for removing officers of the city for misconduct;" and to fill any vacancy occurring in the office of police judge or other elective office by appointment by the mayor, with the assent of the council. Comp. Stat. Neb., chap. 13, §§ 11, 15; Stat 1887, chap. 11, §§ 8, 68, 114. The original ordinance of the city council of Lincoln, made part of the record, appears to have been framed with the object that the rules established by statute for conducting proceedings for the removal of county officers should be substantially followed in the removal of city officers elected by the people. After ordaining that whenever any such officer "shall be guilty of any willful misconduct or malfeasance in office, he may be removed by a vote of two-thirds of all the members elected to the council," it provides that no such officer shall be removed unless "charges in writing, specifying the misconduct or nature of the malfeasance, signed by the complainant, and giving the name of at least one witness besides the complain. ant to support such charges, shall be filed with the city clerk, president of the council or mayor," and be read at a regular meeting of the council; and a certified copy thereof, with a notice to show cause against the removal, be served upon the officer five days before the next meeting; that if he does not then appear, and file a denial in writing, "the said charge and specifications shall be taken as true, and the council shall declare the office vacant;" but if he does, the council shall adjourn to some day for his trial; "and if upon the trial of said officer said council shall be satisfied that he is guilty of any misconduct willfully or malfeasance in office, they shall cause such finding to be entered upon their minutes, and shall declare said office vacant, and shall proceed at once to fill such vacancy in the manner provided by statute and ordinance;" and that all proceedings and notices in the matter of such charges may be served by the city marshal or by a policeman, and the "service and return shall be in the manner provided by law for the service of summonses in justices' courts. The only material change made in that ordinance by the ordinance of August 24th is that the trial of the officer and the finding of his guilt, may be either by the whole council or by a "committee of the council to whom such charges shall have been referred." In either case the finding is to be entered upon the minutes of the council, "and the council shall declare the said office vacant and the said officer removed therefrom," and certify the fact to the mayor, whereupon the vacancy shall be filled by appointment by the mayor, with the assent of the council.

The whole object of the bill in equity filed by Parsons, the police judge of the city of Lincoln, against the mayor and councilmen of the city, upon which the Circuit Court of the United States made the order for the disregard of which they are in custody, is to prevent his removal from the office of police judge. No question of property is suggested in the allegations of matters of fact in the bill, or would be involved in any decree that the court could make thereon. The case stated in the bill is that charges in writing against Parsons for appropriating to his own use moneys of the city were filed, as required by the original ordinance, by Sheedy and Saunders (Hyatt, not otherwise named in those charges, would seem to have signed them as the additional witness required by that ordinance); that the charges were referred by the mayor to a committee of three members of the council; that upon the notice to the accused, and his appearance before that committee, he objected that the committee had no authority to try the 'charges, and the committee so reported to the council; that thereupon Sheedy and Saunders procured the passage of the amended ordinance, giving a committee, instead of the whole council, power to try the charges,

and report its finding to the council; that after the passage of this ordinance, and against his protest, the committee resumed the trial, and in order to favor and protect his accusers, and fraudulently to obtain his removal from office, made a report to the city council, falsely stating that they reported all the evideuce, and fraudulently suppressing a book which he had offered in evidence, and finding him guilty, and recommending that his office be declared vacant, and be filled by the appointment of some other person; and that the mayor and city council set the matter down for final vote at a future day named, and threatened and declared that they would then, without hearing or reading the evidence taken before the committee, declare the office vacant, and appoint another person to fill it. The bill prays for an injunction to restrain the mayor and councilmen of the city of Lincoln from proceeding any further with the charges against Parsons, or taking any vote on the report of the committee, or declaring the office of police judge vacant, or appointing any person to fill that office.

The matters of law suggested in the bill as grounds for the intervention of the Circuit Court are that the amended ordinance was an ex post facto law, and that all the proceedings of the city council and its committee, as well as both ordinances, were illegal and void, and in conflict with and violative of those articles of the Constitution of the United States which provide that no person shall be deprived of life, liberty or property without due process of law; that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district where the crime shall have been committed, and to have compulsory process for obtaining witnesses in his favor, and that no State shall pass any ex post facto law, or deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.

