The commercial power of the Federal government continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character, and that power will protect it, even after it has entered the State, from any burdens imposed by reason of its foreign origin. The statute under which the conviction The inaction of Congress, in not prewas had declares that whoever deals in scribing rates to govern inter-state comthe sale of goods, wares, or merchandise, merce, when considered with reference to except bocks, charts, maps, and stationery, its legislation with respect to foreign commerce, is equivalent to a declaration BLACKMAIL. that inter-state commerce shall be free V. Y. SUPREME Court, GENERAL TERM, and untrammelled. JUSTICE'S RETURN. CERTIORARI. FIRST DEPARTMENT. People ex. rel. Crimmins v. Morgan et at., Justices of the Special Sessions. Decided January 28, 1876. It is not necessary to threaten, in express words, to accuse another of a crime, in order to come within the intent of the law against blackmail, it is enough if the threat is insinuated. Certiorari to review conviction at Special Sessions. Crimmins called one evening upon one Wilson, to whom he was a stranger and People ex. rel. Simmonds, respt., v. Ry-wished to see him about those postage asked to see him upon business, that he ker, applt. Decided January, 1876. A return of a justice is held conclusive Geo. W. Cothran, for motion. stamps, and when asked what postage stamps, said "those stamps you sold Mr. Sweeny." Wilson replied that he neither knew Sweeny nor had he sold him any stamps. Crimmins the said "I don't want to make you any trouble, and I don't want to go to Mr. Dana or Mr. England" (Wilson's employers), that he had got one fellow out of a scrape for selling postage stamps in an Insuarance Co., and that he could fix it with Wilson, adding "You know you can't obtain $200 worth of stamps to sell, honestly." At the Special Sessions Crimmins was convicted of a misdemeanor. Mitchel Laird, for relator. Held, Upon a common law certiorari the return is held conclusive as to the facts alleged, and the court must give judgment upon the record and proceed- On review, Held, That the proof given. ings embraced in such return. It cannot presented every essential element of the consider affidavits contradicting said re-offense which the statute was designed to turn in any particular. To do so would punish. Crimmins did not say in express subvert the prooceeding by certiorari and words that he meant to accuse Wilson of turn it in effect into an ordinary special stealing, but he insinuated that he would motion. If the return is false the officer is do so, and there was sufficient evidence liable to an action for a false return. Nor for a jury to find a threat that he would can the court refer it to a referee to ascer- make such an accusation. It is wholly tain the truth of the facts stated in the immaterial in what language the threat return. There is no such practice. to accuse is expressed, or whether the naMotion denied. ture of the accusation itself is stated boldly or insinuatingly, if it be plain what the Opinion by E. Darwin Smith, J. |