under this authority congress has passed divers acts prescribing the rules and articles of war, and providing for the government and discipline of the troops. These rules constitute the military law, and are directly sanctioned by the constitution; but they apply only to persons in the military or naval service of the government. What is called martial law, however, has a far wider scope and application. When once established it is made to apply alike to citizen and soldier. To call this system by the name of law seems something of a misnomer. It is not law, in any It is not law, in any proper sense, but merely the will of the military commander to be exercised by him only on his responsibility to his government or superior officer. Sir Matthew Hale said (Hist. C. L. 54): It is in truth and reality no law, but something indulged rather than indulged rather than allowed as law.' In the famous petition of right in the reign of Charles I, it was solemnly enacted, that no commission should issue to proceed in England according to martial law, and the principle was reasserted in the bill of rights of 1688. In the case of Grant z. Gould, 2 Hen. Blackst. 99, decided in the year 1792, Lord Loughborough said that martial law, in the sense in which we are now considering it, did not exist in England, was contrary to the constitution, and had been for a century totally exploded. We make these references merely to illustrate how odious this system is to the spirit of liberty and good government. That martial law must be permitted to prevail on the actual theatre of military operations in time of war, is an unavoidable necessity. It results from the very nature of war, which is simply an appeal to force, and where it is being waged it necessarily suspends and displaces the ordinary laws of the land by those usages which are known as the laws of war. If a commanding officer finds within his lines a person, whether citizen or alien, giving aid or information to the enemy, he can arrest and detain him so long as may be necessary for the security or success of his army. This is the power of a military commander on the actual scene of military operations, and when hostile armies are confronted with each other we may, for the purposes of the present case, go further, and admit that, if, in a district remote from the theatre of military operations, the popular sentiment is so disloyal to the

government that one who aids and abets the public enemy cannot be rendered powe less for mischief, and brought to justice by the arm of the civil law, that fact would justify the government in treating such district as virtually attached to the theatre of military operations, and in enforcing therein martial law or the laws of war, so far as might be necessary to the public safety. We may concede the right to do this as the exercise of a constitutional power resulting from the power to wage war. But beyond the enforcement of martial law of martial law on the actual field of military operations, which is the result of an overmastering necessity, and its establishment in districts which, though remote from the seat of war, are yet so far in sympathy with the public enemy as to obstruct the administration of the laws through the civil tribunals, and render a resort to military power a necessity as the only means of restraining the disloyal from overt acts, and preserving the authority of the government, we know of no ground upon which its exercise can be defended. It is the result of an absolute necessity during a period of war, and should terminate with the necessity itself. The doctrine that a state of war itself suspends, at once and everywhere the constitutional guaranties of our liberty and property, finds no support in the constitution, and is inconsistent with every principle of civil liberty and free government. Johnson v. Jones, 44 Ill. 153. See also Griffin v. Wilcox, 21 Ind. 376, 377.

Revenue laws, within the meaning of the acts of congress, are those laws which, upon their face, are plainly designed to raise revenue, and not those under which revenue may incidentally arise. The Nashville, 4 Biss. (U. S.) 188; U. S. v. Morton, 91 U. S. 566; Warner. Fowler, 1 Blatch. (U. S.) 311.

According to Law.-An averment in a complaint that an affidavit was made according to law, will be held, after verdict and judgment, to mean that it was made within the time prescribed by law. McElhaney v. Gilleland, 30 Ala. 183.

A Verdict Against Law.-A verdict of a jury in disobedience to the instructions of the court, although the instruction itself was not correct in point of law, is a verdict "against law," within the meaning of subd. 6, § 193 of the Practice Act of California, which

I. Definition, 957

II. Rights and Duties of Persons Travelling on Highways and

Streets, 957.

III. Obstructions, 963.

IV. Rate of Speed, 963.

V. Stopping by the Wayside, 963. VI. Foot Passengers, 964. VII. Pleading, 964.

VIII. Canals, 964.

provides that a verdict may be set aside on the ground that it is "against law." Emerson v. County of Santa Clara, 40 Cal. 543

A Verdict Contrary to Law.-When a verdict, either general or special, is imperfect by reason of some uncertainty or ambiguity, or by finding less than the whole matter put in issue, or by not assessing damages, it cannot be deemed "contrary to law," within the meaning of the code of Indiana on the subject of new trial. Said the court: "The statute points out the causes for which a new trial may be granted, and in our opinion a defective and insufficient verdict is not among them. 2 R. S., 1852, p. 117. One of the causes for a new trial is that the verdict 'is contrary to law.' What is meant by the phrase, 'contrary to law,' as used in the statute? Clearly not a verdict that is defective or insufficient in law merely. A verdict may be defective and insufficient in law and yet not contrary thereto. We think that a verdict which is contrary to law is one which is contrary to the principles of law, as applied to the facts which the jury were called upon to try; contrary to the principles of law which should govern the cause." Bosseker v. Cramer, 18 Ind 44.

