to demand, exact and receive a larger fare, in the latter case, than the price charged for a ticket, is fully recognised by this court. In the case at bar, therefore, the appellant had the legal right to exact from the appellee for his fare between Antioch and LaGro, a larger sum of money when paid to the conductor on the train, than it would have charged him for a ticket between the same places; and when the appellee refused, as he did, to pay the fare demanded, the conductor of the train had the right, and it was his duty as a faithful servant, to put the appellee out of the cars, and off his train, at any time and at any place, on the line of the road, without reference to stations, and without actual danger to his life or person. When he refused to pay his fare, he became an intruder, a mere trespasser in the appellant's cars; and he had the rights of a trespasser and no other rights. Certainly he had no right to be carried by the appellant, without charge, to the next station.

It would seem from the record before us, that there were no intermediate stations on the appellant's road between Antioch and LaGro, only a distance of six miles intervening between said places. The appellee entered the appellant's cars at Antioch to go to LaGro, and when the conductor demanded his fare, the train was very nearly equidistant between the two places. When he refused to pay his fare, it surely was not the appellant's duty to carry him to LaGro, the place of his destination, before putting him off the train. Yet if the court's construction of said section 28 of the statute, as contained in the instruction above quoted, were the correct one, the necessary consequence would be that all railroad companies in this state could be compelled to carry all their passengers gratis to the next "usual stopping place."

It is claimed by the appellee in this case, and it was so testified by him as a witness on the trial, that he had never heard before that an extra charge was made for fare when paid on the train. It is difficult to reconcile and harmonize the appellee's evidence in this regard, with the first two paragraphs of his complaint and his evidence in support of said paragraphs. For, in those paragraphs he claimed, and his evidence tended to sustain such claim, that, within one week prior to this attempted trip from Antioch to LaGro, the appellant's conductor, on two different occasions or trips, extorted from him on the train ten cents on cach trip more than the usual or customary fare. It is difficult to believe that he had so recently suffered the loss of these two sums of ten cents each by

extortion, as he claimed, without having inquired into and ascertained, as he might easily have done, the probable cause or pretext for such alleged extortion. But, however, this may have been, it is not claimed or pretended, that he could not have readily ascertained, by proper inquiry, the rules and regulations of the appellant in regard to the purchase and price of tickets, and the payment o passenger fare on the train. If he did not know the appellant's rules on these subjects, he ought to have inquired of its agents, before he became a passenger on its cars. It is not claimed that he did not have an abundance of time and ample opportunities to make all proper inquiries and purchase a ticket of the appellant's agent at Antioch before he entered the cars. Having failed to purchase a ticket, or to ascertain the rules of the appellant in regard to the payment of passenger fare on the train, he was in fault; and when the conductor demanded of him ten cents more than what he supposed was the regular fare, he should have paid the money and investigated the matter afterwards. Upon his refusal to pay his fare, the conductor was fully authorized and justified, as we have already said, in putting him out of the cars and off the train, at any place not dangerous to his life or limbs.

For the reasons given, we are of opinion that the court's instruction, above set out, to the jury trying the cause, was erroneous and ought not to have been given; and on this ground, a new trial ought to have been granted.

Another cause for a new trial, assigned by the appellant, was that the damages were excessive. We have already said, that on the appellee's evidence, and under the instructions of the court, the jury could not have assessed the appellee's damages, on the first two paragraphs of his complaint, at a sum in excess of twenty cents. We are bound to conclude, therefore, that the residue of the damages, to wit, the sum of $499.80 was assessed by the jury, in appellee's favor, for and on account of the matters stated in the third paragraph of his complaint. In his evidence, the appellee gave in substance the following account of the matters, for which the jury assessed his damages in the sum last named: On a summer evening in the month of August 1873, at a point on the appellant's road between Antioch and LaGro, at the request of the conductor of a passenger train on said road, he, the appellee, having refused to pay his fare, stepped out of and off the appellant's cars. From that point he walked on the tow-path to the town of LaGro, a dis

tance of about three and one-half miles. The appellee did not state in his evidence that the weather was unpleasant or disagreable, from any cause, or that the tow-path was in bad condition, in any way; nor did he claim that he had been injured, sickened or even fatigued by his evening walk.

We need not and will not dwell upon the question; for it seems to us, that the bare statement of this matter, as the appellee has stated it in his evidence. is convincing and conclusive proof that the damages were excessive. This cause was well assigned, and for it, we think a new trial ought to have been granted. (The remainder of the opinion was upon a point not of general interest.) Judgment reversed.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF THE UNITED STATES.1

COURT OF CHANCERY OF NEW JERSEY.2
SUPREME COURT OF OHIO.3

SUPREME COURT OF ILLINOIS.*

SUPREME COURT OF WISCONSIN.5

AGENT.

Deposit in Bank-Liability for Loss.-An agent who deposits money of his principal to his own credit in a bank, without the principal's consent, takes all the risk of such deposit: Sargeant v. Downey, 49 Wis.

ASSIGNMENT. See Vendor and Vendee.

