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

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 a right admits of beth a civil and a crimso forcible to my mind as the great prin- inal remedy, the right to prosecute the 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 views 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 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.


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

Pittsburg & Birmingham Pass. Railroad
Company v. the City of Pittsburg.

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 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.

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.

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.


Frew et al. v. Clark.
Decided January 6, 1876.

A paper in the form of a bond signed
by decedent to take effect after his
death and in the devisee's possession
is a will.

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 sanitary condition."

"Know all men by these presents that 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 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?

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.

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:

Third. Was his signature obtained through fraud or imposition, or in his ignorance of the contents of the instru


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 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 The first is a question of law, the others latched, there can be no burglary; or that the door must be either bolted, locked or questions of facts. Clark was allowed to testify as to the fastened in some way-fastened by some artificial fastening, or there can be no genuineness of the instrument. burglary." The Judge refused so to charge, and charged as above stated.

Held, 1. This instrument is in writing. It is signed at the end thereof. It con The counsel for the prisoner also extains no admission of indebtedness. It furnishes no evidence of a debt. It con- cepted to another portion of the charge, as follows: "It would seem from the cirtains 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

The Judge charged and intended to be understood, that if the door was closed. lightly, without being either bolted, locked, or latched, it was burglary to open it and enter the house for the purpose of stealing.


2. That under the act of April 15, 1869, Clark was a competent witness.

Judgment affirmed.

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

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.

Randal & Randal for Pltff. in error.
Wm. James, for the People.

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

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.

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- which are not the growth, produce, or


U. S. SUPREME COURT. Welton v. the State of Missouri. Decided January, 1876. A license tax required for the sale of goods is in effect a tax upon the goods themselves.

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 to the manner in which the business is for the licenses, these varying according 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, cr 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

This case comes before us on a writ of

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

of the State.

and involves a consideration of the validity of a statute of that State discriminating in favor of goods, wares, and merchandise which are the growth, product, or manufacture of the State, and against those which are the growth, product, or manufacture of other States or countries, 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 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 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.

Held, That the license tax exacted from dealers in goods which are not the product or manufacture of the State must be regarded as a tax upon such goods themselves: That legislation discriminating against the products of other

States is in violation of that clause of the

dity 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


that inter-state commerce shall be free V. Y. SUPREME COURT, GENERAL TERM,

and untrammelled.

The judgment of the Supreme Court of the State of Missouri must be reversed

and the cause remanded, with directions to enter a judgment reversing the judg ment of the Circuit Court and directing that court to discharge the defendant from imprisonment and suffer him to depart without delay.

Opinion by Field, J.


Decided January, 1876.

A return of a justice is held conclusive

as to facts therein stated. A justice is liable for a false return. A reference cannot be ordered to take proof of the facts stated in a return. Upon affidavits showing that the re turn of the justice is in several respects untrue. The respondent asks that such parts be stricken out or that the court di rect a reference to ascertain and report the facts occurring in the proceedings before the justice.


People ex. rel. Crimmins v. Morgan et at., Justices of the 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.


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.

Geo. W. Cothran, for motion.
Guersney, for relator.

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 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.
B. K. Phelps, for respt.

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 proceedings embraced in such return. It cannot consider affidavits contradicting said re-offense which the statute was designed to

On review, Held, That the proof given. presented every essential element of the

turn in any particular. To do so would subvert the prooceeding by certiorari and turn it in effect into an ordinary special motion. If the return is false the officer is liable to an action for a false return. Nor can the court refer it to a referee to ascertain the truth of the facts stated in the return. There is no such practice.

punish. Crimmins did not say in express words that he meant to accuse Wilson of stealing, but he insinuated that he would do so, and there was sufficient evidence for a jury to find a threat that he would make such an accusation. It is wholly immaterial in what language the threat to accuse is expressed, or whether the nature of the accusation itself is stated boldly or insinuatingly, if it be plain what the

Motion denied.

Opinion by E. Darwin Smith, J.

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