Pursuant to Law. The act of congress of February 26th, 1853, provides for the compensation of witnesses "for each day's attendance in court, or before any officer pursuant to law." It has been held that the words "pursuant to law," in the said act, are equivalent

to the word "summoned" in the act of February 28th, 1799, which provided a compensation for all witnesses "summoned" in any court of United States; and that they import that witnesses who attend without being summoned, are voluntary witnesses, whose fees cannot be taxed against the losing party. Woodruff v. Barney, 1 Bond (U. S.) 528.

1. Grier v. Sampson, 27 Pa. St. 183. 2. Dunham v. Rackliff, 71 Me. 345. 3. Kennard v. Burton, 25 Me. 39; Daniels v. Clegg, 28 Mich. 33; Commonwealth v. Allen, 11 Met. (Mass.) 403; Clark v. Commonwealth, 4 Pick. (Mass.) 125; Earing v. Lansingh, 7 Wend. (N. Y.) 185.

The travelled part of the road under the Michigan statute (Comp. L. § 2002) means that part which is wrought for travelling, and is not confined simply to the most travelled wheel track. Daniels v. Clegg, 28 Mich. 33. See also Earing v. Langsingh, 7 Wend. (N. Y.) 185.

The rule requiring persons meeting each other on any public highway to keep their vehicles to the right of the centre of the worked part of the road does not apply to the winter season when the depth of snow renders it impossible, or difficult to ascertain the centre of the worked part of the road. It is a reasonable construction of the statute to define the center of road — when obstructed by snow-to be the centre of the beaten or travelled track without reference to the worked part.

Barb. (N. Y·) . Richardson,

Smith v. Dygert, 12 613. See also Joquith 8 Metc. (Mass.) 213. According to the case of Com. v. Allen, 11 Metc. (Mass.) 403, travellers in carriages who meet in a road are required, under a penalty, seasonably to drive their carriages to the right of the middle of the travelled part of the road; and they cannot avoid the penalty by seasonably turning to the right of the wrought part of the road, though they leave sufficient room for the trav ellers whom they meet to pass with convenience and safety in the use of ordinary care and skill. Com. v, Allen, 1 Metc. (Mass.) 403. See also Simmonson v. Stellenmerf, 1 Edm. (N. Y.) Sel. Cas. 194; O'Maley v. Dorn, 7 Wis. 236; Pike v. Boswick, 51 N. Y. Super. (44 Hun) 626; Pigott v. Engle, 60 Mich. 221; Johnson & Co. v. Small, 5 B. Mon. (Ky.) 25.

Though the statute requires a traveller to keep to the right, yet it does not justify him in stubbornly keeping on that side, and thus causing a collision which a slight change on his part might have avoided. O'Maley v. Dorn, 7 Wis. 236.

And though the rule of the road is not to be adhered to, if, by departing from it, an injury can be avoided, yet, where parties meet on the sudden, and an injury results, the party on the wrong side should be held answerable, unless it appears clearly that the party on the right had ample means and op. portunity to prevent it. Chaplin v. Hawes, 3 C. & P. 554.

Application of the Rule.-The law of the road, as it is commonly termed, does not apply to buildings that are being moved through a public highway. Graves v. Shattuck, 35 N. H. 257.

The statute (I Rev. Stat., ch. 695, § 1) requiring carriages meeting upon the highway to turn seasonably to the right has no application to the meeting of railroad cars with common vehicles; and where it appears that the plaintiff turning to the left, his carriage was struck by the defendant's car, it was held that this did not, of itself, constitute such negligence on the part of the plaintiff as to put him in the wrong. Hegan v. Eighth Avenue R. Co., 15 N. Y. (1 Smith) 380.

A traveller on horseback meeting another horseman or a vehicle is not required to turn in any particular way to avoid collision; he must exercise due

care under the circumstances. Dudley v. Bolles, 24 Wend. (N. Y.) 465.

It is ordinarily the duty of one on horseback to yield the travelled path to one in a vehicle. Washburn v. Tracy, 2 Chip. 136.

In Grier v. Sampson, 27 Pa. St., it was held that where a horseman or light vehicle can pass with safety to the left of a heavy loaded team, it is their duty to give way, and leave the choice to the more unwieldy vehicle.

