ments should be positive.

The present case was commenced in the Supreme Court of New York, and was thence removed, on the petition of the defendant, to the Circuit Court of the United States for the Eastern District of New York. The record does not satisfactorily show the citizenship of the parties. The complaint filed in the State court shows that the firm of Wm. R. Grace & Co., composed of Wm. R. Grace, Michael P. Grace and Charles R. Flint, is doing business in New York, and that Wm. R. Grace and Charles R. Flint are residents of that State. The petition for the removal of the cause shows that the defendant is a corporation of the State of Missouri; that Wm. R. Grace and Charles R. Flint reside in New York; and that Michael P. Grace is a resident of some State or country unknown to defendant, but other than the State of Missouri. The record, however, fails to show of what State the plaintiffs are citizens. They may be doing business in and have a residence in New York, without, necessarily, being citizens of that State. They are not shown to be citizens of some State other than Missouri. Bingham v. Cabot, 3 Dall, 383; Abercrombie v. Dupuis, 1 Cr. 343; Jackson v. Twentyman, 2 Pet. 136; Sullivan v. Fulton Steamboat Co., supra; Horthall v. Collector, 9 Wall. 565; Brown v. Keene, supra; Robertson v. Cease, supra.

It is true that the petition for removal, after stating the residence of the plaintiffs, alleges "that there is, and was at the time when this action was brought, a controversy therein between citizens of different States." But that is to be deemed the unauthorized conclusion of law which the petitioner draws from the facts previously averred. Then there is the bond given by the defendant on the removal of the cause, which recites the names of the firm of Wm. R. Grace & Co., and describes it as "of the county of Kings and State of New York." If that bond may be considered as part of the record for the purpose of ascertaining the citizenship of the parties, the averment that the plaintiffs are "of the county of Kings and State of New York," is sufficient to show citizenship. Bingham v. Cabot, 3 Dall. 382; Wood v. Wagnon, 2 Cr. 9.

As the judgment must be reversed and a new trial had, we have felt it to be our duty, notwithstanding the record, as presented to us, fails to disclose a case of which the court below could take cognizance, to indicate, for the benefit of parties at another trial, the conclusion reached by us on the merits. And we have called attention to the insufficient showing as to the jurisdiction of the circuit court, so that, upon the return of the cause, the parties may take such further steps, touching that matter, as they may be advised.

The judgment is reversed and the cause remanded, with directions to set aside the judgment, and for such further proceedings as may not be inconsistent with this opinion.

CONSTITUTIONAL LAW-APPROPRIATION OF STREET TO PRIVATE PURPOSES.

HESSING V. SCOTT.

Supreme Court of Illinois, Nov. 20, 1883.

A tax-payer has no ground of complaint because one of the streets of his city has been vacated and given to a corporation upon which to erect a building for its private purpose, especially when he has suffered no greater injury than the public generally.

Error to the Superior Court of Cook County. WALKER, J., delivered the opinion of the court: Appellant filed a bill in chancery against the city of Chicago, the Board of Trade and a number of persons praying to have an ordinance vacating a portion of La Salle street, in Chicago, declared void, and that portion of the street cleared of obstructions, and to compel the city to perform the trusts reposed in it regarding such highway, and thereby enable the public to enjoy their rights in the street; also to enjoin the other defendants from interfering with the street. Complainant alleges that he is an inhabitant and tax-payer of the city and State.

He alleges in his bill that the street had previously been established and improved at large expense to the city. That the abutting property holders, to enhance the value of their property, desired that portion of the street vacated, so that the Board of Trade might erect a building thereon, and for that reason they petitioned for the vacation of the street. That the object of its vacation was to enable the Board of Trade to erect such a building to be used for private and not for public purposes. He also states it his belief that bribes were offered to aldermen to induce them to vote for the ordinance vacating the street, and insists the ordinance should be annulled and vacated. He fails to allege that the vacation of the street will impose any of the slightest additional burthen or tax, or that he will be in any wise injured or suffer the slightest inconvenience or loss. The bill seems to proceed on the grounds that the city held the street in trust for the public, and by vacating the street was guilty of a breach of the trust. That complainant is a cestui que trust, and has the right to invoke the aid of a court of equity, to compel the city to execute the trust. That inasmuch as public necessity, or even public convenience, did not require the vacation of the street, the council had no power to perform the act, and it was a violation of duty and repugnant to law to vacate the street.