The fifth and sixth amendments to the Constitution of the United States, which provide that no person shall be deprived of life, liberty or property without due process of law, and secure to the accused in criminal prosecutions trial by jury, and compulsory process for obtaining witnesses in his favor, apply to the United States only, and not to laws or proceedings under the authority of a State (Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. Rep. 21); and that provision of the Constitution which prohibits any State to pass ex post facto laws applies only to legislation concerning crimes. Calder v. Bull, 3 Dall. 386. If the ordinances and proceedings of the city council are in the nature of civil, as distinguished from criminal proceedings, the only possible ground therefore for the interposition of the courts of the United States in any form is that Parsons, if removed from the office of police judge, will be deprived by the State of life, liberty or property without due process of law, in violation of the fourteenth amendment of the Constitution, or that the State has denied him the equal protection of the laws, secured by that amendment.

It has been condended by both parties in argument, that the proceeding of the city council for the removal of Parsons upon the charges filed against him is in the nature of a criminal proceeding; and that view derives some support from the judgment of the Supreme Court of Nebraska in State v. Sheldon, 10 Neb. 452, 456, before cited. But if the proceeding is of a criminal nature, it is quite clear, for the reasons and upon the authorities set forth in the earlier part of this opinion, that the case stated in the bill is wholly without the jurisdiction of any court of equity. If those proceedings are not to be considered as criminal or quasi criminal, yet if by reason of their form and object, and of the acts of the legislature and

APPEAL EROM DECREE OF DIVORCE OF JUDGMENT

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CONDITIONS REQUISITES OF APPEAL.- Where the judgment in proceedings for divorce dissolving the marriage, not only requires the defendant (the husband) to pay alimony in installments, but also directs him to execute and deliver to the plaintiff a mortgage on his real estate as security therefor, in order to stay execution pending appeal from the Supreme Court to the Court of Appeals, the appellant must not only execute the undertaking required by Code Civil Proc. N. Y., § 1327, but also execute and deposit with the clerk of the Supreme Court the mortgage called for by the judgment, as directed by Code Civil Proc. N. Y., 1330. Jan. 17, 1888. Galusha v. Galusha. Opinion by Earl, J.

"In

CARRIER OF PASSENGERS NEGLIGENCE -FREE PASS-DRAWING-ROOM CAR.-The fact that a passenger traveling on a free pass was riding in a drawing-room | car for which he bought a ticket at the time he was injured, does not affect the immunity from liability for negligence secured to the railroad by the provisions of the pass, the right to purchase the particular accommodation depending upon the right to transportation, and that being determined by the pass. This pass bore the following printed indorsement: consideration of receiving this ticket, the person who uses it voluntarily assumes all risk of accident, and expressly agrees that the company shall not be liable under any circumstances, whether by negligence of their agents or otherwise, for any injury to his person, or for any loss or injury to his property, and that as for him, in the use of this ticket, he will not consider the company as common carriers, or liable to him as such." It is claimed that by reason of the purchase of a ticket entitling him to the use and occupation of a particular seat during the passage in the drawing-room car" Empire," he became a passenger for hire, and that the contract expressed in the pass must be deemed to have been abrogated and annulled to a certain extent by the new contract. By reference to the opinion delivered in the court below upon a former appeal of this case, and which is contained in the appeal book, we infer that the judgment in favor of the plaintiff rendered by the trial court was affirmed upon the theory that the contract for a seat in the drawing-room car was made with the agents of the defendant, and that such a contract subverted or modified for this trip that formed by the pass and its indorsements. It is not pretended but that the plaintiff secured his transportation on this occasion by virtue of his pass, but it is suggested by the opinion referred to that the contract for the purchase of a seat aunulled the express condition upon which the pass was issued to the plaintiff, while it left the pass in full vigor so far as it gave the plaintiff a right to be carried on defendant's road from Albany to New York. Perhaps the language used by the court below will afford a more accurate view of its position, viz. The defendant has taken money from the plaintiff for carrying him, and it has no right to say that he was a free passenger, and to ask the court to incorporate into the drawing-room ticket the provisions of the free pass." The vice of this argument is in the assumption that "the defendant has taken money from the plaintiff for carrying him." Assuming, for the purposes of the argument, that the purchase by a passenger on a train of a drawing-room ticket from a drawing-room car conductor has the same force and effect as though purchased from the train conductor, of which there is much doubt, we yet think that such a purchase has no effect upon the status of the purchaser as a passenger. The contracts of a railroad corporation must be construed by the same rules which apply to those of all other parties, and must be