BANKRUPTCY

Assumption of Firm Debt by Partner-Subsequent discharge in Bankruptcy-New promise to Co-partner to pay the Debt.-Where one of two former partners is under obligations to the other to pay a partnership debt, his discharge in bankruptcy, though obtained in pursuance of a composition with his creditors, including the creditor of the former firm, while it relieves him from his obligation to his former partner to pay the firm debt, does not discharge such former partner from liability for the unpaid balance of such debt; and a new promise by the bank

'Prepared expressly for the American Law Register, from the original opinions filed during Oct. Term 1879. The cases will probably be reported in 10 or 11 Otto. 2 From Hon. John H. Stewart, Reporter; to appear in 32 N. J. Eq. Reports. 3 From E. L. De Witt, Esq., Reporter; to appear in 35 Ohio St. Reports. 4 From Hon. N. L. Freeman, Reporter; to appear in 95 Illinois Reports. 5 From Hon. O. M. Conover, Reporter; to appear in 48 or 49 Wis. Reports.

rupt to his co-debtor, made pending the bankruptcy proceedings or afterwards, to pay such balance, is binding: Hill v. Trainer, 49 Wis.

Writ of Error-Substitution of Assignee.—After an adjudication in bankruptcy, the assignee of the bankrupt is the proper party to bring a writ of error to reverse a decree against the bankrupt, and he alone can do it, and where the writ has been sued out before by the bankrupt, his assignee, after the adjudication, may be substituted as a party, and prosecute the writ of error in his name: Jenkins v. Greenbaum, 95 Ills.

BILLS AND NOTES. See Husband and Wife.

Place of Payment—Address of Drawee on Bill-Protest.-Where a bill of exchange is directed to a drawee at a particular place and is accepted by him without explanation or condition, such place is the place of payment, although the drawee resides elsewhere: Cox v. National Bank of N. Y., S. C. U. S., October Term 1879.

It makes no difference in this respect, that the place is a city, and that no mention is made of any dwelling or place of business where the bill should be presented; Id.

After due endeavor and failure to find the acceptor or his place of business, a protest made at such city at the only place where the acceptor was known to transact business is sufficient: Id.

Interest-Days of Grace —On mere instalments of interest, the debtor is not entitled to days of grace: Macloon v. Smith, 49 Wis.

CONFLICT OF Laws. See United States Courts.

CONSTITUTIONAL LAW.

Municipal Corporation-Right to maintain Wharves on navigable Waters and collect Wharfage-A municipal corporation, owning improved wharves and other artificial means which it has provided and maintains, at its own cost, for the benefit of those engaged in commerce upon the public navigable waters of the United States, is not prohibited by the national constitution from charging and collecting from those using its wharves and facilities, such reasonable fees as will fairly remunerate it for the use of the property. Packet Co. v. Keokuk, 95 U. S. 88, affirmed: N. W. Union Packet Co. v. St. Louis, S. C. U. S., October Term 1879.

CORPORATION. See Taxation.

Answer by-Acts of De facto Officers-Determination of validity of Election in collateral Suit.-When a change occurs in the officers of a corporation between the time it is brought into court and the time when its answer is filed, the answer must be filed by the persons who are officers at the time of the filing: The Mechanics' National Bank of Newark v. The H. C. Burnett Manufacturing Company, 32 N. J. Eq. The acts of the de facto officers of a corporation are valid, so far, at least, as they create rights in favor of third persons: Id.

A de facto officer is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law: Id.

It is no defence to a suit brought by the de facto officers of a corporation that they were not legally elected: Id.

A court of equity has no authority to determine the validity of the

election of the officers of a private corporation, and pronounce judgment of amotion, but when the question of the validity of such an election necessarily arises in the determination of a suit properly cognisable by a court of equity, it will determine it, as it would any other question of law or fact necessary to be decided to settle the rights of the parties: Id.

CRIMINAL LAW.

Evidence-Dying Declarations.-The general rule of evidence is, that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declarations: The State of Ohio v. Harper, 35 Ohio St.

Forgery-Evidence-Presumption of Intent-Flight of AccusedComments of State's Attorney outside of the Evidence. It is necessary to prove, on the trial of one indicted for forgery, an attempt to defraud the person named in the indictment as intended to be defrauded. This intent may be clearly shown by proof of uttering the forged instrument, and if not passed, circumstantial evidence: Fox v. The People, 95 Ill.

Evidence of statements or admissions in reference to the note for the forgery of which the person accused is being tried are admissible, but what he has said of another note said to have been forged is not admissible to prove the charge on which he is being tried: Id.

There is no presumption of law of an intent to defraud from proof that the accused has actually forged a note on another person when he has not uttered the same, but this is a question of fact for the jury to find from the evidence, as, his possession of the same and the surrounding circumstances. The possession of the forged paper, while evidence tending to prove a fraudulent intent, is not conclusive. The circumstances may clearly repel any presumption of guilt: Id.

It is error to instruct a jury, on the trial of one for an alleged crime, that his flight is evidence of guilt. It is only evidence tending to prove guilt. Nor should the court tell the jury that if flight was proved, it must be satisfactorily explained consistent with the innocence. of the accused. This might be understood as requiring him to prove an innocent purpose beyond doubt: Id.

It is the duty of the court, on the trial of one when his life or liberty is involved, to stop the state's attorney in his closing argument, when he assumes facts not proved and urges them for a conviction. Such conduct is unfair to the accused, and he should be protected by the court. When such unfairness is gross, a judgment of conviction, in a doubtful case, should be reversed: Id.

DEBTOR AND CREDITOR. See Sheriff's Sale.

DIVORCE.

Desertion of Wife-Willingness to return.-If a wife deserts without cause, and afterwards realizes that she has acted foolishly, and would return if the way was opened for her, but her husband refrains from doing anything to induce her to return, for the purpose of making her absence a ground of divorce, her desertion is not obstinate: Trall v. Trall, 32 N J. Eq.