use.

which the latter may devote it." Cooley Coust. Lim. 654. The use must be by the general public of the locality, and not by particular individuals. McQuillen v. Hatton, 42 Ohio St. 202; Ross v. Davis, 97 Ind. 79. A use which may be monopolized or absorbed by the few, and from which the general public may and must ultimately be excluded, is in no sense a public Land cannot be condemned for the purpose of enabling those instigating the proceedings to parcel it out to private individuals; nor is a use which is not common to the public, and over which the State has surrendered that control and regulation necessary to secure such common use, a public use. The use of land for railways and turnpikes has been declared to be a public use, because it is open to all upon the payment of tolls which are regulated by law, and the law requires such ways to be kept open for use by the public impartially. As has been said, the question whether the use is public or private depends upon the right of the public to use the property, and to require the corporation, as a common carrier, to transport passengers or freight over the sanie. Kettle River R. Co. v. Eastern Ry. Co. (Minn.), 43 N. W. Rep. 469; De Camp v. Railroad Co., 47 N. J. Law, 47; Phillips v. Watson, 63 Iowa, 33; Clarke v. Blackmar, 47 N. Y. 156; Lewis Em. Dom., § 166. It has been held that condemnation proceedings cannot be resorted to to take lands for the construction of spur tracks which are made for the accommodation of individual shippers. In re Niagara Falls & W. Ry. Co. (N. Y.), 15 N. E. Rep. 429; Railroad Co. v. Babcock (N. Y.), 17 id. 678; Railroad Co. v. Wiltse (Ill.), 6 id. 49; Pittsburg, etc., R. Co. v. Benwood Iron Works (W. Va.), 8 S. E. Rep. 453. To justify the condemnation of lauds for a private corporation, not only must the purpose be one in which the public has an interest, but the State must have a voice in the manner in which the public may avail itself of that use. In Gilmer v. Lime Point, 18 Cal. 229, a public use is defined to be a use which concerns the whole community, as distinguished from a particular individual. The use which the public is to have of such property must be fixed and definite. The general public must have a right to a certain definite use of the private property on terms and for charges fixed by law, and the owner of the property must be compelled by law to permit the general public to enjoy it. It will not suffice that the general prosperity of the community is promoted by the taking of private property from the owner, and transferring its title and control to a corporation, to be used by such corporation as its private property, uncontrolled by law as to its use; in other words, a use is private so long as the land is to remain under private ownership and control, and no right to its use or to direct its management is conferred upon the public. In re Eureka Basin, etc., Co., 96 N. Y. 42. It is for the court to determine whether or not the use is a public one. Deausville Ass'n, 66 N. Y. 569; In re New York, etc., R. Co., 77 id. 248; City of Savannah v. Hancock (Mo.), 3 S. W. Rep. 215; Pittsburg, etc., R. Co. v. Benwood Iron Works (W. Va.), 8 S. E. Rep. 453; Tied. Lim. Police Powers, § 121a, p. 378; Cooley Const. Lim. 660. This very question arose in Association v. Beecher (Conn.), 5 Atl. Rep. 353, and the court say: "The complaint alleges that the plaintiff is an association duly organized under the laws of this State, for the purpose of establishing a burial ground; that it now owns one; that it desires to enlarge it, and that such enlargement is necessary and proper. There is no allegation that the land which it desires to take for such enlargement is for the public use in the sense indicated in this opinion. The demurrer, for the reason that the complaint does not set out any right in the plaintiff to acquire title to the land of the defendants, otherwise than by their voluntary deed, must be sustained." In re Deaus