given the force and effect which were within the contemplation and understanding of the parties when they were made. The inquiry then is, what was the intention of the parties in the transaction culminating in the sale of a seat in the drawing-room car for the trip? It is undoubtedly true that if the plaintiff had paid his fare, or had made a valid contract with the defendant for passage which was inconsistent with the provisions of the pass, it might be inferred that the parties intended by such an arrangement to rescind the contract previously existing between them at least to the extent of any inconsistency. But we are of the opinion that the transaction in question had no such effect, and that the purchase of a right to enjoy particular and exclusive accommodations during the trip, whether made with the defendant or otherwise, did not, so long as the pass was used to secure transportation in any way affect the validity of the agreement expressed therein. Indeed the terms printed upon the ticket by which the plaintiff secured his seat in the drawing-room car repel a contrary inference, and plainly indicate that the plaintiff was required to rely for transportation upon his pass; for it is there stated that "this check, with passage ticket or fare, will be taken up by the conductor in charge of train." The inference is irresistible that the ticket for a seat had no relation to his right to transportation, but that the latter was expected to be made the subject of a distinct and separate contract to be formed by an agreement between the plaintiff and the defendant. Instead of its being supposed by the parties that the purchase of a seat modified the previous contract, it was expressly understood that the passenger was to secure the right of transportation by some arrangement already or thereafter to be made with the conductor of the train. This be did by the production and presentation of the pass to the conductor and its recognition by him; and by the express provisions of the contract embodied therein, he forfeited his right to claim damages for any injuries suffered either to his person or property occuring during that trip. The contract for a seat did not make the purchaser a passenger in any sense, but it simply provided that if the purchaser secured a right to ride on that train he could also enjoy the advantages of a specified seat during the trip if he so desired. The securing of a right to ride on the train was the condition upon which he became entitled to occupy the specified seat during the trip, and noncompliance with this condition would clearly preclude the purchaser from deriving any advantage from his purchase of the drawing-room ticket. We can discover no principle upon which it can be held that the contract expressed by the pass should be considered rescinded or inoperative. Certainly no express agreement was made to that effect, and we think none can be implied from the transaction referred to. It cannot be claimed that the purchase by a passenger of special and exclusive accommodations on a railroad train, not open to the enjoyment of passengers generally by virtue of their passage tickets, gives the purchaser a right to transportation, and yet the argument of the respondent implies that he had the right to use the pass to secure his transportation, and still repudiate the conditions upon which alone he was authorized to use it. The pass gave the plaintiff the right to enter any of the cars attached to the train and occupy a seat therein during the passage from Albany to New York, except certain cars set apart for special service and use. The pass gave the passenger no right to occupy a seat in such cars, and the money paid by the plaintiff to secure this seat had no relation to his right of transportation. The passenger could not have supposed that it did, for he not only used his pass for that purpose, but from the insignifi

