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 no 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. Phönix 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 It is true that Mr. Tweed has been present action, and is decisive of it.

criminally punished for the crimes, which In reaching the conclusion that the he is alleged to have committed, but damages to be recovered in this action though the People punished him for those, are those which the alleged fraud has they do not bar the civil remedy, any caused, I have not overlooked the fact more than an indictinent and conviction that the law of 1870 contemplates and for stealing bars the civil remedy to rerequires an audit of all claims before pay- cover the property from the thief, which ment, and if there was no audit, in one the injured party brings. The code itself sense the whole amount of the bills was provides (sec. 7), “Where the violation of illegally paid. This consideration is not a right admits of beth a civil an I a crimso forcible to my mind as the great prin- inal remedy, the right to prosecute th:c ciple that the remedy and recovery (put. one is not merged in the other." ting 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 committeil only commensurate, with the injury. As to piper. If wrong a higher court will the county of New York bas and retains correct them. Several of the questions the fruit of the bills, so much as that re- are exceedingly interesting, and certainly presents εhould be deducted from the tne learned counsel for the detendant 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 Court in presenting and enforcing them, labor performed, and recover the money and to such presentation and enforcement it jointly owed therefor. This would be we have listened with great pleasure and inequitable and unjust, and cannot be al profit. lowed.

Whilst I fully agree with the learned RAILROAD. REPAIRS. CHARTER. counsel of the defendant that the plain

SUPREME COURT OF PENNSYLVANIA. tiffs can only recover for the excess of the money paid beyond what was justly due Pittsbnrg & Birmingham Pass. Railroad the claimants, I fail to see how other Company v. the City of Pittsburg. claims of Keyser against the county can Decided January 6, 1876. avail the defendant, Tweed. It was not a passenger railway, which is required for the payment of these other unadjusted by its act of incorporation and by a claims that the warrants in favor of Key city ordinance, to keep the streets, ser, were drawn. They were given to pa upon which its track is, in good res

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. un precedented freshct.

The plaintiffs, after requesting the city Error to Common Pleas No. 2 of Alle- authorities to remove these obstructions, ghany county.

and their refusal to do so, caused them to 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,

Held, That the railroad company was inter alia, to construct and maintain a bound to remove the obstruction at its passenger railway along Carson street, in own expense. ihe borough of South Pittsburg. Section Judgment affirmed. 8 of the act declares, that the company Opinion by Mercur, J.; Agnew, C. J., shall not be permitted to use and occupy Gordon and Woodward, J. J., dissenting. any of the streets in said borough for purposes of their railway, until the con

WILL. COMPETENCY OF WITsent of the Council of the borough is first

NESSES. thereto had by ordinance duly passed ;

SUPREME COURT OF PENNSYLVANIA. and the said company shall keep so much of the streets of said borough, from curb

Frew et al. v. Clark. to curb, as may be used and occupied by Decided January 6, 1876. them, in perpetual good repair, at the A paper in the form of a bond signed proper expense and charge of the said

by decedent to take effect after his company.

death and in the devisee's possession By ordinance of 15th of August, 1859,

is a will. consent was given by the borough to the The devisee named in a will is a comcompany to use and occupy Carson street,

petent witness under the Act of 1869 in accordance with said Act of Assembly,

to prove its execution. “provided, also, that said railroad com Error to Common pleas No. 1 of Allepany shall keep the said Carson street in ghany county. a good and sufficient state of repair, from

This was a feigned issue to try the eurb to curb, to the satisfaction of the genuineness and testamentary character Committee on Streets, appointed under of a written instrument, of which the folthe authority of said borough, and also lowing is a copy, to wit: 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.

executors, in case of my death, to pay By Act of 2d of April, 1872, the borough Robert D. Clark, the sum of seventy-five of South Pittsburg was annexed to and thousand dollars, as a token of my regard made part of the City of Pittsburg. A for him, and to commemorate the long natural ravine, of about one thousand feet friendship existing between us. in length, extends from the top of Coal Witness my hand and seal this 17th day Hill down near to Carson street. In of April, A. D. 1872. July, 1874, a very heavy and extraor $75,000. JAMES MCCULLY. (L. S.) dinary rain fell.

It washed from and Twenty errors have been assigned, yet through the ravine, rocks, stone, gravel all the substantial matter may be conside and earth, depositing them in Carson ered in answering the following questions: street, for a distance of about one hundred First. Is the instrument of a testamenfeet in length,and eight or ten feet in depth. tary character?

Second. Is the signature thereto in the was fastened closely, without latch or bolt, handwriting of James McCully?

that it would be burglary to break it ird. Was his signature obtained open. If it fitte, tightly it was burglary. through fraud or imposition, or in his To this charge the delendant's counsel exignorance of the contents of the instru- cepted, and asked the Judge to charge ment.

that “if the door was not fastened, or The first is a question of law, the others latched, there can be no burglary; or that questions of facts.

the door must be either bolted, locked or Clark was allowed to testify as to the fastened in some way—fastened by some genuineness of the instrument.

artificial fastening, or there can be no Held, 1. This instrument is in writing burglary.” The Judge refused so to It is signed at the end thereof. It con charge, and charged as above stated. tains no admission of indebtedness. It The counsel for the prisoner also exfurnishes no evidence of a debt. It con- cepted to another portion of the charge, tains no promise to pay. It vested no

as follows: “It would seem from the cirpresent 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 meantime 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

The Judge charged and intended to be

understood, that if the door was closed ter.