Defendants demurred to the bill, and the court below held that it failed to show equity on its face, and sustained the demurrer and dismissed the bill. From that decree complainant appeals to this court and asks a reversal.

After a careful examination, we find no facts in this case to distinguish it from the case of the City of Chicago v. Union Building Association, 102 Ill.

379. In fact, there were facts in that case which appealed more strongly to the Chancellor for relief than do the facts in this case. There it appeared that complainant would, in common with others, suffer an applicable loss in the reduction of rents of its property; yet it was held that there was no grounds for equitable interference. Here the complainant shows no special injury. If he sustains injury, it is the same as every other taxpayer of the city. He does not even claim that it will subject him to the slightest loss or produce the least inconvenience whatever. All of the material facts of that and this case are similar, and that case must be held decisive of this. The difference in the facts of the two cases are unimportant and unessential. It is true that the complainant in that case was a private corporation, and in this the complainant is a natural person. But such bodies under our laws are entitled to the same protection as are natural persons, in all of their legal and equitable rights. This is required by the clearest principles of justice. There it was held that complainant having no separate and distinct interest, nor having suffered any peculiar injury, not common to all other residents of the city, it could not maintain its suit for its part of the common injury sustained by the public. The courts of this State have exercised the jurisdiction of restraining the abuse of the taxing power by municipalities, when exercised without charter power or for purposes not warranted, or the expenditure of corporate funds for purposes not authorized. And it may be the courts would interfere where the corporation were endeavoring to squander corporate funds in violation of the charter powers when it would unnecessarily increase the burthens of taxation.

In such cases, it may be a court of equity has the power, on the application of a resident taxpayer, to restrain such abuse of power. But appellant made no such case by his bill. He does not allege that it will impose on him a particle of loss, nor that he has or will sustain the slightest injury or inconvenience distinct from the general public. He has therefore shown no right to the relief sought, and the court below did not err in sustaining the demurrer and dismissing the bill. The decree of the court below is therefore affirmed.

Decree affirmed.

SHELDON, J., took no part in the decision.

1. CRIMINAL LAW-ASSAULT WITH INTENT TO KILL -ANONYMOUS LETTERS. Threatening letters, anonymously written, and received by the defendant a day or two before his commission of the assault, which he is charged to have made with intent to murder the person assaulted, though proved to have been written by the person assaulted, "furnish neither excuse nor palliation for the assault,” and are only admissible evidence for the single purpose of showing the hostile feeling of the person assaulted, and thereby affecting his credibility as a witness. Bunker v. State, S. C. Ala.; 2 Ala. L. J. 313. 2. CRIMINAL LAW UNLAWFUL ARREST.

HOMICIDE

JUSTIFICATION

If one is arrested unlawfully, he is justified in resisting, and if necessary to regain his liberty, in killing the person who restrains him. Sherman v. State, S. C. Neb., Oct. 12, 1883; 17 N. W. Rep. 115.

3. CRIMINAL LAW-INSANITY-BURDEN OF PROOFREASONABLE DOUBT.

When insanity is interposed as a defense in criminal cases, it must be established to the satisfaction of the jury by a preponderance of the evidence; and a reasonable doubt of the defendant's sanity, raised by all the evidence, does not authorize an acquittal. Ford v. State, S. C. Ala.; 16 Rep. 647. 4. CRIMINAL LAW-KEEPING HOUSE OF ILL-FAMEEVIDENCE-REPUTATION OF FREQUENTERS.

To prove that a house is one of ill-fame, the general reputation of those who are seen going into it may be proved. Drake v. State, S. C. Neb., Oct. 12, 1883; 17 N. W. Rep. 117.

5. DEED-ABSOLUTE DEED-MORTGAGE-FRAUD. A person, who executes an absolute deed to his creditor to secure a debt of $200, but states therein as a consideration the sum of $500, for the purpose of hindering other creditors, can obtain no aid from a court of equity, as against his grantee, who would otherwise be held to be an equitable mortgagee. Mundell v. Tinkiss, Can. H. Ct., Ch. Div., Sept. 29, 1883; 3 Can. L. T. 549.

