suit, if it is heard in public, has ever been considered of itself a ground for hearing a case in private. Appended to the report is a summary of the fifteen cases (arranged in chronological order) bearing upon the matter, and of which the following is a list: Lord Portsmouth's Case, Coop. G. 106, Lord Eldon (1815); Ogle v. Brandling, 2 R. & My. 688, Lord Chancellor Brougham (1831); Barnett v. Barnett, 29 L. J. P. & M. 28, Sir C. Cresswell (1859-60); H. v. C., id. 29; 1 Sw. & T. 605 (1869); Bickett v. Morris, L. R., 1 Sc. & Div. App. 47 (1874); C. v. C. & R., L. R., 1 P. M. & A. 640; Pisani v. A. G. for Gibraltar, L. R., 5 P. C. 516; A. v. R., 22 W. R. 512; A. v. A., L. R., 3 P. & M. 3, 230 (1875); Andrew v. Raeburn, L. R., 9 Ch. App. 522 (1876); Nagle-Gilloran v. Christopher, 4 Ch. Div. 173 (1883); Badische Anilin v. Levinstein, 24 id. 156 (1885); Mellor v. Thompson, 31 id. 55; Macdougal v. Knight, 14 App. Cas. 206; Malan v. Young (1889).

The Green Bag for June has a beautiful portrait of the late Judge Campbell, of Michigan, with an excellent biographical sketch of him by Judge Brown. (We should not call him "Mr. Justice Campbell," for that is the term by courtesy applied only to justices of the Federal Supreme Court.) He seems to have been a most admirable character.

An

which the decision will turn." In 20 ALBANY LAW JOURNAL, 120, may be found an account of a similar dispute, which arose at Issoudun, where the finder sold the aërolite to a museum for 250 francs, and the land owner sued for 10,000 francs damages. In 15 ALBANY LAW JOURNAL, 216, and 16 id. 76, may be found an account of one found in Iowa, for which the finder brought replevin against the landowner, and was defeated. In speaking of the French case, our learned and esteemed friend, Mr. R. D. McGibbon, of Montreal, in 20 ALBANY LAW JOURNAL, 299, cites from Marcedé an account of one found in France in 1842, which was held by the court to belong to the finder, and of which Marcedé observes: "One can hardly conceive how an advocate could have been found to entertain the contrary opinion." This was an extension of the civil-law theory that a "thesaurus" belongs half to the finder and half to the land-owner. The common-law theory must be the reverse, and this heavenly visitant must belong wholly to the landowner, as much as water or ice or minerals,

The Marriage and Divorce Commission of this State seem to have a very serious piece of work cut out for them to devise some scheme of compromise between the different States in respect to the just causes for divorce. There are forty-two now existing. Between the no-cause of South Carolina or the one cause of New York and the fourteen of New Hampshire there is room for a good deal of

Of an aerolite which recently fell in Iowa, the American Law Review says: "The largest fragment was buried three feet under ground, and was too hot to handle when uncovered. It weighed seventy pounds. The finder sold it for $100, but the owner of the land laid claim to it, replevined it from the purchaser, and the prospect is favorable for a long lawsuit over this strange visitor. This is the first instance which has come to our knowledge of replevin being brought to recover possession of one of the heavenly bodies. The question to whom such a strange visitant belongs, when it descends upon the earth like Lucifer, Son of the Morning, is certainly a curious judicial question. Does it belong to the owner of the land upon which it alights? If so, upon what principle? In this case, as the largest fragment was buried three feet under ground, the plaintiff might well contend that it had become thereby a part of his land, and that when it was, by the tortious act of the defendant, severed from the

soil, it was converted from real into personal property; but without changing the plaintiff's proprietary right to it. The plaintiff will probably recover, and this will probably be the ground on

into giving up perhaps eight or ten, but would New York be willing to concede another cause, or at all events more than one other

gross and confirmed intoxication? Mr. Dike, the greatest authority in the world on this subject, thinks that a National law, if it were possible to procure one, would be of small avail. He says: "As a means of lessening the number of divorces in the whole country, apparently a uniform law, such as either Congress or the States acting by themselves would give us, would hardly do much good. It would secure a uniform status for the married and divorced, and take away some present incentives to migration for divorce. But the disturbance to the balance of powers now existing between Congress and the States; the risks of general legislation to meet a specific evil (as for example a uniform marriage law to meet the polygamy of Utah); the difficulties in the way of uniformity by agreement of the separate State Legislatures; the need of profound study of the social problems involved in any permanent plan of marriage and divorce law; the growing desirability of some degree of international uniformity; and last, though by no means least, the necessity in a democracy of first working out in popular thought some true theory of the solution- these make the whole problem one of great perplexity and one that demands profound study. I do not see how an intelligent person can now give the special problem of uniformity any thing more than a subordinate place in the subject as a whole."

As Vacation is opening, we have engaged a poet to discourse upon it. In another column our good Troy poet- not gray however - Mr. Frank J. Parmenter, sings very beautifully about "A Lawyer and His Vacation." This tender and touching utterance must find its way to the heart of every lawyer who is not "fit for treason, stratagems and spoils."