In England, the rule of the road as to keeping the proper side applies to saddled horses as well as carriages; and if a carriage and horse are to pass, the carriage must keep its proper side, and so must the horse. Turley v. Thomas, S C. & P. 103.

Teams Heavily Loaded.-A person on foot or on horseback cannot compel a teamster who has a heavy draught to leave the beaten part of the road if there is sufficient room to pass; and this rule applies where a person on horseback meets a buggy buggy carrying three persons drawn by a single horse. Beach v. Parmeter, 23 Pa. St. 196.

Mail Stage. A mail stage coach is protected by act of congress from obstruction, but is subject in all other respects to the laws of the road. Bolton v. Colder, 1 Watts (Pa.) 360.

Bicycles. In Pennsylvania, bicycles, tricycles, and all vehicles propelled by hand or foot, and all persons by whom "they are used, etc., upon the public highways, shall be entitled to the same rights and subject to the same restrictions in the use thereof, as are prescribed by law in the cases of persons using carriages drawn by horses." Act April 23rd, 1889; L. 1889, No. 43, p. 44. For a similar statute see Parkyns v. Priest, 7 Q. B. Div. 313.

In New York, the act of June 25th, 1887, L. 1887, ch. 705, is substantially the same as the Pennsylvania statute, supra.

A North Carolina statute which forbids the use upon a certain road "of a bicycle, tricycle, or other nonhorse vehicle without the express permission of the superintendent" (Priv. Acts, 1185c, 14), does not destroy the lawful use of property, but is a reasonable police regulation. State v. Yopp, 97 N. Car. 477. Compare Purple v. Greenfield, 138 Mass. 7; Regina 7. Mathias, 2 F. & F. 570.

Roads Subject to the Rule.-The law of the road, Rev. Stats. of Massachusetts, ch. 51, § 1, extends to all places appro

Junction of Streets.-Massachusetts

Rev. Stat., ch. 51, requiring travellers meeting each other "seasonably to drive to the right" do not apply when one vehicle is passing along one street and another is turning into said street from a cross street. Lovejoy v. Dolan, 10 Cush. (Mass.) 495. See Morse v. Sweenie, 15 Ill. App. 486; Fales v. Dearborn, I Pick. (Mass.) 344.

In Garrigan v. Berry, 12 Allen (Mass.) 84, it was held that in the absence of a statute regulating the manner in which persons should drive when they meet at the junction of two streets, the rule of the common law applies, and each person is to use due and reasonable care to prevent accident adapted to the circumstances and place. 1. Palmer v. Barker, 11 Me. 338; Daniels v. Clegg, 28 Mich. 32; Winn v. Jones, 111 Mass. 360.

Parties lawfully using a public street owe to each other the duty of reasonable and ordinary care, and each is justified in assuming that the other will so act. Baker v. Fehr, 97 Pa. St. 70.

Crowded Streets.-Great care should be used in driving a carriage through a crowded street. Vaugh. Scade, 30 Mo. 600.

2. Palmer v. Barker, 11 Me. 338; Daniels v. Clegg, 28 Mich. 32; Fox v. Sackett, 1 Allen (Mass.) 535; Welling v. Judge, 40 Barb. (N. Y.) 193; Washburn v. Tracy, 2 D. Chip. (Vt.) 136; Williams v. Holland, 6 C. & P. 23; Brooks 7. Schwerin, 54 N. Y. 343; Howard v. Tyler, 46 Vt. 683; Schaefer v. Osterbrink (Wis.), 30 N. W. Rep. 922; Belton v. Baxter, 54 N. Y. 245; Lewis 7. Bulkley, 4 Daly (N. Y.) 156; Avegna v. Hart, 25 La. An. 235; Cotterill v. Starkey, 8 C. & P. 691.

A foot traveller who attempts to

cross a public thoroughfare ahead of approaching vehicles, under circumstances requiring a close estimate of his chance of crossing safely, cannot recover for injuries sustained in consequence of negligence on the part of the driver of a vehicle, concurring with his own mistaken estimate. A foot traveller has no prior right of way over a passing vehicle. Belton v. Baxter, 14 Abb. (N. Y.) Pr., N. S. 404.

In an action for personal injuries occasioned to the plaintiff in being run over while crossing a street, the fact that the plaintiff does not show that he looked up and down the street before crossing is not conclusive evidence as matter of law that he was not in the exercise of due care. ercise of due care. Bowser v. Wellington, 126 Mass. 391.

A person suing an owner of a vehicle for negligence by and through the misconduct of his servant, in running over him while crossing a thoroughfare, must, in order to succeed, give affirmative and preponderant evidence of neglect of duty on the driver's part. Cotton . Wood, 8 C. B., N. S. 568.