6. DEED-MARRIED WOMEN-ACKNOWLEDGMENTPRESUMPTION-NOTARY'S CERTIFICATE-SEPARATE AND APART FROM HER HUSBAND.

1. It is error for the trial court to charge the jury that the certificate of acknowledgment by the notary to the deed is presumed to be correct, and it must be shown to be false by clear and conclusive proof." The word "conclusive" should not have been used. 2. "Seps rate and apart from her husband" in the statute relating to the acknowledgment of a married woman's deed, means ou

of his presence, so that he can not communicate hy word, look or motion. Belo v. Mayes, S. C. Mo., November, 1883.

7. DEED-VOLUNTARY-FRAUD UPON CREDITORSHUSBAND AND WIFE - ANTE-NUPTIAL AGREE

MENTS.

A conveyance from husband to wife, based upon an ante-nuptial agreement by which the husband agreed to secure to the wife the amount received by him from her, was based upon a sufficient consideration, and was not fraudulent as to creditors, although not made until after the husband became embarrassed, there being no allegation that the property conveyed was worth more than the husband had received from the wife. Norsworthy v. Sparks, Ky. Ct. App., Oct. 4, 1883.

8. EMINENT DOMAIN-RAILROAD IN PUBLIC HIGH

WAY.

A railroad built upon a public road is an additional burden upon the land, and the abutting owner is entitled to compensation from the company. Railroad Co. v. Ingalls, S. C. Neb., October, 1883; 16 Rep. 691.

9. EQUITY-IGNORANCE OF LAW.

If a cestui que trust through mistake of his legal rights and of the facts, assumes an obligation in respect of the estate, which he would not have assumed but for such mistake, equity will relieve. Wilson v. Ins. Co., Md. Ct. App., October Term, 1882; Reporter's Advance Sheets.

10. EQUITY-NUISANCE-INJUNCTION-REMEDY AT LAW.

Suit was brought to perpetually enjoin the defendant from so using its works as to cause smoke, soot, etc., to fall upon and envelop the neighboring premises of the complainant. Held, that in suits to enjoin a nuisance, equity would not decree relief if the plaintiff had adequate redress at law, and a greater injury would ensue by enjoining than by a refusal to enjoin. Daniels v. Keokuk, etc. Co., S. C. Ia. Oct. Term, 1883; 16 Rep. 653. 11. EQUITY-PROMISE TO EXECUTE A MORTGAGE-LIEN-FORECLOSURE.

Where a party who proeures a loan, promises to execute a mortgage on his land as security therefor, and subsequently conveys the land to another as security for certain claims, the lender may, upon payment of the amount of such claims, have the amount loaned by him made a lien on the land, to be enforced, if necessary, by a sale thereof. Walsh v. Griffith, S. C. Iowa, Sept. 21, 1883; 16 Ch. Leg. N. 42.

12. EQUITY-SALE FOR VALUABLE CONSIDERATION -FRAUD UPON CREDITORS.

When a sale appears to have been for a reasonable price, creditors must prove that not only did the vendor make such sale to hinder and defraud his creditors, but also that the vendee participated in such fraudulent intent, to render such sale void. Ryan v. Young, S. C. Mo., November, 1883.

13. EVIDENCE-DRUNKENNESS-INQUEST. The finding of an inquest of habitual drunkenness, is only prima facie evidence in proceedings to set aside a deed executed by such a person. Muskey's Appeal, S. C. Pa., Oct. 2, 1883; 16 Rep. 663.

14. EVIDENCE-JUDICIAL NOTICE-DISTANCE. The court may take judicial notice of the distance between New York and Philadelphia, but quare whether it can of the time of arrival and departure of the trains between the two points. Pearce v. Langfitt, S. C. Pa. 28 Alb. L. J. 417.

A wife who lends money to a firm of which her husband is a member, has no remedy either at law or in equity, even though the other partners have assumed all the liabilities of the firm. Towle v. Torrey, S. C. Mass. September, 1883. 6 Mass. L. R. 14.

