claimed became the valuation by force of another clause of the policy, which reads: "Indorsements valued at the same, provided they do not vary from the cost more than per cent." Where this phrase occurs in the policy it follows one which provides, "No shipment to be considered as insured until approved and indorsed on this policy by the assurer;" aud precedes the one already referred to, which agrees upon a valuation. If the phrase" valued at the same means "at the sum insured," then this form of policy is never an open, but always a valued, policy: and then, too, the subsequent formal clause, "the said goods * * * are valued at," is superfluous and unmeaning, since already it had been said that the valuation was to be the sum insured. We think the clause relied on has an entirely different purpose and meaning, the force of which lies in the proviso. Its evident aim is to guard against an overvaluation when it is made effective by filling up its blanks. It means that the property insured is valued "the same" as that value is stated in the indorsement, provided that such value does not vary from the cost more than - per cent. If a maximum of variation from costs permissible in the valuation is agreed upon, that furnishes a protection against an excess which might be in the nature of a wager, and largely exceed the real value. The clause therefore does not mean that the sum insured is to be the agreed value and so in all cases the policy shall be a valued one; but contemplates an agreed valuation which may be stated in the indorsement, and which shall be the agreed value “of the goods, provided they do not vary more than - per cent from cost." March 2, 1886. Snowden v. Guion. Opinion by Finch, J. MASTER AND SERVANT-NEGLIGENCE OF CO-SERVANT AND MASTER.-It has been repeatedly held that the risks of the service which a servant assumes in entering upon the employment of a master are those only which occur after the due performance by the employer or those duties which the law enjoins upon him, and that the negligence of the master co-operating with that of a servant in producing injury to a coservant renders the master liable. Stringham v. Stewart, 100 N. Y., and cases cited. It was said by Chief Judge Church in Flike v. B. & A. R. Co., 53 N. Y. 549, that the true rule "is to hold the corporation liable for negligence in respect to such acts and duties as it is required to perform as master without regard to the rank or title of the agent intrusted with their performAs to such acts the agent occupies the place of the corporation, and the latter is liable for the manner in which they are performed." Judge Rapallo states the rule in Crispin v. Babbitt, 81 N. Y. 521; S. C., 37 Am. Rep. 521, note, to be that it depends "upon the character of the act in the performance of which the injury arises without regard to the rank of the employee performing it. If it is one pertaining to the duty the master owes to his servants he is responsible to them for the manner of its performance." The rule is unqualified that a master is bound to use all reasonable care, diligence and caution in providing for the safety of those in his employ and furnishing for their use in his work, safe, sound and suitable tools, implements, appliances and machinery in the prosecution thereof and keeping the same in repair. This is the master's duty, and he cannot exempt himself from liability for its omission by delegating its performance to another, or having required work to be done by omitting precautions and inquries as to the time and manner of its performance. Laning v. N. Y. C. R., 49 N. Y. 521; Corcoran v. Holbrook, 59 id. 517; Slater v. Jewett 85 id. 61; Pantzar v. Tilly Foster Mining Co., 99 id. 368. The master is chargeable ordinarily with knowledge of the means necessary to be employed in performing his work, and when their procurement and

ance.

selection is delegated to a servant he stands in the place of the master in discharging those duties; and the servant's neglect in that office is chargeable to the employer as an omission of duty enjoined upon him. Ell:s v. N. Y., L. E. & W. R., 95 N. Y. 546; Slater v. Jewett, 85 id. 61. Ignorance by the master of defects in the instrumentalities used by his servants in performing his work is no defeuse to an action by the employee who has been injured by them, when by the exercise of proper care and inspection the master could have discovered and remedied the defects or avoided the danger incident therefrom. The evidence in the case fails to disclose the previous history of the structure used as a platform, but it appears that it was already manufactured and had lain for some time previous to the accident over the boiler in the boiler-room. It was apparently made of sound lumber, and upon a casual examination would seem to have been safe for the purpose for which it was used. An examination of it however after the accident disclosed that the broken wood had a knot of about two inches in diameter near its center which must have impaired its safety for use as a platform. The under part of the board was unpainted, and the existence of the knot was presumably open to discovery upon a casual inspection of the platform, before it was placed in position. We think that it was within the province of the jury upon the evidence appearing in the record to pass upon the question of the defendants' negligence in using the structure described for a platform in the work prosecuted, and that it was error to dismiss the complaint. Feltham v. England, L. R., 2 Q. B. 33; Coughtry v. Globe Woolen Co., 56 N. Y. 124; Manning v. Hogan, 78 id. 615. March 2, 1886. Benzing v. Steinway. Opinion by Ruger, C. J.