In re

ville Ass'n, supra, it was held that the statute authorizing rural cemetery associations to acquire land by exercising the right of eminent domain was unconstitutional and void, for the reason that the use was a private one. The court say: "The land is to be vested in trustees, with power to divide into lots, and sell these lots to individual owners. It is difficult to see what interest the public will have in the lands or in their use. No right on the part of the public to buy lots or bury their dead there is secured. The prices at which the lots are to be sold are to be fixed by private agree ment. The corporation is to be managed by trustees elected by the lot-owners. The lots, or the rights of the owners therein, are to descend as private property to the heirs of these owners; and by the act of 1874 the owners may, by leave of the courts, sell their lots, and put the proceeds in their pockets. The substantial right of enjoyment of the property is vested in the individual lot-owners, and the whole effect of the incorporation of these cemetery associations is to enable a number of private individuals to unite in purchasing property for their own use, and that of their descendants, as a place of burial, and to secure a permanent management of it, through the instrumentality of trus tees appointed by themselves, and subject to no other control, with the privilege, when they cease to use their lots as a place of burial, to sell them, and receive the proceeds for their own benefit. It is argued that the property is to be used as a place of burial, and that the burial of the dead is a public benefit, and therefore the use is public. But the answer to this argument is that the right of burial in these grounds is not vested in the public, or in the public authorities, or subject to their control, but only in the individual lotowners. If the fact that it is a benefit to the public that the dead should be buried is sufficient to make a cemetery a public use, the Legislature might authorize A. to take the land of B. for a private burial place of A. and his family. The fact that this land is taken for the benefit of a number of individuals, for division among themselves or their grantees, for their own use as a cemetery, makes the case no stronger than if taken for the benefit of a single individual." Precisely the same may be said of a corporation formed under the act in question. The lands owned by it are under the absolute control and dominion of the corporation. It may sell to A., and refuse to sell to B., and by its sale to A. it excludes every other person from that parcel. Not only may it sell to A. for burial purposes, but it may sell to any other person for any purpose, if in its judgment the lands are not occupied or required for burial purposes. Mich. Sup. Ct., Oct. 9, 1891. Board of Health of Township of Portuge v. Van Hoesen. Opinion by McGrath, J. Morse, Long and Grant, JJ., concurred with McGrath, J. Champlin, C. J., concurred in the result.

spirit. Bevan v. Hayden, 13 Iowa, 122; Davis v. Humphrey, 22 id. 139; Kaiser v. Seaton, 62 id. 463. The debtor in the case before us was authorized, under the statute, to hold the property in question exempt from debts, if it were used for the purpose of his profession. It is plain that the use for which the property was kept determined the question of its exemption. The books, instruments, etc., of the physician and surgeon may be kept subject to the authority to change them, by sale or otherwise, in order to procure those of better character or improved construction. It is plain that the physician may sell his books, and replace them by better ones. Such sale is a proper use of his books and instruments in his profession. Another proper use of his books and instruments is their preservation from injury and destruction. He may insure them to protect himself and family from loss from fire. The fact that they were insured would not make them subject to his debts. If they are destroyed by fire, the indemnity secured by insurance stands in the place of the books. It is intended to preserve the physician's library by se curing means for its restoration after it is lost by fire. Surely that indemnity which is the indebtedness of the insurance company, or the money paid by it, stands in the place of the library, and ought to be, as it is, exempt from execution. The money due on the policy stands in the place of the property destroyed, and this must be true whether the money takes the place of the property by contract, or is acquired in invitum by proceedings against the owner. It is plain that a trespasser, by appropriating the property and converting it to his own use, cannot make it subject to the payment of the owner's debts by holding the value of the property the measure of the debtor's damages for the trespass, subject to garnishment by the creditors. If he could do this, it would be a convenient method to defeat the exemptions of the statute. As we before remarked, the object of the statute is to secure to the family the benefit of certain property. These benefits cannot be enjoyed unless the debtor have the unrestricted use and control of the property, free from liability for debts as long as it is owned and used by him. When it is used for other purposes than the support of the family, it becomes liable for debts. But the change of the property into money will not indicate an immediate abandonment of the claim of exemption to the money on the ground of a purpose to invest it in like or other exempt property. Until an opportunity exists to make such investment, which is not a change of articles of exempt property, the debtor ought not to be presumed to abandon his claim. The debtor, as we have seen, has the authority to change the articles of exempt property by sale and purchase, exchange or otherwise. He cannot be presumed to have abandoned his right to this authority until he has had an opportunity to exercise it. The creditor cannot complain of its exercise. He is defeated of no right thereby. The property is held free of his debt, and.he is not prejudiced by the change to the other like property. These doctrines and conclusions find support in the following decisions of this court: Kaiser v. Seaton, 62 Iowa, 463; Mudge v. Lanning, 68 id. 641. See also cases cited in Kaiser v. Seaton, supra, and the following: Evans v. Harvester Works, 63 Iowa, 204; Brainard v. Simmons, 67 id. 646; Leavitt v. Metcalf, 2 Vt. 342; Mulliken v. Winter, 2 Duv. 256; Tillotson v. Walcott, 48 N. Y. 188. Counsel for plaintiffs cite Wooster v. Page, 54 N. H. 125. It is not in harmony with our conclusions. We think that the reasoning upon which it is based is not sound. Other cases cited by the same counsel are not in conflict with our conclusions. They are to the effect that sales of exempt property, with no purpose to reinvest the avails in other like property, or to exchange the articles of exempted property, or are cases involving