NOTES OF CASES.

IN McClung v. Dearborne, Supreme Court of Penn

sylvania, April 28, 1890, it was held that one who sends his servant to take personal property from the possession of another, who claims to own it, is responsible in damages for an assault and battery committed by the servant in gaining possession of the property, though he had instructed his servant not to assault any one, and not to break the law. The court said: "The general doctrine laid down by the learned judge, that every man is liable for his own trespass only, must not be taken too literally; for one must be held to do that which he procures or directs another to do for him, as well as that which he does in his own person. Qui facit per alium, facit per se. Servants and employees are often without the means to respond in damages for the injuries they may inflict on others by the ignorant, negligent or wanton manner in which they conduct the business of their employer. The loss must be borne in such cases by the innocent sufferer, or by him whose employment of an ignorant, careless or wanton servant has been the occasion of the in

jury; and under such circumstances it is just

that the latter should bear the loss. But the master is not liable for the independent trespass of his servant. If a coachman, while driving along the street with his master's carriage, sees one against whom he bears ill-will at the side of the street, and leaves the box to seek out and

assault him, the master would not be liable. Such an act would be the willful and independent act of

the coachman. It was done while in his master's

service, but not in the course of that service. But if the coachman sees his enemy sitting on the box of another carriage, driving along the same highway, and he so guides his own team as to bring the carriages into collision, whereby injury is done, the master is liable. The coachman was hired to drive his master's horses. He was doing the work he was employed to do, and for the manner of his doing it the master was liable. Wood Mast. & Serv., § 277. It would be no defense to the master to prove that he had given his coachman orders to be careful and not drive against others. It was his duty not only to give such orders, but to see that they were obeyed. It will be seen therefore that it is the character of the employment, and not the private instructions given by the master to his servant, that must determine the measure of his liability in any given case. An excellent illustration is afforded by the case of Garretzen v. Duenckel, 50 Mo. 104; S. C., 11 Am. Rep. 405. * * * In the case now be

fore us, Dearborne sent Fox and his helpers to the house of McClung for the purpose of seizing and bringing away the organ. He says: 'I told him to take the men and team when he was ready, and to bring the organ in, but to be careful and not to have any row about it.' Black, who drove the team, testifies: Mr. Dearborne told Fox to go down and get this organ on South Sixteenth street; to get it as peaceable as possible, and not to have any assault and battery or any disturbance whatever.' These directions show that Dearborne knew that the errand on which he sent his employees was one that was likely to result in trouble, and would require to be managed with great coolness and care, in order to avoid collision and a breach of the peace. But however the rule may be held in regard to the criminal liability of the master under such circumstances it is very clear that he cannot escape liability civilly by virtue of his instructions to his servant as to the manner of doing an act which the servant is to undertake on his behalf. He knew that the invasion of McClung's house in the manner contemplated was likely to excite indignation and resistance on the part of the inmates, and that what ought to be done might have to be determined under excitement, and without time for consultation or reflection by his employees. Under such circumstances he puts them in his own stead, and he is bound by what they do in the effort to do the thing which was committed by them. Sanford v. Railroad Co., 23 N. Y. 343; Railway Co. v. Rosenzweig, 113 Penn. St. 519; Railroad Co. v. Donahue, 70 id. 119; Hays v. Millar, 77 id. 238; Garretzen v. Duenckel, supra. The defendant was bound not only to give proper instructions to his servants when sending them on such an errand,

but he was bound to see that his instructions were obeyed. In the leading English case of Seymour v. Greenwood, 6 Hurl. & N. 359 (referred to at some length in Wood Mast. & Serv., § 297), it is said: 'If the act is done within the scope of the servant's employment, and is done in the master's service, an action lies against the master, and he is liable, even though he has directed the servant to do nothing Here Fox and his helpers were sent to bring away the organ. The acts complained of were wrong.' committed in the course of, and as a means to, the

accomplishment of that for which they were sent. Let it be conceded that they were instructed to do no wrong, and that they did what they were warned not to do. The master is nevertheless liable. When he sends them upon an errand that exposes them to resistance and danger, and the excitements consequent upon the presence of such a state of things, he must take the chances of their self-control and expensive, he may conclude to respect the homes of ability to obey. If he finds the risk inconveniently inoffensive citizens, and rely on his legal remedies for the recovery of any property to which he may claim title hereafter."