cance of the price paid for his seat as compared with the regular fare for such a trip, the idea is repelled that he supposed he was thereby securing transportation also. It could not be contended for a moment that the holder of a drawing-room car ticket could by force of such ticket alone insist upon being carried over a railroad to his place of destination, or that the railroad company would be liable for damages for ejecting such holder from its cars for non-payment of fare, if he should refuse to pay the customary sum charged for transportation. No such rights are contemplated by the parties to such a transaction. The contract indicated by his purchase of a drawing-room seat certainly did not by express terms refer to or provide for any modification or rescission of the previous contract, and there is not a circumstance attending the transaction from which an intention that it should can be inferred. The court below seemed to suppose that the case of Thorpe v. Railroad Co., 76 N. Y. 409, tended to support the recovery in this case, but we are of the opinion that it has no bearing upon the question involved therein. That case holds that the servants in a drawing-room car, in their relations to passengers, and their conduct in preserving order and enforcing the rules and orders of the company, are the servants of the railroad corporation; but that case is very far from holding that such servants have the right to make contracts on behalf of the company for transportation, or that if they do, they necessarily rescind other contracts existing between the passenger and the company. Jan. 17, 1888. Ulrich v. New York Cent. & H. R. R. Co. Opinion by Ruger, C. J.

CONTRACT-RESCISSION-STATU QUO.-A party who has made a grant of an easement in land in consideration of stock certificates, and thereafter transferred the stock to his minor children, on the books of the company, cannot rescind the contract, and place the corporation whose stock he receives in statu quo by tendering the certificates owned by his children, but still in his possession. The theory of a rescission is that the party preceeded against shall be restored to his original position. The plaintiff cannot rescind if he retains in himself, or withholds through another, any fruit of the contract. Here as between the company and the infants, the latter had been vested with the title, and the corporation prima facie put under a new duty or obligation to them. The surrender by the father of the three certificates might tend to prevent any transfer in good faith from the children, and make difficult an estoppel in behalf of others; and yet that the corporation is not restored to its original position is evident from the fact that if it accepted the tender made, and restored what is now sought to be recovered, it would still be exposed to a claim of the infants that the stock was theirs, and be compelled to bear the risk of the inquiry whether the gift was executed and complete, and would be exposed to litigation over that question, and under circumstances in which the father, now unwilling to admit a gift, might become rather willing than otherwise, and confess some intention or purpose in that direction. That would be very far from restoring to the company its original position. He who would rescind, must rescind wholly, and leave no right flowing from him outstanding which imperils the completeness of the rescission. Jan. 17, 1888. Francis v. New York & B. E. R. Co. Opinion by Finch, J.

CRIMINAL LAW-JURY-QUALIFICATIONS-PREJUDICE-HOMICIDE-CORPUS DELICTI- (1) The fact that a large number of men were called before a jury was finally chosen does not show that the jury was either prejudiced or unfavorable toward the accused, or moved by improper motives. (2) The corpus delicti

must be proved before a person can be convicted of murder; but where parts of the body were found, and marks and indications pointed to the identity of the deceased, the question is properly met by evidence, and the guilt of the accused is properly submitted to the jury. "I would never," says Lord Hale (2 Hale, P. C. 290), "convict any person of murder or manslaughter unless the fact was proved to be done, or at least the body was found dead." The proposition is elsewhere somewhat differently stated, as by Starkie (1 Starkie Ev. 575), that upon charges of homicide, the accused shall not be convicted unless the death be first distinctly proved, either by direct evidence of the fact, or by inspection of the body; by Greenleaf (3 Greenl. Ev., § 30), that even in cases of homicide, though ordinarily there ought to be the testimony of persons who have seen and identified the body, yet this is not indispensably necessary in cases where the proof of the death is so strong and intense as to produce the full assurance or moral certainty; in Ruloff v. People, 18 N. Y. 179, that in order to warrant a conviction of murder, there must be direct proof either of the death, as by the finding and identification of the corpse, or of criminal violence adequate to produce death, and exerted in such a manner as to account for the disappearance of the body. Jan. 7, 1888. People v. Beckwith. Opinion by Danforth, J.