PRINCIPAL AND AGENT EVIDENCE TO PROVE STATUS OF PARTIES.-Plaintiff gave an oral order to defendants for a quantity of buttons, to be manufactured. In letters, defendants said: "We have the pleasure to report your order for," etc., and "we have the pleasure of ordering for your account," etc., siguing the firm name. Defendants claimed that they were mere agents, and that they were so known by plaintiff. Held, that the language of the letters was ambiguous, and evidence was admissible to explain it; and as the jury found that they acted as principals, their finding is conclusive. Counsel for the appellant assumes that the defendants were commission merchants and agents for manufacturers, and in the light of that knowledge, and the language of the letters, contends that the character of the transaction was one of agency merely. What the plaintiff knew was, under the testimony, for the jury to say, and we are unable to find in the letters any conclusive evidence showing that the defendants intended to act otherwise than as principals. In the first place, they sign as principals. Then they say "we report your order," and this, in view of the fact testified to that the plaintiff had given the order verbally, and Chapman had made a memorandum of the articles and prices, may mean "report the order" for the information of the plaintiff, as iu Brigg v. Hilton, 99 N. Y. 517. They add: 'Goods to be put np in bulk; delivery as soon as possible." Thus the contract imports a personal obligation. The cases cited by the appellant do not require a different conclusion. In Cobb v. Knapp, 71 N. Y. 348, the agent disclosed no principal, and was held liable. In Southwell v. Bowditch, 1 C. P. Div. 100; S. C. on appeal, id. 374, it was plain on the face of the writing that the defendant was not acting for himself, but for "principals;" that phrase qualifying the contract. In Metcalf v. Williams, 104 U. S. 93, the defendant was sued personally upon a check signed by him, with the addition of "V. Pres't," his name of office, and it was held that he was

returned unsatisfied at the instance of the creditor in the execution; and for similar proceedings against insolvent banking or other specified corporations, at the instance of the attorney-general or any creditor or stockholder. The system inaugurated by the act of 1825, and incorporated in the Revised Statutes, has been continued by the Codes, and fifty years prior to the act of 1883 had been the statutory system of procedure for the winding up of the affairs of insolvent corporations, through receivers appointed by the court, not by virtue of its inherent jurisdiction, but under statutory authority; the statute which authorized their appointment also prescribing with great minuteness their powers and duties. The immediate point in controversy is whether the act of 1883 was an additional regulation prescribing the rights and duties of receivers of insolvent corporations, or has a wider scope, embracing all receivers of a corporation or of corporate property, however appointed, or for whatever purpose the appointment may have been made. We think the limited construction of the statute is the true one, and that the general language of the second section, prescribing the fees of receivers must, in view of the context, be construed as relating only to receivers of insolvent corporations. March 2, 1886. U. S. Trust Co. of N. Y. v. N. Y., W. S. & B. R. Co. Opinion by Andrews, J.

not personally liable. In each there was enough on the face of the papers to indicate that the person siguing acted as agent, and it appeared that the one with whom he dealt had knowledge of that agency. March 2, 1886. Newman v. Greef. Opinion by Danforth, J. RECEIVER-COMMISSIONS IN FORECLOSURE AGAINST CORPORATION-CODE CIV. PROC., § 3320-LAWS 1883, CH. 378, § 2.-Section 2320, Code Civil Procedure, limiting the commissions of a receiver to such sum, not exceeding five per cent, as the judge may allow, applies to the case of a receiver pendente lite appointed in a foreclosure action against a corporation. Chapter 378, section 2, Laws 1883, giving a receiver a fixed percentage, irrespective of the services rendered, does not apply to such a receiver, and was intended to apply only to receivers of insolvent corporations. It is claimed that the case of a receiver appointed in a foreclosure action against a corporation is taken out of the general rule of law by force of section 2, chapter 378, of the Laws of 1883, and that by that section such a receiver is entitled to a fixed percentage upon receipts and disbursements, which the court is bound to allow irrespective of any consideration of the character or value of the services rendered. The act of 1883 is entitled "An act in relation to receivers of corporations." The second section, upon which the appellants rely, is as follows: "Section 2. Every receiver shall be allowed to receive, as compensation for his services as such receiver, five per cent for the first one hundred thousand dollars actually received and paid out, and two and one-half per cent on all sums received and paid out in excess of the said one hundred thousand dollars." The power of a court of chancery to appoint a receiver pendente lite in foreclosure cases is a part of its incidental jurisdiction, not depending upon any statute, and which it exercises whenever, by reason of the insufficiency of the security, or other reason, equity required that the rents and profits of the mortgaged property, pending the litigation, should be impounded and retained, to be applied upon the debt, to be ascertained by the final judgment. Hollenbeck v. Donnell, 94 N. Y. 342. The receiver, by virtue of his appointment, took possession of the mortgaged property, and received the rents and profits as the officer of the court, but the title to the property was not changed, but remained in the mortgagor until a sale under the decree in the action. Keeney v. Home Ins. Co., 71 N. Y. 396. This jurisdiction was not affected by the character of the mortgagor, whether an individual or a corporation. It rested upon grounds quite independent of the character of the parties to the instrument, or the nature of the mortgaged property. But it was held at an early day in this State that the jurisdiction of chancery did not extend to the sequestration of the property of a corporation by means of a receiver, or to the winding up of its affairs, or to control or restrain the usurpation of franchises by corporate bodies, or by persons claiming without right to exercise corporate powers. Atty.General v. Utica Ins. Co., 2 Johns. Ch. 371; Atty.-Gen. v. Bank of Niagara, Hopk. 354. The refusal of the court of chancery to entertain jurisdiction of corporate bodies, at the instance of creditors, or to wind up their affairs in case of insolvency, led to the enactment by the Legislature, in 1825, of the act (ch. 325 of the Laws of that year) entitled "An act to prevent fraudulent bankruptcies of incorporated companies, and to facilitate proceedings against them," etc. The provisions of the act of 1825, enlarged and extended, were incorporated into the Revised Statutes, in the article entitled "Of Proceedings against Corporations in Equity" (2 Rev. Stat. 462), and a complete statutory system was enacted for the winding up of the affairs of a corporation against which an execution had been