In State v. Tutty, 41 Fed. Rep. 753, it was held by Speer, J., that marriage is not a contract within the constitutional provision forbidding States to im

the coupons sued on are for interest which accrued January 1, 1880. The grounds of the action are stated in the petition as follows: "Your petitioner avers that by the issue of said bonds and coupons said State contracted with and agreed to pay the bearer thereof the principal sum of said bonds forty years from the date thereof, to-wit, the 1st day of January, 1874, and to pay the interest thereon represented by coupons as aforesaid, including the coupons held by your petitioner, semi-annually upon the maturity of said coupons; and said Legislature, by an act approved January 24, 1874, proposed an amendment to the Constitution of said State, which was afterward duly adopted, and is as follows, to-wit: No. 1. The issue of consolidated bonds, authorized by the General Assembly of the State at its regular session in the year 1874, is hereby declared to create a valid contract between the State and each and every holder of said bonds, which the State shall by no means and in no wise impair. The said bonds shall be a valid obligation of the State in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof or the levy and collection of the tax therefor. To secure such levy, collection and payment the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the State to the holders of said bonds as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment, and collection and for such payment from the treasury.' And petitioner further avers that, notwithstanding said solemn compact with the holders of said bonds, said State hath refused and still refuses to pay said coupons held by petitioner, and by its Constitution, adopted in 1879, ordained as follows: That the coupons of said consolidated bonds falling due the 1st of January, 1880, be, and the same is hereby, remitted, and any interest taxes collected to meet said coupons are hereby transferred to defray the expenses of the State government;' and by article 257 of said Constitution also prescribed that the Constitution of this State, adopted in 1868, and all amendments thereto, is declared to be superseded by this Constitution;' and said State thereby undertook to repudiate her contract obligations aforesaid, and to prohibit her officers and agents executing the same, and said State claims that by said provisions of said Constitution she is relieved from the obligations of her aforesaid contract, and from the payment of said coupons held by petitioner, and so refuses payment thereof, and has prohibited her officers and agents making such payment. Petitioner also avers that taxes for the payment of the interest upon said bonds due January 1, 1880, were levied, assessed and collected, but said State unlawfully and wrongfully diverted the money so collected, and appropriated the same to payment of the general expenses of the State, and has made no other provision for the payment of said interest. Petitioner also avers that said provisions of said Constitution are in contravention of said contract, and their adoption was an active violation thereof, and that said State thereby sought to impair the validity thereof with your petitioner, in violation of article 1, section 10, of the Constitution of the United States, and the effect so given to said State Constitution does impair said contract. Wherefore petitioner prays that the State of Louisiana be cited to answer this demand, and that after due proceedings she be condemned to pay your petitioner said sum of ($87,500) eighty-seven thousand five hundred dollars, with legal interest from January 1, 1880, until paid, and all costs of suit; and petitioner prays for general relief."

A citation being issued, directed to the State, and

served upon the governor thereof, the attorney-general of the State filed an exception, of which the following is a copy, to-wit: "Now comes defendant, by the attorney-general, and excepts to plaintiff's suit, on the ground that this court is without jurisdiction ratione persona. Plaintiff cannot sue the State without its permission; the Constitution and laws do not give this honorable court jurisdiction of a suit against the State; and its jurisdiction is respectfully declined. Wherefore respondent prays to be hence dismissed, with costs, and for general relief." By the judgment of the court this exception was sustained, and the suit was dismissed. See Hans v. Louisiana, 24 Fed. Rep. 55. To this judgment the present writ of error is brought; and the question is presented whether a State can be sued in a Circuit Court of the United States by one of its own citizens upon a suggestion that the case is one that arises under the Constitution or laws of the United States.

The ground taken is that under the Constitution, as well as under the act of Congress passed to carry it into effect, a case is within the jurisdiction of the Federal courts, without regard to the character of the parties, if it arises under the Constitution or laws of the United States, or, which is the same thing, if it necessarily involves a question under said Constitution or laws. The language relied on is that clause of the third article of the Constitution, which declares that "the judicial power of the United States shall extend to all ases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;" and the cor responding clause of the act conferring jurisdiction upon the Circuit Court, which, as found in the act of March 3, 1875, is as follows, to wit: That the Circuit Courts of the United States shall have original coguizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, * * * arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority." It is said that these jurisdictional clauses make no exception arising from the character of the parties, and therefore that a State can claim no exemption from suit, if the case is really one arising under the Constitution, laws or treaties of the United States. It is conceded that, where the jurisdiction depends alone upon the character of the parties, a controversy between a State and its own citizens is not embraced within it; but it is contended that, though jurisdiction does not exist on that ground, it nevertheless does exist if the case itself is one which necessarily involves a Federal question; and, with regard to ordinary parties, this is undoubtedly true. The question now to be decided is whether it is true where one of the parties is a State, and is sued as a defendant by one of its own citizens.

That a State cannot be sued by a citizen of another State, or of a foreign State, on the mere ground that the case is one arising under the Constitution or laws of the United States, is clearly established by the decisions of this court in several recent cases. Louisiana v. Jumel, 107 U. S. 711; Hagood v. Southern, 117 id. 52; In re Ayers, 123 id. 443. Those were cases arising under the Constitution of the United States, upon laws complained of as impairing the obligation of contracts, one of which was the constitutional amendment of Louisiana, complained of in the present case. Relief was sought against State officers who professed to act in obedience to those laws. This court held that the suits were virtually against the States themselves, and were consequently violative of the eleventh amendment of the Constitution, and could not be maintained. It was not denied that they presented cases arising un、 der the Constitution; but, notwithstanding that, they were held to be prohibited by the amendment referred to.