INJUNCTION-WHEN GRANTED -CONTINUING TRESPASS.-Defendant, who was a stranger to plaintiff, obtained permission to place "a few stone" on his unocNo charge was cupied lots until the next spring.

made for the accommodation. In plaintiff's absence, defendant covered the lots with heavy boulders to a height of fourteen to eighteen feet. Held, that defendant was guilty of a continuing trespass, and that plaintiff was entitled to a mandatory injunction for the removal of the stone within a reasonable time, the remedy at law by action for the trespass being inadequate and involving multiplicity of suits. But it is said that he could not sue at law for the trespass. That is undoubtedly true. The case of Uline v. Railroad Co., 101 N. Y. 98, demonstrates upon abundant authority that in such action only the damages to its date could be recovered, and for the subsequent continuance of the trespass new actions following on in succession would have to be maintained. But in a case like the present, would that be an adequate remedy? In each action the damages could not easily be any thing more than the fair rental of the lot. It is difficult to see what other damages could be allowed, not because they would not exist, but because they would be quite uncertain in amount, and possibly somewhat speculative in their character. The defendant therefore might pay those damages, and continue his occupation, and if there were no other adequate remedy, defiantly continue such occupation, and in spite of his wrong make of himself in effect a tenant who could not be dispossessed. The wrong in every such case is a continued unlawful occupation, and any remedy which does not or may not end it is not adequate to redress the injury or restore the injured party to his rights. On the other hand, such remedy in a case like the present might result to the wrong-doer in something nearly akin to persecution. He is liable to be sued each day, die de diem, for the renewed damages following from the continuance of the trespass; and while ordinarily there is no sympathy to be wasted on a trespasser, yet such multiplicity of suits should be avoided, and especially under circumstances like those before us. The rocks could not be immediately removed. The courts have observed that peculiarity of the case, and shaped their judgment to give time. It may take a long time, and during the whole of it the defendant would be liable to daily ac

tions. For reasons of this character it has very often been held, that while ordinarily courts of equity will not wield their power merely to redress a trespass, yet they will interfere under peculiar circumstances, and have often done so where the trespass was a continuing one, and a multiplicity of suits at law was involved in the legal remedy. The doctrine was recognized and the authorities cited in the Murdock case, 73 N. Y. 579, and the rule deemed perfectly settled. That case and those referred to, it is true, were cases of intrusion where no consent had been given for the entry of the intruder, but whether the trespass was such from the beginning, or became one after a revocation of the license, can make no difference, as it respects the adequacy of the legal remedy. That is the same in either event. Two cases of the former character were cited in the Uline case. Bowyer v. Cook, 4 Man., G. & S. 236; Holmes v. Wilson, 10 Ad. & El. 503. In one stumps and stakes had been left on plaintiff's land, and in the other buttresses to support a road; in each an action of trespass had been brought, and damages recovered and paid; and in each, after a new notice to remove the obstruction, a further action of trespass was brought and sustained-so that, as I have said, the legal remedy is identical, however the trespass originated. It is a general rule that a court of equity will act in such cases only after the plaintiff's right has been established at law; but that rule has its exceptions. Railroad Co. v. Railroad Co., 86 N. Y. 128. Where the facts are in doubt, and the right not clear, such undoubtedly would be a just basis of decision, though the modern system of trying equity cases makes the rule less important. Where as in an intrusion by railroad companies whose occupation threatens to be continuous, the injury partakes of that character, an action at law to establish the right has not been required. Indeed I am inclined to deem it more a rule of discretion than of jurisdiction. In Avery v. Railroad Co., 106 N. Y. 142, to which we have been referred since the argument, we were disposed to sustain a mandatory injunction requiring defendant to remove so much of a fence as obstructed plaintiff's right of way, although the obstruction was not a nuisance, but an invasion of a private right. In that case the equitable remedy was not challenged by either counsel or the court, and evidently stood upon the ground here invoked; those of a continuing trespass, the remedy for which at law would be inadequate, and involve repeated actions by the injured party for damages daily occurring. Jan. 17, 1888. Wheelock v. Noonan. Opinion by Finch, J.