17. INSURANCE- FIRE-SU BROGATION. Fire insurance is only a contract of indemnity. Therefore, if the insured, after receiving the amount of his loss from the insurer, consummates a sale begun before the fire occurred, and receives from the purchaser the full value of the property, the insurer is entitled to recover back the sum paid, by it. Phillips v. Howfray, Eng. Ct. App. July, 1883. 16 Rep. 575.

18. INSURANCE-LIFE-CONSTRUCTION OF POLICY. Where the words of an insurance policy are ambiguous they are to be interpreted in the sense most favorable to the assured. Burkhardt v. Ins. Co. S. C. Pa.Oct. 1, 1883. 16 Rep. 599.

19. INSURANCE-LIFE-WAGER

MENT.

POLICY-ASSIGN

When the beneficiary in a life insurance policy, who has no insurable interest in the life of the insured, assigns the policy to one who is equally without interest, who collects the amount of the policy upon the death of the insured, the representatives of the latter may recover from said assignee, the sum he received, less expenses and premiums paid by him. Gilbert v. Morse, S. C. Pa. Oct. 1, 1883. 16 Rep. 699.

20. JURISDICTION-DEVICE TO ACQUIRE-ABUSE OF

PROCESS.

Where a plaintiff for the purpose of acquiring jurisdiction in his county over a resident of another county, procured a warrant for the arrest of the defendant for an alleged criminal offense in the former county, and after he was brought into the former county,the summons in this suit was served upon him, whereupon he was discharged from arrest, such proceedings were an abuse of process; the court acquired no jurisdiction over the defendant, and the judgment obtained was void. Byler v. Jones, S. C. Mo. Nov. 1883.

21. JUROR-DISQUALIFICATION.

The fact that a juror has been a member of another jury which tried a case involving the same facts, but between different parties, does not operate as a disqualification to his serving as juror in the second case. Texas etc. R. Co. v. D'Milley, S. C. Texas, Oct. 19, 1883. 2 Texas L. R. 262.

22. LIBEL-PRIVILEGED COMMUNICATION. When a mercantile agency makes a communication to one of its subscribers who has an interest in knowing it, concerning the financial condition of another person, and when such communication is made in good faith, and under circumstances of reasonable caution as to its being confidential, it is a protected privileged communication, and an action for libel cannot be founded upon it, even though the information given thereby was not true in fact, and though the words themselves are libelous. Trussell v. Scarlett, U. S. C. C. D.M o. 19 Fed. Rep. 214.

23. LIBEL AND SLANDER-PRIVILEGED COMMUNICATION.

1. An affidavit made before a masonic society, which is trying one of its members for misconduct, that he is not to be believed under oath,is not a privileged communication. 2. Where a witness is compelled to testify, he is not responsible for his misstate. ments; but, if he volunteers evidence which is false and irrelevant, he is responsible. Nix v. Caldwell, Ky. Ct. App. October 2, 1883. 5 Ky. L. R. 275.

24. LIMITATION-PART PAYMENT BY SURETY.

A part payment by a surety before a debt is barred is not an acknowledgment which will take the residue out of the statute. Miller v. Jolly, Ky. Ct. App. Oct 10, 1883.

24. MANDAMUS-TO REINSTATE EXPELLED MEMBER OF CHURCH.

A writ of mandamus will not lie to compel a religious corporation to reinstate a member of the church who has been expelled therefrom. Sale v. Church, S. C. Iowa, Oct. 18, 1883. 16 Ch. L. N. 80.

26. MORTGAGE-SALE UNDER FORECLOSURE-DISCHARGE OF MORTGAGOR.

Where mortgaged property is sold under order of court for sufficient to pay the mortgaged debt,the mortgagor is discharged and the mortgagee must look to the purchaser at the sale, his surety on the bond and to the land. McLaughlin v. List, Ky. Ct. App. Oct. 12, 1883. 5 Ky. L. Rep. 291. 27. NEGLIGENCE-RESPONSIBILITY OF RAILROAD COMPANY FOR NEGLIGENCE OF ATTENDING SURGEON.

A railroad company having assumed to furnish a surgeon for passengers injured thereby, its duty to the plaintiff is discharged when it provides a surgeon possessing only ordinary skill; and for any damages caused the plaintiff by the negligence of such surgeon, the surgeon, and not the defendant, would be responsible. Lecord v. R. Co. U. S. C. C. D. Minn., Oct. 9, 1883; 18 Fed. Rep. 221.