the exemption of pension money, and some ɔther cases involving like questions, none of which are in conflict with our conclusions in this case. Iowa Sup. Ct., Oct. 9, 1891. Reynolds v. Haines. Opinion by Beck, C. J.

INFANCY SHERIFFS-AGE OF DEPUTIES.-In the absence of any statute making a deputy sheriff an officer or making provisions as to his age, a minor may be appointed deputy, though the Constitution of North Carolina, article 6, sections 4 and 5, provides that an officer shall be twenty-one years old. In some of the States statutes have been enacted providing for the appointment of general deputies and bailiffs, and prescribing certain duties and liabilities arising out of the position, and the interpretations of these laws have given rise to some confusion and apparent conflict in the decisions of different States. In some of these States we find distinctions drawn by the courts as to the duties, powers and liabilities of general deputies. coming within the provisions of their statutes, and special deputies who are left as at common law to be treated as the trusted servants or agents of the sheriff. Proctor v. Walker, 12 Ind. 660. In North Carolina both general and special deputies may be appointed by the sheriff without writing, and when they act with his assent or privity, they are either his general or special agents as to the discharge of his ministerial duties, and are accountable to him as such. An individual can unquestionably constitute,an infant his agent, and subject himself to responsibility for all acts of the latter within the scope of the agency. Whart. Ag., §§ 15, 16; 1 Lawson Rights, Rem. & Pr., § 6; Story Ag., § 7. In the absence of statutory restrictions, we see no reason why a minor, appointed by the sheriff as his general or special deputy, should not have the power to perform a mere ministerial duty of his office, such as serving a summons issued in a civil action. Murfree Sher., § 71; McGee v. Eastis, 3 Stew. (Ala.) 307; Barrett v. Seward, 22 Vt. 176; Miller v. McMillan, 4 Ala. 530; Ewell Evans Ag. *40, *41. Indeed, Judge Story says (in a note to section 149 of his work on Agency): "There is a distinction between doing an act by an agent and doing an act by a deputy, whom the law deems such. An agent can only bind his principal when he does the act in the name of his principal. But a deputy may do the act and sign his own name, and it binds the principal, for the deputy in law has the whole power of the principal." This citation is made not to give approval to the distinction drawn by him, but to show that the learned jurist considered a deputy as sustaining the relation of an agent to the officer who appoints him. If a deputy sheriff were by law constituted an officer, and the mode of appointing him and inducting him into office were prescribed, as in some of the States, our view of this case might be materially different. Guymau v. Burlingame, 36 Ill. 203; Murfree Sher., § 72. The qualifications of an officer are clearly set forth in sections 4 and 5 of article 6 of the Constitution, and it is declared essential that he should be "twenty-one years old," but we find no provision in our Constitution or laws which restricts the right to appoint agents on the one hand, or the liability for their acts on the other. In Yeargin v. Siler, 83 N. C. 348. Justice Dillard for the court says: "The rule in matters judicial is delegatus non potest delegare, but in duties ministerial the officer may act in person or by deputy, of his own choice and appointment." We think that in the absence of any statutory restriction the sheriff has the power to appoint a minor his general as well as his special deputy, and clothe him with the power of a bailiff, as to his ministerial duties, as effectually as he could constitute him his agent to attend to private business for nim as an individual. Broom Leg. Max. 619. The current of authority in this country sustains this view. It is true