LANDLORD AND TENANT-DESTRUCTION OF BUILDING-REBUILDING-AGREEMENT TO PAY MORE RENT. - A tenant under a written lease for three years remained in possession of the ground after the building was burned down, erecting and occupying a temporary shanty on the premises for his business. The landlord entered and put up a new building, much larger than the one which had been destroyed. The tenant then, when the lease had two years and six months yet to run, agreed in parol to pay more rent than the lease called for, and moved from the shanty into the new store. Held, in New York, where under Laws of 1860, chap. 345, a tenant may, upon the destruction of the demised building, avoid liability for rent by declaring the lease at an end and surrendering possession, that the parol agreement to pay more rent was without consideration, and being void under the statute of frauds, did not operate as a surrender of the old term. The sole object and purpose of the new contract seems to have been to continue the occupation of the defendant under the existing lease with an increased rent. The old lease was neither surrendered, abro

gated nor annulled, and indeed no allusion was made to it in the conversation; and the only purpose of the parties seemed to be to leave it in operation, and change one of its provisions, viz., that relating to the amount of rent reserved. There was no attempt to create a new term, or to change the extent of the estate demised, or in fact to execute a new lease inconsistent with the continued existence of the original one. It seemed to have been assumed by the parties that the defendant could still continue in possession of the whole premises, including that part not covered by the buildings, and that he should continue thus to occupy them during the unoccupied terin of his original lease. It would be doing violence to the plain purpose of the parties to assume that the defendant thereby intended to surrender the rights which he had in possession, under his written lease, for a new tenancy, subject to be terminated by his lessor at the end of one month, or that he intended to surrender that portion of the property which was not covered by the buildings. No such purpose can be implied from the conversation. If it could in any way be held to have effected a new lease of the premises, it must also be held in view of the circumstances and the obvious intention of the parties that it was intended to continue during the unexpired term of the existing lease. Such a term could not be created by parol, and the agreement therefore could not create a valid lease, and thereby effect a surrender of the existing lease by operation of law. The case seems to us to come directly within the decision in Coe v. Hobby, 72 N. Y. 145, and to be controlled by it. Jan. 17, 1888. Smith v. Kerr. Opinion by Ruger, C. J.

MUNICIPAL CORPORATION - NEGLIGENCE - DEFECTIVE CANAL-ACTIONS AGAINST STATE FOR WRONGFUL DEATH-LAWs N. Y, 1870, CHAP. 321.-(1) In proceedings before the board of claims by a widow, as administratrix of her deceased husband, to recover damages for his death, it appeared that the decedent, in crossing a bridge over the canal, fell through a defective railing and was drowned. It was in evidence also, that the defect had existed for a long time and was known to the officers in charge, who often tied up the broken rail, sometimes with twine and sometimes with wire. Held, on appeal by the State, that there was evidence tending to make out a case against the State, and that the question of contributory negligence on the part of decedent was therefore a question of fact not reviewable here. (2) The fact that the special statute (Code Civil Proc. N. Y., § 1902) giving the personal representatives a right of action for the death by wrongful act of the decedent omits to include actions against the State, does not affect the right of an administratrix to proceed before the board of claims to recover damages for the drowning of her husband in the canal; the State assuming, under Laws 1870, chap. 321, the same measure of liability incurred by individuals aud corporations engaged in similiar enterprises. Sipple v. State, 99 N. Y. 284. Jan. 17, 1888. Bowen v. State. Opinion by Finch, J.

POLICE DEPARTMENT-RETIREMENT ON PEN

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SION.-Laws of New York of 1885, chapter 364, section 2, amending Consolidation Act, section 307, provides that any member of the police force of New York city who shall have served for twenty years or more, "upon his own application in writing, shall, by resolution adopted by a majority vote of the full board, be relieved, * * * and placed on the roll of the police pension fund," etc. Held, that the mere filing of such application by a member of the force did not dissolve his connection with it, but that until the resolution referred to in the statute above was adopted, the applicant remained a policeman,