28. NEGOTIABLE PAPER-DIVORCE-CONSIDERATION -ILLEGALITY.

A note given by a divorced husband to his former wife, the consideration of which is the agreement made between them before the divorce was ob tained, which related in part to the payee's release of her interest in her husband's estate, which was duly executed, is supported by a valuable consideration. although the acquiescence by the plaintiff in the obtainment of a divorce by the defendant was a partial inducement, Chapin v. Chapin, S. C. Mass., Sept. Term, 1883; 7 Mass. L. Rep., 1.

29. NEGOTIABLE PAPER

---

PARTNERSHIP NOTE GIVEN BY PARTNER FOR PRIVATE PURPOSES. When one partner permits his co-partner to purchase all goods for the firm and pledge its credit without limitation, he is liable on a note given by his copartner in the firm name, for goods purchased for his private use, to an innocent third person. Where one or two innocent persons must suffer by the act of a third person, he shall suffer, who has been the cause of the loss by the confidence and credit reposed in such third perHayner v. Crow, S. C. Mo., Nov., 1883. 30. NEGOTIABLE PAPER-SALE OF MACHINE-STIPULATION OF WARRANTY-RIGHTS OF PURCHASER. It is no defence to an action on a note given for a threshing machine that it could not do the work for which it was sold, and warranted, unless the

son.

defendant prove full compliance with the terms of the warranty, viz.: That, upon discovery of defects, he give immediate notice to his vendor and to the plaintiffs, allowing them reasonable time to remedy the defect, such condition being a condition precedent to the abandonment of the machine. Nichols v. Larkin, S. C. Mo., Nov. 1883. 31. QUANTUM MERUIT-IMPLIED PROMISE OF COMPENSATION FOR SERVICES RENDERED-CONVERSATION WITH DECEASED.

The plaintiff was taken by the defendant's testator, treated, supported and educated as a daughter, conducted herself as one in that relation, assisted his wife in her housework, and after her death, when the plaintiff was eighteen years of age, took her place and did the housework, nursing and caring for said testator during his long illness, till 1877, when she was twenty-three years of age. He executed in 1876 a will, to which she always had access by which she was to receive five hundred dollars and twenty acres of land, and his kindred the residue. The jury returned a verdict for the executor. Held, that such verdict should not be disturbed. 2. Held, that the plaintiff could not testify as to a conversation held between her and said testator, by which she expected to prove that he promised to pay her, if she would not leave him. Crowell v. Roberts, S. C. Mo., Nov., 1883. 32. REMOVAL OF CAUSES-JURISDICTION-CHECK NOT "BILL OF EXCHANGE."

1. Where it is doubtful whether this court or a state court has jurisdiction over a case, the doubt should be resolved in favor of the State court. 2. A check is not a bill of exchange, within the meaning of the first section of the removal act of 1875, and a suit brought upon a check by an indorsee against the maker cannot be removed from a State court to a circuit court of the United States, where the maker and payee are citizens of the same State. Levy v. Bank. U. S. C. C. E. D. Mo., Sept. 20, 1883; 18 Fed. Rep., 193.

33. SALE-DEVISE-ASSENT OF TESTATOR. A devisee may make a valid and binding sale of his interest under the will and that too in the testator's lifetime, providing the testator in writing obligates himself not to alter the devise. But a sale of the devise on the mere verbal assent of the testator and without his parting but the right to revoke the devise will not be binding on the devisee. Alvis v. Schlesinger, Ky.Ct. App., Sept. 20, 1883, Ky. L. Rep., 280.

35. STATUTE OF FRAUDS.

One of two joint purchasers of real estate under a verbal contract cannot take a conveyance to himself, and thereby defeat his co-purchaser's right, upon a plea that the contract between them and their vendor was not in writing, and therefore within the statute of frauds. Brown v. Brown,

S. C. App. Va., July 26. 1883; 7 Va. L. J. 687. 36. WILL SELL, CONVEY AND DISPOSE OF. A power to sell, convey and dispose of the property of the testator will not authorize a mortgage of the same to secure the repayment of a loan. Wilson v. Ins. Co., Md. Ct. App., Oct. Term, 1882. Rep. Advance Sheets.