that in the English case cited by counsel (Cuckson v. Winter, 17 E. C. L. 713), the court held that it was highly improper for a sheriff to intrust the service of a warrant in replevin to an infant, because the deputy was authorized to take possession of the goods, and was responsible for the custody of them, and that serrice of the warrant by the infant was illegal. The learned judge who tried the case below was doubtless influenced by this authority in holding the service void in our case. But the conclusion of the court in Cuckson v. Winter seems to be based upon the idea that a defendant, whose goods were taken for rent, had no remedy for an unlawful seizure except against the deputy. That difficulty is met by holding that the sheriff is civilly responsible for the unlawful acts of his deputy, to the extent to which he would be liable if he had acted in his own proper person, and that he selects and appoints his agents at his own hazard, third parties having no interest in the security he may exact from them. Murfree Sher., §§ 20, 59, 60, 64. Thus in every way the courts of this country have, in the absence of specific statutory provisions, adjusted the powers of sheriffs and their deputies, and their liabilities to the public and to each other, according to the rules which determine the duties and responsibility of principal and agent, and have recognized the right of the sheriff to select such agents for the discharge of mere ministerial duties as an individual could appoint and constitute for the transaction of private business, even though he might intrust the duty to a person not sui juris. Id., §§ 71, 75 and references; Yeargin v. Siler, supra. Mr. Wharton says in substance that the only qualification of the rule that infants may act as agents, and bind their principals, is that the infant agent must not be very deficient in mental capacity. Whart. Ag., § 15. N. C. Sup. Ct., Oct. 13, 1891. Jamesville & W. R. Co. v. Fisher. Opinion by Avery, J.

LIBEL AND SLANDER-DAMAGES.-Where the proprietor of a newspaper publishes, without inquiry as to its authenticity, an item from a news agency, falsely stating that a certain named man and woman of high respectability have eloped, that the intimacy between them had for some time excited comment, etc., he is guilty of reprehensible negligence, and though not guilty of malice the jury may, in an action against him for libel and slander, award punitive or exemplary damages. The publication of the article was not prompted by any personal malice toward the plaintiff or the other persons mentioned. But the defendant was guilty of reprehensible negligence in publishing it without making any effort to verify its truth. The injury to the reputation of the plaintiff was probably insignificant, but the jury undoubtedly thought that a newspaper manager who would publish such an article, one in which the good name of a decent woman was trailed in the mire, without any attempt at independent investigation to ascertain whether it was true or false, was guilty of a wanton act, and that the facts warranted such a verdict as would be an example to deter other newspaper managers from similar conduct. Reckless indifference to the rights of others is equivalent to an intentional violation of them, and in actions of libel, where the facts show the publication of a defamatory article without any excusable motive, and without any attempt to inquire into the truth of the facts stated, the jury are authorized, for the sake of public example, to award punitive or exemplary damages. The present verdict (84,000) is a severe one, and if it had been for a less amount would have vindicated the plaintiff and sufficiently punished the defendant, but questions of damages belong peculiarly to the jury, and the court will not set aside a verdict simply because it may be

dissatisfied with the amount rendered. U. S. Circ. Ct., S. D. N. Y., July 15, 1891. Rutherford v. Morning Journal Ass'n. Opinion by Wallace, J. 47 Fed Rep. 487.