UNITED STATES SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW-VALIDITY OF STATE STATUTE PROHIBITING PARADING WITH ARMS.- The Illinois statute prohibiting all bodies of men excepting the regular State militia and United States troops from associating, drilling or parading with arms in any city without license from the governor, is valid. We are to inquire whether the fifth and sixth sections of article 11 of the Military Code are in violation of the other provisions of the Constitution of the United States relied on by the plaintiff in error. The first of these is the second amendment, which declares: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the State. It was so held by this court in the case of United States v. Cruikshank, 92 U. S. 542, 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. (102) 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States." See also Barron v. Baltimore, 7 Pet. 243;

Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819; Com. v. Purchase, 2 Pick. 521; United States v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455. It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well of the States and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping'and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But as already stated we think it clear that the sections under consideration do not have this effect. The plaintiff in error next insists that the sections of the Military Code of Illinois under which he was indicted are an invasion of that clause of the first section of the fourteenth amendment to the Constitution of the United States which declares: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect. A State may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States. The inquiry is therefore pertinent, what privilege or immunity of a citizen of the United States is abridged by sections 5 and 6 of article 11 of the Military Code of Illinois? The plaintiff in error was not a member of the organized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offense for which he was convicted and sentenced. The question is therefore had he a right as a citizen of the United States, in disobedience of the State law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State? If the plaintiff in error has any such privilege, he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred. For as was said by this court in United States v. Cruikshank, 92 U. S. 542, 551, 560, the government of the United States, although it is "within the scope of its powers supreme and above the States," can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction." "All that cannot be so granted or secured are left to the exclusive protection of the State." We have not been referred to any statute of the United States which confers upon the plaintiff in error the privilege which he asserts. The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every coun

ent of some specific legislation on the subject. It can not be successfully questioned that the State governments, unless restrained by their own Constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organiza tion, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power by the States is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the State to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine. It is next contended by the plaintiff in error that sections 5 and 6 of article 11 of the Military Code, under which he was indicted, are in conflict with the acts of Congress for the organization of the militia. But this position is based on what seems to us to be an unwarranted construction of the sections referred to. It is clear that their object was to forbid voluntary military associations, unauthorized by law, from organizing or drilling and parading with arms in the cities or towns of the State, and not to interfere with the organization, arming and drilling of the militia under the authority of the acts of Congress. If the object and effect of the sections were in irreconcilable conflict with the acts of Congress, they would of course be invalid. But it is a rule of construction that a statute must be interpreted so as, if possible, to make it consistent with the Constitution and the paramount law. January 4, 1886. Presser v. State of Illinois. Opinion by Woods, J.

SUIT AGAINST STATE.-A suit to which a State is an indispensable party cannot be determined without its presence, and that cannot be compelled by a private individual, and its officers cannot enter its appearance unless expressly authorized. The complainants as holders of scrip, in behalf of themselves and of all other holders choosing to take part, are seeking to obtain by judicial process its redemption by the State, according to the terms of the statute in pursuance of which it was issued, by the levy, collection, and appropriation of special taxes pledged to that purpose, as they claim, by an irrepealable law, constituting a contract protected from violation by the Constitution of the United States; and such are the decrees which have been rendered according to the prayer of the bills. These suits are accurately described as bills for the specific performance of a contract between the complainants and the State of South Carolina, who are the only parties to it. But to these bills the State is not in name made a party defendant, though leave is given to it to become such, if it chooses; and except with that consent, it could not be brought before the court and be made to appear and defend. And yet it is the actual party to the alleged contract the perform ance of which is decreed, the one required to perform the decree, and the only party by whom it can be performed. Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the officers and agents of the State, having no personal interest in the subject-matter of the suit, and defending only as representing the State. And the things required by the decrees to be done and

of law. Under our political system they are subject to the regulation and control of the State and Federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independ

done and performed, constitute a performance of the alleged contract by the State. The State is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is therefore substantially within the prohibition of the eleventh amendment to the Constitution of the United States, which declares that "the judicial power