Street Crossing.-A person driving a vehicle across the street must see that he does not interfere with others in the proper exercise of their right of passing. Fales v. Dearborn, Pick. (Mass.) 344.

In an action for personal injuries occasioned to a woman sixty-seven years. old by being knocked down by a horse car and wagon while crossing a street on some flagstones at a point where the street forms a junction with two other streets, all much travelled, in the compact part of a city, the fact that before attempting to cross, and while crossing, she did not look up or down. the street but straight ahead, is not conclusive evidence of a want of due care on her part, but the question is rightly submitted to the jury. leigh 7. Nyman, 134 Mass. 118.

Shap

Opening of Private Way.-If a private way is opened leading from a public street and prepared for use in the same manner as a public street, and with nothing to show that it is not such, the public may lawfully travel over it, although it is closed at one end, and in

so doing they are bound only to the same degree of care in respect to others who are also lawfully using it as in travelling over public streets. Danforth v. Durell, 8 Allen (Mass.) 242.

Evidence of Negligence.-The burden of proof is upon the plaintiff to show not only negligence and misconduct on the part of the defendant, but also ordinary care and diligence on his own part. Daniels v. Clegg, 28 Mich. 33; Lane v. Crombie, 12 Pick. (Mass.) 177; Smith v. Smith, 2 Pick. (Mass.) 621,

In an action for death caused, or injuries sustained, through being run over by a vehicle driven by a servant, evidence that he might have seen the plaintiff or the deceased in time to pull up, if he had not been looking at his horses, owing to the want of a skid in going down hill, is sufficient evidence of negligence, and even although there was some negligence on the part of the deceased in crossing the road, yet the master is liable if his servant by the exercise of reasonable care could have seen the deceased and avoided the accident. Springett v. Ball, 4 F. & F. 472.

The mere fact that a man's driving on the wrong side of the road is no evidence of negligence in an action brought against him for running over a person who was crossing the road on foot. Lloyd v. Ogleby, 5 C. B., N. S. 667.

In an action for personal injuries sustained by coming into collision with a horse and sleigh, it appeared that there was about a foot of snow on the ground; that a way for teams had been broken out in the road, and also another track outside of it; and that plaintiff was walking on the latter track when the projecting shafts of defendant's sleigh, which was being driven at great speed, struck him. Held, that the mere fact that plaintiff did not step out of the track into the snow, was not conclusive evidence of his negligence. Kendall v. Kendall, 147 Mass. 482.

1. Harpell v. Curtis, 1 E. D. Smith

So in order to excuse a collision

(N. Y.) 78; Wood v. Luscomb, 23 Wis. 287; Cotton v. Wood, 8 C. B., N. S. 568; Parker v. Adams, 12 Metc. (Mass.) 417; Smith v. Garnder, 11 Gray (Mass.) 418.

Under the N. Y. statutes of 1879 (ch. 186), an ambulance has the right of way in preference to an ice wagon, and the ambulance driver has a right to assume that the driver of the ice wagon will heed the ambulance bell and give way. So held in an action against an ice company whose wagon came into collision with the ambulance which plaintiff was driving. Byrne v. Knickerbocker Ice Co., 21 N. Y. St. Rep. 469; 4 N. Y. Supp. 531.

The New Hampshire statute providing that anyone travelling with a vehicle on a highway and meeting another so travelling, "shall seasonably turn to the right of the center of the travelled part of the road," etc. (Gen. L., ch. 75, §§ 11-14), does not render a traveller liable for a collision, if he is ignorant of the approach of another carriage. Lyons v. Child, 61 N. H. 72.

2. Center v. Finney, 17 Barb. (N. Y.) 94; Foster v. Goddard, 40 Me. 64; Welling v. Judge, 40 Barb. (N. Y.) 193; Washburn v. Tracy, 2 D. Chip. (Vt.) 136; Daniels v. Glegg, 28 Mich. 33.

It is no defence to an action to recover damages for an injury received from the running of the defendant's horse against the plaintiff on the highway that the plaintiff was in a use of the highway not justified by law, provided no negligence or want of ordinary care on his part contributed to produce the injury. Bigelow v. Reed, 51 Me. 325.

The mere fact that a carriage is unnecessarily on the left of the middle of the travelled part of the road, does not, under Massachusetts Rev. Stat., ch. 51, § 1, prevent its owner from recovering damages for a collision with another carriage turning in from a cross road and negligently driven against plaintiff's. Smith v. Gardner, II Gray (Mass.) 418.

Runaway Horses.-If a horse runs