66

MUNICIPAL CORPORATIONS-ORDINANCES-STORAGE OF OILS.-A city ordinance prohibiting the storage by any person within the city limits of inflammable oils, except upon permission from the common council, leaving it to the common council to say whether a particular place is suitable for the purpose, or a particular person is a proper one to whom to grant permission, and allowing the permission to be revoked at the will of the council, is invalid, because of the power of arbitrary discrimination it vests in the council. The subject covered by the ordinance in question is clearly within the police power conferred by the charter upon the municipality. Section 3155 of the Revised Statutes of 1881 provides that the common council of a city shall have power to make by-laws and ordinances not inconsistent with the laws of the State, and necessary to carry out the objects of the corporation. The danger to be apprehended from the storing of large quantities of inflammable or explosive substances in large quantities within the limits of a city to life and property is so great as to invite legislative control of the same by the city government. The principal question in this case is whether or not the ordinance in question is a valid exercise of that power. It will be observed that this ordinance does not establish any general rule for the storage of substances proposed to be regulated, but reserves to itself at regular meetings the right to grant or refuse permission to keep and store such oils, dependent upon whether it at such time deems the location and buildings suitable for such purpose, and the person presenting the petition "a proper person." It further provides that the permission when granted may be revoked at any time at the option of the council." Language better calculated to enable the common council to arbitrarily control the business, without any fixed or known rules, cannot well be imagined. The business of keeping, storing and dealing in such oils is a legitimate business, and every citizen has an inherent right to engage in the business upon equal terms with any other citizen. In the case of Bills v. City of Goshen, 117 Ind. 221, an ordinance of the city requiring a license for carrying on the business of roller skating, and providing that such license should be issued upon the payment into the city treasury of such sum of money "as the mayor or common council shall determine in each particular case," was held invalid, the objection being that a discretion was lodged in the mayor or common council in fixing the fee to be charged. In the opinion this language is quoted with approval from Horr & Bemis on Municipal Police Ordinances: "The ordinance itself should specify every condition of the license, and the officer should be merely intrusted with the duty of issuing licenses." In Yick Wo v. Hopkins, 118 U. S. 356, an ordinance of the city of San Francisco, prohibiting the carrying on of laundries without a permit from the board of supervisors, except in buildings constructed of stone, was held invalid. The court say: "It does not prescribe a rule and conditions for the regulation of the use of property for laundry purposes, to which all similarly situated may conform. It allows with restriction the use for such purposes of buildings of brick or stone, but as to wooden buildings-constituting nearly all those in previous use-it divides the owners or occupiers into two classes, not having respect to their personal character and qualifications for the business, nor the situation and nature and adapta tion of the buildings themselves, but merely by an ar bitrary line, on one side of which are those who are permitted to pursue their industry by the mere will

and consent of the supervisors, and on the other those from whom that consent is withheld at their mere will and pleasure. And both classes are alike only in this, that they are tenants at will, under the supervisors, of their means of living." In Baltimore v. Radecke, 49 Md. 217, an ordinance of the city of Baltimore prohibiting the use of steam whistles without the permit of the mayor was held invalid. The objection to the ordinance was that it permitted him to exercise his own discretion in revoking a permit, without general rules to guide or control his action. In Barthet v. City of New Orleans, 24 Fed. Rep. 564, an ordinance was beld invalid which made it unlawful to maintain a slaughter-house, "except permission be granted by the council of the city of New Orleans." In State v. Mahner, 9 South. Rep. (La.) 480, an ordinance of the city of New Orleans forbidding the keeping of dairies within certain limits, except by the permission of the city council, was held to be null and void. In City of Newton v. Belger, 143 Mass. 598, an ordinance which permitted the board of aldermen to exercise a discretion in granting or refusing a permit for the erection of buildings within a fire district was held invalid. Ordinances apparently aimed at the "Salvation Army," prohibiting marching through the public streets without first obtaining the consent of the mayor or common council, or some other specified officer, not containing regulations operating uniformly on all processions, have been held invalid in Re Frazee, 63 Mich. 396; Anderson v. City of Wellington, 40 Kans. 173; City of Chicago v. Trotter (111.), 26 N. E. Rep. 359. seems from the foregoing authorities to be well established that municipal ordinances placing restrictions upon lawful conduct or the lawful use of property must, in order to be valid, specify the rules and conditions to be observed in such conduct or business, and must admit of the exercise of the privilege of all citizens alike who will comply with such rules and conditions, and must not admit of the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities between citizens who will so comply. We are of the opinion that the ordinance under consideration is objectionable for the reasons indicated. Ind. Sup. Ct., Sept. 17, 1891. City of Richmond v. Dudley. Opinion by Miller, J.