2. That under the act of April 15, 1869, lightly, without being either bolted, Clark was a competent witness.

locked, or latched, it was burglary to open

it and enter the house for the purpose of Judgment affirmed.

stealing Opinion by Mercur, J. (Anew, C. J. Sharswood and Faxon, J. J. dissenting.)

Randal & Randal for Pltff. in error.
Wm. James, for the Peoj le.

Held, The charge was substantially

correct. BURGLARY.

Some degree of force in obtaining an N. Y. SUPREME COURT-GEN'L TERM. entrance to a dwelling house, it was neFOURTH DEPT.


to show was used, to constitute The People v. Ticknor.

the crime of burglary. To enter by an

open door is not burglary. But the breakDecided January, 1876.

ing need not be violent, or with great The breaking to constitute burglary need force. To push open a closed door, or

not be violent or with great force; to raise a window, is a sufficient exercise of raise a window or push open a closed force to constitute the crime. It is a breakdoor is sufficient.

ing into the house within the intent and Writ of error to Onondaga Sessions, on meaning of the Statute. a conviction for burglary.

It was not error to charge that the posThe chief questiun in this case arises session of stolen property unexplained, is upon an exception to the charge of the strong evidence of guilt. Judge in respect to the degree of force There was no error in the proceedings requisite to be used in breaking into a on the trial, and the judgment must be dwelling house to constitute the crime of affirmed. burglary.

Judgment affirmed.
The Judge charged that if the door Opinion by E. Darwin Smith, J.

CONSTITUTIONAL LAW. INTER- which are not the growth, produce, or STATE COMMERCE.

manufacture of the State, by going from U. S. SUPREME COURT.

place to place to sell the same, shall be

deemed a peddler; and then enacts that Welton v. the State of Missocri.

no person shall deal as a peddler without a Decided January, 1876.

license, and prescribes the rates of charge

for the licenses, these varying according A license tax required for the sale of

goods is in effect a tax upon the to the manner ir which the business is goods themselves.

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

The license charge exacted is sought to State, is unconstitutional and void. be maintained as a tax upon a calling. In error to the Supreme Court of Mis

It was held to be such a tax by the Su

preme Court of the State; a calling, says souri. This case comes before us on a writ of

the court, which is limited to the sale of

merchandise not the growth or product error to the Supreme Court of Missouri,

of the State. and involves a consideration of the validity of a statute of that State discrimina

Held, That the license tax exacted ting in favor of goods, wares, and mer- from dealers in goods which are not chandise 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

States is in violation of that clause of the 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 and void. without a license for that purpose. For

The commercial power of the Federal this offence he was indicted and convict- government continues until the commoed in one of the Circuit Courts of the dity has ceased to be the subject of disState, and he was sentenced to pay fine of criminating legislation by reason of its fifty dollars, and to be committed until foreign character, and that power will the same was paid. On appeal to the Su- protect it, even after it has entered the preme Court of the State the judgment State, from any burdens imposed by reawas atfirmed.

son 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 boc ks, 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 TERY, and untrammelled.

FIRST DEPARTMENT. The judgment of the Supreme Court o!

People ex. rel. Crimmins v. Morgan et the State of Missouri must be reversed and the cause remanded, with directions at., Justices of the Special Sessions. to enter a judgment reversing the judg.

Decided January 28, 1876. ment of the Circuit Court and directing It is not necessary to threaten, in express that court to discharge the defendant words, to accuse another of a crime, from imprisonment and suffer him to de

in order to come within the intent of

the law against blackmail, it is part without delay.

enough if the threat is insinuated. Opinion by l'ield, J.

Certoorari to review conviction at Spe


Crimmins called one evening upon one FOURTH DEPT.

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.

stamps, and when asked what postage A return of a justice is held conclusive stamps

, said “ those stamps you sold Mr. as to facts therein stated.

Sweepy.” Wilson replied that he neither A justice is liable for a false return. knew Sweeny nor had he sold him any A reference cannot be ordered to take stamps. proof of the facts stated in a return. Crimmins the:: said " I don't want to

Upon affidavits showing that the remake you any trouble, and I don't want turn of the justice is in several respects to go to Mr. Dana or Mr. England” (Wiluntrue. The respondent asks that such son's employers), that he had got one felparts be stricken out or that the court di low out of a scrape for selling postage rect a reference to ascertain and report stamps in an Insuarance Co., and that he the facts occurring in the proceedings be- could fix it with Wilson, adding “You fore the justice.

know you can't obtain $200 worth of Geo. W. Cothran, for motion.

stamps to sell, honestly." Guersney, for relator.

At the Special Sessions Crimmins was

convicted of a misdemeanor. Held, Upon a common law certiorari the return is held conclusive as to the

Mitchel Laird, for relator. facts alleged, and the court must give

B. K. Phelps, for respt. 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 na. Motion denied.

ture of the accusation itself is stated boldOpinion by E. Darwin Smith, J. ly or insinuatingly, if it be plain what the

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