It

NEGOTIABLE INSTRUMENT - JOINT REISSUE OF NOTE.-One of two joint makers of a note cannot after taking it up reissue it. The note in this case was payable on or before one year from its date. Watson, plaintiff's assignor, was one of the joint makers. Watson took by assignment, indorsed upon the note, from the payee. Plaintiff had notice of Watson's relations to the note, and when he received the note from Watson, he had notice that the note had been issued to Batchelder; that it had been taken up by Watson, and through Watson plaintiff acquired it. A single promisor may reissue his own note, and he cannot be allowed to set up a prior payment as a defense. An indorser who is not directly liable may take up a note and reissue it. The promisor in such case is not prejudiced. But when one of two joint promisors, who is directly liable upon the note for its whole amount, pays such note, the prior contract cannot be afterward revived against his co-signers. Hopkins v. Farwell, 32 N. H. 429; Patch v. King, 29 Me. 448. And it has been held that it is immaterial whether, in such case, the reissue is made before or after maturity. Gordon v. Wansey, 21 Cal. 77. In Eckert v. Cameron, 43 Penu. St. 120, the note was offered for discount on the day of its date, and the court in that case, after discussing the cases, say: "The cases hold that there is nothing in the fact that an acceptor or maker of an indorsed note has it in his possession, and offers it for discount before maturity, to give notice to a purchaser

of its payment or extinguishment. Their doctrine is that one who discounts such a note for the maker before it is due according to its tenor is an innocent holder for value, and is entitled to recover against any of the parties to it." In the present case however the note matured before the expiration of the year, at the option of the makers. Plaintiff had notice of its issue, and that Watson had taken it up. He cannot be said to be an innocent holder. The makers of this note had jointly agreed to pay it, and further that in case of payment by either, the others should contribute. The contract jointly to pay was extinguished when the note was taken up by Watson, and the obligation to contribute, of which plaintiff had notice, took its place. The others then became severally liable to Watson, and it does not matter that the right to enforce contribution did not ripen until the expiration of the year. The former contract would not be revived by a transfer of the note by Watson to plaintiff. Mich. Sup. Ct., Oct. 9, 1891. Stevens v. Hannan. Opinion by McGrath, J.

RAILROADS

FRIGHTENING HORSE AT STATION.

Plaintiff was lawfully upon defendant's depot grounds, unloading corn into a crib which was near two highway crossings, when defendant's engine passed without signal, and frightened plaintiff's team, causing them to run away and injure plaintiff. The statute provides that no railroad engine shall approach a highway crossing without giving a signal, and makes the neglect to give such signal a misdemeanor. Held, that defendant was liable, although plaintiff was not attempting to use such crossing. The instruction of the court below, directing the verdict, seems to be based upon the thought that no one is entitled to protection against the negligence of omitting to ring the bell, except persons who were using or about to use the highway crossing. This would be true only in case the negligence was the omission of an obligation or duty raised by contract, express or implied, or imposed by special regulations of the parties. But the case is one where the negligence causing the injury arises by reason of the violation of a statute which declares the negligence to be a misdemeanor. In support of these views we cite Wakefield v. Railway Co., 37 Vt. 330; Railway Co. v. Raiford (Ga.), 9 S. F. Rep. 169; Railroad v. Williams, 74 Ga. 723; Railway Co. v. Young (Ga.), 7 S. E. Rep. 912; Ranson v. Railway Co. (Wis.), 22 N. W. Rep. 149. Cases are cited by counsel for the defendant in support of views in conflict with our conclusions. Some are to that effect, but we are clearly of the opinion that they are in conflict with principle. Other cases cited by counsel are not in conflict with our conclusions in this case. Iowa Sup. Ct., Oct. 10, 1891. Lonergren v. Illinois Central Ry. Co. Opinion by Beck, C. J.

ANNUAL MEETING OF THE NEW YORK STATE BAR ASSOCIATION.

THE general committee charged with the duty of making arrangements for the next annual meeting of the New York State Bar Association met at the rooms of the association, Capitol, Albany, and excepting a few unimportant matters agreed upon a programme for the meeting, which it is confidently expected will be the most interesting and useful meeting ever yet held by the association.

The committee have been fortunate in securing as the orator of the occasion the distinguished scholar, orator and speaker, the Hon. Melville M. Bigelow, of Boston, Mass. The subject of his address, Respect for the Law; Responsibility of the Profession," would